EXHIBIT
10.19
ALLERGAN, INC.
SUPPLEMENTAL EXECUTIVE BENEFIT PLAN
and
SUPPLEMENTAL RETIREMENT INCOME PLAN
Effective as of January 1, 2005
RESTATED 2008
ARTICLE
I
INTRODUCTION
1.1. Plans
. Allergan, Inc., a Delaware corporation (the
“Sponsor”) currently sponsors the Allergan, Inc.
Supplemental Retirement Income Plan (“SRIP”) and the
Allergan, Inc. Supplemental Executive Benefit Plan
(“SEBP”) (collectively, the “Plans”).
Unless otherwise specified, a reference to the “Plan”
shall refer to both Plans.
1.2. Amendment and
Restatement of the Plan . This document, made and
entered into by the Sponsor, evidences the terms of both the SRIP
and the SEBP, effective as of January 1, 2005, unless
otherwise stated in the Plan.
1.3. Applicability of Code
Section 409A . With respect to benefits
accruing or vesting under the Plan after December 31, 2004
(the “Section 409A Benefits”), it is intended that the
provisions of the Plan be construed in accordance with Code
Section 409A, the Treasury regulations, and other guidance
issued thereunder. With respect to benefits accrued and vested
under the Plan on or before December 31, 2004 (the
“Grandfathered Benefits”), it is intended that the
general terms of the Plan in effect on October 3, 2004 shall
govern such benefits, provided that such terms may be amended by
this document to the extent that such amendment does not constitute
a material modification under Code Section 409A. Unless
otherwise specified, all provisions of the Plan shall apply to both
Section 409A Benefits and Grandfathered Benefits.
1.4. Purpose of Plan
. The purpose of the Plan is to provide certain
supplemental retirement benefits to a select group of officers,
management, and other highly compensated employees of the Sponsor
and its Affiliated Companies as more fully provided herein.
1.5. Effective Date and
Term . The Plan was established by the Board of
Directors of the Sponsor effective as of July 27, 1989 and
shall continue in effect until terminated by the Board of
Directors.
1.6. Participation
. Participation in the Plan shall be open to all
Eligible Employees.
(a) For purposes of the
SRIP, “Eligible Employees” means employees of the
Sponsor or any Affiliated Company whose benefits under the Pension
Plan are limited by reason of Code Section 415 and who
(i) are not classified or paid as independent contractors
(regardless of their classification for federal tax or other legal
purposes) by the Sponsor or an Affiliated Company, and (ii) do
not perform services for the Sponsor or an Affiliated Company
pursuant to an agreement between the Sponsor or an Affiliated
Company and any other person including a leasing organization.
(b) For purposes of the
SEBP, “Eligible Employees” means employees of the
Sponsor or any Affiliated Company whose benefits under the Pension
Plan are limited by reason of the includible compensation
limitation of Code Section 401(a)(17) and who (i) are not
classified or paid as independent contractors (regardless of their
classification for federal tax or other legal purposes) by the
Sponsor or an Affiliated Company, and (ii)
- 1 -
do not perform services for the Sponsor or an Affiliated Company
pursuant to an agreement between the Sponsor or an Affiliated
Company and any other person including a leasing organization.
1.7. Applicability of
ERISA .
(a) The SRIP is intended
to be an unfunded “excess benefit plan” within the
meaning of Section 4(b)(5) of ERISA.
(b) The SEBP is intended
to be a “top-hat” plan -- that is, an unfunded plan
maintained primarily for the purpose of providing deferred
compensation to a select group of management or highly compensated
employees within the meaning of ERISA.
1.8. Spin-Off of Advanced
Medical Optics, Inc. In connection with the
distribution of the stock of Advanced Medical Optics, Inc.
(“AMO”) by Allergan to its stockholders (the “AMO
Spin-Off”) and, effective as of the AMO Spin-Off Date:
(i) AMO Employees shall cease to be eligible to participate in
the Plan and shall cease to accrue benefits under the Plan, and
(ii) the assets attributable to, and the liabilities relating
to, arising out of, or resulting from the benefits of AMO Employees
shall remain with the Plan and shall be payable from the Plan to
AMO Employees at such times and in such forms as permitted under
the Plan. The “AMO Spin-Off Date” shall be
June 29, 2002 and “AMO Employees” shall be those
individuals whose employment is transferred from Allergan to AMO in
connection with the AMO Spin-Off, as reflected in the payroll
records of Allergan or in the Employee Matters Agreement entered
into between Allergan and AMO.
