Exhibit 10.9
OMNICOM GROUP INC.
SENIOR MANAGEMENT INCENTIVE PLAN
As Amended and Restated on December 4,
2008
Section 1.
Purposes . The purpose of the Omnicom Group Inc. Senior
Management Incentive Plan (the “ Plan ”)
is to attract, retain and motivate selected employees of Omnicom
Group Inc. (the “ Company ”) and its
subsidiaries and affiliates who are executive officers of the
Company (and any successor thereto) in order to promote the
Company’s long-term growth and profitability. It is also
intended that all Bonuses (as defined in Section 5(a)) payable
under the Plan be considered “performance-based
compensation” within the meaning of Section 162(m)(4)(C) of
the Internal Revenue Code of 1986, as amended (the “
Code ”), and the regulations thereunder, and
the Plan shall be interpreted accordingly.
Section 2.
Administration .
(a)
Subject to Section 2(d), the Plan shall be administered by a
committee (the “ Committee ”) appointed
by the Board of Directors of the Company (the “
Board ”), whose members shall serve at the
pleasure of the Board. The Committee at all times shall be composed
of at least two directors of the Company, each of whom is an
“outside director” within the meaning of Section 162(m)
of the Code and Treasury Regulation Section 1.162 -27(e)(3) and a
“non-employee director” within the meaning of Rule
16b-3 promulgated under the Securities Exchange Act of 1934, as
amended. Unless otherwise determined by the Board, the Committee
shall be the Compensation Committee of the Board.
(b)
The Committee shall have complete control over the administration
of the Plan, and shall have the authority in its sole and absolute
discretion to: (i) exercise all of the powers granted to it under
the Plan; (ii) construe, interpret and implement the Plan; (iii)
prescribe, amend and rescind rules and regulations relating to the
Plan, including rules and regulations governing its own operations;
(iv) make all determinations necessary or advisable in
administering the Plan (including, without limitation, calculating
the size of the Bonus payable to each Participant (as defined in
Section 4(a))); (v) correct any defect, supply any omission and
reconcile any inconsistency in the Plan; and (vi) amend the Plan to
reflect changes in or interpretations of applicable law, rules or
regulations.
(c)
The determination of the Committee on all matters relating to the
Plan and any amounts payable thereunder shall be final, binding and
conclusive on all parties.
(d)
Notwithstanding anything to the contrary contained herein, the
Committee may allocate among its members and may delegate some or
all of its authority or administrative responsibility to such
individual or individuals who are not members of the Committee as
it shall deem necessary or appropriate; provided, however, the
Committee may not delegate any of its authority or administrative
responsibility hereunder (and no such attempted delegation shall be
effective) if such delegation would cause any Bonus payable under
the Plan not to be considered performance-based compensation within
the meaning of Section 162(m)(4)(C) of the Code.
(e)
No member of the Board or the Committee or any employee of the
Company or any of its subsidiaries or affiliates (each such person
a “ Covered Person ”) shall have any
liability to any person (including, without limitation, any
Participant) for any action taken or omitted to be taken or any
determination made in good faith with respect to the Plan or any
Bonus. Each Covered Person shall be indemnified and held harmless
by the Company against and from any loss, cost, liability or
expense (including attorneys’ fees) that may be imposed upon
or incurred by such Covered Person in connection with or resulting
from any action, suit or proceeding to which such Covered Person
may be a party or in which such Covered Person may be involved by
reason of any action taken or omitted to be taken under the Plan
and against and from any and all amounts paid by such Covered
Person, with the Company’s approval, in settlement thereof,
or paid by such Covered Person in satisfaction of any judgment in
any such action, suit or proceeding against such Covered Person,
provided that the Company shall have the right, at its own expense,
to assume and defend any such action, suit or proceeding and, once
the Company gives notice of its intent to assume the defense, the
Company shall have sole control over such defense with counsel of
the Company’s choice. The foregoing right of indemnification
shall not be available to a Covered Person to the extent that a
court of competent jurisdiction in a final judgment or other final
adjudication, in either case, not subject to further appeal,
determines that the acts or omissions of such Covered Person giving
rise to the indemnification claim resulted from such Covered
Person’s bad faith, fraud or willful criminal act or
omission. The foregoing right of indemnification shall not be
exclusive of any other rights of indemnification to which Covered
Persons may be entitled under the Company’s Restated
Certificate of Incorporation or Amended and Restated Bylaws, as a
matter of law, or otherwise, or any other power that the Company
may have to indemnify such persons or hold them
harmless.
Section 3.
Performance Period . The Plan shall operate for successive
periods (each a “ Performance Period ”).
The first Performance Period shall commence on April 1, 2005 and
shall terminate on December 31, 2005. Thereafter, each Performance
Period shall be one full fiscal year and/or portions of fiscal
years of the Company, as determined by the Committee.
Section 4.
Participation .
(a)
Prior to the 90th day after the beginning of a Performance Period,
or otherwise in a manner not inconsistent with Treasury Regulation
Section 1.162 -27(e)(2) (the “ Participation
Date ”), the Committee shall designate those
individuals who shall participate in the Plan for the Performance
Period (the “ Participants ”).
(b)
Except as provided below, the Committee shall have the authority at
any time (i) during the Performance Period to remove Participants
from the Plan for that Performance Period and (ii) prior to the
Participation Date (or later in a manner consistent with the
requirements of Section 162(m) of the Code) to add Participants to
the Plan for a particular Performance Period.
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Section 5.
Bonus Amounts .
(a)
Each Participant shall be paid a bonus amount equal to 2% of the
Company’s “Earnings” (as defined in Section 5(c))
with respect to each Performance Period. Notwithstanding anything
to the contrary in this Plan, the Committee may, in its sole
discretion, reduce (but not increase) the bonus amount for any
Participant for a particular Performance Period at any time prior
to the payment of bonuses to Participants pursuant to Section 6 (a
Participant’s bonus amount for each Performance Period, as so
reduced, the “ Bonus ”).
(b)
If a Participant’s employment with the Company terminates for
any reason before the end of a Performance Period or before the
date that the Bonus is paid pursuant to Section 6, the Committee
shall have the discretion to determine whether (i) such Participant
shall be entitled to any Bonus at all, (ii) such
Participant’s Bonus shall be reduced on a pro-rata basis to
reflect the portion of such Performance Period the Participant was
employed by the Company or (iii) to make such other arrangements as
the Committee deems appropriate in connection with the termination
of such Participant’s employment.
(c)
For purposes of this Section 5, “ Earnings
” means the Company’s operating income before taxes,
incentive compensation and extraordinary gains or losses as
reported in its audited consolidated financial statements for the
relevant Performance Period, adjusted to eliminate, with respect to
such Performance Period: (i) losses related to the impairment of
goodwill and other intangible assets; (ii) restructuring expenses;
(iii) gains or losses on disposal of assets or segments of the
previously separate companies of a business combination within two
years of the date of such combination; (iv) gains or losses that
are the direct result of a major casualty or natural disaster; (v)
losses resulting from any newly-enacted law, regulation or judicial
order; and (vi) the cumulative effect of accounting changes. The
above adjustmen
