EXHIBIT
10.23
ALLERGAN, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
(2009 RESTATEMENT)
Effective as of January 1, 2009
ALLERGAN, INC.
EXECUTIVE DEFERRED COMPENSATION PLAN
(2009
RESTATEMENT)
Effective as of January 1, 2009
ARTICLE I
INTRODUCTION
1.1 Purpose
. The Allergan, Inc. Executive Deferred Compensation
Plan was previously established by the Board of Directors of
Allergan, Inc., a Delaware corporation (“Allergan”), to
provide deferred compensation benefits to selected executive and
management employees of the Company as more fully provided herein.
The benefits provided under this Plan are intended to be in
addition to other employee benefit programs offered by the Company,
including but not limited to tax-qualified employee benefit
plans.
1.2 Effective Date and
Term . This Plan was adopted effective as of
January 1, 1995, and is hereby amended and restated effective
as of January 1, 2009 (the “2009 Restatement”),
and shall continue in effect until terminated by the Board of
Directors.
1.3 Applicability of
Code Section 409A . All benefits under the Plan
shall be subject to Code Section 409A. Under the terms of the
Plan prior to this 2009 Restatement, all current Participants of
the Plan were permitted to make an election prior to
January 1, 2009 under the Code Section 409A transition
election rule to conform their distribution elections for their
outstanding Deferral Accounts to the permitted distribution options
of this 2009 Restatement.
1.4 Applicability of
ERISA . This Plan 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.
ARTICLE II
DEFINITIONS
As used herein, the following definitions shall apply unless
context clearly indicates to the contrary.
2.1 Annual
Deferral . “Annual Deferral” means the
amount of Base Salary and/or Bonuses which the Participant elects
to defer for each Plan Year pursuant to Section 3.1.
2.2 Base Salary
. “Base Salary” means the
Participant’s annual basic rate of pay from the Company
(excluding Bonuses, commissions, and other non-regular forms of
compensation) before reductions for deferrals under this Plan, the
Savings and Investment Plan, or “cafeteria plan” under
Code Section 125.
2.3 Beneficiary
. “Beneficiary” means the person or persons
or entity designated as such in accordance with
Section 13.1.
2.4 Board; Board of
Directors . “Board” and “Board of
Directors” each mean the Board of Directors of Allergan. The
Organization and Compensation Committee of the Board, or any
successor thereto or any designee, shall exercise any and all
rights, duties and obligations that are retained by or assigned to
the Board under the Plan.
2.5 Bonuses
. “Bonuses” means non-salary amounts earned
by the Participant that are designated as bonuses or commissions.
Bonuses shall relate to the Plan Year for which the services were
performed even though they may be paid in the subsequent Plan Year
in accordance with Company policies or practice.
2.6 Code
. “Code” means the Internal Revenue Code of
1986, as amended.
2.7 Committee
. “Committee” means the committee authorized
to administer this Plan as set forth in Section 10.1
hereof.
2.8 Company
. “Company” means Allergan, Inc., a Delaware
corporation, and each Affiliated Company (as defined in the Savings
and Investment Plan) designated by the Board of Directors.
2.9 Company Rate
. “Company Rate” means one hundred twenty
percent (120%) of the ten-year Treasury Note one hundred
twenty (120) month rolling average to be determined on
October 1 of each Plan Year and made applicable for the next
following Plan Year. The Company Rate shall only be used to measure
investment earnings for certain grandfathered amounts as described
in Section 5.3.
2.10 Deferral Accounts
. “Deferral Accounts” means the separate
accounts maintained solely for record keeping purposes on behalf of
each Participant to which a Participant’s Annual Deferrals
and Restoration Credits are credited pursuant to Section 5.1.
A Participant will have one Termination Benefit Account and, at any
given time, up to two Scheduled In-Service Withdrawal Accounts.
2.11 Deferral Election
. “Deferral Election” means the election
made by the Participant pursuant to the terms of
Section 4.1.
2.12 Disability
. “Disability” means, for purposes of
Section 4.3 only, 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
six (6) months and as a result the Participant is unable to
perform the duties of his or her position or any substantially
similar position. For all other purposes, “Disability”
means 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 12 months and as a result
of (i) the Participant is unable to engage in any substantial
gainful activity or (ii) the Participant is, receiving income
replacement benefits for a period of not less than three months
under the Company’s long term disability insurance program.