ARTICLE II
DEFINITIONS
2.1. Affiliated Company
. “Affiliated Company” means any affiliate
of the Sponsor which has adopted the Pension Plan as provided
therein.
2.2. Board; Board of
Directors . “Board” and “Board of
Directors” each mean the board of directors of the
Sponsor.
2.3. Code
. “Code” means the Internal Revenue Code of
1986, as amended.
2.4. Committee
. “Committee” means the committee authorized
to administer the Plan as set forth in Section 3.1 hereof.
2.5. Effective Date
. “Effective Date” means July 27,
1989.
2.6. ERISA
. “ERISA” means the Employee Retirement
Income Security Act of 1974, as amended.
2.7. Grandfathered
Benefits . “Grandfathered Benefits”
means those benefits accrued and vested under the Plan on or before
December 31, 2004, as provided in Section 1.3 hereof.
- 2 -
2.8. Key Employee
. “Key Employee” means any Participant who
is an officer or a Grade 11E Vice President of Sponsor or any
Affiliated Company.
2.9. Participant
. “Participant” means any Eligible Employee
of the Sponsor or any Affiliated Company as defined under
Section 1.6 hereof.
2.10. Pension Plan
. “Pension Plan” means the Allergan, Inc.
Pension Plan as it may be amended from time to time.
2.11. Plan
. “Plan” means both the Allergan, Inc.
Supplemental Retirement Income Plan and the Allergan, Inc.
Supplemental Executive Benefit Plan as each is amended and restated
herein and as each may be amended from time to time, unless
otherwise specified herein to mean only one or the other.
2.12. Section 409A Benefits
. “Section 409A Benefits” means those
benefits accruing and/or vesting under the Plan after
December 31, 2004, as provided in Section 1.3 hereof, and
thus subject to Code Section 409A.
2.13. Sponsor
. “Sponsor” means Allergan, Inc., a Delaware
corporation.
2.14. Termination
. “Termination” means the termination of a
Participant’s employment with the Sponsor and any Affiliated
Company for any reason whatsoever, whether voluntary or
involuntary.
2.15. Termination Date
. “Termination Date” means, with respect to
any Participant, the effective date of such Participant’s
Termination.
ARTICLE III
ADMINISTRATION OF THE PLAN
3.1. Administration By
Committee . The Plan shall be administered by the
same committee (the “Committee”) which is appointed to
administer the Pension Plan. A member of the Committee may be a
Participant in the Plan, provided, however, that any action to be
taken by the Committee, solely with respect to the particular
interest in the Plan of a Committee member who is also a
Participant in the Plan shall be taken by the remaining members of
the Committee.
3.2. Committee Authority,
Rules and Regulations . The Committee shall have
discretionary authority to (i) make, amend, interpret and
enforce all appropriate rules and regulations for the
administration of the Plan, (ii) decide or resolve any and all
questions, including interpretations of the Plan, as may arise in
connection with the Plan, and (iii) take or approve all such
other actions relating to the Plan (other than amending the Plan,
except as provided in Section 6.6, or terminating the Plan);
provided, however, that the Board may, by written notice to the
Committee, withdraw all or any part of the Committee’s
authority at any time, in which case such withdrawn authority shall
immediately revest in the Board. The decision or action of the
Committee in respect of any question arising out of or in
connection with the administration, interpretation and application
of the Plan and the rules and regulations
- 3 -
promulgated hereunder
shall be final, conclusive and binding upon all persons having any
interest in the Plan.
3.3. Appointment of
Agents . In the administration of the Plan, the
Board and/or the Committee may from time to time employ agents
(which may include officers and/or employees of the Sponsor or any
Affiliated Company) and delegate to them such administrative duties
as it sees fit and may from time to time consult with counsel who
may be counsel to the Sponsor or any Affiliated Company.
3.4. Application For
Benefits . The Committee may require any person
claiming benefits under the Plan to submit an application therefor,
together with such documents and information as the Committee may
require. In the case of any person suffering from a disability
which prevents such person from making personal application for
benefits, the Committee may, in its discretion, permit application
to be made by another person acting on his or her behalf.
