EXHIBIT 10.15
OMNICARE, INC.
EXCESS BENEFIT PLAN
INTRODUCTION
The purpose of the Omnicare, Inc. Excess Benefit Plan (the "Plan") is
to provide supplemental pension benefits to a select group of executive
employees of Omnicare, Inc. and its designated affiliates. The Plan provides a
defined benefit pension and a defined contribution pension to designated
participants, by reference to the benefits provided by certain tax-qualified
pension plans of Omnicare, Inc.
This Plan amends and restates in its entirety the Plan as originally
effective January 1, 1987, as amended, and incorporates certain administrative
actions that have been taken from time to time by Omnicare, Inc. with respect to
the Plan. It is intended that the effective dates of any prior amendments and
administrative action taken with respect to the Plan be incorporated into this
amended and restated Plan.
The Plan is intended to be an unfunded arrangement that provides
deferred compensation to a select group of management and highly compensated
employees, within the scope of Sections 201(2), 301(a)(3) and 401(a)(1) of the
Employee Retirement Income Security Act of 1974 ("ERISA"), as amended.
SECTION 1. DEFINITIONS
1.1. "Account" means the book entry account maintained for a
Participant with respect to certain benefits under the Plan.
1.2. "Beneficiary" means the person or entity designated by a
Participant to be entitled to any Excess Benefits payable to a Participant
following death.
1.3. "Board" or "Board of Directors" means the Board of Directors of
the Company.
1.4. "Change in Control" shall have the meaning set forth in Appendix A
hereof.
1.5. "Code" means the Internal Revenue Code of 1986, as amended.
1.6. "Committee" means the Compensation and Incentive Committee of the
Board, or such other committee of the Board appointed by the Board to administer
the Plan.
1.7. "Company" means Omnicare, Inc., a Delaware corporation.
1.8. "Compensation" means the amount of compensation determined in
accordance with the applicable definition of "Compensation" as set forth in the
General Pension Plan, the ESOP or the S&I Plan, depending upon the respective
plan to which such Excess Benefits apply.
1.9. "Excess Benefits" means the benefits described in this Plan.
1.10. "Eligible Employee" means a management or highly compensated
employee of an Employer, who may be designated by the Committee to participate
in the Plan or a portion thereof.
1.11. "Employer" means the Company, Omnicare Management Company and any
other affiliate of the Company that has adopted this Plan with the authorization
of the Board with respect to its Eligible Employees.
1.12. "Entry Date" means the first day of the Plan Year or any other
date as may be determined by the Committee on which an Eligible Employee becomes
a Participant in the Plan.
1.13. "ESOP" means the Omnicare, Inc. Employee Stock Ownership Plan,
originally effective as of August 1, 1988, as amended and restated from time to
time.
1.14. "General Pension Plan" means the Omnicare, Inc. General Pension
Plan, originally effective as of January 1, 1986, as amended and restated from
time to time, and as to which all additional benefit accruals ceased as of
December 31, 1993. The General Pension Plan represents a reestablishment of the
Omnicare, Inc. General Pension Plan adopted effective as of July 1, 1981 and
terminated effective October 31, 1985.
1.15. "Omnicare Stock" means the common stock of the Company, par value
$.01 per share.
1.16. "Participant" means each Eligible Employee who has been
designated as a participant in the Plan and whose participation has not been
terminated.
1.17. "Permanent Disability" means suffering from bodily injury or
mental or physical disease which, in the opinion of the Committee, would
permanently prevent the Participant from performing the customary duties of his
regular job with the Employer.
1.18. "Plan" means this Omnicare, Inc. Excess Benefit Plan, as amended
from time to time.
1.19. "Plan Year" means the twelve-month period ending on December 31.
1.20. "Retirement" means normal retirement from employment with the
Employer at or beyond age 65.
1.21. "S&I Plan" means the Omnicare, Inc. Employees' Savings and
Investment Plan, originally effective as of July 1, 1981, as amended and
restated from time to time.
1.22. "Valuation Date" means, for purposes of Excess Benefits related
to the ESOP and the S&I plan, the last day of each calendar quarter.
