x
|
Quarterly
Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of
1934 for the Quarter Ended September 29,
2007
|
o
|
Transition
Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of
1934
|
Delaware
|
04-2209186
|
(State
of incorporation or organization)
|
(I.R.S.
Employer Identification No.)
|
|
|
81
Wyman Street, P.O. Box 9046
|
|
Waltham,
Massachusetts
|
02454-9046
|
(Address
of principal executive offices)
|
(Zip
Code)
|
Class
|
|
Outstanding
at September 29, 2007
|
||
Common
Stock, $1.00 par value
|
|
420,064,580
|
September
29,
|
December
31,
|
||||||
(In
millions)
|
2007
|
2006
|
|||||
(Unaudited)
|
|||||||
Current
Assets:
|
|||||||
Cash and cash equivalents
|
$
|
830.8
|
$
|
667.4
|
|||
Short-term
investments, at quoted market value (amortized cost of $22.0 and
$23.8)
|
15.4
|
23.8
|
|||||
Accounts
receivable, less allowances of $50.1 and $45.0
|
1,458.1
|
1,392.7
|
|||||
Inventories:
|
|||||||
Raw
materials
|
321.6
|
307.7
|
|||||
Work
in process
|
131.6
|
121.7
|
|||||
Finished
goods
|
753.0
|
735.1
|
|||||
Deferred
tax assets
|
159.3
|
209.2
|
|||||
Other
current assets
|
238.6
|
201.9
|
|||||
3,908.4
|
3,659.5
|
||||||
Property,
Plant and Equipment, at Cost
|
1,636.8
|
1,533.0
|
|||||
Less:
Accumulated depreciation and amortization
|
398.2
|
276.3
|
|||||
1,238.6
|
1,256.7
|
||||||
Acquisition-related Intangible Assets, net of Accumulated Amortization
of
$723.9 and $276.4
|
7,096.9
|
7,511.6
|
|||||
Other
Assets
|
379.3
|
309.4
|
|||||
Goodwill
|
8,549.2
|
8,525.0
|
|||||
$
|
21,172.4
|
$
|
21,262.2
|
September
29,
|
December
31,
|
||||||
(In
millions except share amounts)
|
2007
|
2006
|
|||||
(Unaudited)
|
|||||||
Current
Liabilities:
|
|||||||
Short-term obligations and current maturities of long-term
obligations
|
$
|
19.6
|
$
|
483.3
|
|||
Accounts
payable
|
661.5
|
630.8
|
|||||
Accrued
payroll and employee benefits
|
239.0
|
253.3
|
|||||
Accrued
income taxes
|
18.2
|
60.3
|
|||||
Deferred
revenue
|
130.9
|
121.3
|
|||||
Other
accrued expenses (Notes 2, 10 and 11)
|
561.7
|
603.3
|
|||||
1,630.9
|
2,152.3
|
||||||
Deferred
Income Taxes
|
2,365.5
|
2,557.5
|
|||||
Other
Long-term Liabilities
|
552.0
|
459.9
|
|||||
Long-term
Obligations (Note 9)
|
2,181.1
|
2,180.7
|
|||||
Shareholders’
Equity:
|
|||||||
Preferred stock, $100 par value, 50,000 shares authorized; none
issued
|
|||||||
Common stock, $1 par value, 1,200,000,000 shares authorized; 437,798,302
and 424,240,292 shares issued
|
437.8
|
424.2
|
|||||
Capital
in excess of par value
|
12,202.2
|
11,810.4
|
|||||
Retained
earnings
|
2,294.7
|
1,773.4
|
|||||
Treasury
stock at cost, 17,733,722 and 7,635,184 shares
|
(795.0
|
)
|
(246.4
|
)
|
|||
Accumulated
other comprehensive items (Note 6)
|
303.2
|
150.2
|
|||||
14,442.9
|
13,911.8
|
||||||
$
|
21,172.4
|
$
|
21,262.2
|
Three
Months Ended
|
|||||||
September
29,
|
September
30,
|
||||||
(In
millions except per share amounts)
|
2007
|
2006
|
|||||
Revenues
|
$
|
2,401.2
|
$
|
724.9
|
|||
Costs
and Operating Expenses:
|
|||||||
Cost
of revenues
|
1,453.1
|
388.1
|
|||||
Selling,
general and administrative expenses
|
626.5
|
2
17.9
|
|||||
Research
and development expenses
|
58.8
|
38.6
|
|||||
Restructuring
and other costs, net (Note 11)
|
8.8
|
5.2
|
|||||
2,147.2
|
649.8
|
||||||
Operating
Income
|
254.0
|
75.1
|
|||||
Other
Expense, Net (Note 4)
|
(18.7
|
)
|
(5.8
|
)
|
|||
Income
from Continuing Operations Before Provision for Income Taxes
|
235.3
|
69.3
|
|||||
Provision
for Income Taxes
|
(16.7
|
)
|
(20.5
|
)
|
|||
Income
from Continuing Operations
|
218.6
|
48.8
|
|||||
Loss from Discontinued Operations (net of income tax benefit of
$0.1 in
2007; Note 14)
|
(0.1
|
)
|
—
|
||||
Net
Income
|
$
|
218.5
|
$
|
48.8
|
|||
Earnings
per Share from Continuing Operations (Note 5):
|
|||||||
Basic
|
$
|
.52
|
$
|
.31
|
|||
Diluted
|
$
|
.49
|
$
|
.30
|
|||
Earnings
per Share (Note 5):
|
|||||||
Basic
|
$
|
.51
|
$
|
.31
|
|||
Diluted
|
$
|
.49
|
$
|
.30
|
|||
Weighted
Average Shares (Note 5):
|
|||||||
Basic
|
424.3
|
157.7
|
|||||
Diluted
|
446.6
|
162.2
|
Nine
Months Ended
|
|||||||
September
29,
|
September
30,
|
||||||
(In
millions except per share amounts)
|
2007
|
2006
|
|||||
Revenues
|
$
|
7,125.3
|
$
|
2,122.7
|
|||
Costs
and Operating Expenses:
|
|||||||
Cost
of revenues
|
4,360.8
|
1,148.7
|
|||||
Selling,
general and administrative expenses
|
1,873.3
|
627.3
|
|||||
Research
and development expenses
|
177.3
|
118.0
|
|||||
Restructuring
and other costs, net (Note 11)
|
24.5
|
13.6
|
|||||
6,435.9
|
1,907.6
|
||||||
Operating
Income
|
689.4
|
215.1
|
|||||
Other
Expense, Net (Note 4)
|
(66.1
|
)
|
(12.9
|
)
|
|||
Income
from Continuing Operations Before Provision for Income Taxes
|
623.3
|
202.2
|
|||||
Provision
for Income Taxes
|
(78.0
|
)
|
(60.8
|
)
|
|||
Income
from Continuing Operations
|
545.3
|
141.4
|
|||||
Income
from Discontinued Operations
|
—
|
—
|
|||||
(Loss) Gain on Disposal of Discontinued Operations, Net (includes
income
tax provision of $1.8 and
$1.3; Note 14)
|
(24.0
|
)
|
2.2
|
||||
Net
Income
|
$
|
521.3
|
$
|
143.6
|
|||
Earnings
per Share from Continuing Operations (Note 5):
|
|||||||
Basic
|
$
|
1.29
|
$
|
.88
|
|||
Diluted
|
$
|
1.23
|
$
|
.86
|
|||
Earnings
per Share (Note 5):
|
|||||||
Basic
|
$
|
1.23
|
$
|
.89
|
|||
Diluted
|
$
|
1.17
|
$
|
.88
|
|||
Weighted
Average Shares (Note 5):
|
|||||||
Basic
|
422.8
|
160.7
|
|||||
Diluted
|
444.7
|
164.9
|
Nine
Months Ended
|
|||||||
September
29,
|
September
30,
|
||||||
(In
millions)
|
2007
|
2006
|
|||||
Operating
Activities:
|
|||||||
Net
income
|
$
|
521.3
|
$
|
143.6
|
|||
Loss
(Gain) on disposal of discontinued operations, net
|
24.0
|
(2.2
|
)
|
||||
Income
from continuing operations
|
545.3
|
141.4
|
|||||
Adjustments to reconcile income from continuing operations to net
cash
provided by operating activities:
|
|||||||
Depreciation and amortization
|
560.0
|
116.2
|
|||||
Change in deferred income taxes
|
(10.5
|
)
|
(28.5
|
)
|
|||
Noncash equity compensation
|
39.3
|
20.1
|
|||||
Noncash
charges for sale of inventories revalued at the date of
acquisition
|
48.0
|
0.7
|
|||||
Other noncash expenses, net
|
25.4
|
(0.6
|
)
|
||||
Changes
in current accounts, excluding the effects of acquisitions and
dispositions:
|
|||||||
Accounts
receivable
|
(57.1
|
)
|
42.7
|
||||
Inventories
|
(65.3
|
)
|
(31.0
|
)
|
|||
Other current assets
|
(23.3
|
)
|
(14.4
|
)
|
|||
Accounts payable
|
11.2
|
(8.3
|
)
|
||||
Other current liabilities
|
(122.4
|
)
|
(37.9
|
)
|
|||
Net
cash provided by continuing operations
|
950.6
|
200.4
|
|||||
Net
cash used in discontinued operations
|
(2.4
|
)
|
(0.2
|
)
|
|||
Net
cash provided by operating activities
|
948.2
|
200.2
|
|||||
Investing
Activities:
|
|||||||
Acquisitions,
net of cash acquired
|
(93.8
|
)
|
(59.2
|
)
|
|||
Refund
of acquisition purchase price
|
4.6
|
—
|
|||||
Proceeds
from sale of available-for-sale investments
|
7.7
|
151.0
|
|||||
Purchases
of available-for-sale investments
|
(8.0
|
)
|
(84.0
|
)
|
|||
Purchases
of property, plant and equipment
|
(118.2
|
)
|
(31.8
|
)
|
|||
Proceeds
from sale of property, plant and equipment
|
14.9
|
4.6
|
|||||
Proceeds
from sale of product lines
|
—
|
8.9
|
|||||
Collection
of notes receivable
|
48.2
|
2.8
|
|||||
Proceeds
from sale of other investments
|
—
|
1.9
|
|||||
Increase
in other assets
|
(22.5
|
)
|
(2.4
|
)
|
|||
Net
cash used in continuing operations
|
(167.1
|
)
|
(8.2
|
)
|
|||
Net
cash provided by discontinued operations
|
31.3
|
5.3
|
|||||
Net
cash used in investing activities
|
$
|
(135.8
|
)
|
$
|
(2.9
|
)
|
Nine
Months Ended
|
|||||||
September
29,
|
September
30,
|
||||||
(In
millions)
|
2007
|
2006
|
|||||
Financing
Activities:
|
|||||||
(Decrease)
increase in short-term notes payable
|
$
|
(458.3
|
)
|
$
|
(66.9
|
)
|
|
Purchases
of company common stock
|
(540.2
|
)
|
(228.0
|
)
|
|||
Net
proceeds from issuance of company common stock
|
308.5
|
26.4
|
|||||
Tax
benefits from exercised stock options
|
64.0
|
6.7
|
|||||
Redemption
and repayment of long-term obligations
|
(9.5
|
)
|
—
|
||||
Other
|
—
|
(0.2
|
)
|
||||
Net
cash used in financing activities
|
(635.5
|
)
|
(262.0
|
)
|
|||
Exchange
Rate Effect on Cash of Continuing Operations
|
(13.5
|
)
|
8.4
|
||||
Increase
(Decrease) in Cash and Cash Equivalents
|
163.4
|
(56.3
|
)
|
||||
Cash
and Cash Equivalents at Beginning of Period
|
667.4
|
214.3
|
|||||
Cash
and Cash Equivalents at End of Period
|
$
|
830.8
|
$
|
158.0
|
|||
Supplemental
Cash Flow Information:
|
|||||||
Fair
value of assets of acquired businesses
|
$
|
98.6
|
$
|
91.6
|
|||
Cash
paid for acquired businesses
|
(82.2
|
)
|
(61.0
|
)
|
|||
Liabilities
assumed of acquired businesses
|
$
|
16.4
|
$
|
30.6
|
|||
Conversion
of subordinated convertible debentures
|
$
|
0.4
|
$
|
—
|
|||
Issuance
of restricted stock
|
$
|
15.8
|
$
|
1.3
|
1.
|
General
|
2.
|
Acquisitions
|
2
.
|
Acquisitions
(continued)
|
(In
millions)
|
Spectronex/
Flux
|
Davis
|
Other
|
Total
|
|||||||||
Purchase
Price:
|
|||||||||||||
Cash
paid (a)
|
$
|
25.8
|
$
|
24.0
|
$
|
34.5
|
$
|
84.3
|
|||||
Cash
acquired
|
(1.8
|
)
|
—
|
(0.3
|
)
|
(2.1
|
)
|
||||||
$
|
24.0
|
$
|
24.0
|
$
|
34.2
|
$
|
82.2
|
||||||
Allocation:
|
|||||||||||||
Current
assets
|
$
|
8.1
|
$
|
6.2
|
$
|
4.2
|
$
|
18.5
|
|||||
Property,
plant and equipment
|
0.4
|
—
|
5.5
|
5.9
|
|||||||||
Acquired
intangible assets
|
14.8
|
9.2
|
20.0
|
44.0
|
|||||||||
Goodwill
|
9.1
|
11.7
|
9.4
|
30.2
|
|||||||||
Liabilities
assumed
|
(8.4
|
)
|
(3.1
|
)
|
(4.9
|
)
|
(16.4
|
)
|
|||||
$
|
24.0
|
$
|
24.0
|
$
|
34.2
|
$
|
82.2
|
(a)
|
Includes
transaction costs.