Notwithstanding the foregoing, if the Committee shall have all
information necessary to determine the amount and form of Plan
benefits payable to a Participant or Beneficiary who is entitled to
benefit payments under the Plan (including, to the extent
applicable and without limiting the generality of the foregoing,
the name, age, sex and proper mailing address of all parties
entitled to benefit payments), then the failure of a Participant or
Beneficiary to file an application for benefits shall not cause the
Committee to defer the commencement of benefit payments beyond the
benefit commencement date required under the Plan.
3.5. Claims Procedures
. If a person is required by the Committee to submit an
application for benefits under Section 3.4 or if a Participant
or her Beneficiary believes that he or she is being denied any
rights or benefits under the Plan, the Participant, Beneficiary, or
in either case, his or her authorized representative (the
“Claimant”) shall follow the administrative procedures
for filing a claim for benefits as set forth in this Section. An
application for benefits or a claim for benefits shall be in
writing and shall be reviewed by the Committee or a claims official
designated by the Committee. The Committee or claims official shall
review a claim for benefits in accordance with the procedures
established by the Committee subject to the following
administrative procedures set forth in this Section.
(a) The Committee shall
furnish the Claimant with written or electronic notice of the
decision rendered with respect to a claim for benefits within
90 days following receipt by the Committee (or its delegate)
of the claim unless the Committee determines that special
circumstances require an extension of time for processing the
claim. In the event an extension is necessary, written or
electronic notice of the extension shall be furnished to the
Claimant prior to the expiration of the initial 90 day period.
The notice shall indicate the special circumstances requiring an
extension of time and the date by which a final decision is
expected to be rendered. In no event shall the period of the
extension exceed 90 days from the end of the initial
90 day period.
(b) In the case of a
denial of the Claimant’s claim, the written or electronic
notice of such denial shall set forth (i) the specific reasons
for the denial, (ii) references to the Plan provisions upon
which the denial is based, (iii) a description of any
additional information or material necessary for perfection of the
claim (together with an
- 4 -
explanation why such material or information is necessary),
(iv) an explanation of the Plan’s appeals procedures
and, if applicable, (v) a statement of the Claimant’s
right to bring a civil action under Section 502(a) of ERISA if
his or her claim is denied upon appeal.
(c) In the case of a
denial of a claim, a Claimant who wishes to appeal the decision
shall follow the administrative procedures for an appeal as set
forth in Section 3.6 hereof.
3.6. Appeals Procedures
. A Claimant who wishes to appeal the denial of his or
her claim for benefits shall follow the administrative procedures
for an appeal as set forth in this Section and shall exhaust such
administrative procedures prior to seeking any other form of
relief. Appeals shall be reviewed in accordance with the procedures
established by the Committee subject to the following
administrative procedures set forth in this Section.
(a) In order to appeal a
decision rendered with respect to his or her claim for benefits, a
Claimant must file an appeal with the Committee in writing within
60 days following his or her receipt of the notice of denial
with respect to the claim.
(b) The Claimant’s
appeal may include written comments, documents, records and other
information relating to his or her claim. The Claimant may review
all pertinent documents and, upon request, shall have reasonable
access to or be provided free of charge, copies of all documents,
records, and other information relevant to his or her claim.
(c) The Committee shall
provide a full and fair review of the appeal and shall take into
account all claim related comments, documents, records, and other
information submitted by the Claimant without regard to whether
such information was submitted or considered under the initial
determination or review of the initial determination. Where
appropriate, the Committee will overturn a notice of denial if it
determines that an error was made in the interpretation of the
controlling plan documents or if the Committee determines that an
existing interpretation of the controlling plan documents should be
changed on a prospective basis. In the event the Claimant is a
member of the Committee or, as determined by the Committee, the
Claimant is a subordinate to a member of the Committee, such
individual shall recuse himself or herself from the review of the
appeal.
(d) The Committee shall
furnish the Claimant with written or electronic notice of the
decision rendered with respect to an appeal within 60 days
following receipt by the Committee of the appeal unless the
Committee determines that special circumstances require an
extension of time for processing the appeal. In the event an
extension is necessary, written or electronic notice of the
extension shall be furnished to the Claimant prior to the
expiration of the initial 60 day period. The notice shall
indicate the special circumstances requiring an extension of time
and the date by which a final decision is expected to be rendered.
