Exhibit 10.19
CATALENT PHARMA SOLUTIONS,
LLC
DEFERRED COMPENSATION
PLAN
Effective April 10,
2007
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Page
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ARTICLE I
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DEFINITIONS AND
GENERAL PROVISIONS
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1
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ARTICLE II
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ELIGIBILITY AND
PARTICIPATION
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4
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ARTICLE III
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DEFERRED
COMPENSATION AND CREDITS
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5
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ARTICLE IV
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VESTING
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7
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ARTICLE V
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DISTRIBUTION OF
BENEFITS
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8
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ARTICLE VI
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PLAN
ADMINISTRATION
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10
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ARTICLE VII
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AMENDMENT AND
TERMINATION
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12
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ARTICLE VIII
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MISCELLANEOUS
PROVISIONS
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13
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-i-
CATALENT PHARMA SOLUTIONS,
LLC
DEFERRED COMPENSATION
PLAN
The purpose of this Catalent Pharma
Solutions, LLC Deferred Compensation Plan (the “Plan”)
is to permit the members of the Board of Directors of Cardinal
Health 409, Inc. (the “Company”) and a select group of
the management and highly compensated employees of the Company to
continue to defer a portion of the base salary, bonuses and other
cash compensation otherwise payable to them in the same manner and
subject to the same terms as the Prior Plan. The Plan shall be
effective as of April 10, 2007.
Background
Information
A. The Company intends for the Plan
to continue that portion of the Prior Plan that applied to the
Company’s employees. The Plan will continue to be an
unfunded, nonqualified deferred compensation arrangement as
provided under ERISA and to satisfy the requirements of a
“top hat” plan thereunder and under Labor Regulation
Section 2520.104-23.
B. This Plan is intended to comply
with the requirements of Section 409A of the Code, and to
constitute a good faith effort at meeting such requirements pending
the issuance of final regulations by the Internal Revenue Service
(“IRS”). To the extent inconsistent with Code
Section 409A or regulations issued thereunder, this Plan shall
be amended to conform to such requirements within applicable time
limitations established by the IRS.
ARTICLE I
DEFINITIONS AND GENERAL
PROVISIONS
1.1 Definitions . The terms
defined in this Article shall have the meanings set forth below
unless the context clearly requires another meaning. When the
defined meaning is intended, the term is capitalized.
(a) Account . The bookkeeping
account described in Section 3.6 under which Benefits (as
adjusted for earnings or losses) are credited on behalf of a
Participant.
(b) Beneficiary . The
person(s) entitled to receive any distribution hereunder upon the
death of a Participant. The Beneficiary for Benefits payable under
this Plan shall be the beneficiary designated by the Participant in
accordance with procedures established by the Committee as of the
Participant’s date of death, or, in the absence of any such
designation, the Participant’s estate.
(c) Benefits . Collectively,
Deferred Compensation Credits, Matching Credits, Company
Contribution Credits, Social Security Supplement Credits and Prior
Plan Credits.
(d) Board . The Board of
Directors of the Company.
(e) Change of Control . For
purposes of the Plan, a Change of Control means: (i) the sale
or disposition, in one or a series of related transactions, of all
or substantially all of the assets of the Company to any
“person” or “group” (as such terms are
defined in Sections 13(d)(3) and 14(d)(2) of the Exchange Act other
than The Blackstone Group or its affiliates or (ii) any
“person” or “group”, other than The
Blackstone Group or its affiliates, is or becomes the
“beneficial owner” (as defined in Rules 13d-3 and 13d-5
under the Exchange Act), directly or indirectly, of more than 50%
of the total voting power of the voting stock of the Company,
including by way of merger, consolidation or otherwise and The
Blackstone Group ceases to control the Board.
(f) Code . The Internal
Revenue Code of 1986, as amended from time to time.
(g) Committee . The
Compensation Committee of the Board or such other committee of the
Board to which the Board has delegated power to oversee the
administration of the Plan and, if no such committee has been
created, the Board.
(h) Company . Cardinal Health
409, Inc.
(i) Company Contribution
Credits . Company Contribution Credits shall have the meaning
set forth in Section 3.4 of the Plan.
