Exhibit 10.9
AMENDED AND RESTATED PHARMERICA
CORPORATION
2007 OMNIBUS INCENTIVE
PLAN
SECTION 1. Purpose . The
purpose of the Amended and Restated PharMerica Corporation 2007
Omnibus Incentive Plan is to enhance the incentive of those
employees, directors and other individuals who are expected to
contribute significantly to the success of the Company and its
Affiliates to perform at the highest level, and, in general, to
further the best interests of the Company and its stockholders.
This plan has been amended and restated, effective as of
January 1, 2009.
SECTION 2. Definition
.
As used in the Plan, the following
terms shall have the meanings set forth below:
(a) “ Act ” shall
mean the Securities Exchange Act of 1934, as amended.
(b) “ Affiliate ”
shall mean (i) any entity that, directly or indirectly,
controls, is controlled by or under common control with the Company
and (ii) any entity in which the Company has a significant
equity interest, in either case as determined by the
Committee.
(c) “ Award ”
shall mean any Option, Stock Appreciation Right, award of
Restricted Stock, Restricted Stock Unit, Deferred Stock,
Performance Award or Other Stock-Based Award granted under the
Plan, which may be denominated or settled in Shares, cash or in
such other forms as provided for herein.
(d) “ Award Agreement
” shall mean any written agreement, contract or other
instrument or document evidencing any Award granted under the Plan,
which may, but need not, be executed or acknowledged by a
Participant.
(e) “ Beneficiary
” shall mean a person or persons entitled to receive payments
or other benefits or exercise rights that are available under the
Plan in the event of the Participant’s death. If no such
person is named by a Participant who is an individual, such
individual’s Beneficiary shall be the individual’s
estate.
(f) “ Board ”
shall mean the board of directors of the Company.
(g) “ Change in Control
” shall mean the occurrence of:
(i) any “person” (as
defined in Section 13(d) of the Act other than the Company,
its Affiliates or an employee benefit plan or trust maintained by
the Company or its affiliates, becoming the “beneficial
owner” (as defined in Rule 13d-3 under the Act), directly or
indirectly, of 40% or more of the combined voting power of the
Company’s then outstanding Voting Stock (excluding any
“person” who becomes such a beneficial owner in
connection with a transaction described in clause (A) of
paragraph (iii) below);
(ii) at any time during a period of
twelve consecutive months, individuals who at the beginning of such
period constituted the Board (and any new member of the Board whose
election by the Board or nomination for election by the
Company’s stockholders was approved by a vote of at least
two-thirds of the members of the Board then still in office who
either were members of the Board at the beginning of the period or
whose election or nomination was so approved) cease for any reason
to constitute at least a majority of members then constituting the
Board; or
(iii) the consummation of (A) a
merger or consolidation of the Company or any direct or indirect
subsidiary of the Company with any other corporation, other than a
merger or consolidation which would result in the Voting Stock of
the Company outstanding immediately prior to such merger or
consolidation continuing to represent (either by remaining
outstanding or being converted into Voting Stock of the surviving
entity or any parent thereof) at least 50% of the combined voting
power of the Voting Stock, or the total fair market value of all
the securities, of the Company or such surviving entity or any
parent thereof outstanding immediately after such merger or
consolidation, or (B) any sale, lease,
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exchange or other transfer (in one
transaction or a series of transactions) of assets of the Company
having a total gross fair market value equal to more than 40% of
the total gross Fair Market Value of all assets of the Company
immediately prior to such transaction or transactions.
Notwithstanding the foregoing,
(i) in no event shall a Change in Control be deemed to have
occurred with respect to a Participant if the Participant is part
of a “group”, within the meaning of
Section 13(d)(3) of the Act, which consummates the Change in
Control transaction and (ii) an Award Agreement may provide
for a definition of the term “Change in Control” with
respect to an Award that is different from the definition provided
above.
(h) “ Code ”
shall mean the Internal Revenue Code of 1986, as amended from time
to time.
(i) “ Committee ”
shall mean the Compensation Committee of the Board or such other
committee as may be designated by the Board that satisfies the
requirements of applicable law. If the Board does not designate the
Committee, references herein to the “Committee” shall
refer to the Board.
(j) “ Company ”
shall mean PharMerica Corporation, a Delaware
corporation.
(k) “ Covered Employee
” means an individual who is a “covered employee”
within the meaning of Section 162(m)(3) of the Code, or any
successor provision.
(l) “ Deferred Stock
” shall mean a right to receive Shares or other Awards or a
combination thereof at the end of a specified deferral period,
granted under Section 9.
(m) “ Fair Market Value
” shall mean with respect to Shares, the closing price of a
Share on the date in question (or, if there is no reported sale on
such date, on the last preceding date on which any reported sale
occurred) on the principal stock exchange on which the Shares trade
or are quoted, or if Shares are not so listed or quoted, fair
market value as determined by the Committee, and with respect to
any property other than Shares, the fair market value of such
property determined by such methods or procedures as shall be
established from time to time by the Committee.