SECTION 2. ADMINISTRATION
2.1. Authority of Committee. In addition to all implied powers and
responsibilities necessary to carry out the objectives of the Plan, the
Committee shall have the discretionary authority to construe the Plan and to
determine all questions arising in the administration, interpretation and
operation of the Plan. The Committee may adopt such rules and regulations, not
inconsistent with the provisions of the Plan, as it may find necessary for the
proper administration, interpretation and operation of the Plan, and may amend
or revoke any rule or regulations so established. Subject to the claims
procedure set forth in Section 8 hereof, all such rules, regulations,
determinations and interpretations shall be binding and conclusive upon the
Company, each Employer, Eligible Employees, Participants, and upon their
respective legal representatives, beneficiaries, successors and assigns and upon
all other persons claiming under or through any of them. The Committee shall
also have all the discretionary authority as may be necessary to make benefit
determinations, to resolve any disputes which arise under the Plan and to make
any factual determinations that may be necessary.
2.2. Delegation of Duties. The Committee shall have the authority,
except as may be limited by the Board of Directors, to delegate certain
administrative functions to be carried out on its behalf to the Benefits Plan
Committee of the Company, or to such other committee or individuals as may be
appropriate, in the discretion of the Committee.
2.3. Indemnification. The Company will indemnify the Board of
Directors, the Committee and its designees hereunder against any claims, losses,
expenses, damages or liabilities arising out of the Plan, except for acts of
gross negligence or willful misconduct.
SECTION 3. PARTICIPATION
3.1. General. Each Eligible Employee who is designated by the Committee
shall become a Participant in the Plan or a portion thereof, and shall be
eligible to receive Excess Benefits on the basis established by the Committee.
All Eligible Employees who were designated as Participants immediately prior to
the date of this amendment and restatement of the Plan shall continue to be
Participants in the Plan, subject to the terms hereof. The Committee may revoke
the participation of a Participant on a prospective basis at any time.
3.2. Participation Date. Each Eligible Employee becomes a Participant
on the Entry Date that coincides with or immediately follows the date he is
designated to participate in the Plan by the Committee.
3.3. Cessation of Participation. Each Participant's participation in
the Plan shall continue until the first to occur of the following events: (i)
Retirement; (ii) death; (iii) Permanent Disability; (iv) other separation from
service; (v) termination of participation by the Committee; or (vi) termination
of the Plan.
SECTION 4. SOURCE OF BENEFITS
All Excess Benefits shall be an obligation of each respective Employer
hereunder and shall be payable from its general assets. Each Employer shall
establish on its books an account equal to the value of all Plan benefits
accrued for their respective Participants. The Employer shall not be obligated
to fund payment of the benefits hereunder; provided that the Employer may, in
its sole discretion, establish or cause to be established a separate trust or
trusts to fund the Excess Benefits payable to each Participant. Neither the Plan
nor any Participant or Beneficiary shall have any preferred claim on, or any
beneficial ownership interest in, the assets of the Company or any Employer. No
liability for the payment of benefits under the Plan shall be imposed upon any
officer, director, employee, or stockholder of the Company or any Employer.
SECTION 5. PARTICIPANT ACCOUNTS
5.1. Participant Accounts. The Committee will establish and maintain a
separate Account for each Participant with respect to the Excess Benefits
related to the ESOP and to the S&I Plan. Unless otherwise determined by the
Committee, each Participant's Account shall be credited with the applicable
Excess Benefit amount described in Section 6.1 hereof, which shall be expressed,
at the discretion of the Committee, as either a cash amount or as shares of
Omnicare Stock. Any Account established for purposes of the applicable Excess
Benefit amount described in Section 6.2 hereof shall be for informational
purposes or for purposes of Section 4 hereof.
5.2. Statement of Accounts. The Committee shall cause to be delivered
or mailed to each Participant a statement setting forth the status of the
Participant's Accounts at such intervals as shall be determined by the
Committee.
5.3. Investment Crediting for ESOP and S&I Plan Excess Benefits. In
addition to crediting each Participant's Account with the applicable Excess
Benefit amounts described in Section 6.1 hereof, each such Account shall be
adjusted as of each Valuation Date to reflect the fair market value of the
Omnicare Stock or the other assets credited to the Participant's Account as of
the Valuation Date, as determined by the Committee.
5.4. Reinvestment of Dividends. The deemed amount of cash dividends
attributable to Omnicare Stock shall be allocated to a Participant's Account
based on the number of shares allocated to his Account as of the date on which
such dividend was paid. All such dividends shall be deemed reinvested in
Omnicare Stock based on the most recent closing trading price of the Omnicare
Stock prior to the date of reinvestment.
