EXHIBIT 10.15
OMNICARE, INC.
EXCESS BENEFIT PLAN
INTRODUCTION
The purpose of the Omnicare, Inc.
Excess Benefit Plan (the “Plan”) is to provide
supplemental pension benefits to a select group of executive
employees of Omnicare, Inc. and its designated affiliates. The Plan
provides a defined benefit pension and a defined contribution
pension to designated participants, by reference to the benefits
provided by certain tax-qualified pension plans of Omnicare,
Inc.
This Plan amends and restates in
its entirety the Plan as originally effective January 1, 1987, as
amended, and incorporates certain administrative actions that have
been taken from time to time by Omnicare, Inc. with respect to the
Plan. It is intended that the effective dates of any prior
amendments and administrative action taken with respect to the Plan
be incorporated into this amended and restated Plan.
The Plan is intended to be an
unfunded arrangement that provides deferred compensation to a
select group of management and highly compensated employees, within
the scope of Sections 201(2), 301(a) (3) and 401(a) (1) of the
Employee Retirement Income Security Act of 1974
(“ERISA”), as amended.
SECTION 1. DEFINITIONS
1.1. “409A Benefits”
with respect to a Participant means the Participant’s Excess
Benefits that are not Grandfathered Benefits.
1.2. “Account” means
the book entry account maintained for a Participant with respect to
certain benefits under the Plan.
1.3. “Beneficiary”
means the person or entity designated by a Participant to be
entitled to any Excess Benefits payable to a Participant following
death.
1.4. “Board” or
“Board of Directors” means the Board of Directors of
the Company.
1.5. “Change in
Control” shall have the meaning set forth in Appendix A
hereof.
1.6. “Code” means the
Internal Revenue Code of 1986, as amended.
1.7. “Committee” means
the Compensation and Incentive Committee of the Board, or such
other committee of the Board appointed by the Board to administer
the Plan.
1.8. “Company” means
Omnicare, Inc., a Delaware corporation.
1.9. “Compensation”
means the amount of compensation determined in accordance with the
applicable definition of “Compensation” as set forth in
the General Pension Plan, the ESOP or the S&I Plan, depending
upon the respective plan to which such Excess Benefits apply.
1.10. “Eligible
Employee” means an employee of an Employer, who may be
designated by the Committee to participate in the Plan or a portion
thereof. Notwithstanding anything else contained herein to the
contrary, the Committee shall limit the Eligible Employees selected
to participate in the Plan to a select group of management or
highly compensated employees, as set forth in Sections 201, 301 and
401 of ERISA.
1.11. “Employer” means
the Company, Omnicare Management Company and any other affiliate of
the Company that has adopted this Plan with the authorization of
the Board with respect to its Eligible Employees.
1.12. “Entry Date”
means the first day of the Plan Year or any other date as may be
determined by the Committee on which an Eligible Employee becomes a
Participant in the Plan.
1.13. “ESOP” means the
Omnicare, Inc. Employee Stock Ownership Plan, originally effective
as of August 1, 1988, as amended and restated from time to
time.
1.14. “Excess
Benefits” means the benefits described in this Plan.
1.15. “General Pension
Plan” means the Omnicare, Inc. General Pension Plan,
originally effective as of January 1, 1986, as amended and restated
from time to time, and as to which all additional benefit accruals
ceased as of December 31, 1993. The General Pension Plan represents
a reestablishment of the Omnicare, Inc. General Pension Plan
adopted effective as of July 1, 1981 and terminated effective
October 31, 1985.
1.16. “Grandfathered
Benefits” with respect to a Participant means the
Participant’s Excess Benefits that were credited and vested
as of December 31, 2004, and earnings attributable to such amounts,
all of which are exempt from Section 409A of the Code in accordance
with Treasury Regulation Section 1.409A-6.
1.17. “Omnicare Stock”
means the common stock of the Company, par value $.01 per
share.
1.18. “Participant”
means each Eligible Employee who has been designated as a
participant in the Plan and whose participation has not been
terminated.
1.19. “Permanent
Disability” means suffering from bodily injury or mental or
physical disease which, in the opinion of the Committee, would
permanently prevent the Participant from performing the customary
duties of his regular job with the Employer.
1.20. “Plan” means
this Omnicare, Inc. Excess Benefit Plan, as amended from time to
time.
1.21. “Plan Year”
means the twelve-month period ending on December 31.
1.22. “Retirement”
means normal retirement from employment with the Employer at or
beyond age 65.