(n) “ Incentive Stock
Option ” shall mean an option representing the right to
purchase Shares from the Company, granted under and in accordance
with the terms of Section 6, that (i) meets the
requirements of Section 422 of the Code, or any successor
provision thereto and (ii) is designated by the Committee in
the applicable Award Agreement as an Incentive Stock
Option.
(o) “ Non-Qualified Stock
Option ” shall mean an option representing the right to
purchase Shares from the Company, granted under and in accordance
with the terms of Section 6, that is not an Incentive Stock
Option.
(p) “ Option ”
shall mean an Incentive Stock Option or a Non-Qualified Stock
Option.
(q) “ Other Stock-Based
Award ” means an Award granted pursuant to
Section 11 of the Plan.
(r) “ Participant
” shall mean the recipient of an Award granted under the
Plan.
(s) “ Performance Award
” means an Award granted pursuant to Section 10 of the
Plan, including, but not limited to, one intended to be
“qualified performance-based compensation” under
Section 162(m) of the Code.
(t) “ Performance
Period ” means the period established by the Committee at
the time any Performance Award is granted or at any time thereafter
during which any performance goals specified by the Committee with
respect to such Award are measured and must be met.
(u) “ Plan ”
shall mean the Amended and Restated PharMerica Corporation 2007
Omnibus Incentive Plan as the same may be amended from time to
time.
(v) “ Restricted Stock
” shall mean any Share granted under
Section 8.
(w) “ Restricted Stock
Unit ” shall mean a contractual right granted under
Section 8 that is denominated in Shares. Each Unit represents
a right to receive the value of one Share (or a percentage of such
value) upon the terms and conditions set forth in the Plan and the
applicable Award Agreement. Awards of Restricted Stock Units may
include, without limitation, the right to receive dividend
equivalents.
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(x) “ SAR ” or
“ Stock Appreciation Right ” shall mean any
right granted to a Participant pursuant to Section 7 to
receive, upon exercise by the Participant, the excess of
(i) the Fair Market Value of one Share on the date of exercise
over (ii) the grant price of the right specified by the
Committee in its sole discretion, which, except in the case of
Substitute Awards or in connection with an adjustment provided in
Section 5(d), shall not be less than the Fair Market Value of
one Share on such date of grant of the right.
(y) “ Service ”
shall mean the active performance of services for the Company or an
Affiliate by a person who is an employee or director of the Company
or an Affiliate.
(z) “ Shares ”
shall mean shares of the common stock of the Company.
(aa) “ Subsidiary
” shall mean a subsidiary of the Company within the meaning
of Section 424(f) of the Code.
(bb) “ Substitute
Awards ” shall mean Awards granted in assumption of, or
in substitution for, outstanding awards previously granted by a
company acquired by the Company or with which the Company combines;
provided that the terms and conditions of each such Substitute
Award (including, without limitation, the exercise price and number
of Shares subject to such Substitute Award) shall be determined in
accordance with U.S. Department of Treasury Regulation
§1.409A-1(b)(5)(v)(D).
(cc) “ Voting Stock
” shall mean securities entitled to vote generally on the
election of the Board.
SECTION 3 .
Eligibility.
(a) Any employee, member of the
Board, consultant or other advisor of, or any other individual who
provides services to, the Company or any Affiliate, shall be
eligible to be selected to receive an Award under the Plan, except
that Incentive Stock Options may be granted only to employees of
the Company or a Subsidiary.
(b) Holders of options and other
types of awards granted by a company acquired by the Company or
with which the Company combines are eligible for grant of
Substitute Awards hereunder.
SECTION 4 .
Administration.
(a) The Plan shall be administered
by the Committee. The Committee shall consist of not less than
three directors. Each Committee member shall be
(i) independent, within the meaning of and to the extent
required by applicable rulings and interpretations of the
Securities and Exchange Commission and the applicable stock
exchange on which the Shares trade or are quoted and (ii) an
outside director pursuant to Section 162(m) of the Code, and
any regulations issued thereunder, in each case at such time as the
Company becomes subject to the respective regulatory regime. The
Board may designate one or more directors as alternate members of
the Committee who may replace any absent or disqualified member at
any meeting of the Committee. The Committee may delegate to one or
more of the Committee’s members or to officers of the Company
the authority to exercise all duties and responsibilities of the
Committee under the Plan, including those listed in
Section 4(b) below or such of those duties and
responsibilities as may be specified by the Committee, except that
such delegation shall not be applicable to any Award for a person
then covered by Section 16 of the Act. The Committee may issue
rules and regulations for administration of the Plan. It shall meet
at such times and places as it may determine.