Notwithstanding the foregoing, a Participant shall be deemed to
have incurred a Disability if determined to be (i) totally
disabled by the Social Security Administration
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or (ii) disabled
under the Company’s long term disability insurance program;
provided, that benefits are only payable as a result of a
disability that complies with this Section.
2.13 Effective Date
. “Effective Date” means January 1,
2009 for this 2009 Restatement.
2.14 Eligible Employee
. “Eligible Employee” means an employee of
the Company who is a U.S. local or U.S. based expatriate that is
either grade 8E/8S and above or is employed in another executive or
management position as approved by the Committee.
An employee shall not be an Eligible Employee if (i) he or she
is classified or paid as an independent contractor (regardless of
his or her classification for federal tax or other legal purposes)
by the Company, or (ii) he or she performs services for the
Company pursuant to an agreement between the Company and any other
person including a leasing organization.
2.15 Enrollment Forms
. “Enrollment Forms” mean, collectively, the
form or forms prescribed by the Committee for enrollment in the
Plan including (i) a “Deferral Election Form”
pursuant to which a Participant agrees to defer Base Salary and/or
Bonuses for a Plan Year, (ii) a “Distribution Election
Form” pursuant to which a Participant allocates the amounts
of the Deferral Election for each Plan Year among each of his or
her Deferral Accounts and elects or changes the form and time of
payment for such Deferral Accounts, and (iii) an
“Investment Election Form” pursuant to which a
Participant allocates his or her Annual Deferrals or transfers
amounts in his or her Deferral Accounts among the Fund Media or
from the Company Rate.
2.16 ERISA
. “ERISA” means the Employee Retirement
Income Security Act of 1974, as amended.
2.17 Fund Rate
. “Fund Rate” means, with respect to any
portion of a Participant’s Deferral Account(s) for which the
Fund Rate is applicable, the rate of return based on the income,
gains, losses and expenses of the investment vehicles (collectively
called “Fund Media”) selected by the Participant in
accordance with Section 5.4.
2.18 Key Employee
. “Key Employee” means all corporate
officers of the Company plus employees who are grade 11E and above,
unless otherwise timely designated by the Committee in accordance
with Code Section 409A.
2.19 Open Enrollment Period
. “Open Enrollment Period” means the
enrollment period during which an Eligible Employee may enroll in
the Plan for a Plan Year or the remainder of the Plan Year. Open
Enrollment Periods shall be established as determined by the
Company subject to any limitations or requirements set forth under
the terms of the Plan.
2.20 Participant
. “Participant” means any Eligible Employee
who enrolls or commences participation in this Plan as provided
under Article III hereof.
2.21 Plan
. “Plan” means this Allergan, Inc. Executive
Deferred Compensation Plan adopted as of the Effective Date hereof
and as it may be amended from time to time.
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2.22 Plan Entry Date
. “Plan Entry Date” means the first day of
the calendar quarter following the day an employee satisfies the
requirements of Section 2.14.
2.23 Plan Year
. “Plan Year” means the calendar year.
2.24 Restoration Credits
. “Restoration Credits” means the amounts,
if any, credited to a Participant’s Deferral Account(s)
pursuant to Section 5.1(b), (c), or (d).
2.25 Savings and Investment
Plan . “Savings and Investment Plan”
means the Allergan, Inc. Savings and Investment Plan, as
amended.
2.26 Scheduled In-Service
Withdrawal . “Scheduled In-Service
Withdrawal” means a withdrawal elected by the Participant
pursuant to Article VII that is payable or commences prior to
Termination of Employment.
2.27 Termination Benefit
. “Termination Benefit” means a distribution
elected by the Participant pursuant to Article VI that is payable
upon Termination of Employment.
2.28 Termination; Termination of
Employment . “Termination” or
“Termination of Employment” means the termination of a
Participant’s employment with the Company for any reason
whatsoever, whether voluntary or involuntary.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 Open
Enrollment . For each Plan Year, an Eligible
Employee may elect to enroll in the Plan by completing Enrollment
Forms during the Open Enrollment Period preceding such Plan Year.
If an Eligible Employee fails to complete Enrollment Forms during
an Open Enrollment Period, he or she shall not be eligible to make
Annual Deferrals for such Plan Year but shall remain eligible to do
so for a subsequent Plan Year; provided, that he or she continues
his or her status as an Eligible Employee and completes Enrollment
Forms during a subsequent Open Enrollment Period.
