Exhibit 10.1
OMNICOM GROUP INC.
SENIOR EXECUTIVE RESTRICTIVE COVENANT AND RETENTION
PLAN
As Amended and Restated on May 19,
2009
ARTICLE I
PREAMBLE
1.1
The purpose of this Senior Executive Restrictive Covenant and
Retention Plan (the “Plan”) is to secure
non-competition, non-solicitation, non-disparagement and consulting
agreements with Executive Officers for a significant period of
time, and strengthen the retention aspect of Executive
Officers’ total compensation.
1.2
This Plan may be amended at any time and from time to time by the
Committee to comply with the requirements of Section 409A of the
Internal Revenue Code (“Section 409A”), and regulations
and interpretations issued thereunder. Notwithstanding Section 10.1
of the Plan, any such amendment may be made without the consent of
any Participant or Beneficiary, regardless of whether such
amendment adversely affects any benefits or rights of a Participant
or Beneficiary arising under the terms of the Plan.
1.3
This Plan became effective as of December 15, 2006, and was
previously amended on December 4, 2008.
ARTICLE II
DEFINITIONS
The
following terms shall have the meaning set forth below:
2.1
“Annual Cap” means $1,250,000 for the first payment to
any Participant; provided, however, that the Annual Cap shall be
adjusted annually (beginning with the second annual payment to the
Participant) by the most recent Cost-of-Living Adjustment used by
the United States Social Security Administration. Notwithstanding
anything else to the contrary, the Annual Cap shall not be
increased by more than 2.5% per calendar year.
2.2
“Beneficiary” means any person, persons, entity or
entities designated in writing by the Participant to the Company to
receive payment, if any, to be made hereunder following the death
of the Participant, and in the absence of such designation, means
(i) the Participant’s surviving spouse, while living, and
(ii) if there be no surviving spouse or upon the death of the
surviving spouse, then to the estate of the Participant.
2.3
“Board” means the Board of Directors of the
Company.
2.4
“Cause” means a termination of employment hereunder
upon:
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(i)
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the
Participant’s having been convicted of, or having entered a
plea bargain or settlement admitting guilt for any felony where, as
a result of such felony, the continued employment of the
Participant would have a material adverse impact on the Company;
provided, that, the Participant shall not be deemed
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to have been
convicted of a felony until the felony conviction becomes final
after the exhaustion of all appeals related to the conviction, or
in the absence of an appeal, the exhaustion of all applicable
appeal periods related to the conviction;
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(ii)
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the
Participant’s having been the subject of any order, judicial
or administrative, obtained or issued by the Securities and
Exchange Commission, for any securities violation involving a
material and willful act of fraud; provided, that, the Participant
shall not be deemed to have been the subject of any such order
obtained or issued by the Securities and Exchange Commission until
the order becomes final after the exhaustion of all appeals related
to the order, or in the absence of an appeal, the exhaustion of all
applicable appeal periods related to the order; or
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(iii)
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the
Participant’s having been convicted of, or having entered a
plea bargain or settlement admitting guilt for, the commission of
an act of fraud or embezzlement against the Company that results in
material and demonstrable harm to the Company; provided, that, the
Participant shall not be deemed to have been convicted of an act of
fraud or embezzlement against the Company until such conviction
becomes final after the exhaustion of all appeals related to the
conviction, or in the absence of an appeal, the exhaustion of all
applicable appeal periods related to the conviction.
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If the Company or one of its
Subsidiaries desires to terminate the Participant’s
employment for Cause in accordance herewith, it shall provide the
Participant with a notice of termination, and allow the Participant
90 days following the date of such notice to fully remedy, cure or
rectify, if possible, the situation giving rise to the allegations
of Cause. The cessation of employment of the Participant shall not
be deemed to be for Cause unless and until there shall have been
delivered to the Participant a copy of a resolution duly adopted by
the affirmative vote of a majority of the entire membership of the
board of directors of the Company (excluding the Participant, if
the Participant is a member of such board) at a meeting of such
board (after reasonable notice is provided to the Participant and
the Participant is given an opportunity, together with counsel for
the Participant, to be heard before such board), finding that, in
the good faith opinion of the board, the Participant is guilty of
the conduct described above, and specifying the particulars thereof
in detail.