In no event shall the period of the extension exceed 60 days
from the end of the initial 60 day period.
- 5 -
(e) In the case of a
denial of an appeal, the written or electronic notice of such
denial shall set forth (i) the specific reasons for the
denial, (ii) references to the Plan provisions upon which the
denial is based, (iii) a statement that the Claimant is
entitled to receive, upon request and free of charge, reasonable
access to, and copies of, all documents, records, and other
information relating to his or her claim for benefits and, if
applicable, (iv) a statement of the Claimant’s right to
bring a civil action under Section 502(a) of ERISA.
ARTICLE IV
BENEFITS
4.1. Determination of
Benefits .
(a) For the SRIP, except
as provided in Article V hereof, the supplemental retirement
benefit payable to any Participant under the Plan shall be
determined as of such Participant’s Termination Date and
shall be an amount equal to the excess (if any) of (i) the
retirement benefit to which such Participant would be entitled
under the Pension Plan if his or her retirement benefit under the
Pension Plan were determined without regard to the limits imposed
by Code Section 415 over (ii) the retirement benefit to
which such Participant is actually entitled under the Pension
Plan.
(b) For the SEBP, except
as provided in Article V hereof, the supplemental retirement
benefit payable to any Participant under the Plan shall be
determined as of such Participant’s Termination Date and
shall be an amount equal to the excess (if any) of (i) the
retirement benefit to which such Participant would be entitled
under the Pension Plan if his or her retirement benefit under the
Pension Plan were determined without regard to the limits imposed
by Code Sections 401(a)(17) and/or 415, over (ii) the
retirement benefit to which such Participant would be entitled
under the Pension Plan if his or her benefit under the Pension Plan
were determined without regard to the limits imposed by Code
Section 415.
Benefits under the Plan shall be calculated by including any
additional service credit a Participant may be awarded in a
separate written agreement between the Participant and the
Sponsor.
4.2. Time and Form of
Benefit Payments for Grandfathered Benefits . Except
as provided in Article V hereof or as provided in Section 4.5
hereof, a Participant’s Grandfathered Benefits under this
Plan as determined pursuant to Section 4.1 hereof shall be
paid to the Participant in the same form and at the same time, and
shall be calculated under the same actuarial assumptions, as the
Participant’s benefits under the Pension Plan. For example,
if a Participant were entitled to monthly benefit payments under
the Pension Plan, the Participant’s benefit under this Plan
would also be paid on a monthly basis at the same time as the
monthly benefit payments under the Pension Plan, and in the amount
as determined under Section 4.1. Notwithstanding the
foregoing, if the level income payment option is elected for an
annuity under the Pension Plan, a Participant’s Grandfathered
Benefits will be payable in the form of annuity selected under the
Pension Plan, but disregarding the level income payment
option.
- 6 -
4.3. Time of Benefit
Payments for Section 409A Benefits . Except as
provided in Article V hereof or as provided in Sections 4.5,
4.6, 4.7, and 4.8 hereof, a Participant’s Section 409A
Benefits under the Plan as determined pursuant to Section 4.1
hereof shall commence as of the later of: (i) the first day of
the month coincident with or next following the Participant’s
attainment of age 55; or (ii) the first day of the month
coincident with or next following the Participant’s
Termination Date. Payments that are scheduled to be made on the
first day of the month may be delayed (but not more than
sixty (60) days) in order to process payment.
4.4. Form of Benefit
Payments for Section 409A Benefits . Except as
provided in Article V hereof or as provided in Sections 4.5,
4.6, or 4.7 hereof, a Participant’s Section 409A
Benefits under the Plan shall be paid as a 50% Joint and Survivor
Annuity. Prior to the start of benefit payment, a Participant may
elect an alternative form of life annuity permitted by the Sponsor,
provided that such alternative form is actuarially equivalent to
the 50% Joint and Survivor Annuity applying reasonable actuarial
methods and assumptions. A single election shall be made solely for
purposes of the SRIP and the SEBP, and shall govern payment of
Section 409A Benefits payments made under
