Exhibit 10.16
OMNICOM CROUP INC.
OMNICOM MANAGEMENT INC.
RESTRICTED STOCK UNIT
DEFERRED COMPENSATION PLAN
Section 1. Purpose and
Administration .
(a)
Purpose; Incentive Plan . The purpose of this Restricted
Stock Unit Deferred Compensation Plan (the “Plan”) is
to assist a select group of key employees of Omnicom Group Inc.
(“OGI”) and Omnicom Management Inc. (together,
“Omnicom”) in their financial planning by providing a
means for the deferral of some or all of the Awards of Restricted
Stock Units granted to such key employees pursuant to Section 8.6
of the 2007 Incentive Award Plan of OGI (the “Incentive
Plan”). It is anticipated that the Plan will aid in
attracting and retaining key management employees required for the
continued growth and profitability of Omnicom. Notwithstanding
anything in the Incentive Plan to the contrary, no payment with
respect to an Award of Restricted Stock Units may be deferred, and
no grantee of Restricted Stock Units may elect or determine the
maturity date with respect to an Award of Restricted Stock Units
except pursuant to a Deferral Election (as defined below) in
accordance with the terms of this Plan. Unless a Deferral Election
is made in accordance with the terms of this Plan, the maturity
date with respect to any Restricted Stock Units shall be the date
on which such Restricted Stock Units vest in accordance with the
terms of an Award Agreement. Defined terms used in this Plan but
not defined herein shall have the meanings assigned to such terms
in the Incentive Plan.
(b)
Administration . The Plan shall be administered by a
committee (the “Committee”) appointed by the Board of
Directors of the OGI, whose members shall serve at the pleasure of
the Board. The Committee at all times shall be composed of at least
two directors of OGI, each of whom is an “outside
director” within the meaning of Section 162(m) of the
Internal Revenue Code of 1986, as amended (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.
(c)
Powers/Duties/Liabilities of the Committee . The Committee
shall implement the Plan, and may adopt rules and regulations in
furtherance thereof which are not inconsistent with any express
provisions of the Plan or the Incentive Plan. The Committee shall
construe and interpret the Plan and any rules or regulations it has
adopted, and make such determinations (including without limitation
determinations of fact) as it determines are necessary or advisable
for the administration of the Plan. The interpretations and
determinations of the Committee shall be binding and conclusive.
The Committee may amend the Plan in its discretion, subject to
Section 5(f). A member of the Committee who is a Participant (as
hereinafter defined) may not vote or take any other action on any
question or matter relating solely to himself or herself (as
opposed to questions or matters affecting Participants in general).
No member of the Committee shall be liable for any action taken or
omitted in connection with the administration of the Plan unless
attributable to such member’s willful misconduct that results
in a material breach of this Plan.
Section 2. Participation
.
(a)
Eligible Employees . From time to time during the term of
this Plan, the Committee shall designate the key employees of
Omnicom who are eligible to participate in the Plan (the
“Eligible Employees”) by giving each such Eligible
Employee written notice of eligibility.
(b)
Deferral Elections . Each Eligible Employee may participate
in the Plan by furnishing the Committee with an election (a
“Deferral Election”), signed by the employee, pursuant
to which the employee elects to defer payment with respect to an
Award of Restricted Stock Units. An Eligible Employee who signs and
returns a Deferral Election to the Committee shall become a
“Participant” in the Plan. A Participant’s
Deferral Election with respect to an Award may not be modified or
revoked after the close of business on the last day the Participant
may make his or her Deferral Election as provided below, except in
the event of an Unforeseeable Emergency (as defined below) and if
permitted by the Committee in its sole discretion. Restricted Stock
Units that are covered by a Deferral Election shall constitute
“Deferred Units.” Deferral Elections shall be effective
only if furnished to the Committee as follows, provided, that the
Committee in its discretion may limit the timing of a Deferral
Election to one or more of the following:
(1)
on or before December 31 of any calendar year (or such earlier date
established in the discretion of the Committee) with respect to
Awards of Restricted Stock Units granted to the Participant in the
following calendar year and any subsequent calendar years as
specified in the Deferral Election; provided, however, that no
Deferral Election may be made under this subsection 1 with respect
to any Awards of Restricted Stock Units granted to a Participant
with respect to any services performed by such Participant prior to
the applicable December 31;
(2)
with respect to an Award that is “performance-based
compensation,” within the meaning of Treas. Reg. §
1.409A-1(e)(1) or (2) (“Performance-Based
Compensation”), on or before the date that is six months
before the end of the applicable performance period to which such
Award relates, provided, however, that no Deferral Election may be
made under this subsection 2 (i) unless the Participant has
performed services for Omnicom continuously from the beginning of
such performance period, or (ii) after such Award has become
readily ascertainable within the meaning of Treas. Reg. §
1.409A-2(a)(8);
(3)
in the case of the first year in which an employee becomes an
Eligible Employee, which first year of eligibility shall be
determined in accordance with Treas. Reg. § 1.409A-2(a)(7),
and with respect to Awards of Restricted Stock Units granted to
such employee after the date of the Deferral Election, within 30
days after the date such employee becomes an Eligible Employee;
provided, however, that for purposes of this subsection 3, with
respect to Awards that are Performance-Based Compensation, such
Deferral Election shall apply to no more than the total number of
Restricted Stock Units covered by the Award multiplied by the ratio
of the number of days remaining in the applicable performance
period after the Deferral Election over the total number of days in
such performance period, and provided further that no
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election may be made by an
employee pursuant to this subsection 3 if the Company determines in
its sole discretion that, prior to becoming an Eligible Employee,
such employee was eligible to participate in any
“non-qualified deferred compensation plan” (as defined
in Section 409A of the Code) that would be aggregated with the Plan
for purposes of Section 409A of the Code; or
(4)
on or before the 30 th day following the date of any
Award of Restricted Stock Units, provided, however, that no
Deferral Election made pursuant to this subsection 4 shall be
effective with respect to any Restricted Stock Units that vest
prior to the date that that is 12 months after the date of such
Deferral Election, unless the vesting of such Restricted Stock
Units during such 12-month period may only occur in the event of
the Participant’s death or a change in control event (as
defined in Treas. Reg. § 1.409A-3(i)(5).
