Exhibit 10.19
AMERISOURCEBERGEN
CORPORATION
2001 DEFERRED COMPENSATION
PLAN
(AMENDED AND RESTATED
NOVEMBER 24, 2008)
ARTICLE 1
DESIGNATION OF PLAN AND DEFINITIONS
Section 1.1. Title and
Purpose.
This Plan shall be known as the
“AmerisourceBergen Corporation 2001 Deferred Compensation
Plan.” The purpose of this Plan is to provide specified
benefits to a select group of management or highly compensated
employees and directors who contribute materially to the continued
growth, development and future business success of
AMERISOURCEBERGEN CORPORATION, a Delaware corporation, and its
subsidiaries (including lower-tier subsidiaries), if any, that
sponsor this Plan. This Plan shall be unfunded for tax purposes and
for purposes of Title I of ERISA.
Effective November 1, 2002, the
Board of Directors of the Company amended and restated this Plan to
(i) transfer into this Plan all of the assets, liabilities and
obligations under the Bergen Brunswig Corporation 1999 Deferred
Compensation Plan, which was terminated and (ii) add the
availability of contributions by the Company to Participants from
time to time.
In order to preserve the tax
treatment available to deferrals under the this Plan prior to
January 1, 2005, the Board froze the Plan with respect to such
amounts. Therefore, all compensation deferred prior to
January 1, 2005, and any amounts earned and vested thereon
after January 1, 2005, are and will remain subject to the
terms of the Plan in effect on December 31, 2004. All amounts
earned and vested on and after January 1, 2005 are subject to
the terms of this amended and restated Plan which is intended to
achieve compliance with Section 409A of the Internal Revenue
Code and the regulations issued thereunder. Unless otherwise
stated, the terms of this amended and restated Plan are effective
as of January 1, 2005.
Section 1.2.
Definitions.
Whenever the following terms are
used in the Plan they shall have the meaning specified below unless
the context clearly indicates to the contrary.
1.2.1. “Anniversary
Date” shall mean the last day of the Plan Year.
1.2.2. “Beneficiary” or
“Beneficiaries” shall mean the person or persons
properly designated by the Participant, in accordance with Article
V, to receive the benefits provided herein.
1.2.3. “Board of
Directors” shall mean the Board of Directors of
AmerisourceBergen Corporation or the Compensation Committee of the
Board of Directors of AmerisourceBergen Corporation.
1.2.4. “Code” shall mean
the Internal Revenue Code of 1986, as amended.
1.2.5. “Common Stock”
shall mean the Common Stock of AmerisourceBergen
Corporation.
1.2.6. “Company” shall
mean [AmerisourceBergen Corporation.]
1.2.7. “Company
Contribution” shall mean for any Plan Year or part thereof,
the amount credited by the Company to a Participant pursuant to
Section 2.5.
1.2.8. “Compensation” of
a Participant for any Plan Year shall in the case of a Director
Participant include the annual special compensation fee and meeting
attendance fees (before required withholdings) payable by the
Company to such Director Participant. In the case of an Employee
Participant, “Compensation” for a Plan Year shall
include all salary, vacation pay, bonuses, incentive awards and
commissions (before required withholdings) earned by such Employee
Participant for services rendered to the Company or a subsidiary in
that Plan Year. If a Participant earns Compensation during a Plan
Year relating to services rendered during the previous Plan Year,
such Compensation shall be treated as having been earned by the
Participant on the preceding Anniversary Date. Notwithstanding the
foregoing, any amount payable to an Employee Participant under a
long-term incentive plan of the Company or a subsidiary (including,
without limitation, a “phantom stock plan,” performance
plan or other incentive arrangement) shall be deemed Compensation
of such Employee Participant for the Plan Year in which such amount
becomes payable.
1.2.9. “Deferred
Benefit” shall mean each separate deferral of Compensation
made pursuant to Section 2.1.
1.2.10. “Deferred
Compensation” shall mean that portion of a
Participant’s Compensation for any Plan Year or part thereof,
that has been deferred and withheld by the Company or a subsidiary
pursuant to the Plan.
1.2.11. “Director
Participant” shall mean a Participant who is a non-employee
director of the Company.