1.23. “S&I Plan”
means the Omnicare, Inc. Employees’ Savings and Investment
Plan, originally effective as of July 1, 1981, as amended and
restated from time to time.
1.24. “Separation from
Service” means, as to a particular Participant, a termination
of services provided by the Participant to his or her Employer (as
defined below), whether voluntarily or involuntarily, as determined
by the Committee in accordance with Section 409A of the Code and
Treasury Regulation Section 1.409A -1(h). In determining whether a
Participant has experienced a Separation from Service, the
following provisions shall apply:
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(i)
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For a Participant who provides services to an Employer as an
employee, except as otherwise provided in clause (iii) below, a
Separation from Service shall occur when the Participant has
experienced a termination of employment with the Employer. A
Participant shall be considered to have experienced a termination
of employment for this purpose when the facts and circumstances
indicate that the Participant and his or her Employer reasonably
anticipate that either (A) no further services will be performed by
the Participant for the Employer after the applicable date, or (B)
that the level of bona fide services the Participant will perform
for the Employer after such date (whether as an employee or as an
independent contractor) will permanently decrease to no more than
20% of the average level of bona fide services performed by the
Participant (whether as an employee or an independent contractor)
over the immediately preceding 36- month period (or the full period
of services to the Employer if the Participant has been providing
services to the Employer less than 36 months). However, if the
Participant is on military leave, sick leave, or other bona fide
leave of absence, the employment relationship between the
Participant and the Employer shall be treated as continuing intact,
provided that the period of such leave does not exceed 6 months, or
if longer, so long as the Participant retains a right to
reemployment with the Employer under an applicable statute or by
contract. If the period of a military leave, sick leave, or other
bona fide leave of absence exceeds 6 months and the Participant
does not retain a right to reemployment under an applicable statute
or by contract, the employment relationship shall be considered to
be terminated for purposes of the Plan as of the first day
immediately following the end of such 6-month period. In applying
the provisions of this paragraph, a leave of absence shall be
considered a bona fide leave of absence only if there is a
reasonable expectation that the Participant will return to perform
services for the Employer.
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(ii)
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For a Participant who provides services to an Employer as an
independent contractor, except as otherwise provided in clause
(iii) below, a Separation from Service shall occur upon the
expiration of the contract (or in the case of more than one
contract, all contracts) under which services are performed for
such Employer, provided that the expiration of such contract(s) is
determined by the Committee to constitute a good-faith and complete
termination of the contractual relationship between the Participant
and such Employer.
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(iii)
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For a Participant who provides services to an Employer as both
an employee and an independent contractor , a Separation
from Service generally shall not occur until the Participant has
ceased providing services for the Employer as both as an employee
and as an independent contractor, as determined in accordance with
the provisions set forth in clauses (i) and (iii) above. Similarly,
if a Participant either (A) ceases providing services for an
Employer as an independent contractor and begins providing services
for such Employer as an employee, or (ii) ceases providing services
for an Employer as an employee and begins providing services for
such Employer as an independent contractor, the Participant will
not be considered to have experienced a Separation from Service
until the Participant has ceased providing services for such
Employer in both capacities, as determined in accordance with
clauses (i) and (ii) above.
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Notwithstanding the foregoing provisions in this definition, if
a Participant provides services for an Employer as both an employee
and as a member of its board of directors, to the extent permitted
by Treasury Regulation Section 1.409A -1(h)(5) the services
provided by the Participant as a director shall not be taken into
account in determining whether the Participant has experienced a
Separation from Service as an employee, and the services provided
by such Participant as an employee shall not be taken into account
in determining whether the Participant has experienced a Separation
from Service as a director, for purposes of the Plan.
For purposes of this definition, the term “Employer”
means the Company or Subsidiary that the Participant last performed
services for or was employed by, as applicable, on the date of his
or her Separation from Service, and all other entities that are
required to be aggregated together and treated as the employer
under Treasury Regulation Section 1.409A -1(h)(3).
1.25. “Specified
Employee” means a Participant who, as of the date of the
Participant’s Separation from Service, is a “specified
employee” within the meaning of Treasury Regulation Section
1.409A -1(i).
1.26. “Unforeseeable
Emergency” with respect to a Participant means a severe
financial hardship to the Participant resulting from an illness or
accident of the Participant, the Participant’s spouse, the
Participant’s Beneficiary or the Participant’s
dependent (as defined in Section 152 of the Code, without regard to
Section 152(b)(1), (b)(2) and (d)(1)(B)), 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. The circumstances
that will constitute an Unforeseeable Emergency will depend upon
the facts of each case and in all events must constitute an
“unforeseeable emergency” within the meaning of Section
409A. The purchase of a home and the payment of college tuition
would typically not be considered to be Unforeseeable
Emergencies.