|
(In
millions)
|
Spectronex/
Flux
|
Davis
|
Other
|
Total
|
|||||||||
Customer
Relationships
|
$
|
12.9
|
$
|
4.9
|
$
|
5.0
|
$
|
22.8
|
|||||
Product
Technology
|
1.5
|
—
|
13.5
|
15.0
|
|||||||||
Tradenames
|
0.4
|
4.3
|
1.5
|
6.2
|
|||||||||
$
|
14.8
|
$
|
9.2
|
$
|
20.0
|
$
|
44.0
|
2
.
|
Acquisitions
(continued)
|
(In
millions)
|
Fisher
|
Cohesive
|
|||||
Fair
Value of Common Stock Issued to Fisher Shareholders
|
$
|
9,777.8
|
$
|
—
|
|||
Fair
Value of Fisher Stock Options and Warrants Converted into Options
in
Company Common Stock
|
502.3
|
—
|
|||||
Debt
Assumed
|
2,284.7
|
—
|
|||||
Cash
Paid Including Transaction Costs
|
42.1
|
71.3
|
|||||
Cash
Acquired
|
(392.0
|
)
|
(0.3
|
)
|
|||
$
|
12,214.9
|
$
|
71.0
|
||||
Allocation:
|
|||||||
Current
assets
|
$
|
1,928.7
|
$
|
5.6
|
|||
Property,
plant and equipment
|
950.2
|
1.0
|
|||||
Acquired
intangible assets
|
7,076.2
|
37.0
|
|||||
Goodwill
|
6,553.5
|
32.9
|
|||||
Other
assets
|
353.8
|
—
|
|||||
Liabilities
assumed
|
(4,100.7
|
)
|
(5.5
|
)
|
|||
Fair
value of convertible debt allocable to equity
|
(546.8
|
)
|
—
|
||||
$
|
12,214.9
|
$
|
71.0
|
(In
millions)
|
Fisher
|
Cohesive
|
|||||
Indefinite
Lives:
|
|||||||
Trademarks
|
$
|
1,326.9
|
$
|
—
|
|||
Definite
Lives:
|
|||||||
Customer
relationships
|
4,269.5
|
19.0
|
|||||
Product
technology
|
844.8
|
14.6
|
|||||
Tradenames
|
635.0
|
3.4
|
|||||
$
|
7,076.2
|
$
|
37.0
|
2
.
|
Acquisitions
(continued)
|
Three
Months Ended
|
Nine
Months Ended
|
||||||
(In
millions except per share amounts)
|
September
30, 2006 (a)
|
September
30, 2006 (b)
|
Revenues
|
$
|
2,237.5
|
$
|
6,522.6
|
|||
Net
Income
|
$
|
136.8
|
$
|
229.9
|
|||
Earnings per Share from Continuing Operations:
|
|||||||
Basic
|
$
|
.33
|
$
|
.55
|
|||
Diluted
|
$
|
.32
|
$
|
.53
|
|||
Earnings
Per Share:
|
|||||||
Basic
|
$
|
.34
|
$
|
.56
|
|||
Diluted
|
$
|
.32
|
$
|
.54
|
(a)
|
Includes
$7 million pre-tax charge to cost of revenues for sale of Fisher
inventories revalued at the date of
merger.
|
(b)
|
Includes
$121 million pre-tax charge to cost of revenues for the sale of
Fisher
inventories revalued at the date of merger, $15 million pre-tax
charge for
Fisher’s in-process research and development and $37 million pre-tax
charge for accelerated vesting of equity-based awards resulting
from the
change in control occurring at the date of the Fisher
merger.
|
2
.
|
Acquisitions
(continued)
|
(In millions) |
Severance
|
Abandonment
of
Excess
Facilities
|
Other
|
Total | |||||||||
Balance
at December 31, 2006
|
$
|
26.0
|
$
|
3.1
|
$
|
1.3
|
$
|
30.4
|
|||||
Reserves
established
|
9.7
|
3.8
|
1.9
|
15.4
|
|||||||||
Payments
|
(26.7
|
)
|
(0.5
|
)
|
(0.9
|
)
|
(28.1
|
)
|
|||||
Decrease recorded as a reduction in goodwill
|
(0.1
|
)
|
(0.6
|
)
|
—
|
(0.7
|
)
|
||||||
Currency
translation
|
0.1
|
—
|
0.1
|
0.2
|
|||||||||
Balance
at September 29, 2007
|
$
|
9.0
|
$
|
5.8
|
$
|
2.4
|
$
|
17.2
|
(In millions) |
Severance
|
Abandonment
of
Excess
Facilities
|
Other
|
Total
|
|||||||||
Balance
at December 31, 2006
|
$
|
2.2
|
$
|
2.7
|
$
|
0.1
|
$
|
5.0
|
|||||
Payments
|
(1.8
|
)
|
(0.6
|
)
|
—
|
(2.4
|
)
|
||||||
Decrease recorded as a reduction in goodwill
|
(0.3
|
)
|
—
|
—
|
(0.3
|
)
|
|||||||
Currency
translation
|
0.2
|
0.1
|
(0.1
|
)
|
0.2
|
||||||||
Balance
at September 29, 2007
|
$
|
0.3
|
$
|
2.2
|
$
|
—
|
$
|
2.5
|
3.
|
Business
Segment Information
|
Three
Months Ended
|
Nine
Months Ended
|
||||||||||||
September
29,
|
September
30,
|
September
29,
|
September
30,
|
||||||||||
(In
millions)
|
2007
|
2006
|
2007
|
2006
|
|||||||||
Revenues:
|
|||||||||||||
Analytical
Technologies
|
$
|
1,044.2
|
$
|
540.7
|
$
|
3,088.9
|
$
|
1,576.8
|
|||||
Laboratory
Products and Services
|
1,446.5
|
184.2
|
4,296.7
|
545.9
|
|||||||||
Eliminations
|
(89.5
|
)
|
—
|
(260.3
|
)
|
—
|
|||||||
Consolidated
revenues
|
$
|
2,401.2
|
$
|
724.9
|
$
|
7,125.3
|
$
|
2,122.7
|
|||||
Operating
Income:
|
|||||||||||||
Analytical
Technologies (a)
|
$
|
202.5
|
$
|
80.8
|
$
|
598.0
|
$
|
229.8
|
|||||
Laboratory
Products and Services (a)
|
202.2
|
27.9
|
586.8
|
79.8
|
|||||||||
Subtotal
reportable segments (a)
|
404.7
|
108.7
|
1,184.8
|
309.6
|
|||||||||
Cost
of revenues charges
|
(0.4
|
)
|
(2.0
|
)
|
(48.0
|
)
|
(3.3
|
)
|
|||||
Restructuring
and other costs, net
|
(8.8
|
)
|
(5.2
|
)
|
(24.5
|
)
|
(13.6
|
)
|
|||||
Amortization of acquisition-related intangible assets
|
(141.5
|
)
|
(26.4
|
)
|
(422.9
|
)
|
(77.6
|
)
|
|||||
Consolidated
operating income
|
254.0
|
75.1
|
689.4
|
215.1
|
|||||||||
Other
expense, net (b)
|
(18.7
|
)
|
(5.8
|
)
|
(66.1
|
)
|
(12.9
|
)
|
|||||
Income
from continuing operations before provision for income
taxes
|
$
|
235.3
|
$
|
69.3
|
$
|
623.3
|
$
|
202.2
|
|||||
Depreciation:
|
|||||||||||||
Analytical
Technologies
|
$
|
21.2
|
$
|
7.5
|
$
|
62.0
|
$
|
22.2
|
|||||
Laboratory
Products and Services
|
24.9
|
5.9
|
75.1
|
16.4
|
|||||||||
Consolidated
depreciation
|
$
|
46.1
|
$
|
13.4
|
$
|
137.1
|
$
|
38.6
|
(a)
|
Represents
operating income before certain charges to cost of revenues; restructuring
and other costs, net and amortization of acquisition-related
intangibles.
|
(b)
|
The
company does not allocate other income and expenses to its segments.
|
4.
|
Other
Expense, Net
|
Three
Months Ended
|
Nine
Months Ended
|
||||||||||||
September
29,
|
September
30,
|
September
29,
|
September
30,
|
||||||||||
(In
millions)
|
2007
|
2006
|
2007
|
2006
|
|||||||||
Interest
Income
|
$
|
13.6
|
$
|
2.8
|
$
|
33.1
|
$
|
9.7
|
|||||
Interest
Expense
|
(32.5
|
)
|
(9.3
|
)
|
(102.9
|
)
|
(25.0
|
)
|
|||||
Other
Items, Net
|
0.2
|
0.7
|
3.7
|
2.4
|
|||||||||
$
|
(18.7
|
)
|
$
|
(5.8
|
)
|
$
|
(66.1
|
)
|
$
|
(12.9
|
)
|
5.
|
Earnings
per Share
|
|
Three
Months Ended
|
Nine
Months Ended
|
|||||||||||
(In
millions)
|
September
29, 2007
|
September
30,
2006
|
September
29,
2007
|
September
30, 2006
|
|||||||||
Income from Continuing Operations
|
$
|
218.6
|
$
|
48.8
|
$
|
545.3
|
$
|
141.4
|
|||||
Income from Discontinued Operations
|
(0.1
|
)
|
—
|
—
|
—
|
||||||||
(Loss) Gain on Disposal of Discontinued Operations
|
—
|
—
|
(24.0
|
)
|
2.2
|
||||||||
Net Income for Basic Earnings per Share
|
218.5
|
48.8
|
521.3
|
143.6
|
|||||||||
Effect
of Convertible Debentures
|
—
|
0.4
|
—
|
1.2
|
|||||||||
Income Available to Common Shareholders, as Adjusted for
Diluted
Earnings
per Share
|
$
|
218.5
|
$
|
49.2
|
$
|
521.3
|
$
|
144.8
|
|||||
Basic
Weighted Average Shares
|
424.3
|
157.7
|
422.8
|
160.7
|
|||||||||
Effect
of:
|
|||||||||||||
Convertible
debentures
|
14.3
|
1.8
|
13.2
|
1.8
|
|||||||||
Stock options, restricted stock awards and warrants
|
8.0
|
2.7
|
8.7
|
2.4
|
|||||||||
Diluted Weighted Average Shares
|
446.6
|
162.2
|
444.7
|
164.9
|
|||||||||
Basic
Earnings per Share:
|
|||||||||||||
Continuing operations
|
$
|
.52
|
$
|
.31
|
$
|
1.29
|
$
|
.88
|
|||||
Discontinued
operations
|
—
|
—
|
(.06
|
)
|
.01
|
||||||||
$
|
.51
|
$
|
.31
|
$
|
1.23
|
$
|
.89
|
||||||
Diluted
Earnings per Share:
|
|||||||||||||
Continuing operations
|
$
|
.49
|
$
|
.30
|
$
|
1.23
|
$
|
.86
|
|||||
Discontinued
operations
|
—
|
—
|
(.05
|
)
|
.01
|
||||||||
$
|
.49
|
$
|
.30
|
$
|
1.17
|
$
|
.88
|
6.
|
Comprehensive
Income
|
7.
|
Equity-based
Compensation Expense
|
Three
Months Ended
|
Nine
Months Ended
|
||||||||||||
(In millions) |
September
29,
2007
|
September
30,
2006
|
September
29,
2007
|
September
30,
2006
|
|||||||||
Stock
Option Awards
|
$
|
9.4
|
$
|
6.7
|
$
|
27.0
|
$
|
18.5
|
|||||
Restricted
Share/Unit Awards
|
3.8
|
0.4
|
12.3
|
1.6
|
|||||||||
Total Equity-based Compensation Expense
|
$
|
13.2
|
$
|
7.1
|
$
|
39.3
|
$
|
20.1
|
Equity-based
compensation expense is included in the accompanying statement
of income
as follows:
|
Three
Months Ended
|
Nine
Months Ended
|
||||||||||||
(In millions) |
September
29,
2007
|
September
30,
2006
|
September
29,
2007
|
September
30, 2006
|
|||||||||
Cost
of Revenues
|
$
|
1.0
|
$
|
0.8
|
$
|
3.1
|
$
|
2.1
|
|||||
Selling, General and Administrative Expenses
|
12.1
|
5.9
|
35.0
|
16.9
|
|||||||||
Research
and Development Expenses
|
0.1
|
0.4
|
1.2
|
1.1
|
|||||||||
Total Equity-based Compensation Expense
|
$
|
13.2
|
$
|
7.1
|
$
|
39.3
|
$
|
20.1
|
8.
|
Defined
Benefit Pension Plans
|
Three
Months Ended
|
Nine
Months Ended
|
||||||||||||
(In millions) |
September
29,
2007
|
September
30,
2006
|
September
29,
2007
|
September
30,
1007
|
|||||||||
Service
Cost
|
$
|
4.1
|
$
|
1.5
|
$
|
12.3
|
$
|
4.4
|
|||||
Interest
Cost on Benefit Obligation
|
14.1
|
3.7
|
42.0
|
10.9
|
|||||||||
Expected
Return on Plan Assets
|
(14.9
|
)
|
(3.1
|
)
|
(44.2
|
)
|
(9.2
|
)
|
|||||
Amortization
of Net Loss
|
0.9
|
0.9
|
2.7
|
2.8
|
|||||||||
Amortization
of Prior Service Costs
|
—
|
2.5
|
—
|
2.6
|
|||||||||
Net
Periodic Benefit Cost
|
$
|
4.2
|
$
|
5.5
|
$
|
12.8
|
$
|
11.5
|
Three
Months Ended
|
Nine
Months Ended
|
|||
(In
millions)
|
September
29, 2007
|
September
29, 2007
|
Service
Cost
|
$
|
0.2
|
$
|
0.6
|
|||
Interest
Cost on Benefit Obligation
|
0.4
|
1.2
|
|||||
Net
Periodic Benefit Cost
|
$
|
0.6
|
$
|
1.8
|
9.