(j) Compensation . Amounts
paid or payable by the Company or its affiliates to an Eligible
Employee for a Plan Year which are includable in income for federal
tax purposes, including base salary and variable compensation in
the form of commissions and/or bonuses (except as otherwise
provided herein). Notwithstanding the foregoing, the following
amounts are excluded from Compensation: (i) other cash or
non-cash compensation, expense reimbursements or other Benefits or
contributions by the Company or its affiliates to any other
employee benefit plan, other than pre-tax salary deferrals into the
Qualified Plan or any Code Section 125 plan sponsored by the
Company, or any of its affiliates, (ii) amounts realized
(A) from the exercise of a stock option, (B) when
restricted stock (or property) held by a Participant either becomes
freely transferable or is no longer subject to a substantial risk
of forfeiture, (C) when the shares underlying restricted share
units are payable to a Participant, or (D) from the sale,
exchange or other disposition of stock acquired under a qualified
stock option, and (iii) any amounts that are required to be
withheld from a Participant’s wages from the Company pursuant
to Code Section 3102 to satisfy the Participant’s tax
obligations under Code Section 3101. With respect to
Directors, “Compensation” means any and all fees paid
for service as a member of the Board, including fees for attendance
at Board meetings or committee meetings.
(k) Compensation Deferral
Agreement . Compensation Deferral Agreement shall mean the
deferral election agreement by which a Participant elects the
percentage of Compensation to be deferred and credited to an
Account on such Participant’s behalf. For the first Plan
Year, the Participant’s Compensation Deferral Agreement
executed in connection with deferral elections for the 2007 Plan
Year under the Prior Plan shall continue to apply.
(l) Deferred Compensation
Credits . Deferred Compensation Credits shall have the meaning
set forth in Section 3.1 of the Plan.
(m) Director . A member of
the Board.
(n) Distribution Options . A
single lump sum or annual installment payments over a period of
five (5) or ten (10) years. The “standard”
form of distribution shall be a single lump sum payment unless
otherwise elected by a Participant in accordance with the terms of
the Plan or as determined by the Company to the extent permitted by
Code Section 409A and regulations thereunder.
(o) Effective Date .
April 10, 2007.
(p) Eligible Employee . Any
individual who is (i) among a select group of management or
highly compensated employees (within the meaning of Sections
201(2), 301(a)(3) and 401(a)(1) of ERISA), and (ii) designated
by the Company as eligible to make Compensation deferral
contributions under Article II of the Plan in accordance with
eligibility criteria established from time to time by the
Committee. For the 2007 Plan Year, any employee who was an Eligible
Employee in the Prior Plan will continue to be an Eligible Employee
in the Plan.
(q) ERISA . The Employee
Retirement Income Security Act of 1974, as amended from time to
time.
(r) Exchange Act . The
Securities Exchange Act of 1934, as amended from time to
time.
(s) Matching Credits .
Matching Credits shall have the meaning set forth in
Section 3.3 of the Plan.
(t) Participant . Any
Director or any Eligible Employee who meets the eligibility
requirements for participation in the Plan as set forth in Article
II and who earns Benefits under the Plan.
(u) Plan . The Catalent
Pharma Solutions, LLC Deferred Compensation Plan, as set forth
herein, and as such Plan may be amended from time to time
hereafter.
(v) Plan Year . The fiscal
year of the Plan, which is the twelve (12) consecutive month
period beginning January 1 and ending December 31, with
the exception that the year of the Plan’s inception will be
from April 10, 2007 through and including December 31,
2007.
(w) Prior Plan . The Cardinal
Health Deferred Compensation Plan, as amended and restated
effective January 1, 2005.
(x) Prior Plan Credits .
Company Contribution Credits shall have the meaning set forth in
Section 3.6 of the Plan.
(y) Qualified Plan . The
Catalent Pharma Solutions, LLC Savings Plan, as amended from time
to time.
(z) Retirement . An Eligible
Employee’s “separation from service” (within the
meaning of Section 409A(2)(A)(i) of the Code) with the Company
or its affiliates following attainment of age 65 or the retirement
from the Board of any Director.
(aa) Social Security Supplement
Credits . Social Security Supplement Credits shall have the
meaning set forth in Section 3.5 of the Plan.