5.5. Diversification of Investments. Unless otherwise provided by the
Committee, a Participant shall not have the authority to direct the investment
of his Excess Benefits with respect to the ESOP or the S&I Plan. Notwithstanding
the foregoing, upon a Change in Control, a Participant shall have the right to
diversify that portion of his account invested in Omnicare Stock or any stock
that is exchanged for Omnicare Stock in the Change in Control transaction. In
such case, the Participant may make an investment election in the manner and
form prescribed by the Committee prior to the Change in Control.
SECTION 6. EXCESS BENEFIT AMOUNTS
6.1. Excess Benefits Related to the ESOP and S&I Plan.
(a) The Participant's Account shall be credited with the following
amounts:
(i) ESOP Allocation. As of the last day of each Plan Year
beginning prior to January 1, 1999, the Account of each
Participant described in subsection (b) shall have been credited
with an amount or, if applicable, the number of shares of Omnicare
Stock, equal to the difference between (1) Employer contributions
allocated to the Participant's accounts under the ESOP as of the
corresponding allocation date(s) under such plan, and (2) the
amount, or if applicable, the number of shares of Omnicare Stock,
that would have been so allocated under such plan without regard
to (i) the annual contribution limitations as set forth in Section
415 of the Code, and (ii) the limitations on compensation as set
forth in Section 401(a)(17) of the Code. A Participant's Account
shall not have been credited with any amounts paid directly to a
Participant in order for the ESOP to meet the contribution
percentage requirement as set forth in Section 401(m) of the Code.
(ii) S&I Plan Allocation. As of the last day of each calendar
quarter of each Plan Year beginning on or after January 1, 1999,
(or more frequently as determined by the Committee), the Account
of each Participant described in subsection (b) shall be credited
with an amount or, if applicable, the number of shares of Omnicare
Stock, equal to the difference between (1) Employer contributions
allocated to the Participant's accounts under the S&I Plan as of
the corresponding allocation date(s) under such plan, and (2) the
amount, or if
applicable, the number of shares of Omnicare Stock, that would
have been so allocated under such plan without regard to (i) the
annual contribution limitations as set forth in Section 415 of
the Code, and (ii) the limitations on compensation as set forth
in Section 401(a)(17) of the Code. A Participant's Account shall
not be credited with any amounts paid directly to a Participant
in order for the S&I Plan to meet the contribution percentage
requirement as set forth in Section 401(m) of the Code.
(b) A Participant is eligible to receive the allocations described
in subsection (a) if (i) the Participant was otherwise eligible to receive an
allocation of an Employer contribution under the ESOP or is now eligible to
receive an allocation of an Employer contribution under the S&I Plan, whichever
is applicable, as of the applicable allocation date(s) under such plans and this
Plan and (ii) the Participant remains an active Participant in the Plan in
accordance with Section 3 hereof as of the applicable allocation date(s)
hereunder.
6.2. Excess Benefits Related to the General Pension Plan.
(a) The Excess Benefit payable for a Participant who is a
participant in the General Pension Plan shall be an amount equal to the excess,
if any, of:
(i) the accrued benefit of the Participant calculated under
the provisions of the General Pension Plan, calculated as of the
date determined in Section 7.1(b) hereof, but without regard to
(i) the annual contribution and/or benefit limitations as set
forth in Section 415 of the Code, and (ii) the limitations on
compensation as set forth in Section 401(a)(17) of the Code;
over
(ii) the accrued benefit payable to or on behalf of the
Participant pursuant to the terms of the General Pension Plan as
of the date determined in Section 7.1(b) hereof.
(b) To the extent the accrued benefit to which a Participant would
be entitled under the General Pension Plan is offset by an amount calculated
with reference to the Participant's accrued benefit under the terminated General
Pension Plan as of October 31, 1985, then the offset as so calculated shall also
be applied in determining the benefit described in Section 6.2(a) hereof.
(c) For purposes of calculating the Excess Benefit under Section
6.2(a) hereof, the following special rules shall apply:
(i) The accrued benefit of a Participant who was a participant
in the General Pension Plan as of January 1, 1994, shall be
determined without regard to the cessation of additional benefit
accruals under the General Pension Plan as of December 31, 1993.
(ii) Such calculation shall be made without regard to any
limitation on years of Credited Service prescribed in Section 1.12
of the General Pension Plan.