|
Swap
Arrangement
|
10.
|
Warranty
Obligations
|
Nine
Months Ended
|
|||||||
(In millions) |
September
29,
2007
|
September
30,
2006
|
|||||
Beginning
Balance
|
$
|
45.5
|
$
|
33.4
|
|||
Provision
charged to income
|
29.9
|
28.8
|
|||||
Usage
|
(27.3
|
)
|
(27.2
|
)
|
|||
Acquisitions
|
0.6
|
0.4
|
|||||
Adjustments
to previously provided warranties, net
|
(0.1
|
)
|
(0.6
|
)
|
|||
Other,
net (a)
|
2.5
|
1.4
|
|||||
Ending
Balance
|
$
|
51.1
|
$
|
36.2
|
(a)
|
Primarily
represents the effects of currency
translation.
|
11.
|
Restructuring
and Other Costs, Net
|
(In millions)
|
Analytical
Technologies
|
Laboratory
Products
and
Services
|
Corporate
|
Total
|
|||||||||
Cost of Revenues
|
$
|
0.4
|
$
|
—
|
$
|
—
|
$
|
0.4
|
|||||
Restructuring
and Other Costs, Net
|
5.5
|
2.3
|
1.0
|
8.8
|
|||||||||
$
|
5.9
|
$
|
2.3
|
$
|
1.0
|
$
|
9.2
|
11.
|
Restructuring
and Other Costs, Net
(continued)
|
(In millions)
|
Analytical
Technologies
|
Laboratory
Products
and
Services
|
Corporate
|
Total
|
|||||||||
Cost of Revenues
|
$
|
40.7
|
$
|
7.3
|
$
|
—
|
$
|
48.0
|
|||||
Restructuring
and Other Costs, Net
|
13.5
|
3.6
|
7.4
|
24.5
|
|||||||||
$
|
54.2
|
$
|
10.9
|
$
|
7.4
|
$
|
72.5
|
11.
|
Restructuring
and Other Costs, Net
(continued)
|
(In
millions)
|
Severance
|
Employee
Retention
(a)
|
Abandonment
of
Excess
Facilities
|
Other
|
Total
|
|||||||||||
Pre-2006
Restructuring Plans
|
||||||||||||||||
Balance
at December 31, 2006
|
$
|
1.8
|
$
|
0.3
|
$
|
9.4
|
$
|
0.6
|
$
|
12.1
|
||||||
Costs
incurred in 2007 (b)
|
1.5
|
—
|
0.4
|
0.1
|
2.0
|
|||||||||||
Reserves
reversed
|
(0.4
|
)
|
—
|
(0.1
|
)
|
—
|
(0.5
|
)
|
||||||||
Payments
|
(1.6
|
)
|
(0.3
|
)
|
(7.1
|
)
|
(0.1
|
)
|
(9.1
|
)
|
||||||
Currency
translation
|
0.2
|
—
|
0.1
|
—
|
0.3
|
|||||||||||
Balance
at September 29, 2007
|
$
|
1.5
|
$
|
—
|
$
|
2.7
|
$
|
0.6
|
$
|
4.8
|
||||||
2006
Restructuring Plans
|
||||||||||||||||
Balance
at December 31, 2006
|
$
|
4.0
|
$
|
0.8
|
$
|
2.7
|
$
|
—
|
$
|
7.5
|
||||||
Costs
incurred in 2007 (b)
|
0.6
|
3.1
|
1.1
|
1.3
|
6.1
|
|||||||||||
Reserves
reversed
|
(1.2
|
)
|
—
|
—
|
—
|
(1.2
|
)
|
|||||||||
Payments
|
(3.0
|
)
|
(1.4
|
)
|
(2.4
|
)
|
(1.3
|
)
|
(8.1
|
)
|
||||||
Currency
translation
|
0.2
|
—
|
0.1
|
—
|
0.3
|
|||||||||||
Balance
at September 29, 2007
|
$
|
0.6
|
$
|
2.5
|
$
|
1.5
|
$
|
—
|
$
|
4.6
|
||||||
2007
Restructuring Plans
|
||||||||||||||||
Costs
incurred in 2007 (b)
|
$
|
6.6
|
$
|
1.7
|
$
|
0.6
|
$
|
7.0
|
$
|
15.9
|
||||||
Payments
|
(4.2
|
)
|
(0.2
|
)
|
(0.1
|
)
|
(6.8
|
)
|
(11.3
|
)
|
||||||
Currency
translation
|
0.1
|
—
|
—
|
0.1
|
0.2
|
|||||||||||
Balance
at September 29, 2007
|
$
|
2.5
|
$
|
1.5
|
$
|
0.5
|
$
|
0.3
|
$
|
4.8
|
(a)
|
Employee-retention
costs are accrued ratably over the period through which employees
must
work to qualify for a payment.
|
(b)
|
Excludes
non-cash items including $0.3 million, $0.2 million and $0.2 million
of
asset write downs in the Analytical Technologies segment, Laboratory
Products and Services segment and corporate office, respectively.
Also
excludes loss of $1.5 million in the Laboratory Products and Services
segment related to a sale of a
business.
|
12.
|
Litigation
and Related Contingencies
|
13.
|
Adoption
of
FASB Interpretation No. 48
|
14.
|
Discontinued
Operations
|
1
4.
|
Discontinued
Operations (continued)
|
16.
|
Recent
Accounting Pronouncements
|
Three
Months Ended
|
Nine
Months Ended
|
||||||||||||||||||||||||
(Dollars in millions) |
September
29, 2007
|
September
30, 2006
|
September
29, 2007
|
September
30, 2006
|
|||||||||||||||||||||
Analytical
Technologies
|
$
|
1,044.2
|
43.5%
|
|
$
|
540.7
|
74.6%
|
|
$
|
3,088.9
|
43.4%
|
|
$
|
1,576.8
|
74.3%
|
|
|||||||||
Laboratory Products and Services
|
1,446.5
|
60.2%
|
|
184.2
|
25.4%
|
|
4,296.7
|
60.3%
|
|
545.9
|
25.7%
|
|
|||||||||||||
Eliminations
|
(89.5
|
)
|
(3.7%
)
|
—
|
0.0%
|
|
(260.3
|
)
|
(3.7%
)
|
—
|
0.0%
|
|
|||||||||||||
$
|
2,401.2
|
100%
|
|
$
|
724.9
|
100%
|
|
$
|
7,125.3
|
100%
|
|
$
|
2,122.7
|
100%
|
|
Three
Months Ended
|
|||||||
(In millions) |
September
29,
2007
|
September
30,
2006
|
|||||
Revenues
:
|
|||||||
Analytical
Technologies
|
$
|
1,044.2
|
$
|
540.7
|
|||
Laboratory
Products and Services
|
1,446.5
|
184.2
|
|||||
Eliminations
|
(89.5
|
)
|
—
|
||||
Consolidated
Revenues
|
$
|
2,401.2
|
$
|
724.9
|
|||
Operating
Income
:
|
|||||||
Analytical
Technologies
|
$
|
202.5
|
$
|
80.8
|
|||
Laboratory
Products and Services
|
202.2
|
27.9
|
|||||
Subtotal
Reportable Segments
|
404.7
|
108.7
|
|||||
Cost
of Revenues Charges
|
(0.4
|
)
|
(2.0
|
)
|
|||
Restructuring
and Other Costs, Net
|
(8.8
|
)
|
(5.2
|
)
|
|||
Amortization
of Acquisition-related Intangible Assets
|
(141.5
|
)
|
(26.4
|
)
|
|||
Consolidated
Operating Income
|
$
|
254.0
|
$
|
75.1
|
Three
Months Ended
|
||||||||||
(Dollars in millions) |
September
29,
2007
|
September
30,
2006
|
Change
|
|||||||
Revenues
|
$
|
1,044.2
|
$
|
540.7
|
93%
|
|
||||
Operating
Income Margin
|
19.4%
|
|
14.9%
|
|
4.5
pts.
|
Three
Months Ended
|
||||||||||
(Dollars in millions) |
September
29,
2007
|
September
30, 2006
|
Change
|
|||||||
Revenues
|
$
|
1,446.5
|
$
|
184.2
|
685%
|
|
||||
Operating
Income Margin
|
14.0%
|
|
15.1%
|
|
(1.1)
pts.
|
Nine
Months Ended
|
|||||||
September
29,
|
September
30,
|
||||||
(In
millions)
|
2007
|
2006
|
|||||
Revenues
:
|
|||||||
Analytical
Technologies
|
$
|
3,088.9
|
$
|
1,576.8
|
|||
Laboratory
Products and Services
|
4,296.7
|
545.9
|
|||||
Eliminations
|
(260.3
|
)
|
—
|
||||
Consolidated
Revenues
|
$
|
7,125.3
|
$
|
2,122.7
|
|||
Operating
Income
:
|
|||||||
Analytical
Technologies
|
$
|
598.0
|
$
|
229.8
|
|||
Laboratory
Products and Services
|
586.8
|
79.8
|
|||||
Subtotal
Reportable Segments
|
1,184.8
|
309.6
|
|||||
Cost
of Revenues Charges
|
(48.0
|
)
|
(3.3
|
)
|
|||
Restructuring
and Other Costs, Net
|
(24.5
|
)
|
(13.6
|
)
|
|||
Amortization
of Acquisition-related Intangible Assets
|
(422.9
|
)
|
(77.6
|
)
|
|||
Consolidated
Operating Income
|
$
|
689.4
|
$
|
215.1
|
Nine
Months Ended
|
||||||||||
September
29,
|
September
30,
|
|||||||||
(Dollars
in millions)
|
2007
|
2006
|
Change
|
|||||||
Revenues
|
$
|
3,088.9
|
$
|
1,576.8
|
96%
|
|
||||
Operating
Income Margin
|
19.4%
|
|
14.6%
|
|
4.8
pts.
|
Nine
Months Ended
|
||||||||||
September
29,
|
September
30,
|
|||||||||
(Dollars
in millions)
|
2007
|
2006
|
Change
|
|||||||
Revenues
|
$
|
4,296.7
|
$
|
545.9
|
687%
|
|
||||
Operating
Income Margin
|
13.7%
|
|
14.6%
|
|
(0.9)
pts.
|
•
|
finding
new markets for our products;
|
•
|
developing
new applications for our
technologies;
|
•
|
combining
sales and marketing operations in appropriate markets to compete
more
effectively;
|
•
|
allocating
research and development funding to products with higher growth
prospects;
|
•
|
continuing
key customer initiatives;
|
•
|
expanding
our service offerings;
|
•
|
strengthening
our presence in selected geographic markets;
and
|
•
|
continuing
the development of commercial tools and infrastructure to increase
and
support cross-selling opportunities of products and services to
take
advantage of our breadth in product
offerings.
|
•
|
if
we are unable to successfully combine the businesses of Thermo
and Fisher
in a manner that permits the company to achieve the cost savings
and
operating synergies anticipated to result from the merger, such
anticipated benefits of the merger may not be realized fully or
at all or
may take longer to realize than
expected;
|
•
|
lost
sales and customers as a result of certain customers of either
of the two
former companies deciding not to do business with the
company;
|
•
|
complexities
associated with managing the combined
businesses;
|
•
|
integrating
personnel from diverse corporate cultures while maintaining focus
on
providing consistent, high quality products and customer
service;
|
•
|
potential
unknown liabilities and unforeseen increased expenses or delays
associated
with the merger; and
|
•
|
inability
to successfully execute a branding campaign for the combined
company.
|
•
|
reduced
demand for some of our products;
|
•
|
increased
rate of order cancellations or
delays;
|
•
|
increased
risk of excess and obsolete
inventories;
|
•
|
increased
pressure on the prices for our products and services;
and
|
•
|
greater
difficulty in collecting accounts
receivable.
|
•
|
development
of large and sophisticated groups purchasing medical and surgical
supplies;
|
•
|
wider
implementation of managed care;
|
•
|
legislative
healthcare reform;
|
•
|
consolidation
of pharmaceutical companies;
|
•
|
increased
outsourcing of certain activities, including to low-cost offshore
locations; and
|
•
|
consolidation
of distributors of pharmaceutical, medical and surgical
supplies.
|
Period |
Total
Number
of
Shares
Purchased
|
Average
Price
Paid
per Share
|
Total
Number
of
Shares
Purchased
as
Part of
Publicly
Announced
Plans
or
Programs
(1)
|
Maximum
Dollar Amount of Shares That May Yet Be Purchased Under the
Plans
or Programs (1)
|
|||||||||
|
(In
millions)
|
||||||||||||
July
1 - August 4
|
—
|
$
|
—
|
—
|
$
|
1,000.0
|
|||||||
August
5 - September 1
|
6,374,200
|
52.78
|
6,374,200
|
663.6
|
|||||||||
September
2 - September 29
|
3,706,053
|
54.99
|
3,706,053
|
459.8
|
|||||||||
Total
Third Quarter
|
10,080,253
|
$
|
53.59
|
10,080,253
|
$
|
459.8
|
(1)
|
In
February 2007, the company announced a repurchase program authorizing
the
purchase of up to $300 million of the company’s common stock in the open
market or in negotiated transactions. On August 9, 2007, the company
increased the existing authorization for the purchase of up to
an
additional $700 million of the company’s common stock in the open market
or in negotiated transactions, which expires August 8, 2008. All
of the
shares of common stock repurchased by the company during the third
quarter
of 2007 were purchased under this
program.