(bb) Termination of
Employment . A Participant’s “separation from
service” (within the meaning of Section 409A(2)(A)(i) of
the Code) with the Company or its affiliates for any reason other
than Retirement, death or Total Disability.
(cc) Total Disability .
Occurs when a Participant is either unable to engage in any
substantial gainful activity or is receiving income replacement
benefits under an accident and health plan covering employees for a
period of not less than three (3) months, by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a
continuous period of not less than twelve (12) months. The
Company shall determine the existence of a Total Disability in its
sole discretion and may require the Participant to submit to
periodic medical examinations at the Participant’s expense to
confirm the existence and continuation of a Total Disability. The
determination of Total Disability shall be made in accordance with
Code Section 409A and applicable regulations.
(dd) Unforeseeable Emergency
. A severe financial hardship to the Participant resulting from an
illness or accident of the Participant, the Participant’s
spouse, or a dependent of the Participant (as defined in Code
Section 152(a)), loss of the Participant’s property due
to casualty, or other similar extraordinary and unforeseeable
circumstances arising as a result of events beyond the control of
the Participant.
(ee) Year of Service . A
period of twelve (12) consecutive calendar months during which
a Participant is employed by the Company or one of its affiliates
and prior to April 10, 2007 by Cardinal Health, Inc. or one of
its affiliates.
1.2 General Provisions . The
masculine wherever used herein shall include the feminine; singular
and plural forms are interchangeable. Certain terms of more limited
application have been defined in the provisions to which they are
principally applicable. The division of the Plan into Articles and
Sections with captions is for convenience only and is not to be
taken as limiting or extending the meaning of any of its
provisions.
ARTICLE II
ELIGIBILITY AND
PARTICIPATION
2.1 General Eligibility
Conditions . To become eligible to participate in the Plan, an
individual must be (i) among a select group of management or
highly compensated employees within the meaning of Sections 201(2),
301(a)(3), and 401(a)(1) of ERISA, and (ii) designated as an
Eligible Employee by the Company (or another participating
employer) to receive any applicable Company contributions and to
make Compensation deferral contributions under the Plan. For the
2007 Plan Year, any Participant in the Prior Plan will continue to
be a Participant in the Plan. In order to receive a benefit under
the Plan, however, a Participant must also meet the requirements of
Sections 2.2 and 2.3.
2.2 Elections to Defer
Compensation . To participate actively in the Plan (i.e., to
make deferrals hereunder), a Participant must execute or
acknowledge a Compensation Deferral Agreement, or otherwise agree
to defer some of his Compensation in accordance with such other
procedures, including electronic enrollment, as are established by
the Committee from time to time. A Participant’s Compensation
Deferral Agreement shall be maintained by or on behalf of the
Committee. A Compensation Deferral Agreement may include separate
elections for each item described below or may include one election
that applies to one or more of the items described below as
determined by the Committee.
(a) Initial Election . A
Participant’s Compensation Deferral Agreement must be
executed, acknowledged, filed or submitted electronically within
thirty (30) days of first becoming eligible to participate in
the Plan with respect to
services to be provided following
such election. For purposes of an initial election with respect to
Participants who were Participants in the Prior Plan and who
continue to be Participants in this Plan on the Effective Date,
such Participant’s Compensation Deferral Agreement filed
under the Prior Plan shall continue to apply under this Plan for
the 2007 Plan Year.
(b) Elections to Defer
Non-Performance-Based Compensation . After a
Participant’s initial election to participate in the Plan, an
election to defer salary or any non-performance-based compensation
must be filed in advance of the beginning of the calendar year
during which the services upon which the compensation is based are
performed, or at such other time as may be required under Code
Section 409A and the regulations and guidance issued
thereunder.
(c) Elections to Defer
Performance-Based Compensation . After a Participant’s
initial election to participate in the Plan, an election to defer
performance-based compensation (within the meaning of Code
Section 409A) earned over a period of at least twelve
(12) months must be filed (i) no later than six
(6) months before the end of the service period to which the
performance-based compensation relates and (ii) before it
becomes substantially certain that such compensation will be paid
and the amount of such compensation has become readily
ascertainable.