2.5
“Committee” means the Compensation Committee of the
Board, or if there should be no Compensation Committee, means a
committee of not less than three members of the Board none of whom
shall, while serving as a member of the Committee, be eligible to
receive a benefit under the Plan from the Company.
2.6
“Company” means Omnicom Group Inc., a New York
corporation.
2.7
“Disability” means the inability of the Participant, by
reason of physical condition, mental illness or accident, to
perform substantially all of the duties of the position at which he
or she was employed by the Employer when such disability commenced.
The Committee shall make all determinations as to
“Disability,” after a hearing at which the
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Participant shall be entitled to
be present with counsel of his or her choice and be heard by the
Committee, and the determination by the Committee shall be final
and conclusive.
2.8
“Employee” means any person who is a full-time employee
of an Employer.
2.9
“Employer” means the Company or a
Subsidiary.
2.10
“Executive Officer” means, as determined by the Board
on an annual basis, the Company’s president, any vice
president of the Company in charge of a principal business unit,
division or function (such as sales, administration or finance),
any other officer who performs a policy making function or any
other person who performs similar policy making functions for the
Company. Executive Officers of Subsidiaries may be deemed Executive
Officers of the Company if they perform such policy making
functions for the Company.
2.11
“Employer Group” means the Company and all
Subsidiaries.
2.12 “Final
Average Pay” means the Participant’s average annual Pay
determined using the highest three (3) years of Pay during the
Employee’s employment with the Employer, unless otherwise
defined by the Participant’s Senior Executive Restrictive
Covenant and Retention Plan Agreement. For this purpose, only full
years of employment will be taken into account and partial years of
employment will be disregarded.
2.13
“Participant” means a person who participates in the
Plan in accordance with Article V below.
2.14
“Plan” means this Omnicom Group Inc. Senior Executive
Restrictive Covenant and Retention Plan, as may be amended from
time to time.
2.15
“Pay” means the base salary plus bonus and other
incentive compensation earned in respect of any calendar year by
the Participant, whether or not paid to the Participant or waived
or deferred by the Participant, excluding all other forms of
compensation, such as severance pay, contributions under benefit
plans, and the compensatory elements of stock awards.
2.16
“Percentage” means 5% plus 2% per Year of Executive
Service, unless otherwise defined by the Participant’s Senior
Executive Restrictive Covenant and Retention Plan Agreement. Unless
otherwise limited by the Participant’s Senior Executive
Restrictive Covenant and Retention Plan Agreement, in no event may
the Percentage exceed 35%.
2.17
“Separation from Service” means a Participant’s
“separation from service” with the Employer Group as
such term is defined in Treasury Regulation Section 1.409A -1(h)
and any successor provision thereto.
2.18 “Senior
Executive Restrictive Covenant and Retention Plan Agreement”
means a written agreement containing terms and conditions that are
deemed appropriate by the Committee.
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2.19
“Subsidiary” means any company in which the Company
holds, directly or indirectly, 50% or more of its outstanding
voting stock.
2.20 “Vested
Participant” means a Participant who has completed seven
Years of Service.
2.21 “Year
of Executive Service” means each complete or partial Year of
Service during which the Participant was an Executive
Officer.
2.22 “Year
of Service” means each consecutive period of 365 days the
Participant is in the continuous employ of a member or members of
the Employer Group. For purposes of this Section, “continuous
employ of a member or members of the Employer Group” means
consecutive employment by members of the Employer Group without
interruption by reason of self-employment or employment by a third
party employer, except as provided in Section 2.19(b) of the
Plan.
The
Participant shall be in the employ of the Employer regardless of
absences by reason of:
(a)
sick leave, vacation leave, or other special leave approved by the
Employer which does not exceed six months, provided the Participant
returns to work for the Employer not later than the expiration date
of the authorized leave of absence; and
(b)
time spent in the service of others at the request of, or with the
approval of, the Employer, provided the Participant returns to work
for the Employer within fifteen (15) days following cessation of
work for such other party.