|
THERMO
FISHER SCIENTIFIC INC.
|
|
/s/
Peter M. Wilver
|
|
Peter
M. Wilver
|
|
Senior
Vice President and Chief Financial Officer
|
|
/s/
Peter E. Hornstra
|
|
Peter
E. Hornstra
|
|
Vice
President and Chief Accounting
Officer
|
Exhibit
Number
|
Description
of Exhibit
|
10.1
|
Thermo
Fisher Scientific Inc. 2005 Deferred Compensation Plan, dated October
22,
2007 for amounts deferred after December 31, 2004.
|
|
10.2
|
Thermo
Fisher Scientific Inc. Deferred Compensation Plan for Directors,
as
amended and restated on September 12, 2007.
|
|
31.1
|
Certification
of Chief Executive Officer required by Exchange Act Rules 13a-14(a)
and
15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley
Act of
2002.
|
|
31.2
|
Certification
of Chief Financial Officer required by Exchange Act Rules 13a-14(a)
and
15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley
Act of
2002.
|
|
32.1
|
Certification
of Chief Executive Officer required by Exchange Act Rules 13a-14(b)
and
15d-14(b), as adopted pursuant to Section 906 of the Sarbanes-Oxley
Act of
2002.*
|
|
32.2
|
Certification
of Chief Financial Officer required by Exchange Act Rules 13a-14(b)
and
15d-14(b), as adopted pursuant to Section 906 of the Sarbanes-Oxley
Act of
2002.*
|
*
|
Certification
is not deemed “filed” for purposes of Section 18 of the Exchange Act, or
otherwise subject to the liability of that section. Such
certification is not deemed to be incorporated by reference into
any
filing under the Securities Act or the Exchange Act, except to
the extent
that the registrant specifically incorporates it by
reference.
|
ARTICLE
1
|
Definitions
|
1
|
|
1.1
|
"Account
Balance"
|
1
|
|
1.2
|
"Annual
Account"
|
1
|
|
1.3
|
"Annual
Deferral Amount"
|
1
|
|
1.4
|
“Annual
Incentive”
|
1
|
|
1.5
|
"Annual
Installment Method"
|
2
|
|
1.6
|
"Base
Salary"
|
2
|
|
1.7
|
"Beneficiary"
|
2
|
|
1.8
|
"Beneficiary
Designation Form"
|
2
|
|
1.9
|
"Benefit
Distribution Date"
|
3
|
|
1.10
|
"Board"
|
3
|
|
1.11
|
"Change
in Control"
|
3
|
|
1.12
|
"Code"
|
4
|
|
1.13
|
"Committee"
|
4
|
|
1.14
|
"Company"
|
4
|
|
1.15
|
"Company
Contribution Amount"
|
5
|
|
1.16
|
"Disability"
or "Disabled"
|
5
|
|
1.17
|
"Election
Form"
|
5
|
|
1.18
|
"Employee"
|
5
|
|
1.19
|
"Employer(s)"
|
5
|
|
1.20
|
"ERISA"
|
6
|
|
1.21
|
"Participant"
|
6
|
|
1.22
|
"Performance-Based
Compensation"
|
6
|
|
1.23
|
"Plan"
|
6
|
|
1.24
|
"Plan
Agreement"
|
6
|
|
1.25
|
"Plan
Year"
|
6
|
|
1.26
|
"Retirement,"
"Retire(s)" or "Retired"
|
6
|
|
1.27
|
"Separation
from Service"
|
7
|
|
1.28
|
"Specified
Employee"
|
8
|
|
1.29
|
"Trust"
|
9
|
|
1.30
|
"Unforeseeable
Emergency"
|
9
|
|
1.31
|
"Years
of Service"
|
9
|
|
ARTICLE 2 | Selection, Enrollment, Eligibility |
9
|
|
2.1 | Selection by Committee |
9
|
|
2.2 | Enrollment and Eligibility Requirements; Commencement of Participation |
9
|
ARTICLE 3 | Deferral Commitments/Company Contribution Amounts/Company Restoration Matching Amounts/Vesting/Crediting/Taxes |
10
|
|
3.1 | Minimum Deferrals |
10
|
|
3.2 | Maximum Deferral |
10
|
|
3.3 | Timing of Deferral Elections; Effect of Election Form |
11
|
|
3.4 | Withholding and Crediting of Annual Deferral Amounts |
12
|
|
3.5 | Company Contribution Amount |
12
|
|
3.6 | Investment of Trust Assets |
13
|
|
3.7 | Vesting |
13
|
|
3.8 | Crediting/Debiting of Account Balances |
14
|
|
3.9 | FICA and Other Taxes |
15
|
|
ARTICLE 4 | Scheduled Distribution; Unforeseeable Emergencies |
16
|
|
4.1 | Scheduled Distributions |
16
|
|
4.2 | Postponing Scheduled Distributions |
16
|
|
4.3 | Other Benefits Take Precedence Over Scheduled Distributions |
17
|
|
4.4 | Unforeseeable Emergencies |
17
|
|
ARTICLE 5 | Retirement Benefit |
18
|
|
5.1 | Retirement Benefit |
18
|
|
5.2 | Payment of Retirement Benefits |
18
|
|
ARTICLE 6 | Termination Benefit |
19
|
|
6.1 | Termination Benefit |
19
|
|
6.2 | Payment of Termination Benefit |
19
|
|
ARTICLE 7 | Disability Benefit |
20
|
|
7.1 | Disability Benefit |
20
|
|
7.2 | Payment of Disability Benefit |
20
|
|
ARTICLE 8 | Death Benefit |
20
|
|
8.1 | Death Benefit |
20
|
|
8.2 | Payment of Death Benefit |
20
|
|
ARTICLE 9 | Beneficiary Designation |
20
|
9.1
|
Beneficiary
|
20
|
|
9.2
|
Beneficiary
Designation; Change
|
20
|
|
9.3
|
Acknowledgement
|
21
|
|
9.4
|
No
Beneficiary Designation
|
21
|
|
9.5
|
Doubt
as to Beneficiary
|
21
|
|
9.6
|
Discharge
of Obligations
|
21
|
ARTICLE
10
|
Leave of Absence |
21
|
|
10.1
|
Paid Leave of Absence |
21
|
|
10.2
|
Unpaid Leave of Absence |
21
|
ARTICLE
11
|
Termination
of Plan, Amendment or Modifications
|
22
|
11.1
|
Termination
of Plan
|
22
|
|
11.2
|
Amendment
|
22
|
|
11.3
|
Plan
Agreement
|
22
|
|
11.4
|
Effect
of Payment
|
22
|
|
ARTICLE
12
|
Administration |
23
|
12.1
|
Committee
|
23
|
|
12.2
|
Administration
Upon Change In Control
|
23
|
|
12.3
|
Agents
|
23
|
|
12.4
|
Binding
Effect of Decisions
|
23
|
|
12.5
|
Indemnity
of Committee
|
23
|
|
12.6
|
Employer
Information
|
24
|
|
ARTICLE
13
|
Other Benefits and Agreements |
24
|
|
13.1
|
Coordination with Other Benefits |
24
|
|
ARTICLE
14
|
Claims
Procedures
|
24
|
|
14.1
|
Presentation
of Claim
|
24
|
|
14.2
|
Notification
of Decision
|
24
|
|
14.3
|
Review
of a Denied Claim
|
25
|
|
14.4
|
Decision
on Review
|
25
|
|
14.5
|
Legal
Action
|
26
|
|
ARTICLE 15 | Trust |
26
|
15.1
|
Establishment
of the Trust
|
26
|
|
15.2
|
Interrelationship
of the Plan and the Trust
|
26
|
|
15.3
|
Distributions
From the Trust
|
27
|
|
ARTICLE 16 | Miscellaneous |
27
|
16.1
|
Status
of Plan
|
27
|
|
16.2
|
Unsecured
General Creditor
|
27
|
|
16.3
|
Employer's
Liability
|
27
|
|
16.4
|
Nonassignability
|
27
|
|
16.5
|
Not
a Contract of Employment
|
27
|
|
16.6
|
Furnishing
Information
|
28
|
|
16.7
|
Terms
|
28
|
|
16.8
|
Captions
|
28
|
|
16.9
|
Governing
Law
|
28
|
|
16.10
|
Notice
|
28
|
|
16.11
|
Successors
|
29
|
|
16.12
|
Spouse's
Interest
|
29
|
|
16.13
|
Validity
|
29
|
16.14
|
Incompetent
|
29
|
|
16.15
|
Domestic
Relations Orders
|
29
|
|
16.16
|
Distribution
in the Event of Income Inclusion Under Code Section 409A
|
29
|
|
16.17
|
Deduction
Limitation on Benefit Payments
|
30
|
|
16.18
|
Insurance
|
30
|
1.1
|
"Account
Balance" shall mean, with respect to a Participant, an entry on
the
records of the Employer equal to the sum of the Participant's Annual
Accounts. The Account Balance shall be a bookkeeping entry only
and shall be utilized solely as a device for the measurement and
determination of the amounts to be paid to a Participant, or his
or her
designated Beneficiary, pursuant to this
Plan.
|
1.2
|
"Annual
Account" shall mean, with respect to a Participant, an entry on
the
records of the Employer equal to (a) the sum of the Participant's
Annual
Deferral Amount and Company Contribution Amount for any one Plan
Year,
plus (b) amounts credited or debited to such amounts pursuant to
this
Plan, less (c) all distributions made to the Participant or his
or her
Beneficiary pursuant to this Plan that relate to the Annual Account
for
such Plan Year. The Annual Account shall be a bookkeeping entry
only and shall be utilized solely as a device for the measurement
and
determination of the amounts to be paid to a Participant, or his
or her
designated Beneficiary, pursuant to this
Plan.
|
1.3
|
"Annual
Deferral Amount" shall mean that portion of a Participant's Base
Salary
and Annual Incentive that a Participant defers in accordance with
Article
3 for any one Plan Year, without regard to whether such amounts
are
withheld and credited during such Plan
Year.
|
1.4
|
“Annual
Incentive” shall mean any compensation, in addition to Base Salary
relating to services performed during any calendar year, whether
or not
paid in such calendar year or included on the Federal Income Tax
Form W-2
for such calendar year, payable to a Participant as an Employee
under any
Employer’s annual bonus and cash incentive plans, or any other bonus
arrangement designated by the Company, excluding stock options
and
restricted stock.
|
1.5
|
"Annual
Installment Method" shall mean the method used to determine the
amount of
each payment due to a Participant who has elected to receive a
benefit
over a period of years in accordance with the applicable provisions
of the
Plan. The amount of each annual payment due to the Participant
shall be calculated by multiplying the balance of the Participant's
benefit by a fraction, the numerator of which is one and the denominator
of which is the remaining number of annual payments due to the
Participant. By way of example, if the Participant elects a ten
(10) year Annual Installment Method, the first payment shall be
1/10 of
the balance of the Participant’s benefit. The following year,
the payment shall be 1/9 of the balance of the Participant’s
benefit. The amount of the first annual payment shall be
calculated as of the close of business on or around the Participant's
Benefit Distribution Date, and the amount of each subsequent annual
payment shall be calculated on or around each anniversary of such
Benefit
Distribution Date. For purposes of this Plan, the right to
receive a benefit payment in annual installments shall be treated
as the
entitlement to a single payment.
|
1.6
|
"Base
Salary" shall mean the annual cash compensation relating to services
performed during any calendar year, excluding distributions from
nonqualified deferred compensation plans, bonuses, commissions,
overtime,
fringe benefits, stock options, relocation expenses, Annual Incentive
payments, non-monetary awards, and automobile and other allowances
paid to
a Participant for employment services rendered (whether or not
such
allowances are included in the Employee's gross income). Base
Salary shall be calculated before reduction for compensation voluntarily
deferred or contributed by the Participant pursuant to all qualified
or
nonqualified plans of any Employer and shall be calculated to include
amounts not otherwise included in the Participant's gross income
under
Code Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to plans
established by any Employer; provided, however, that all such amounts
will
be included in compensation only to the extent that had there been
no such
plan, the amount would have been payable in cash to the
Employee.
|
1.7
|
"Beneficiary"
shall mean one or more persons, trusts, estates or other entities,
designated in accordance with Article 9, that are entitled to receive
benefits under this Plan upon the death of a
Participant.
|
1.8
|
"Beneficiary
Designation Form" shall mean the form, which may be in electronic
format,
established from time to time by the Company that a Participant
completes,
signs and returns to the Company to designate one or more
Beneficiaries.
|
1.9
|
"Benefit
Distribution Date" shall mean the date upon which all or an objectively
determinable portion of a Participant's vested benefits will become
eligible for distribution. Except as otherwise provided in the
Plan, a Participant's Benefit Distribution Date shall be determined
based
on the earliest to occur of an event or scheduled date set forth
in
Articles 4 through 8, as
applicable.
|
1.10
|
"Board"
shall mean the board of directors of the
Company.
|
1.11
|
"Change
in Control" shall mean the occurrence of a "change in the ownership,"
a
"change in the effective control" or a "change in the ownership
of a
substantial portion of the assets" of a corporation, as determined
in
accordance with this Section.
|
(a)
|
A
"change in the ownership" of the applicable corporation shall occur
on the
date on which any one person, or more than one person acting as
a group,
acquires ownership of stock of such corporation that, together
with stock
held by such person or group, constitutes more than 50% of the
total fair
market value or total voting power of the stock of such corporation,
as
determined in accordance with Treas. Reg. §
1.409A-3(i)(5)(v). If a person or group is considered either to
own more than 50% of the total fair market value or total voting
power of
the stock of such corporation, or to have effective control of
such
corporation within the meaning of part (b) of this Section, and
such
person or group acquires additional stock of such corporation,
the
acquisition of additional stock by such person or group shall not
be
considered to cause a "change in the ownership" of such
corporation.
|
(b)
|
A
"change in the effective control" of the applicable corporation
shall
occur on either of the following
dates:
|
(i)
|
The
date on which any one person, or more than one person acting
as a group,
acquires (or has acquired during the 12-month period ending on
the date of
the most recent acquisition by such person or persons) ownership
of stock
of such corporation possessing 40% or more of the total voting
power of
the stock of such corporation, as determined in accordance with
Treas.