(b) Subject to the terms of the Plan
and applicable law, the Committee (or its delegate) shall have full
power and authority to: (i) designate Participants;
(ii) determine the type or types of Awards (including
Substitute Awards) to be granted to each Participant under the
Plan; (iii) determine the number of Shares to be covered by
(or with respect to which payments, rights, or other matters are to
be calculated in connection with) Awards; (iv) determine the
terms and conditions of any Award; (v) adopt form of Award
Agreements; (vi) determine whether, to what extent, and under
what circumstances Awards may be settled or exercised in cash,
Shares, other securities, or other Awards, or canceled, forfeited
or suspended, and the method or methods by which Awards may be
settled, exercised, canceled, forfeited or suspended;
(vii) correct any defect, supply any omission or reconcile any
inconsistency in or among the Plan, an Award or an Award Agreement;
(viii) determine whether, to what extent,
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and under what circumstances cash,
Shares, other securities, other Awards, and other amounts payable
with respect to an Award under the Plan shall be deferred either
automatically or at the election of the holder thereof or of the
Committee; (ix) interpret and administer the Plan and any
instrument or agreement relating to, or Award made under, the Plan;
(x) establish, amend, suspend or waive such rules and
regulations and appoint such agents as it shall deem appropriate
for the proper administration of the Plan; and (xi) make any
other determination and take any other action that the Committee
deems necessary or desirable for the administration of the
Plan.
(c) All decisions of the Committee
shall be final, conclusive and binding upon all parties, including
the Company, the stockholders and the Participants.
SECTION 5 . Shares Available
for Awards.
(a) Subject to adjustment as
provided in Section 5(d) below, the maximum number of Shares
available for delivery under the Plan is 3,800,000 Shares.
Notwithstanding the foregoing and subject to adjustment as provided
in Section 5(d), the maximum number of Shares that may be
subject to grant of Incentive Stock Options is 3,800,000, the
maximum number of Shares that are available for Awards under
Sections 8, 9 and 11 is 1,900,000 and no Participant may receive
Options and SARs under the Plan in any fiscal year that relate to
more than 650,000 Shares.
(b) If, after the effective date of
the Plan, any Shares covered by an Award other than a Substitute
Award, or to which such an Award relates, are forfeited, or if such
an Award otherwise terminates without the delivery of Shares or of
other consideration, then the Shares covered by such Award, or to
which such Award relates, to the extent of any such forfeiture or
termination, shall again be, or shall become, available for
issuance under the Plan.
(c) Any Shares delivered pursuant to
an Award may consist, in whole or in part, of authorized and
unissued Shares or Shares acquired by the Company.
(d) In the event that the Committee
shall determine that any dividend or other distribution (whether in
the form of cash, Shares or other securities), recapitalization,
stock split, reverse stock split, reorganization, merger,
consolidation, split-up, spin-off, combination, repurchase or
exchange of Shares or other securities of the Company, issuance of
warrants or other rights to purchase Shares or other securities of
the Company, or other similar corporate transaction or event
affects the Shares such that an adjustment is determined by 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, then the Committee shall, in such
manner as it may deem equitable, adjust any or all of (i) the
number and type of Shares (or other securities) which thereafter
may be made the subject of Awards, including the aggregate and
individual limits specified in Section 5(a) and
Section 10(c), (ii) the number and type of Shares (or
other securities) subject to outstanding Awards, and (iii) the
grant, purchase, or exercise price with respect to any Award or, if
deemed appropriate, make provision for a cash payment to the holder
of an outstanding Award; provided, however , that the number
of Shares subject to any Award denominated in Shares shall always
be a whole number.
(e) Shares underlying Substitute
Awards shall not reduce the number of Shares remaining available
for issuance under the Plan.
SECTION 6 .
Options.
(a) The Committee is hereby
authorized to grant Options to Participants with the terms and
conditions set forth in this Section 6 and with such
additional terms and conditions as set forth in an Award Agreement,
in either case not inconsistent with the provisions of the Plan, as
the Committee shall determine:
(b) The purchase price per Share
under an Option shall be determined by the Committee;
provided , however , that, except in the case of
Substitute Awards, such purchase price shall not be less than the
Fair Market Value of a Share on the date of grant of such
Option.
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(c) The term of each Option shall be
fixed by the Committee but shall not exceed 10 years from the date
of grant thereof.
(d) The Committee shall determine
the time or times at which an Option may be exercised in whole or
in part.
(e) The Committee shall determine
the method or methods by which, and the form or forms, including,
without limitation, cash, Shares, other Awards, or any combination
thereof, having a Fair Market Value on the exercise date equal to
the relevant exercise price, in which, payment of the exercise
price with respect thereto may be made or deemed to have been
made.
(f) The terms of any Incentive Stock
Option granted under the Plan shall comply in all respects with the
provisions of Section 422 of the Code, or any successor
provision thereto, and any regulations promulgated
thereunder.
(g) Each Option shall be evidenced
by an Award Agreement which contains the terms and conditions of
the Option as determined by the Committee.
SECTION 7. Stock
Appreciation Rights .
(a) The Committee is hereby
authorized to grant Stock Appreciation Rights (“ SARs
”) to Participants with terms and conditions as the Committee
shall determine not inconsistent with the provisions of the Plan.
Each SAR shall be evidenced by an Award Agreement which includes
the terms and conditions determined by the Committee.
(b) SARs may be granted hereunder to
Participants either alone (“ freestanding ”) or
in addition to other Awards granted under the Plan (“
tandem ”) and may, but need not, relate to a specific
Option granted under Sect