ARTICLE III
COMPANY’S PAYMENT OBLIGATION CONDITIONAL ON
PARTICIPANT
REFRAINING FROM COMPETITIVE AND OTHER ACTIVITIES AFTER
SEVERANCE OF EMPLOYMENT
3.1
It is a condition of the Company’s obligation to make
payments hereunder that from the date of the Participant’s
employment termination described in Section 6.1 of the Plan that
shall have given rise to the obligation to pay and until the close
of the last calendar year in respect of which the Participant is
entitled to receive payments hereunder:
(a)
that the Participant shall not, directly or indirectly, engage in,
nor become employed as an employee or retained as a consultant by
any of the top 15 marketing services organizations as reported most
recently by Advertising Age (determined at the time of entering
into the Senior Executive Restrictive Covenant and Retention Plan
Agreement), or any of such marketing organizations’
subsidiaries in the United States or any other country
(“Protected Business”); provided, that, nothing shall
prohibit the Participant from, directly or indirectly, engaging in,
or becoming employed as an employee or retained as a consultant, as
described in Article IV or otherwise, by a member of the Employer
Group;
(b)
that the Participant shall not employ (including to retain, engage,
or conduct business with) or attempt to employ (other than on
behalf of a member of the Employer
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Group) or assist anyone else to
employ any person who is at the time of the alleged prohibited
conduct, or was at any time during the preceding year, an employee
of a member of the Employer Group;
(c)
that the Participant shall not make any oral or written statement
to any person or entity which disparages in a material way the
business reputation of the Company or any member of the Employer
Group or the top 50 clients of the Employer Group; and
(d)
that the Participant shall not willfully engage in any activity
which is materially harmful to the interests of the Employer
Group.
In
the event that the Committee determines that the Participant has
breached any of the provisions of Subsections (a) through (d)
above, it shall give the Participant written notice thereof stating
in detail the particular act or failures that constitute such
breach and the specific action that the Committee requires the
Participant to take to cure such alleged breach. Any such notice
must be given within ninety (90) days after the Committee first
determines that such acts or failures constitute a breach. The
Committee must give the Participant a reasonable opportunity to
cure in all circumstances in which it alleges that the Participant
has breached any of the provisions of Subsections (a) through (d)
above. The Participant shall have ninety (90) days after receiving
such notice to remedy such breach. The determination of (i) whether
a business is in the top 15 marketing services organizations as
reported in Advertising Age, (ii) whether the Participant employed,
attempted to employ or assisted anyone else to employ any employee
of the Employer Group, (iii) whether the Participant made
statements which disparages in a material way, and (iv) whether the
Participant willfully engaged in any activity which is materially
harmful, shall be made by the Committee in good faith after a
hearing at which the Participant shall be entitled to be present
with counsel of his choice and be heard by the Committee, and any
such determination by the Committee shall be final and
conclusive.
3.2
Nothing herein prohibits or restricts the Participant from engaging
in the Protected Business in the geographic areas described in
Subsection 3.1(a) of the Plan, employing, attempting to employ or
assisting anyone else to employ any employee of a member of the
Employer Group, making disparaging statements, or willfully
engaging in activity which is harmful to the interests of the
Employer Group (collectively “Activities”); provided,
however, in the event the Participant chooses to engage in any of
such Activities, the Company’s obligation to make payments
hereunder shall forthwith terminate as to payments which might
otherwise have become payable to the Participant in respect of the
calendar year in which such Activity occurred and to the
Participant or the Beneficiary in respect of all calendar years
thereafter, but the Participant shall not be obligated to refund to
the Company any payments theretofore paid to Participant
hereunder.
ARTICLE IV
COMPANY’S PAYMENT OBLIGATION CONDITIONAL ON
PARTICIPANT’S
AVAILABILITY FOR ADVISORY AND CONSULTATIVE SERVICES AFTER
SEVERANCE OF EMPLOYMENT
4.1
It is a further condition of the Company’s obligation to make
payments hereunder that from the date of the Participant’s
employment termination described in Section 6.1 of the
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Plan that shall have given rise
to the obligation to pay and until the close of the last calendar
year in respect of which the Participant is entitled to receive
payments hereunder, that the Participant, if not physically or
mentally disabled, shall, as an independent contractor and upon not
less than thirty (30) days prior written notice from the Company,
make his or her services available to the Company as an advisor and
consultant with respect to activities of the department or unit
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