Reg. § 1.409A-3(i)(5)(vi). If a person or group is considered
to possess 40% or more of the total voting power of the stock
of a
corporation, and such person or group acquires additional stock
of such
corporation, the acquisition of additional stock by such person
or group
shall not be considered to cause a "change in the effective control"
of
such corporation; or
|
(ii)
|
The
date on which a majority of the members of the applicable corporation's
board of directors is replaced during any 12-month period by
directors
whose appointment or election is not endorsed by a majority of
the members
of such corporation's board of directors before the date of the
appointment or election, as determined in accordance with Treas.
Reg.
§
1.409A-3(i)(5)(vi). In determining whether the event described
in the preceding sentence has occurred, the applicable corporation
to
which the event must relate shall only include a corporation
identified in
accordance with Treas. Reg. § 1.409A-3(i)(5)(ii) for which no other
corporation is a majority
shareholder.
|
(c)
|
A
"change in the ownership of a substantial portion of the assets"
of the
applicable corporation shall occur on the date on which any one
person, or
more than one person acting as a group, acquires (or has acquired
during
the 12-month period ending on the date of the most recent acquisition
by
such person or persons) assets from the corporation that have
a total
gross fair market value equal to or more than 40% of the total
gross fair
market value of all of the assets of the corporation immediately
before
such acquisition or acquisitions, as determined in accordance
with Treas.
Reg. § 1.409A-3(i)(5)(vii). A transfer of assets shall not be
treated as a "change in the ownership of a substantial portion
of the
assets" when such transfer is made to an entity that is controlled
by the
shareholders of the transferor corporation, as determined in
accordance
with Treas. Reg. §
1.409A-3(i)(5)(vii)(B).
|
1.12
|
"Code"
shall mean the Internal Revenue Code of 1986, as it may be amended
from
time to time.
|
1.13
|
"Committee"
shall mean the Compensation Committee of the Board or such other
committee
as the Board may appoint from time to
time.
|
1.14
|
"Company"
shall mean Thermo Fisher Scientific Inc., a Delaware corporation,
and any
successor to all or substantially all of the Company's assets
or
business.
|
1.15
|
"Company
Contribution Amount" shall mean, for any one Plan Year, the
amount
determined in accordance with Section
3.5.
|
1.16
|
"Disability"
or "Disabled" shall mean that a Participant is either (a)
unable to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected
to result
in death or can be expected to last for a continuous period
of not less
than 12 months, or (b) by reason of any medically determinable
physical or
mental impairment that can be expected to result in death
or can be
expected to last for a continuous period of not less than
12 months,
receiving income replacement benefits for a period of not
less than 3
months under an accident and health plan covering employees
of the
Participant's Employer. For purposes of this Plan, a
Participant shall be deemed Disabled if determined to be
totally disabled
by the Social Security Administration. A Participant shall also
be deemed Disabled if determined to be disabled in accordance
with the
applicable disability insurance program of such Participant's
Employer,
provided that the definition of "disability" applied under
such disability
insurance program complies with the requirements of this
Section.
|
1.17
|
"Election
Form" shall mean the form, which may be in electronic format,
established
from time to time by the Company that a Participant completes,
signs and
returns to the Company to make an election under the
Plan.
|
1.18
|
"Employee"
shall mean a person who is an employee of an
Employer.
|
1.19
|
"Employer(s)"
shall be defined as follows:
|
(a)
|
Except
as otherwise provided in part (b) of this Section, the term
"Employer"
shall mean the Company and/or any of its subsidiaries (now
in existence or
hereafter formed or acquired).
|
(b)
|
For
the purpose of determining whether a Participant has experienced
a
Separation from Service, the term "Employer" shall
mean:
|
(i)
|
The
entity for which the Participant performs services and with
respect to
which the legally binding right to compensation deferred
or contributed
under this Plan arises; and
|
(ii)
|
All
other entities with which the entity described above would
be aggregated
and treated as a single employer under Code Section 414(b)
(controlled
group of corporations) and Code Section 414(c) (a group of
trades or
businesses, whether or not incorporated, under common control),
as
applicable. In order to identify the group of entities
described in the preceding sentence, the Company shall use
an ownership
threshold of at least 50% as a substitute for the 80% minimum
ownership
threshold that appears in, and otherwise must be used when
applying, the
applicable provisions of (A) Code Section 1563 for determining
a
controlled group of corporations under Code Section 414(b),
and (B) Treas.
Reg. § 1.414(c)-2 for determining the trades or businesses that
are under
common control under Code Section
414(c).
|
1.20
|
"ERISA"
shall mean the Employee Retirement Income Security Act of 1974, as
it may
be amended from time to time.
|
1.21
|
"Participant"
shall mean any Employee (a) who is selected to participate in the
Plan,
(b) whose executed Plan Agreement, Election Form and Beneficiary
Designation Form are accepted by the Company, and (c) whose Plan
Agreement
has not terminated. A spouse or former spouse of a Participant
shall not be treated as a Participant in the Plan or have an account
balance under the Plan, even if he or she has an interest in the
Participant’s benefits under the Plan as a result of applicable law or
property settlements resulting from legal separation or
divorce.
|
1.22
|
"Performance-Based
Compensation" shall mean compensation the entitlement to or amount
of
which is contingent on the satisfaction of pre-established organizational
or individual performance criteria relating to a performance period
of at
least 12 consecutive months, as determined by the Company in accordance
with Treas. Reg. § 1.409A-1(e).
|
1.23
|
"Plan"
shall mean the Thermo Fisher Scientific Inc. 2005 Deferred Compensation
Plan, which shall be evidenced by this instrument, as it may be amended
from time to time, and by any other documents that together with
this
instrument define a Participant's rights to amounts credited to his
or her
Account Balance.
|
1.24
|
"Plan
Agreement" shall mean a written agreement in the form prescribed
by or
acceptable to the Company that evidences a Participant's agreement
to the
terms of the Plan and which may establish additional terms or conditions
of Plan participation for a Participant. Unless otherwise
determined by the Company, the most recent Plan Agreement accepted
with
respect to a Participant shall supersede any prior Plan Agreements
for
such Participant. Plan Agreements may vary among Participants
and may provide additional benefits not set forth in the Plan or
limit the
benefits otherwise provided under the
Plan.
|
1.25
|
"Plan
Year" shall mean a period beginning on January 1 of each calendar
year and
continuing through December 31 of such calendar
year.
|
1.26
|
"Retirement,"
"Retire(s)" or "Retired" shall mean with respect to a Participant
who is
an Employee, a Separation from Service on or after the attainment
of age
55 with 10 Years of Service.
|
1.27
|
"Separation
from Service" shall mean a termination of services provided by a
Participant to his or her Employer, whether voluntarily or involuntarily,
other than by reason of death or Disability, as determined by the
Company
in accordance with Treas. Reg. § 1.409A-l(h). In determining
whether a Participant has experienced a Separation from Service,
the
following provisions shall apply:
|
(a)
|
For
a Participant who provides services to an Employer as an Employee,
except
as otherwise provided in part (c) of this Section, a Separation from
Service shall occur when such Participant has experienced a termination
of
employment with such Employer. A Participant shall be
considered to have experienced a termination of employment when the
facts
and circumstances indicate that the Participant and his or her Employer
reasonably anticipate that either (i) no further services will be
performed for the Employer after a certain date, or (ii) that the
level of
bona fide services the Participant will perform for the Employer
after
such date (whether as an Employee or as an independent contractor)
will
permanently decrease to no more than 20% of the average level of
bona fide
services performed by such Participant (whether as an Employee or
an
independent contractor) over the immediately preceding 36-month period
(or
the full period of services to the Employer if the Participant has
been
providing services to the Employer less than 36
months).
|
(b)
|
For
a Participant who provides services to an Employer as an independent
contractor, except as otherwise provided in part (c) of this Section,
a
Separation from Service shall occur upon the expiration of the contract
(or in the case of more than one contract, all contracts) under which
services are performed for such Employer, provided that the expiration
of
such contract(s) is determined by the Company to constitute a good-faith
and complete termination of the contractual relationship between
the
Participant and such Employer.
|
(c)
|
For
a Participant who provides services to an Employer as both an Employee
and
an independent contractor, a Separation from Service generally shall
not
occur until the Participant has ceased providing services for such
Employer as both an Employee and as an independent contractor, as
determined in accordance with the provisions set forth in parts (a)
and
(b) of this Section, respectively. Similarly, if a Participant
either (i) ceases providing services for an Employer as an independent
contractor and begins providing services for such Employer as an
Employee,
or (ii) ceases providing services for an Employer as an Employee
and
begins providing services for such Employer as an independent contractor,
the Participant will not be considered to have experienced a Separation
from Service until the Participant has ceased providing services
for such
Employer in both capacities, as determined in accordance with the
applicable provisions set forth in parts (a) and (b) of this
Section.
|
1.28
|
"Specified
Employee" shall mean any Participant who is determined to be a "key
employee" (as defined under Code Section 416(i) without regard to
paragraph (5) thereof) for the applicable period, as determined annually
by the Company in accordance with Treas. Reg. § 1.409A-1(i). In
determining whether a Participant is a Specified Employee, the following
provisions shall apply:
|
(a)
|
The
Company's identification of the individuals who fall within the definition
of "key employee" under Code Section 416(i) (without regard to paragraph
(5) thereof) shall be based upon the 12-month period ending on each
December 31
st
(referred to
below as the "identification date"). In applying the applicable
provisions of Code Section 416(i) to identify such individuals,
"compensation" shall be determined in accordance with Treas. Reg.
§
1.415(c)-2(a) without regard to (i) any safe harbor provided in Treas.
Reg. § 1.415(c)-2(d), (ii) any of the special timing rules provided in
Treas. Reg. § 1.415(c)-2(e), and (iii) any of the special rules provided
in Treas. Reg. § 1.415(c)-2(g); and
|
(b)
|
Each
Participant who is among the individuals identified as a "key employee"
in
accordance with part (a) of this Section shall be treated as a Specified
Employee for purposes of this Plan if such Participant experiences
a
Separation from Service during the 12-month period that begins on
the
April 1
st
following the applicable identification
date.
|
1.29
|
"Trust"
shall mean one or more trusts established by the Company in accordance
with Article 15.
|
1.30
|
"Unforeseeable
Emergency" shall mean a severe financial hardship of the Participant
resulting from (a) an illness or accident of the Participant, the
Participant's spouse, the Participant's Beneficiary or the Participant's
dependent (as defined in Code Section 152 without regard to paragraphs
(b)(1), (b)(2) and (d)(1)(b) thereof), (b) a loss of the Participant's
property due to casualty, or (c) such other similar extraordinary
and
unforeseeable circumstances arising as a result of events beyond
the
control of the Participant, all as determined by the Company based
on the
relevant facts and circumstances.
|
1.31
|
"Years
of Service" shall mean the total number of full years in which a
Participant has been employed by one or more Employers. For
purposes of this definition, a year of employment shall be a 365
day
period (or 366 day period in the case of a leap year) that, for the
first
year of employment, commences on the Employee's date of hiring and
that,
for any subsequent year, commences on an anniversary of that hiring
date. A partial year of employment shall not be treated as a
Year of Service.
|
2.1
|
Selection
by Committee
. Participation in the Plan shall be
limited to, as determined by the Committee in its sole discretion,
a
select group of management or highly compensated
Employees. From that group, the Committee shall select, in its
sole discretion, those individuals who may actually participate in
this
Plan.
|
2.2
|
Enrollment
and Eligibility Requirements; Commencement of
Participation
.
|
(a)
|
As
a condition to participation, selected Employee shall complete, execute
and return to the Company a Plan Agreement, an Election Form and
a
Beneficiary Designation Form by the deadline(s) established by the
Company
in accordance with the applicable provisions of this Plan. In
addition, the Company shall establish from time to time such other
enrollment requirements as it determines, in its sole discretion,
are
necessary.
|
(b)
|
Each
Employee who is eligible to participate in the Plan shall commence
participation in the Plan on the date that the Company determines
that the
Employee has met all enrollment requirements set forth in this Plan
and
required by the Company, including returning all required documents
to the
Company within the specified time
period.
|
(c)
|
If
an Employee fails to meet all requirements established by the Company
within the period required, that Employee shall not be eligible
to
participate in the Plan during such Plan
Year.
|
3.1
|
Minimum
Deferrals
.
|
(a)
|
Base
Salary and Annual Incentive
. For each Plan Year, a
Participant may elect to defer, as his or her Annual Deferral Amount,
an
aggregate minimum of $5,000 of Base Salary and/or Annual
Incentive. If an election is made for less than the stated
minimum amounts, or if no election is made, the amount deferred
shall be
zero.
|
(b)
|
Short
Plan Year
. Notwithstanding the foregoing, if a
Participant first becomes a Participant after the first day of
a Plan
Year, the minimum Annual Deferral Amount shall be an amount equal
to the
minimum set forth above, multiplied by a fraction, the numerator
of which
is the number of complete months remaining in the Plan Year and
the
denominator of which is 12.
|
3.2
|
Maximum
Deferral
.
|
(a)
|
Annual
Deferral Amount
. For each Plan Year, a Participant
may elect to defer, as his or her Annual Deferral Amount, Base
Salary
and/or Annual Incentive up to the following maximum percentages
for each
deferral elected:
|
Deferral
|
Maximum
Percentage
|
Base
Salary
|
90%
|
Annual
Incentive
|
100%
|
(b)
|
Short
Plan Year
. Notwithstanding the foregoing, if a
Participant first becomes a Participant after the first day of
a Plan
Year, then to the extent required by Section 3.3 and Code Section
409A and
related Treasury Regulations, the maximum amount of the Participant's
Base
Salary and/or Annual Incentive that may be deferred by the Participant
for
the Plan Year shall be determined by applying the percentages set
forth in
Section 3.2(a) to the portion of such compensation attributable
to
services performed after the date that the Participant's deferral
election
is made.
|
3.3
|
Timing
of Deferral Elections; Effect of Election
Form
.
|
(a)
|
General
Timing Rule for Deferral Elections
. Except as
otherwise provided in this Section 3.3, in order for a Participant
to make
a valid election to defer Base Salary and/or Annual Incentive,
the
Participant must submit an Election Form on or before the
deadline
established by the Company, which in no event shall be later
than the
December 31
st
preceding
the Plan Year in which such compensation will be
earned.
|
(b)
|
Timing
of Deferral Elections for Newly Eligible Plan
Participants
. A Director or selected Employee who
first becomes eligible to participate in the Plan on or after
the
beginning of a Plan Year, as determined in accordance with
Treas. Reg. §
1.409A-2(a)(7)(ii) and the "plan aggregation" rules provided
in Treas.