(d) Modification of Election
. Elections to participate and defer Compensation shall be
irrevocable with respect to the Compensation to which they apply
and may be amended, revoked or suspended by the Participant only
effective as of the January 1 following the amendment,
revocation or suspension in accordance with procedures established
by the Committee, unless Code Section 409A and the regulations
and guidance issued thereunder permit amendment, revocation or
suspension as of some other time.
2.3 Eligibility List; Suspension
of Active Participation . The Committee shall maintain a
written list of those employees who then qualify as Eligible
Employees under the Plan, as determined by the eligibility criteria
established by the Committee. Any Participant not listed as an
Eligible Employee for a given Plan Year shall cease to have any
right to defer Compensation for such Plan Year. However, any
amounts credited to the Account of a Participant whose
participation is suspended shall otherwise continue to be
maintained under the Plan in accordance with its terms.
2.4 Termination of
Participation . A Participant’s participation in the Plan
shall continue until such individual ceases (i) to be
described as a Director or as an Eligible Employee, and
(ii) to have any vested interest in the Plan (as a result of
distributions made to such Participant or his Beneficiary, if
applicable, or otherwise).
2.5 Participation by Other
Employers . With the consent of the Company, any corporation
that is a member of the same controlled group as the Company
(within the meaning of Code Section 1563(a)) may become a
participating employer under the Plan by taking such action as may
be necessary or desirable to put the Plan into effect with respect
to such corporation. Accrued account amounts under the Prior Plan
sponsored by the prior parent of the Company for the members of the
Board and for their employees shall be transferred to and assumed
by this Plan as soon as practicable following the date on which the
Company is no longer part of the same controlled group as its prior
parent and the trustee of the Prior Plan is able to complete such
transfer. Notwithstanding any other provision of the Plan to the
contrary, the terms of any such plans shall thereafter be governed
by the terms of this Plan provided that the accrued benefit of all
participants in such plans shall not be reduced and shall be
preserved and assumed by this Plan.
2.6 Confidentiality and
Non-Competition Agreement . In its discretion, the Company may
require any Eligible Employee selected to become a Participant in
the Plan to execute a Confidentiality and Non-Competition Agreement
with the Company or its affiliates in consideration of the Benefits
to be provided hereunder.
ARTICLE III
DEFERRED COMPENSATION AND
BENEFITS
3.1 Deferred Compensation
Credits . Pursuant to the provisions of Article II and this
Article III, a Participant and the Company may, by mutual
agreement, provide for deferred and postponed payment of a
percentage of the Participant’s Compensation which otherwise
would be paid during the applicable Plan Year(s) for services to be
rendered in such year(s). A Participant who is an Eligible Employee
may elect to defer between one percent (1%) and twenty percent
(20%) of Compensation. A Participant who is a Director may
elect to defer between twenty percent (20%) and one hundred
percent (100%) of Compensation. The Company may, in its
discretion, establish and change from time to time the minimum and
maximum amount that may be so deferred for Participants in a given
Plan Year. Elections shall be made in accordance with
Section 2.2 and any procedures established by the Committee.
In addition, special limitations may be established by the
Committee to apply to the deferral of any special bonus or other
non-periodic Compensation that a Participant is expected to
receive. The Company will credit the deferred
compensation
amount agreed to for each Plan Year to the
Participant’s Account from time to time as the deferred
amounts otherwise would have been earned by the Participant. All
contributions under this provision to the Accounts of Participants
in the Plan, as adjusted for earnings or losses (described below),
are referred to as “Deferred Compensation
Credits.”
3.2 Suspension of Deferrals .
A Participant’s Deferred Compensation Credits hereunder will
be automatically suspended during any unpaid leave of absence or
temporary layoff. Contributions suspended in accordance with the
provisions of this paragraph shall be automatically resumed,
without the necessity of any action by the Participant, upon return
to active employment at the expiration of such suspension
period.
3.3 Matching Credits . The
Company may, in its discretion, credit to a Participant’s
Account each Plan Year during which the Participant is selected to
participate in the Plan an amount equal to a percentage of the
Participant’s Deferred Compensation Credits as a matching
contribution. The amount of any such contributions may vary from
Plan Year to Plan Year or among Participants in the discretion of
the Company. In general, such match