1.27. “Valuation Date”
means, for purposes of Excess Benefits related to the ESOP and the
S&I plan, the last day of each calendar quarter.
SECTION 2. ADMINISTRATION
2.1. Authority of Committee. In
addition to all implied powers and responsibilities necessary to
carry out the objectives of the Plan, the Committee shall have the
discretionary authority to construe the Plan and to determine all
questions arising in the administration, interpretation and
operation of the Plan. The Committee may adopt such rules and
regulations, not inconsistent with the provisions of the Plan, as
it may find necessary for the proper administration, interpretation
and operation of the Plan, and may amend or revoke any rule or
regulations so established. Subject to the claims procedure set
forth in Section 8 hereof, all such rules, regulations,
determinations and interpretations shall be binding and conclusive
upon the Company, each Employer, Eligible Employees, Participants,
and upon their respective legal representatives, beneficiaries,
successors and assigns and upon all other persons claiming under or
through any of them. The Committee shall also have all the
discretionary authority as may be necessary to make benefit
determinations, to resolve any disputes which arise under the Plan
and to make any factual determinations that may be necessary.
2.2. Delegation of Duties. The
Committee shall have the authority, except as may be limited by the
Board of Directors, to delegate certain administrative functions to
be carried out on its behalf to the Benefits Plan Committee of the
Company, or to such other committee or individuals as may be
appropriate, in the discretion of the Committee.
2.3. Indemnification. The Company
will indemnify the Board of Directors, the Committee and its
designees hereunder against any claims, losses, expenses, damages
or liabilities arising out of the Plan, except for acts of gross
negligence or willful misconduct.
SECTION 3. PARTICIPATION
3.1. General. Each Eligible
Employee who is designated by the Committee shall become a
Participant in the Plan or a portion thereof, and shall be eligible
to receive Excess Benefits on the basis established by the
Committee. All Eligible Employees who were designated as
Participants immediately prior to the date of this amendment and
restatement of the Plan shall continue to be Participants in the
Plan, subject to the terms hereof. The Committee may revoke the
participation of a Participant on a prospective basis at any
time.
3.2. Participation Date. Each
Eligible Employee becomes a Participant on the Entry Date that
coincides with or immediately follows the date he is designated to
participate in the Plan by the Committee.
3.3. Cessation of Participation.
Each Participant’s participation in the Plan shall continue
until the first to occur of the following events: (i) Retirement;
(ii) death; (iii) Permanent Disability; (iv) other separation from
service; (v) termination of participation by the Committee; or (vi)
termination of the Plan.
SECTION 4. SOURCE OF BENEFITS
All Excess Benefits shall be an obligation of each respective
Employer hereunder and shall be payable from its general assets.
Each Employer shall establish on its books an account equal to the
value of all Plan benefits accrued for their respective
Participants. The Employer shall not be
obligated to fund payment of the benefits
hereunder; provided that the Employer may, in its sole discretion,
establish or cause to be established a separate trust or trusts to
fund the Excess Benefits payable to each Participant. Neither the
Plan nor any Participant or Beneficiary shall have any preferred
claim on, or any beneficial ownership interest in, the assets of
the Company or any Employer. No liability for the payment of
benefits under the Plan shall be imposed upon any officer,
director, employee, or stockholder of the Company or any
Employer.
SECTION 5. PARTICIPANT ACCOUNTS
5.1. Participant Accounts. The
Committee will establish and maintain a separate Account for each
Participant with respect to the Excess Benefits related to the ESOP
and to the S&I Plan. Unless otherwise determined by the
Committee, each Participant’s Account shall be credited with
the applicable Excess Benefit amount described in Section 6.1
hereof, which shall be expressed, at the discretion of the
Committee, as either a cash amount or as shares of Omnicare Stock.
Any Account established for purposes of the applicable Excess
Benefit amount described in Section 6.2 hereof shall be for
informational purposes or for purposes of Section 4 hereof.
5.2. Statement of Accounts. The
Committee shall cause to be delivered or mailed to each Participant
a statement setting forth the status of the Participant’s
Accounts at such intervals as shall be determined by the
Committee.
5.3. Investment Crediting for ESOP
and S&I Plan Excess Benefits. In addition to crediting each
Participant’s Account with the applicable Excess Benefit
amounts described in Section 6.1 hereof, each such Account shall be
adjusted as of each Valuation Date to reflect the fair market value
of t