Reg.
§
1.409A-1(c)(2), may be permitted to make an election to defer
the portion
of Base Salary and/or Annual Incentive attributable to services
to be
performed after such election, provided that the Participant
submits an
Election Form on or before the deadline established by the
Company, which
in no event shall be later than 30 days after the Participant
first
becomes eligible to participate in the
Plan.
|
(c)
|
Timing
of Deferral Elections for Performance-Based
Compensation
. Subject to the limitations described
below, the Company may determine that an irrevocable deferral
election for
an amount that qualifies as Performance-Based Compensation
may be made by
submitting an Election Form on or before the deadline established
by the
Company, which in no event shall be later than 6 months before
the end of
the performance period.
|
3.4
|
Withholding
and Crediting of Annual Deferral Amounts
. For each
Plan Year, the Base Salary portion of the Annual Deferral
Amount shall be
withheld from each regularly scheduled Base Salary payroll
in equal
amounts, as adjusted from time to time for increases and
decreases in Base
Salary. The Annual Incentive portion of the Annual Deferral
Amount shall be withheld at the time the Annual Incentive
is or otherwise
would be paid to the Participant, whether or not this occurs
during the
Plan Year itself. Annual Deferral Amounts shall be credited to
the Participant's Annual Account for such Plan Year at
the time such
amounts would otherwise have been paid to the
Participant.
|
3.5
|
Company
Contribution Amount
.
|
(a)
|
For
each Plan Year, an Employer may be required to credit amounts
to a
Participant's Annual Account in accordance with employment
or other
agreements entered into between the Participant and the
Employer, which
amounts shall be part of the Participant's Company Contribution
Amount for
that Plan Year. Such amounts shall be credited to the
Participant's Annual Account for the applicable Plan Year
on the date or
dates prescribed by such
agreements.
|
(b)
|
For
each Plan Year, an Employer, in its sole discretion, may,
but is not
required to, credit any amount it desires to any Participant's
Annual
Account under this Plan, which amount shall be part of
the Participant's
Company Contribution Amount for that Plan Year. The amount so
credited to a Participant may be smaller or larger than
the amount
credited to any other Participant, and the amount credited
to any
Participant for a Plan Year may be zero, even though one
or more other
Participants receive a Company Contribution Amount for
that Plan
Year. The Company Contribution Amount described in this Section
3.5(b), if any, shall be credited to the Participant's
Annual Account for
the applicable Plan Year on a date or dates to be determined
by the
Company.
|
(c)
|
If
not otherwise specified in the Participant's employment or other
agreement
entered into between the Participant and the Employer, the amount
(or the
method or formula for determining the amount) of a Participant's
Company
Contribution Amount shall be set forth in writing in one or more
documents, which shall be deemed to be incorporated into this Plan
in
accordance with Section 1.23, no later than the date on which such
Company
Contribution Amount is credited to the applicable Annual Account
of the
Participant.
|
3.6
|
Investment
of Trust Assets
. The Trustee of the Trust shall be
authorized, upon written instructions received from the Company or
investment manager appointed by the Company, to invest and reinvest
the
assets of the Trust in accordance with the applicable Trust Agreement,
including the disposition of stock and reinvestment of the proceeds
in one
or more investment vehicles designated by the
Company.
|
3.7
|
Vesting
.
|
(a)
|
A
Participant shall at all times be 100% vested in the portion of his
or her
Account Balance attributable to Annual Deferral Amounts, plus amounts
credited or debited on such amounts pursuant to Section
3.8.
|
(b)
|
The
Committee, in its sole discretion, will determine over what period
of time
and in what percentage increments a Participant shall vest in his
or her
Company Contribution Account. The Committee may credit some
Participants with larger or smaller vesting percentages that other
Participants, and the vesting percentage credited to any Participant
for a
Plan Year may be zero, even though one or more other Participants
have a
greater vesting percentage credited to them for that Plan
Year.
|
(c)
|
Notwithstanding
anything to the contrary contained in this Section 3.7, in the event
of a
Change in Control, or upon a Participant's Separation from
Service on or after qualifying for Retirement
,
any amounts that
are not vested in accordance with Section 3.7(b) above, shall immediately
become 100% vested.
|
(d)
|
Notwithstanding
subsection 3.7(c) above, the vesting schedule for a Participant shall
not
be accelerated upon a Change in Control to the extent that the Committee
determines that such acceleration would cause the deduction limitations
of
Section 280G of the Code to become effective. In the event of
such a determination, the Participant may request independent verification
of the Committee's calculations with respect to the application of
Section
280G. In such case, the Committee must provide to the
Participant within 90 days of such a request an opinion from a nationally
recognized accounting firm selected by the Participant (the "Accounting
Firm"). The opinion shall state the Accounting Firm's opinion
that any limitation in the vested percentage hereunder is necessary
to
avoid the limits of Section 280G and contain supporting
calculations. The cost of such opinion shall be paid for by the
Company.
|
3.8
|
Crediting/Debiting
of Account Balances
. In accordance with, and
subject to, the rules and procedures that are established from
time to
time by the Company, in its sole discretion, amounts shall
be credited or
debited to a Participant's Account Balance in accordance with
the
following rules:
|
(a)
|
Measurement
Funds
. The Participant may elect one or more of
the measurement funds selected by the Company, in its sole
discretion,
which are based on certain mutual funds (the "Measurement Funds"),
for the
purpose of crediting or debiting additional amounts to his
or her Account
Balance. As necessary, the Company may, in its sole discretion,
discontinue, substitute or add a Measurement Fund. Each such
action will take effect as of the first day of the first calendar
quarter
that begins at least 30 days after the day on which the Company
gives
Participants advance written notice of such
change.
|
(b)
|
Election
of Measurement Funds
. A Participant, in connection
with his or her initial deferral election in accordance with
Section 3.3
above, shall elect, on the Election Form, one or more Measurement
Fund(s)
(as described in Section 3.8(a) above) to be used to determine
the amounts
to be credited or debited to his or her Account Balance. If a
Participant does not elect any of the Measurement Funds as
described in
the previous sentence, the Participant's Account Balance shall
automatically be allocated into the lowest-risk Measurement
Fund, as
determined by the Company, in its sole discretion. The
Participant may (but is not required to) elect, by submitting
an Election
Form to the Company that is accepted by the Company, to add
or delete one
or more Measurement Fund(s) to be used to determine the amounts
to be
credited or debited to his or her Account Balance, or to change
the
portion of his or her Account Balance allocated to each previously
or
newly elected Measurement Fund. If an election is made in
accordance with the previous sentence, it shall apply as of
the first
business day deemed reasonably practicable by the Company,
in its sole
discretion, and shall continue thereafter for each subsequent
day in which
the Participant participates in the Plan, unless changed in
accordance
with the previous sentence. Notwithstanding the foregoing, the
Company, in its sole discretion, may impose limitations on
the frequency
with which one or more of the Measurement Funds elected in
accordance with
this Section 3.8(b) may be added or deleted by such Participant;
furthermore, the Company, in its sole discretion, may impose
limitations
on the frequency with which the Participant may change the
portion of his
or her Account Balance allocated to each previously or newly
elected
Measurement Fund.
|
(c)
|
Proportionate
Allocation
. In making any election described in
Section 3.8(b) above, the Participant shall specify on
the Election Form,
in increments of one percent (1%), the percentage of
his or her Account
Balance or Measurement Fund, as applicable, to be
allocated/reallocated.
|
(d)
|
Crediting
or Debiting Method
. The performance of each
Measurement Fund (either positive or negative) will be
determined on a
daily basis based on the manner in which such Participant's
Account
Balance has been hypothetically allocated among the Measurement
Funds by
the Participant.
|
(e)
|
No
Actual Investment
. Notwithstanding any other
provision of this Plan that may be interpreted to the
contrary, the
Measurement Funds are to be used for measurement purposes
only, and a
Participant's election of any such Measurement Fund,
the allocation of his
or her Account Balance thereto, the calculation of additional
amounts and
the crediting or debiting of such amounts to a Participant's
Account
Balance shall not be considered or construed in any manner
as an actual
investment of his or her Account Balance in any such
Measurement
Fund. In the event that the Company or the Trustee (as that
term is defined in the Trust), in its own discretion,
decides to invest
funds in any or all of the investments on which the Measurement
Funds are
based, no Participant shall have any rights in or to
such investments
themselves. Without limiting the foregoing, a Participant's
Account Balance shall at all times be a bookkeeping entry
only and shall
not represent any investment made on his or her behalf
by the Company or
the Trust; the Participant shall at all times remain
an unsecured creditor
of the Company.
|
3.9
|
FICA
and Other Taxes
.
|
(a)
|
Annual
Deferral Amounts
. For each Plan Year in which an
Annual Deferral Amount is being withheld from a Participant,
the
Participant's Employer(s) shall withhold from that portion
of the
Participant's Base Salary or Annual Incentive that is
not being deferred,
in a manner determined by the Employer(s), the Participant's
share of FICA
and other employment taxes on such Annual Deferral Amount. If
necessary, the Company may reduce the Annual Deferral
Amount in order to
comply with this Section 3.9.
|
(b)
|
Company
Contribution Amounts
. When a Participant becomes
vested in a portion of his or her Account Balance attributable
to any
Company Contribution Amounts, the Participant's Employer(s)
shall withhold
from that portion of the Participant's Base Salary or
Annual Incentive
that is not deferred, in a manner determined by the Employer(s),
the
Participant's share of FICA and other employment taxes
on such
amounts. If necessary, the Company may reduce the vested
portion of the Participant's Company Contribution Amount
in order to
comply with this Section 3.9.
|
(c)
|
Distributions
. The
Participant's Employer(s), or the trustee of the Trust,
shall withhold
from any payments made to a Participant under this
Plan all federal, state
and local income, employment and other taxes required
to be withheld by
the Employer(s), or the trustee of the Trust, in connection
with such
payments, in amounts and in a manner to be determined
in the sole
discretion of the Employer(s) and the trustee of the
Trust.
|
4.1
|
Scheduled
Distributions
. In connection with each election to
defer an Annual Deferral Amount, a Participant may
elect to receive all or
a portion of such Annual Deferral Amount, plus amounts
credited or debited
on that amount pursuant to Section 3.8, in the form
of a lump sum payment,
calculated as of the close of business on or around
the Benefit
Distribution Date designated by the Participant in
accordance with this
Section (a "Scheduled Distribution"). The Benefit Distribution
Date for the amount subject to a Scheduled Distribution
election shall be
the first day of any Plan Year designated by the Participant,
which may be
no sooner than 3 Plan Years after the end of the Plan
Year to which the
Participant's deferral election relates, unless otherwise
provided on an
Election Form approved by the
Company.
|
4.2
|
Postponing
Scheduled Distributions
. A Participant may elect
to postpone a Scheduled Distribution described in Section
4.1 above, and
have such amount paid out during a 60 day period commencing
immediately
after an allowable alternative Benefit Distribution
Date designated in
accordance with this Section 4.2. In order to make such an
election, the Participant must submit an Election Form
to the Company in
accordance with the following
criteria:
|
(a)
|
The
election of the new Benefit Distribution Date shall
have no effect until
at least 12 months after the date on which the election
is
made;
|
(b)
|
The
new Benefit Distribution Date selected by the Participant
for such
Scheduled Distribution must be the first day of a Plan
Year that is no
sooner than 5 years after the previously designated
Benefit Distribution
Date; and
|
(c)
|
The
election must be made at least 12 months prior to the
Participant's
previously designated Benefit Distribution Date for
such Scheduled
Distribution.
|
4.3
|
Other
Benefits Take Precedence Over Scheduled
Distributions
. Should an event occur prior to any
Benefit Distribution Date designated for a Scheduled
Distribution that
would trigger a benefit under Articles 5 through 8,
as applicable, all
amounts subject to a Scheduled Distribution election
shall be paid in
accordance with the other applicable provisions of
the Plan and not in
accordance with this Article 4.
|
4.4
|
Unforeseeable
Emergencies
.