1.2.12. “Earnings Crediting
Options” means the deemed investment options selected by the
Participant from time to time pursuant to which deemed earnings are
credited to the Participant’s Deferred Benefit.
1.2.13. “Election Form”
shall mean the form that a Participant completes, signs and returns
to the Plan Administrator to make an election to defer Compensation
under the Plan.
1.2.14. “Employee
Participant” shall mean a Participant who is a regular
employee of a Company or a subsidiary (excluding a director who
does not serve the Company in any other capacity) who is a member
of a select group of management or highly compensated employees, as
membership in such group is determined in accordance with Sections
201(2), 301(a) (3) and 401(a) of ERISA. Subject to the
foregoing, the Compensation Committee of the
Board of Directors shall have authority to
determine, in its sole discretion, the class or category of
employees who may be Employee Participants; provided, however, that
if such Committee changes such class or category in a manner which
causes a Participant to fail to continue to be eligible to defer
Compensation under the Plan, such change shall not cancel or
otherwise adversely affect in any way amounts previously deferred
under the Plan by such Participant, which amounts shall continue to
be subject to the terms of the Plan.
1.2.15. “ERISA” shall
mean the Employee Retirement Income Security Act of 1974, as
amended.
1.2.16. “Participant”
shall mean any Director Participant and any Employee Participant
(i) who elects to participate in the Plan, (ii) who signs
a Plan Agreement, an Election Form and a Beneficiary Designation
Form, (iii) whose signed Plan Agreement, Election Form and
Beneficiary Designation Form are accepted by the Plan
Administrator, (iv) who commences participation in the Plan,
and (v) whose Plan Agreement has not terminated. A spouse or
former spouse of a Participant shall not be treated as a
Participant in the Plan, even if he or she has an interest in the
Participant’s benefits under the Plan under applicable law or
as a result of property settlements resulting from legal separation
or divorce. Except for the ability to file new Election Forms under
Article II (which shall depend on continuing qualification as a
Participant), such person’s status as a Participant under the
Plan shall continue until the earlier of (i) receipt of the
full amount of the Deferred Benefit, or (ii) death.
1.2.17. “Plan” shall
mean the AmerisourceBergen Corporation 2001 Deferred Compensation
Plan.
1.2.18. “Plan
Administrator” means the person, persons or committee
designated by the Chief Executive Officer of the Company to serve
as the plan administrator.
1.2.19. “Plan Agreement”
shall mean a written agreement, as may be amended from time to
time, which is entered into by and between the Company and a
Participant, relating to the deferral of Compensation under the
Plan. If there should be any conflict between the terms of a Plan
Agreement and the Plan, the Plan shall control.
1.2.20. “Plan Year”
shall, for the first Plan Year, extend from September 1, 2001
through December 31, 2001. For each Plan Year thereafter, the
Plan Year shall begin January 1 of each year and continue
through December 31.
1.2.21. “Subsequent
Election” means an election to change the form and
commencement date of payment with respect to all of a
Participant’s Deferred Benefit by filing an election change
consistent with the requirements of Treas. Reg. 1.409A-2(b), or any
succeeding regulations. The Plan Administrator reserves the right
to and discretion to reject and disallow a Subsequent Election for
any reason and at any time. A Subsequent Election as to a Deferred
Benefit: (1) will not be effective as to any payment scheduled
to be made within 12 months of the Subsequent Election; and
(2) other than a Subsequent Election made in connection with a
Participant’s death, the first payment to which such
Subsequent Election applies must be deferred by at least five years
from the originally scheduled payment date.
1.2.22. “Unforeseeable
Emergency” means a severe financial hardship to the
Participant resulting from an illness or accident of the
Participant, the Participant’s spouse, or a dependent (as
defined in section 152(a) of the Code) of the Participant, 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.
ARTICLE 2
DEFERRAL ELECTION AND COMPANY
CONTRIBUTIONS
Section 2.1. Election to Defer
Compensation.
2.1.1. A Participant may elect to
defer Compensation for a Plan Year by filing an Election Form prior
to the beginning of such Plan Year. A Participant who is selected
to participate in the Plan other than at the beginning of a Plan
Year may file an Election Form within thirty days after being
selected to participate which election shall apply only to
Compensation earned after the date of the election.