(iii) The lump-sum present value of the Excess Benefit payable
to any Participant holding a position of senior vice president or
higher who is a participant in the General Pension Plan shall
increase by an amount, for each year of Credited Service (or
portion thereof) that the Participant renders for an Employer
after attaining age 65, that is not less than an amount specified
by the Committee for each such Participant on a case-by-case
basis. The lump-sum present value of such annual accrual of
benefits shall be determined on the same basis as specified in
Section 7.4 hereof.
(iv) Such calculation shall be made without regard to the 50%
of average compensation limit on benefits prescribed in Section
5.1(2)(ii) of the General Pension Plan.
(v) "Average Compensation" under the General Pension Plan
shall include the amount of any bonus that is determinable under
the Employer's annual incentive program for the full Plan Year
prior to the date determined in Section 7.1(b) hereof, regardless
of whether such bonus has been paid prior to such date; provided,
that such bonus amount shall not be included if it would reduce
the amount of Average Compensation. In addition, no more than five
annual bonus amounts shall be included in any consecutive 60-month
period for purposes of determining Average Compensation.
(vi) The Committee, in its sole discretion, may grant a
Participant additional years of "Credited Service" under the
General Pension Plan for services performed by a Participant for
any affiliate of the Company, a predecessor entity to the Company
or one of its affiliates, or an entity that has been acquired by
the Company.
6.3. Vesting of Excess Benefits.
(a) General Pension Plan. Effective as of the date hereof, all
Participants have become 100% vested in the accrued benefit provided under
Section 6.2 hereof.
(b) ESOP. Effective as of the date hereof, all amounts credited to
a Participant's Accounts under Section 6.1(a) hereof prior to July 1, 1995 have
become 100% vested.
(c) ESOP and S&I Plan.
(i) Notwithstanding any applicable vesting provision of the
ESOP or the S&I Plan, on and after July 1, 1995, a Participant
shall become vested with respect to allocations made pursuant to
Section 6.1 hereof attributable to the ESOP or the S&I Plan,
whichever is applicable, at the rate of 20 percent per year over a
five-year period, beginning with the first anniversary of the
Valuation Date with respect to which the allocation is made. In
addition, all such allocations shall become fully vested and
non-forfeitable upon the occurrence of one of the following
events: (i) the date the Participant attains age 65; (ii) the
Participant's
death; (iii) the Participant's Permanent Disability;
(iv) a Change in Control of the Company; (v) involuntary
termination of the Participant's employment with the Company
without Cause; or (vi) approval within the sole discretion of the
Committee.
(ii) For purposes of this Section 6.3, "Cause" shall mean
cause as defined in the applicable Employment Agreement of a
Participant with the Employer. If no definition is so provided or
is not applicable, "cause" shall mean fraud, misappropriation,
embezzlement, illegal or immoral conduct that is prejudicial to
the best interest of the Company, intentional and material damage
to the property of the Company, attempting to obtain any personal
profit from any transaction in which the Participant has an
interest adverse to the interest of the Company (unless the
Participant shall first have obtained the written consent of the
Company), or unreasonable failure or refusal to substantially
perform the Participant's duties as an employee of the Company
after having received prior written notice of and an opportunity
to cure such failure or refusal.
(iii) Upon a Participant's termination of employment for
reasons other than as provided in this Section 6.3(c), all
unvested benefits shall be forfeited and shall revert to the
credit of the Company.
SECTION 7. DISTRIBUTION OF BENEFITS
7.1. Determination of Benefits.
(a) Excess Benefits Related to the ESOP and the S&I Plan. Any
Excess Benefit that a Participant is entitled to under Section 6.1 hereof shall
be based upon the fair market value of assets attributable to such Participant's
Account on the date such distribution occurs.
(b) Excess Benefits Related to the General Pension Plan. Any
benefit that a Participant is entitled to under Section 6.2 hereof shall be
based upon the Participant's accrued benefit determined pursuant to Section 6.2
hereof as of the date of termination of employment due to Retirement, Permanent
Disability, separation from service or death.
7.2. Time of Payment. Upon termination (due to Retirement, Permanent
Disability, separation from service or death) of a Participant's employment with
the Employer, the Participant or his Beneficiary, if applicable, shall be
entitled to receive the vested portion of the Participant's Account established
pursuant to Section 6.1 hereof and the vested portion of his accrued benefit in
accordance with Section 6.2 hereof determined pursuant to Sections 7.1(a) and
(b) hereof, respectively. Such distribution shall be made as soon as
administratively feasible.