(5)
on or before December 31, 2008 with respect to any portion of an
Award of Restricted Stock Units granted prior to such date but not
yet vested as of such date.
Section 3. Plan Accounts
.
(a)
Plan Accounts . The Committee shall establish an account on
the books of OGI (a “Plan Account”) for each
Participant who furnishes a Deferral Election and shall credit the
Participant’s Plan Account with a number of Deferred Units
equal to the number of Restricted Stock Units that would have
vested in the absence of the Participant’s Deferral Election.
The Committee shall also establish, to the extent necessary,
separate subaccounts of a Participant’s Plan Account to
reflect the Participant’s Deferral Election for different
calendar years. The Committee shall debit the Plan Account of a
Participant each time a distribution is made to the Participant
from his Plan Account.
(b)
Distributions; Adjustments .
(1)
Cash Distributions in respect of Dividends . With respect to
each Deferred Unit in a Participant’s Plan Account on the
record date (the “Record Date”) of any cash dividend or
other distribution paid with respect to shares of common stock of
OGI (“Omnicom Stock”), Omnicom shall pay to each
Participant an amount of cash equal to the cash payment that would
have been paid to the Participant in respect of such cash dividend
under the terms of the applicable Award Agreement, but in no event
shall any payment be made to the Executive in respect of any cash
dividend if the Record Date with respect to such cash dividend
falls after the date on which the Executive incurs a Separation
from Service. Any amount payable pursuant to this Section 3(b)(i)
shall be paid to the Participant at the time the respective cash
dividend is paid to the holders of Omnicom Stock, but in no event
later than March 15 of the year following the year in which the
Record Date with respect to such cash dividend falls.
Notwithstanding the foregoing, if the Participant is entitled to
such cash dividend or other distribution as a result of holding
shares of Omnicom Stock issued with respect to a distribution made
under Section 4 of this Plan on or after the Record Date but prior
to the payment of the applicable cash dividend or other
distribution (the
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“Distributed
Shares”), then the Participant shall not also be entitled to
receive a cash payment with respect to such cash dividend or
distribution under this Section 3(b)(i) with respect to the
Distributed Shares.
(2)
Changes in Capitalization . If any change shall occur in or
affect shares of Omnicom Stock on account of a merger,
consolidation, reorganization, stock dividend, stock split or
combination, reclassification, recapitalization, distribution to
holders of shares of Omnicom Stock (other than cash dividends) or
such similar event (as determined by the Committee in its
discretion), the Committee will make such adjustments, if any, that
it deems necessary or equitable in each Participant’s Plan
Account in order to prevent the dilution or enlargement of the
Participant’s benefits under the Plan.
(c)
Statements . As soon as practicable following the close of a
calendar year, the Committee shall furnish to each Participant
having a Plan Account a statement setting forth the number of
Deferred Units in his or her Plan Account at the close of such
calendar year.
(d)
Nature of Omnicom’s Obligations/Participant’s
Rights . Omnicom’s liability to pay the amount in a
Participant’s Plan Account shall be reflected in its books of
account as a general, unsecured and unfunded obligation, and the
rights of a Participant or his or her designated beneficiary to
receive payments from Omnicom under the Plan are solely those of a
general, unsecured creditor. Omnicom shall not be required to
segregate any of its assets in respect to its obligations
hereunder, and a Participant or designated beneficiary shall not
have any interest whatsoever, vested or contingent, in any
properties or assets of Omnicom. Without