3.2 First Year of
Eligibility . An employee who becomes an Eligible
Employee on or after the first day of a Plan Year, may for his or
her first year of initial eligibility, complete Enrollment Forms
during the Open Enrollment Period that shall end no later than 30
days after the Eligible Employee’s Plan Entry Date. In the
event an Eligible Employee completes Enrollment Forms during the
Open Enrollment Period following his or her Plan Entry Date, such
elections made thereunder shall only apply to compensation paid for
services performed following receipt of such Enrollment Forms by
the Company. In the event an Eligible Employee fails to complete
Enrollment Forms during such Open Enrollment Period, he or she
shall not be eligible to make Annual Deferrals under the Plan for
the remainder of the Plan Year but shall remain eligible to do so
for a subsequent Plan Year; provided, that he or she continues his
or her status as an Eligible Employee and completes Enrollment
Forms during a subsequent Open Enrollment Period. This
Section 3.2 shall not apply to any Eligible Employee who was a
former Eligible Employee at any time during the 24-month period
ending on such Eligible Employee’s
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subsequent return to
Eligible Employee status unless the balance of all Deferral
Accounts was paid to the Eligible Employee prior to his or her
subsequent Plan Entry Date.
3.3 Automatic
Enrollment for Restoration Credits . An Eligible
Employee who fails to enroll in the Plan for a Plan Year during an
Open Enrollment Period shall automatically be enrolled in the Plan
for any Plan Year for which he or she receives “Restoration
Credits” as described in Section 5.1.
ARTICLE IV
DEFERRAL
ELECTIONS
4.1 Deferral
Election . For each Plan Year, an Eligible Employee
may make a Deferral Election on a voluntary basis by properly
completing and submitting Enrollment Forms during the applicable
Open Enrollment Period for the Plan Year subject to the
following:
(a) A Deferral Election shall be
irrevocable for the Plan Year or, if applicable, the remainder of
the Plan Year unless terminated under Section 4.3.
(b) If an Eligible Employee
ceases to be an Eligible Employee during a Plan Year, any Deferral
Election shall continue in effect for the remainder of the Plan
Year unless terminated under Section 4.3.
(c) A Deferral Election may only
apply to amounts paid for an Eligible Employee’s services
performed after the date he or she properly completes and submits
his or her Deferral Election Form.
(d) A Deferral Election shall be
subject to the requirements set forth in Sections 4.2 below.
(e) An employee who becomes an
Eligible Employee after the first day of a Plan Year under
Section 3.2 may only defer Base Salary earned after the date
he or she properly completes and submits his or her Deferral
Election Form and may not defer any Bonus earned during that first
Plan Year.
4.2 Maximum Deferral
Amount . Subject to the restrictions provided in
Section 4.1, and in accordance with procedures established by
the Company, an Eligible Employee may elect to defer up to one
hundred percent (100%) of Base Salary and/or up to one hundred
percent (100%) of any Bonus earned during the Plan Year,
stated as a percentage. The Committee, in its sole discretion, may
change the maximum deferral percentage for a Plan Year or may
replace or provide other Deferral Election options. To the extent
permitted by Code Section 409A, a Deferral Election shall be
automatically reduced or adjusted if the Committee determines that
such action is necessary or appropriate to meet Federal, State or
other applicable tax withholding obligations or to pay for benefits
or other obligations arising from the Participant’s
relationship with the Company.
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4.3 Termination of
Deferral Election . An Eligible Employee’s
Deferral Election for a Plan Year shall be immediately terminated
upon his or her Termination of Employment, or a hardship withdrawal
under the Savings and Investment Plan. An Eligible Employee may
request that his or her Deferral Election for a Plan Year be
terminated upon Disability; provided, that, in the case of
Disability, the Deferral Election is terminated by the 15
th day of the third
month following the date the Eligible Employee incurs the
Disability. If an Eligible Employee’s Deferral Election is
terminated under this Section, any Deferral Election for a
subsequent Plan Year shall be made in accordance with Article
III.
4.4 Time and Form of
Payment . During the applicable Open Enrollment
Period, an Eligible Employee shall elect the time and/or form of
payment of amounts deferred during the Plan Year by allocating such
amounts (in whole percentages) among the Participant’s three
Deferral Accounts using a Distribution Election Form. If an
Eligible Employee fails to submit a properly completed Distribution
Election Form during an Open Enrollment Period or is automatically
enrolled in the Plan for a Plan Year pursuant to Section 3.3,
the amounts deferred for such Plan Year shall be put in the
Participant’s Termination Benefit Account. Once an amount is
placed in a Deferral Account, it may not be moved into a different
Deferral Account, except as provided in Section 5.5(c) (for
Scheduled In-Service Distribution Accounts to be distributed which
have not yet fully vested). The time and form of payment of each of
the Deferral Accounts shall be determined under Articles VI through
VIII.
