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ALLERGAN, INC. EXECUTIVE DEFERRED COMPENSATION PLAN

Executive Compensation Plan Agreement

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ALLERGAN INC

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Title: ALLERGAN, INC. EXECUTIVE DEFERRED COMPENSATION PLAN
Date: 2/27/2009
Industry: Biotechnology and Drugs     Sector: Healthcare

ALLERGAN, INC. EXECUTIVE DEFERRED COMPENSATION PLAN, Parties: allergan inc
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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)  &


 
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