7.3. Beneficiary Designation. A Participant shall designate a person or
entity as a Beneficiary in the manner prescribed by the Committee for the Plan.
A Beneficiary may include the Participant's estate or a trust. A Participant may
at any time change the designation of a Beneficiary by filing a new designation
in the manner prescribed by the Committee. If a Participant has not made an
effective designation, or if a Beneficiary does not survive the
Participant, then the Beneficiary shall be the Participant's estate. In the
event the Committee has any doubt as to the proper person or entity entitled to
receive payments under the Plan, then the Committee may cause payments to be
withheld until the matter is decided by a court of competent jurisdiction.
7.4. Form of Payments. All Excess Benefits under the Plan shall be paid
in a single lump sum payment. All such payments shall be made in cash, except
that the Committee, in its sole discretion, may make payment of a Participant's
Excess Benefit pursuant to Section 6.1 hereof payable in shares of Omnicare
Stock. In determining the lump sum amount of benefits payable with respect to
the General Pension Plan pursuant to Sections 6.2 and 7.1(b) hereof, all
actuarial assumptions and methods of determining actuarial equivalencies of lump
sum benefits as provided in Section 1.3 of the General Pension Plan shall be
utilized.
7.5. Hardship Withdrawals. Notwithstanding the foregoing, a Participant
may, during his employment with the Employer, apply in the form and manner
determined by the Committee to withdraw any portion of his vested Account as
determined pursuant to Section 6.1 hereof, as well as any investment experience
thereon, by reason of an unforeseeable emergency. An unforeseeable emergency is
a severe financial hardship to the Participant resulting from a sudden and
unexpected illness or accident of the Participant or of a dependent (as defined
in Section 152(a) of the Internal Revenue Code of 1986, as amended) 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. Withdrawals hereunder shall not be
made to the extent that such hardship is or may be relieved through
reimbursement or compensation by insurance or otherwise, by liquidation of the
Participant's assets, or to the extent the liquidation of such assets would not
itself cause severe financial hardship. Withdrawals of amounts because of an
unforeseeable emergency must only be permitted to the extent reasonably needed
to satisfy the emergency need.
SECTION 8. CLAIMS PROCEDURE
The Committee shall have the discretionary authority as may be
necessary to make benefit determinations, to resolve any disputes which arise
under the Plan and to make any factual determinations as may be necessary.
Whenever there is denied, whether in whole or in part, a claim for benefits
under the Plan filed by any person (herein referred to as the "Claimant"), the
Committee shall transmit a written notice of such decision to the Claimant,
which notice shall be written in a manner calculated to be understood by the
Claimant and shall contain a statement of the specific reasons for the denial of
the claim and a statement advising the Claimant that, within 60 days of the date
on which he receives such notice, he may obtain review of such decision in
accordance with the procedures hereinafter set forth. Within such 60-day period,
the Claimant or his authorized representative may request that the claim denial
be reviewed by the Employer by filing with the Committee a written request
therefore, which request shall contain the following information:
(a) the date on which the Claimant's request was filed with the
Committee; provided, however, that the date on which the Claimant's request for
review was in fact filed with the Committee shall control in the event that the
date of the actual filing is later than the date stated by the Claimant pursuant
to this paragraph;
(b) the specific portions of the denial of his claim which the
Claimant requests the Employer to review;
(c) a statement by the Claimant setting forth the basis upon which
he believes the Committee should reverse the previous denial of his claim for
benefits and accept his claim as made; and
(d) any written material (offered as exhibits) which the Claimant
desires the Employer to examine in its consideration of his position as stated
pursuant to (c) above.
Within 60 days of the date determined pursuant to (a) above, the Committee shall
conduct a full and fair review of the decision denying the Claimant's claim for
benefits. Within 60 days of the date of such hearing, the Committee shall render
its written decision on review, written in a manner calculated to be understood
by the Claimant, specifying the reasons and Plan provisions upon which its
decision was based.
SECTION 9. GENERAL PROVISIONS
9.1. No Guarantee of Employment. Nothing in this Plan shall confer upon
any Employees any right to continue in the employ of the Employer, or shall
affect the right of the Employer to terminate the employment of any Employee
with or without cause.
9.2. Non-Exclusivity. Nothing in the Plan is intended to be a
substitute for, or shall preclude or limit the establishment or continuation of,
any other plan, practice or arrangement for the payment of compensation or
fringe benefits to Employees generally, or to any class or group of Employees,
which the Employer now has or may hereafter lawfully put into effect, including,
without limitation, any retirement, pension, thrift, group insurance, stock
purchase, stock bonus or stock option plan.