ARTICLE V
DEFERRAL
ACCOUNTS
5.1 Deferral
Accounts . Solely for record keeping
purposes, up to three Deferral Accounts (one Termination Benefit
Account and up to two Scheduled In-Service Withdrawal Accounts)
shall be established and maintained for each Participant. Pursuant
to a Participant’s Distribution Election Form, the Deferral
Accounts shall be credited with the following:
(a) Annual Deferrals
. Annual Deferrals, if any, shall be credited at the
time such amounts would otherwise have been paid to the Participant
for the Plan Year.
(b) Matching Contribution
Restoration Credit . If a Participant has
contributed the maximum “Before Tax Deposits” (as
defined in the Savings and Investment Plan) permitted under
Section 4.2 of the Savings and Investment Plan (but without
regard to the catch-up provisions of Section 4.2(e) of the
Savings and Investment Plan and Code Section 414(v)) for the
Plan Year, then such Participant’s Deferral Account(s) for
such Plan Year shall be credited with a “Matching
Contribution Restoration Credit” equal to the excess of the
dollar amount or value of (i) the Participant’s
“Matching Contributions” (as defined in the Savings and
Investment Plan), without regard to trust income or earnings, based
on such Participant’s “Matched Deposits” (as
defined in the Savings and Investment Plan), and such
Participant’s “Compensation” (as defined in the
Savings and Investment Plan) as increased by any Annual Deferrals
made under this Plan up to the limitation imposed by Code
Section 401(a)(17), over (ii) the Participant’s
actual “Matching Contributions” for the
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Plan Year under the Savings and Investment Plan. The Matching
Contribution Restoration Credit (if any) shall be credited to a
Participant’s Deferral Account for such Plan Year after the
end of the Plan Year to which such credit relates and after the
Participant’s “Matching Contributions” for such
Plan Year under the Savings and Investment Plan are determined, but
not later than the end of the Plan Year following the Plan Year to
which such credit relates.
(c) Retirement Contribution
Restoration Credit . If a Participant is a
“Retirement Account Participant” (as defined in the
Savings and Investment Plan) and is eligible to receive a
Retirement Contribution allocation pursuant to Section 5.4 of
the Savings and Investment Plan for a Plan Year, e.g. ,
employed by the Company on the last day of the Plan Year, then such
Participant’s Deferral Account(s) for such Plan Year shall be
credited with a “Retirement Contribution Restoration
Credit,” the amount of which is equal to the excess of the
dollar amount of (i) such Participant’s
“Retirement Contribution” (as defined in the Savings
and Investment Plan), without regard to trust income or earnings,
based on the Participant’s “Compensation” (as
defined in the Savings and Investment Plan) as increased by any
Annual Deferrals made under this Plan and without regard to the
limitations imposed by Code Sections 401(a)(4), 401(a)(17) and
415, over (ii) such Participant’s actual
“Retirement Contribution” for such Plan Year under the
Savings and Investment Plan. The Retirement Contribution
Restoration Credit (if any) shall be credited to a
Participant’s Deferral Account(s) for such Plan Year after
the end of the Plan Year to which such credit relates and after the
Participant’s “Retirement Contribution” for such
Plan Year under the Savings and Investment Plan is determined, but
not later than the end of the Plan Year following the Plan Year to
which such credit relates.
(d) ESOP Restoration
Credit . A Participant’s Deferral Account(s)
may also contain an ESOP Restoration Credit, for Plan Years
beginning prior to January 1, 2003.
The amounts (if any) to be credited to a Participant’s
Deferral Accounts pursuant to paragraphs (b) and (c)
above shall be credited after the end of the Plan Year to which
such credits relate and after such Participant’s actual
“Retirement Contribution” and actual “Matching
Contributions” (each as defined in the Savings and Investment
Plan) for such Plan Year under the Savings and Investment Plan are
determined, but not later than the end of the Plan Year following
the Plan Year to which such credits relate.
A Participant’s Restoration Credits shall be credited to the
Participant’s Termination Benefit Account under Article VI
and shall not be eligible for distribution as a Scheduled
In-Service Withdrawal under Article VII.