|
(a)
|
If
a Participant experiences an Unforeseeable Emergency
prior to the
occurrence of a distribution event described in Articles
5 through 8, as
applicable, the Participant may petition the Company
to receive a partial
or full payout from the Plan. The payout, if any, from the Plan
shall not exceed the lesser of (i) the Participant's
vested Account
Balance, calculated as of the close of business on
or around the Benefit
Distribution Date for such payout, as determined by
the Company in
accordance with provisions set forth below, or (ii)
the amount necessary
to satisfy the Unforeseeable Emergency, plus amounts
necessary to pay
Federal, state, or local income taxes or penalties reasonably anticipated
as a result of the distribution. A Participant shall not be
eligible to receive a payout from the Plan to the extent
that the
Unforeseeable Emergency is or may be relieved (A) through
reimbursement or
compensation by insurance or otherwise, (B) by liquidation
of the
Participant's assets, to the extent the liquidation
of such assets would
not itself cause severe financial hardship or (C) by
cessation of
deferrals under this Plan.
|
(b)
|
A
Participant's deferral elections under this Plan shall
also be cancelled
to the extent the Company determines that such action
is required for the
Participant to obtain a hardship distribution from an
Employer's 401(k)
Plan pursuant to Treas. Reg. §
1.401(k)-l(d)(3).
|
5.1
|
Retirement
Benefit
. If a Participant experiences a Separation
from Service that qualifies as a Retirement, the Participant
shall be
eligible to receive his or her vested Account Balance
in either a lump sum
or annual installment payments, as elected by the Participant
in
accordance with Section 5.2 (the "Retirement Benefit"). A
Participant's Retirement Benefit shall be calculated
as of the close of
business on or around the applicable Benefit Distribution
Date for such
benefit, which shall be (i) the first day after the end
of the 6-month
period immediately following the date on which the Participant
experiences
such Separation from Service if the Participant is a
Specified Employee,
and (ii) for all other Participants, the earlier of (a)
the March 1
st
immediately
following the date on which the Participant experiences such
Separation from Service or (b) the September 1
st
immediately
following the date on which the Participant experiences
a Separation from
Service; provided, however, if a Participant changes
the form of
distribution for one or more Annual Accounts in accordance
with Section
5.2(b), the Benefit Distribution Date for the Annual
Account(s) subject to
such change shall be determined in accordance with Section
5.2(b).
|
5.2
|
Payment
of Retirement Benefit
.
|
(a)
|
In
connection with a Participant's election to defer an
Annual Deferral
Amount, the Participant shall elect the form in which
his or her Annual
Account for such Plan Year will be paid. The Participant may
elect to receive each Annual Account in the form of a
lump sum or pursuant
to an Annual Installment Method of 5, 10 or 15 years. If a
Participant does not make any election with respect to
the payment of an
Annual Account, then the Participant shall be deemed
to have elected to
receive such Annual Account as a lump
sum.
|
(b)
|
A
Participant may change the form of payment for an Annual
Account by
submitting an Election Form to the Company in accordance
with the
following criteria:
|
(ii)
|
The
new Benefit Distribution Date for such Annual Account
shall be 5 years
after the Benefit Distribution Date that would otherwise
have been
applicable to such Annual Account;
and
|
(iii)
|
The
election must be made at least 12 months prior to the
Benefit Distribution
Date that would otherwise have been applicable to such
Annual
Account.
|
(c)
|
The
lump sum payment shall be made, or installment payments
shall commence, no
later than 60 days after the applicable Benefit Distribution
Date. Remaining installments, if any, shall continue in
accordance with the Participant's election for each Annual
Account and
shall be paid no later than 60 days after each anniversary
of the Benefit
Distribution Date.
|
6.1
|
Termination
Benefit
. If a Participant experiences a Separation
from Service that does not qualify as a Retirement, the
Participant shall
receive his or her vested Account Balance in the form
of a lump sum
payment (the "Termination Benefit"). A Participant's
Termination Benefit shall be calculated as of the close
of business on or
around the Benefit Distribution Date for such benefit,
which shall be (i)
the later of (a) the 60
th
day of the
Plan Year next following the Plan Year in which the Participant
experiences a Separation from Service or (b) the first
day after the end
of the 6-month period immediately following the date
on which the
Participant experiences such Separation from Service
if the Participant is
a Specified Employee, and (ii) for all other Participants,
the 60
th
day of the
Plan year next following the Plan year in which the Participant
experiences a Separation from
Service.
|
6.2
|
Payment
of Termination Benefit
. The Termination Benefit
shall be paid to the Participant no later than 60 days
after the
Participant's Benefit Distribution
Date.
|
7.1
|
Disability
Benefit
. If a Participant becomes Disabled prior
to the occurrence of a distribution event described
in Articles 5 and 6,
as applicable, the Participant shall receive his
or her vested Account
Balance in the form of a lump sum payment (the "Disability
Benefit"). The Disability Benefit shall be calculated as of
the
close of business on or around the Participant's
Benefit Distribution Date
for such benefit, which shall be the date on which
the Participant becomes
Disabled.
|
7.2
|
Payment
of Disability Benefit
. The Disability Benefit
shall be paid to the Participant no later than 60
days after the
Participant's Benefit Distribution
Date.
|
8.1
|
Death
Benefit
. In the event of a Participant's death
prior to the complete distribution of his or her
vested Account Balance,
the Participant's Beneficiary(ies) shall receive
the Participant's unpaid
vested Account Balance in a lump sum payment (the
"Death
Benefit"). The Death Benefit shall be calculated as of the
close of business on or around the Benefit Distribution
Date for such
benefit, which shall be the date on which the Company
is provided with
proof that is satisfactory to the Company of the
Participant's
death.
|
8.2
|
Payment
of Death Benefit
. The Death Benefit shall be paid
to the Participant's Beneficiary(ies) no later than
60 days after the
Participant's Benefit Distribution
Date.
|
9.1
|
Beneficiary
. Each
Participant shall have the right, at any time, to
designate his or her
Beneficiary(ies) (both primary as well as contingent)
to receive any
benefits payable under the Plan to a beneficiary
upon the death of a
Participant. The Beneficiary designated under this Plan may be
the same as or different from the Beneficiary designation
under any other
plan of an Employer in which the Participant
participates.
|
9.2
|
Beneficiary
Designation; Change
. A Participant shall designate
his or her Beneficiary by completing and signing
the Beneficiary
Designation Form, and returning it to the Company
or its designated
agent. A Participant shall have the right to change a
Beneficiary by completing, signing and otherwise
complying with the terms
of the Beneficiary Designation Form and the Company's
rules and
procedures, as in effect from time to time. Upon the acceptance
by the Company of a new Beneficiary Designation Form,
all Beneficiary
designations previously filed shall be canceled. The Company
shall be entitled to rely on the last Beneficiary
Designation Form filed
by the Participant and accepted by the Company prior
to his or her
death.
|
9.3
|
Acknowledgement
. No
designation or change in designation of a Beneficiary
shall be effective
until received and acknowledged in writing by the Company
or its
designated agent.
|
9.4
|
No
Beneficiary Designation
. If a Participant fails to
designate a Beneficiary as provided in Sections 9.1,
9.2 and 9.3 above or,
if all designated Beneficiaries predecease the Participant
or die prior to
complete distribution of the Participant's benefits,
then the
Participant's designated Beneficiary shall be deemed
to be his or her
surviving spouse. If the Participant has no surviving spouse,
the benefits remaining under the Plan to be paid to
a Beneficiary shall be
payable to the executor or personal representative
of the Participant's
estate.
|
9.5
|
Doubt
as to Beneficiary
. If the Company has any doubt as
to the proper Beneficiary to receive payments pursuant
to this Plan, the
Company shall have the right, exercisable in its discretion,
to cause the
Participant's Employer to withhold such payments until
this matter is
resolved to the Company's
satisfaction.
|
9.6
|
Discharge
of Obligations
. The payment of benefits under the
Plan to a Beneficiary shall fully and completely discharge
all Employers
and the Committee from all further obligations under
this Plan with
respect to the Participant, and that Participant's
Plan Agreement shall
terminate upon such full payment of
benefits.
|
10.1
|
Paid
Leave of Absence
. If a Participant is authorized
by the Participant's Employer to take a paid leave
of absence from the
employment of the Employer, and such leave of absence
does not constitute
a Separation from Service, (a) the Participant shall
continue to be
considered eligible for the benefits provided under
the Plan, and (b) the
Annual Deferral Amount shall continue to be withheld
during such paid
leave of absence in accordance with Section
3.3.
|
10.2
|
Unpaid
Leave of Absence
. If a Participant is authorized
by the Participant's Employer to take an unpaid leave
of absence from the
employment of the Employer for any reason, and such
leave of absence does
not constitute a Separation from Service, such Participant
shall continue
to be eligible for the benefits provided under the
Plan. During
the unpaid leave of absence, the Participant shall
not be allowed to make
any additional deferral elections. However, if the Participant
returns to employment, the Participant may elect to
defer an Annual
Deferral Amount for the Plan Year following his or
her return to
employment and for every Plan Year thereafter while
a Participant in the
Plan, provided such deferral elections are otherwise
allowed and an
Election Form is delivered to and accepted by the Committee
for each such
election in accordance with Section 3.3
above.
|
11.1
|
Termination
of Plan
. Although the Company anticipates that
it
will continue the Plan for an indefinite period
of time, there is no
guarantee that the Company will continue the Plan
or will not terminate
the Plan at any time in the future. Accordingly, the Company
reserves the right to terminate the Plan with respect
to all of its
Participants. In the event of a Plan termination no new
deferral elections shall be permitted for the affected
Participants and
such Participants shall no longer be eligible to
receive new company
contributions. However, after the Plan termination the Account
Balances of such Participants shall continue to
be credited with Annual
Deferral Amounts attributable to a deferral election
that was in effect
prior to the Plan termination to the extent deemed
necessary to comply
with Code Section 409A and related Treasury Regulations,
and additional
amounts shall continue to credited or debited to
such Participants'
Account Balances pursuant to Section 3.8. The Measurement Funds
available to Participants following the termination
of the Plan shall be
comparable in number and type to those Measurement
Funds available to
Participants in the Plan Year preceding the Plan
Year in which the Plan
termination is effective. In addition, following a Plan
termination, Participant Account Balances shall
remain in the Plan and
shall not be distributed until such amounts become
eligible for
distribution in accordance with the other applicable
provisions of the
Plan. Notwithstanding the preceding sentence, to the
extent
permitted by Treas. Reg. § 1.409A-3(j)(4)(ix), the Company may provide
that upon termination of the Plan, all Account
Balances of the
Participants shall be distributed, subject to and
in accordance with any
rules established by the Company deemed necessary
to comply with the
applicable requirements and limitations of Treas.
Reg. §
1.409A-3(j)(4)(ix).
|
11.2
|
Amendment
. The
Company may, at any time, amend or modify the Plan
in whole or in
part. Notwithstanding the foregoing, (i) no amendment
or
modification shall be effective to decrease the
value of a Participant's
vested Account Balance in existence at the time
the amendment or
modification is made, and (ii) no amendment or
modification of this
Section 11.2 or Section 12.2 of the Plan shall
be
effective.
|
11.3
|
Plan
Agreement
. Despite the provisions of Sections
11.1, if a Participant's Plan Agreement contains
benefits or limitations
that are not in this Plan document, the Employer
may only amend or
terminate such provisions with the written consent
of the
Participant.
|
11.4
|
Effect
of Payment
. The full payment of the Participant's
vested Account Balance in accordance with the applicable
provisions of the
Plan shall completely discharge all obligations
to a Participant and his
or her designated Beneficiaries under this Plan,
and the Participant's
Plan Agreement shall terminate.
|
12.1
|
Committee
.
Members
of the Committee may be Participants under this
Plan. The
Committee shall also have the discretion and
authority to (a) make, amend,
interpret, and enforce all appropriate rules
and regulations for the
administration of this Plan, and (b) decide or
resolve any and all
questions, including benefit entitlement determinations
and
interpretations of this Plan, as may arise in
connection with the
Plan. Any individual serving on the Committee who is
a
Participant shall not vote or act on any matter
relating solely to himself
or herself. When making a determination or calculation, the
Committee shall be entitled to rely on information
furnished by a
Participant or the Company.
|
12.2
|
Administration
Upon Change In Control
. Within 120 days following
a Change in Control, the individuals who comprised
the Committee
immediately prior to the Change in Control (whether
or not such
individuals are members of the Committee following
the Change in Control)
may, by written consent of the majority of such
individuals, appoint an
independent third party administrator (the "Administrator")
to perform any
or all of the Committee's duties described in
Section 12.1 above,
including without limitation, the power to determine
any questions arising
in connection with the administration or interpretation
of the Plan, and
the power to make benefit entitlement determinations. Upon and
after the effective date of such appointment,
(a) the Company must pay all
reasonable administrative expenses and fees of
the Administrator, and (b)
the Administrator may only be terminated with
the written consent of the
majority of Participants with an Account Balance
in the Plan as of the
date of such proposed termination.
|
12.3
|
Agents
. In
the administration of this Plan, the Committee
or the Administrator, as
applicable, may, from time to time, employ agents
and delegate to them or
to any Employee such administrative duties as
it sees fit (including
acting through a duly appointed representative)
and may from time to time
consult with counsel.
|
12.4
|
Binding
Effect of Decisions
. The decision or action of the
Committee or Administrator, as applicable, with
respect to any question
arising out of or in connection with the administration,
interpretation
and application of the Plan and the rules and
regulations promulgated
hereunder shall be final and conclusive and binding
upon all persons
having any interest in the Plan.
|
12.5
|
Indemnity
of Committee
. All Employers shall indemnify and
hold harmless the members of the Committee, any
Employee to whom the
duties of the Committee may be delegated, and
the Administrator against
any and all claims, losses, damages, expenses
or liabilities arising from
any action or failure to act with respect to
this Plan, except in the case
of willful misconduct by the Committee, any of
its members, any such
Employee or the Administrator.