9.3. Tax Withholding. The Employer may make such provisions as it may
deem appropriate for the withholding of any taxes that the Employer determines
it is required to withhold in connection with any Excess Benefit, including any
amounts required to be withheld from a Participant's Account at the time of
vesting pursuant to Section 3121(v) of the Code.
9.4. Nonalienation of Excess Benefits. No Participant or Beneficiary
may encumber or dispose of his right to receive any Excess Benefit.
9.5. Interest of Participant. The obligation to pay Excess Benefits
merely constitutes the unsecured promise of an Employer to make payments when
due. No Participant or Beneficiary has any security interest in, or a lien or
prior claim upon, any Account or assets of an Employer. No Plan provisions shall
be construed so as to place any Account or other asset in trust with an Employer
for the benefit of a Participant, his Beneficiary, or his estate.
9.6. Claims of Other Persons. The provisions of the Plan shall not be
construed as giving any person, firm or corporation any legal or equitable right
as against the Employer, its officers, employees, or directors, except any
rights specifically provided for in the Plan or created in accordance with the
terms of the Plan.
9.7. Severability. The invalidity or unenforceability of any particular
provision of the Plan shall not affect any other Plan provision. The Plan shall
be construed in all respects as if the invalid or unenforceable provision were
omitted.
9.8. Gender and Number. Masculine pronouns and similar words shall be
read as the feminine gender where appropriate. The singular form of words shall
be read as plural where appropriate.
9.9. Governing Law. The Plan shall be governed and construed in
accordance with the laws of the State of Delaware.
9.10. Expenses. The Employer may pay all fees and expenses of the Plan
and any associated trust. To the extent not paid by the Employer, in its sole
and absolute discretion, all such fees and expenses shall be paid from assets
held in any trust and shall serve to reduce the Participant's Accounts on a
pro-rata basis accordingly.
SECTION 10. AMENDMENT AND TERMINATION
The Plan may be amended or terminated at any time and in any manner, in
whole or in part, at the discretion of the Board. Notwithstanding the foregoing,
no such amendment or termination shall reduce the amount of the Excess Benefits
of any Participant that have become vested in accordance with the Plan. Upon
termination of the Plan, each Participant will be entitled to the Excess Benefit
to which the Participant would be entitled had he been eligible for and retired
on the date the Plan terminated, and all such benefits shall be paid in a
lump-sum promptly following such termination.
APPENDIX A
CHANGE IN CONTROL
For purposes of the Plan, "Change in Control" shall mean any of the
following events:
(1) any person becomes a beneficial owner, directly or indirectly, of
securities of the Company representing 15% or more of the combined
voting power of the Company's then outstanding securities;
(2) the merger or consolidation of the Company with or into another
entity (or other similar reorganization), whether or not the
Company is the surviving corporation, in which the stockholders of
the Company immediately prior to the effective date of such
transaction own less than 50% of the voting power in the surviving
entity;
(3) the sale or other disposition of all or substantially all of the
assets of the Company or a complete liquidation or dissolution of
the Company; or
(4) during any period of two consecutive years, individuals who at the
beginning of such period constitute the Board of Directors cease
for any reason to constitute at least a majority of such Board of
Directors, unless the nomination for the election by the Company's
stockholders of each new director was approved by a vote of at
least one-half of the persons who were directors at the beginning
of the two-year period.
For purposes of this definition, a "Person" shall mean any individual,
firm, company, partnership, other entity or group, but excluding the
Company, its affiliates, any employee benefit plan maintained by the
Company, or an underwriter temporarily holding securities pursuant to
an offering of such securities.
For purposes of this definition, a Person shall be deemed the
"beneficial owner" of any securities (i) which such Person or any of
its Affiliates or Associates beneficially owns, directly or indirectly;
or (ii) which such Person or any of its Affiliates or Associates, has
directly or indirectly, (1) the right to acquire (whether such right is
exercisable immediately or only after the passage of time), pursuant to
any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise,
or (2) the right to vote pursuant to any agreement, arrangement or
understanding; or (iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing of any securities.
For purposes of this definition, the terms "Affiliate" or "Associate"
shall have the respective meanings ascribed to such terms in Rule 12b-2
of the General Rules and Regulations promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as in
effect on May 17, 1999.