5.2 Investment
Earnings on Deferral Accounts . The Deferral
Accounts of a Participant shall be credited with investment
earnings at the Fund Rate or interest at the Company Rate, if
applicable, as provided in Section 5.3. For any portion of a
Deferral Account to which the Company Rate is applicable, such
portion of the Deferral Account shall be credited each month with
interest which shall be compounded on an annual basis under rules
determined by the Committee in its sole discretion.
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5.3 Participant
Investment Elections .
(a) Deferrals and
Restoration Credits . Any Annual Deferrals made by a
Participant and any Restoration Credits credited to a
Participant’s Deferral Account with respect to a Deferral
Period shall be credited with investment earnings at the Fund Rate
and shall not be eligible to be credited with interest at the
Company Rate. The investment allocation of a Participant’s
Restoration Credits to Fund Media shall be the allocation selected
by the Participant in his or her most recent Investment Election
Form. If a Participant does not submit an Investment Election Form
or otherwise select the Fund Media for his or her Restoration
Credits, then such Restoration Credits shall be credited to
Dodge & Cox Balanced Fund listed on Appendix A (or,
if the Dodge & Cox Balanced Fund is unavailable for any
reason, then such Fund Media as the Committee shall determine in
its sole discretion), until superseded by a subsequent Investment
Election Form properly completed and submitted by such
Participant.
(b) Amounts eligible for the
Company Rate . Certain grandfathered amounts that as
of January 1, 2009 are invested at the Company Rate will
continue to be eligible to accrue investment earnings at the
Company Rate unless transferred to the Fund Rate under subsection
(c) below. No other amounts are eligible for the Company
Rate.
(c) Transfers from Company
Rate to Fund Rate . Each Participant may request to
change the investment of all or any portion of his or her Deferral
Account from the Company Rate to the Fund Rate subject to the
following conditions:
(i) An Investment Election Form,
which includes the allocation among Fund Media, must be submitted
by such time as may be established by the Committee from time to
time.
(ii) An investment transfer from the
Company Rate to the Fund Rate shall be irrevocable.
(d) Allocation to Fund
Media . With respect to any portion of the Deferral
Account to which the Fund Rate applies, the Participant may
prospectively change the investment allocation to Fund Media on
a periodic basis as set by the Company, but not less
frequently than monthly , in whole or part by submitting an
Investment Election Form or by using such electronic means and
under such procedures as the Committee may permit.
5.4 Fund Media
. The initial Fund Media under the Plan shall be as set
forth on Appendix A , attached hereto. The Committee may add
or delete Fund Media in its sole discretion from time to time. In
the event of a deletion of a Fund Media, the Committee is not
required to provide a new Fund Media option with similar investment
objectives as those of the deleted Fund Media. For any amounts for
which a deleted Fund Media had been selected, the Committee, in its
sole discretion, may select an alternative Fund Media, either a
fixed income Fund Media or an existing Fund Media that has similar
investment objectives as the deleted Fund Media, to which to assign
those amounts until the Participant selects otherwise. The
Committee shall have no liability or responsibility with respect to
the absolute or relative return of such
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alternative Fund Media
to which it assigns such amounts. Participants must make an
investment allocation to Fund Media in whole percentages equal to
one hundred percent (100%), in the aggregate, of the amount
invested in Deferral Accounts to which the Fund Rate applies.
5.5 Vesting of
Deferral Account .
(a) A Participant shall be fully
vested in his or her Annual Deferrals, Matching Contribution
Restoration Credits, and ESOP Restoration Credits.
(b) A Participant shall vest in
his or her Retirement Contribution Restoration Credits and any
investment earnings thereon in accordance with the following
schedule:
|
|
|
|
Years of Service
|
|
Vested Percentage
|
|
|
|
Less than 1
|
|
0%
|
|
1 but less than 2
|
|
20%
|
|
2 but less than 3
|
|
40%
|
|
3 but less than 4
|
|
60%
|
|
4 but less than 5
|
|
80%
|
|
5 or more
|
|
100%
|
For purposes of this Section 5.5, a Participant’s Years
of Service under the Plan shall be equal to the Participant’s
“Credited Service” (as defined in the Savings and
Investment Plan) credited to such Participant under the Savings and
Investment Plan.
Upon a Participant’s Termination of Employment, any unvested
amounts and applicable investment earnings thereon shall be
forfeited after 90 days from the Termination of Employment, as of
the last day of the month in which the 90-day period ends, and his
or her Deferral Accounts will be adjusted accordingly. Any
forfeited amounts shall be used to offset Restoration Credits to be
made by the Company for the following Plan Year.
(c) &