2.1.2. Subject to a minimum
scheduled deferral amount for a Plan Year that may be set from time
to time by the Plan Administrator, an Employee Participant may
elect to defer any amount of Compensation.
2.1.3. A Director Participant may
elect to defer any amount of Compensation which Election shall
specify the amount to be credited.
2.1.4. The Election Form shall
specify the method of payment of benefits which is elected pursuant
to Sections 4.1 and the time such payment is to commence pursuant
to Sections 4.2.
Section 2.2. Method of
Deferral.
A Participant’s Deferred
Compensation shall be withheld by the Company in accordance with
the election pursuant to Section 2.1.
Section 2.3. Annual Election
Required.
The election made pursuant to
Section 2.1 shall be irrevocable and shall be effective only
for the Plan Year for which it was filed. A new Election Form is
necessary for each Plan Year in which a Participant wishes to defer
Compensation. [Such Election Form shall contain the information
specified in Section 2.1 with the exception that the time and
method of payment of the Deferred Benefit is to commence pursuant
to Section 4 may not be changed from the designation made in
the initial application.]
Section 2.4. Termination of
Participation and/or Deferrals.
If the Plan Administrator determines
in good faith that a Participant no longer qualifies as a member of
a select group of management or highly compensated employees, as
membership in such group is determined in accordance with Sections
201(2), 301(a) (3) and 401(a) (1) of ERISA, the Plan
Administrator shall have the right, in its sole discretion, to
(i)
terminate any deferral election the Participant
has made for the Plan Year in which the Participant’s
membership status changes and (ii) prevent the Participant
from making future deferral elections. The Plan Administrator may,
in its sole discretion, reinstate the Participant to full Plan
participation at such time in the future as the Participant again
becomes a member of the select group described above.
Section 2.5. Company
Contributions.
From time to time as determined by
and subject to such terms and conditions established by the Board
of Directors, in its sole discretion, the Company may credit
amounts to a Participant. The method of payment of any such amounts
and the time such payment is to commence shall be determined by the
Company at the time of any such contribution.
ARTICLE 3
EARNINGS ON DEFERRED BENEFITS
Section 3.1. General. A
Participant’s Deferred Benefit shall be credited with
earnings in accordance with the Earnings Crediting Options elected
by the Participant from time to time.
Section 3.2. Investment
Options. The deemed rate of return, positive or negative, credited
under each Earnings Crediting Option is based upon the actual
investment performance of investment fund(s) as the Company may
designate from time to time, and shall equal the total return of
such investment fund net of asset-based charges, including, without
limitation, money management fees, fund expenses and mortality and
expense risk insurance contract charges. The Company reserves the
right, on a prospective basis, to add or delete Earnings Crediting
Options.
Section 3.3. Earnings Crediting
Options. Notwithstanding that the rates of return credited to
Participants’ Deferred Benefits under the Earnings Crediting
Options are based upon the actual performance of the investment
options specified in Section 3.2, or such other investment
funds as the Company may designate, the Company shall not be
obligated to invest any Compensation deferred by Participants under
this Plan or Company Contributions or any other amounts, in such
funds or in any other investment funds.
Section 3.4. Changes in
Earnings Crediting Options. A Participant may change the Earnings
Crediting Options to which the Participant’s Deferred Benefit
are deemed to be allocated, subject to such rules as may be
determined by the Plan Administrator, and as determined from time
to time consistent with legal restrictions. Each such change may
include (a) reallocation of the Participant’s existing
Deferred Benefits and/or (b) change in investment allocation
of amounts to be credited to the Participant’s Deferred
Benefits in the future, as the Participant may elect. The effect of
a Participant’s change in Earnings Crediting Options shall be
reflected in the Participant’s Deferred Benefit as soon as
reasonably practicable following the Plan Administrator’s
receipt of notice of such change, as determined by the Plan
Administrator in its sole discretion.
Section 3.5. Valuation of
Accounts. The value of a Participant’s Deferred Benefit as of
any date shall equal the amounts theretofore credited to such
Deferred Benefit, including any earnings (positive or negative)
deemed to be earned on such Deferred Benefit in accordance with
this Article III through the day preceding such date, less the
amounts theretofore deducted from such Deferred Benefit.
ARTICLE 4
PAYMENT OF BENEFITS
Section 4.1. Methods of
Payment.
4.1.1. Not later than the