|
12.6
|
Employer
Information
. To enable the Committee and/or
Administrator to perform its functions, the Company shall
supply full and
timely information to the Committee and/or Administrator,
as the case may
be, on all matters relating to the Plan, the Trust, the
Participants and
their Beneficiaries, the Account Balances of the Participants,
the
compensation of its Participants, the date and circumstances
of the
Separation from Service, Disability or death of its Participants,
and such
other pertinent information as the Committee or Administrator
may
reasonably require.
|
13.1
|
Coordination
with Other Benefits
. The benefits provided for a
Participant and Participant's Beneficiary under the Plan
are in addition
to any other benefits available to such Participant under
any other plan
or program for employees of the Participant's Employer. The
Plan shall supplement and shall not supersede, modify
or amend any other
such plan or program except as may otherwise be expressly
provided.
|
14.1
|
Presentation
of Claim
. Any Participant or Beneficiary of a
deceased Participant (such Participant or Beneficiary
being referred to
below as a "Claimant") may deliver to the Company a written
claim for a
determination with respect to the amounts distributable
to such Claimant
from the Plan. If such a claim relates to the contents of a
notice received by the Claimant, the claim must be made
within 60 days
after such notice was received by the Claimant. All other
claims must be made within 180 days of the date on which
the event that
caused the claim to arise occurred. The claim must state with
particularity the determination desired by the
Claimant.
|
14.2
|
Notification
of Decision
. The Company shall consider a
Claimant's claim within a reasonable time, but no later
than 90 days after
receiving the claim. If the Company determines that special
circumstances require an extension of time for processing
the claim,
written notice of the extension shall be furnished to
the Claimant prior
to the termination of the initial 90 day period. In no event
shall such extension exceed a period of 90 days from
the end of the
initial period. The extension notice shall indicate the special
circumstances requiring an extension of time and the
date by which the
Company expects to render the benefit determination. The
Company shall notify the Claimant in
writing:
|
(a)
|
that
the Claimant's requested determination has been made,
and that the claim
has been allowed in full; or
|
(b)
|
that
the Company has reached a conclusion contrary, in whole
or in part, to the
Claimant's requested determination, and such notice
must set forth in a
manner calculated to be understood by the
Claimant:
|
(i)
|
the
specific reason(s) for the denial of the claim, or
any part of
it;
|
(ii)
|
specific
reference(s) to pertinent provisions of the Plan upon
which such denial
was based;
|
(iii)
|
a
description of any additional material or information
necessary for the
Claimant to perfect the claim, and an explanation of
why such material or
information is necessary;
|
(iv)
|
an
explanation of the claim review procedure set forth
in Section 14.3 below;
and
|
(v)
|
a
statement of the Claimant's right to bring a civil
action under ERISA
Section 502(a) following an adverse benefit determination
on
review.
|
14.3
|
Review
of a Denied Claim
. On or before 60 days after
receiving a notice from the Committee that a claim
has been denied, in
whole or in part, a Claimant (or the Claimant's duly
authorized
representative) may file with the Committee a written
request for a review
of the denial of the claim. The Claimant (or the Claimant's
duly authorized representative):
|
(a)
|
may,
upon request and free of charge, have reasonable access
to, and copies of,
all documents, records and other information relevant
(as defined in
applicable ERISA regulations) to the claim for
benefits;
|
(b)
|
may
submit written comments or other documents;
and/or
|
(c)
|
may
request a hearing, which the Committee, in its sole
discretion, may
grant.
|
14.4
|
Decision
on Review
. The Committee shall render its decision
on review promptly, and no later than 60 days after
the Committee receives
the Claimant's written request for a review of the
denial of the
claim. If the Committee determines that special circumstances
require an extension of time for processing the claim,
written notice of
the extension shall be furnished to the Claimant prior
to the termination
of the initial 60 day period. In no event shall such extension
exceed a period of 60 days from the end of the initial
period. The extension notice shall indicate the special
circumstances requiring an extension of time and the
date by which the
Committee expects to render the benefit determination. In
rendering its decision, the Committee shall take into
account all
comments, documents, records and other information
submitted by the
Claimant relating to the claim, without regard to whether
such information
was submitted or considered in the initial benefit
determination. The decision must be written in a manner
calculated to be understood by the Claimant, and it
must
contain:
|
(a)
|
specific
reasons for the decision;
|
(b)
|
specific
reference(s) to the pertinent Plan provisions upon
which the decision was
based;
|
(c)
|
a
statement that the Claimant is entitled to receive,
upon request and free
of charge, reasonable access to and copies of, all
documents, records and
other information relevant (as defined in applicable
ERISA regulations) to
the Claimant's claim for benefits;
and
|
(d)
|
a
statement of the Claimant's right to bring a civil
action under ERISA
Section 502(a).
|
14.5
|
Legal
Action
. A Claimant's compliance with the foregoing
provisions of this Article 14 is a mandatory prerequisite
to a Claimant's
right to commence any legal action with respect to
any claim for benefits
under this Plan.
|
15.1
|
Establishment
of the Trust
. In order to provide assets from
which to fulfill its obligations to the Participants
and their
Beneficiaries under the Plan, the Company may establish
a trust by a trust
agreement with a third party, the trustee, to which
each Employer may, in
its discretion, contribute cash or other property,
including securities
issued by the Company, to provide for the benefit
payments under the Plan
(the "Trust").
|
15.2
|
Interrelationship
of the Plan and the Trust
. The provisions of the
Plan and the Plan Agreement shall govern the rights
of a Participant to
receive distributions pursuant to the Plan. The provisions of
the Trust shall govern the rights of the Employers,
Participants and the
creditors of the Employers to the assets transferred
to the
Trust. Each Employer shall at all times remain liable to
carry
out its obligations under the Plan.
|
15.3
|
Distributions
From the Trust
. Each Employer's obligations under
the Plan may be satisfied with Trust assets distributed
pursuant to the
terms of the Trust, and any such distribution shall
reduce the Employer's
obligations under this Plan.
|
16.1
|
Status
of Plan
. The Plan is intended to be a plan
that is
not qualified within the meaning of Code Section
401(a) and that "is
unfunded and is maintained by an employer primarily
for the purpose of
providing deferred compensation for a select group
of management or highly
compensated employees" within the meaning of ERISA
Sections 201(2),
301(a)(3) and 401(a)(1). The Plan shall be administered and
interpreted (a) to the extent possible in a manner
consistent with the
intent described in the preceding sentence, and
(b) in accordance with
Code Section 409A and related Treasury guidance
and
Regulations.
|
16.2
|
Unsecured
General Creditor
. Participants and their
Beneficiaries, heirs, successors and assigns shall
have no legal or
equitable rights, interests or claims in any property
or assets of an
Employer. For purposes of the payment of benefits under this
Plan, any and all of an Employer's assets shall
be, and remain, the
general, unpledged unrestricted assets of the Employer. An
Employer's obligation under the Plan shall be merely
that of an unfunded
and unsecured promise to pay money in the
future.
|
16.3
|
Employer's
Liability
. An Employer's liability for the payment
of benefits shall be defined only by the Plan and
the Plan Agreement, as
entered into between the Employer and a Participant. An
Employer shall have no obligation to a Participant
under the Plan except
as expressly provided in the Plan and his or her
Plan
Agreement.
|
16.4
|
Nonassignability
. Neither
a Participant nor any other person shall have any
right to commute, sell,
assign, transfer, pledge, anticipate, mortgage
or otherwise encumber,
transfer, hypothecate, alienate or convey in advance
of actual receipt,
the amounts, if any, payable hereunder, or any
part thereof, which are,
and all rights to which are expressly declared
to be, unassignable and
non-transferable. No part of the amounts payable shall, prior
to actual payment, be subject to seizure, attachment,
garnishment or
sequestration for the payment of any debts, judgments,
alimony or separate
maintenance owed by a Participant or any other
person, be transferable by
operation of law in the event of a Participant's
or any other person's
bankruptcy or insolvency or be transferable to
a spouse as a result of a
property settlement or otherwise.
|
16.5
|
Not
a Contract of Employment
. The terms and conditions
of this Plan shall not be deemed to constitute
a contract of employment
between any Employer and the Participant. Such employment is
hereby acknowledged to be an "at will" employment
relationship that can be
terminated at any time for any reason, or no reason,
with or without
cause, and with or without notice, unless expressly
provided in a written
employment agreement. Nothing in this Plan shall be deemed to
give a Participant the right to be retained in
the service of any
Employer, either as an Employee or a Director,
or to interfere with the
right of any Employer to discipline or discharge
the Participant at any
time.
|
16.6
|
Furnishing
Information
. A Participant or his or her
Beneficiary will cooperate with the Company by
furnishing any and all
information requested by the Company and take such
other actions as may be
requested in order to facilitate the administration
of the Plan and the
payments of benefits hereunder, including but not
limited to taking such
physical examinations as the Company may deem
necessary.
|
16.7
|
Terms
. Whenever
any words are used herein in the masculine, they
shall be construed as
though they were in the feminine in all cases where
they would so apply;
and whenever any words are used herein in the singular
or in the plural,
they shall be construed as though they were used
in the plural or the
singular, as the case may be, in all cases where
they would so
apply.
|
16.8
|
Captions
. The
captions of the articles, sections and paragraphs
of this Plan are for
convenience only and shall not control or affect
the meaning or
construction of any of its
provisions.
|
16.9
|
Governing
Law
. Subject to ERISA, the provisions of
this Plan
shall be construed and interpreted according to
the internal laws of the
Commonwealth of Massachusetts without regard to
its conflicts of laws
principles.
|
16.10
|
Notice
. Any
notice or filing required or permitted to be given
to the Committee under
this Plan shall be sufficient if in writing and
hand-delivered, or sent by
registered or certified mail, to the address
below:
|
16.11
|
Successors
. The
provisions of this Plan shall bind and inure to
the benefit of the
Participant's Employer and its successors and assigns
and the Participant
and the Participant's designated
Beneficiaries.
|
16.12
|
Spouse's
Interest
. The interest in the benefits hereunder
of a spouse of a Participant who has predeceased
the Participant shall
automatically pass to the Participant and shall
not be transferable by
such spouse in any manner, including but not limited
to such spouse's
will, nor shall such interest pass under the laws
of intestate
succession.
|
16.13
|
Validity
. In
case any provision of this Plan shall be illegal
or invalid for any
reason, said illegality or invalidity shall not
affect the remaining parts
hereof, but this Plan shall be construed and enforced
as if such illegal
or invalid provision had never been inserted
herein.
|
16.14
|
Incompetent
. If
the Company determines in its discretion that a
benefit under this Plan is
to be paid to a minor, a person declared incompetent
or to a person
incapable of handling the disposition of that person's
property, the
Company may direct payment of such benefit to the
guardian, legal
representative or person having the care and custody
of such minor,
incompetent or incapable person. The Company may require proof
of minority, incompetence, incapacity or guardianship,
as it may deem
appropriate prior to distribution of the benefit. Any payment
of a benefit shall be a payment for the account
of the Participant and the
Participant's Beneficiary, as the case may be,
and shall be a complete
discharge of any liability under the Plan for such
payment
amount.
|
16.15
|
Domestic
Relations Orders
. If necessary to comply with a
domestic relations order, as defined in Code Section
414(p)(1)(B),
pursuant to which a court has determined that a
spouse or former spouse of
a Participant has an interest in the Participant's
benefits under the
Plan, the Company shall have the right to immediately
distribute the
spouse's or former spouse's interest in the Participant's
benefits under
the Plan to such spouse or former
spouse.
|
16.16
|
Distribution
in the Event of Income Inclusion Under Code Section
409A
. If any portion of a Participant's
Account
Balance under this Plan is required to be included
in income by the
Participant prior to receipt due to a failure of
this Plan to comply with
the requirements of Code Section 409A and related
Treasury Regulations,
the Company may determine that such Participant
shall receive a
distribution from the Plan in an amount equal to
the lesser of (i) the
portion of his or her Account Balance required
to be included in income as
a result of the failure of the Plan to comply with
the requirements of
Code Section 409A and related Treasury Regulations,
or (ii) the unpaid
vested Account Balance.
|
16.17
|
Deduction
Limitation on Benefit Payments
. If an Employer
reasonably anticipates that the Employer's deduction
with respect to any
distribution from this Plan would be limited
or eliminated by application
of Code Section 162(m), then to the extent permitted
by Treas. Reg. §
1.409A-2(b)(7)(i), payment shall be delayed as
deemed necessary to ensure
that the entire amount of any distribution from
this Plan is
deductible. Any amounts for which distribution is delayed
pursuant to this Section shall continue to be
credited/debited with
additional amounts in accordance with Section
3.8. The delayed
amounts (and any amounts credited thereon) shall
be distributed to the
Participant (or his or her Beneficiary in the
event of the Participant's
death) at the earliest date the Employer reasonably
anticipates that the
deduction of the payment of the amount will not
be limited or eliminated
by application of Code Section 162(m). In the event that such
date is determined to be after a Participant's
Separation from Service and
the Participant to whom the payment relates is
determined to be a
Specified Employee, then to the extent deemed
necessary to comply with
Treas. Reg. § 1.409A-3(i)(2), the delayed payment shall not
made before
the end of the six-month period following such
Participant's Separation
from Service.
|
16.18
|
Insurance
. The
Employers, on their own behalf or on behalf of
the trustee of the Trust,
and, in their sole discretion, may apply for
and procure insurance on the
life of the Participant, in such amounts and
in such forms as the
Employers may choose. The Employers or the trustee of the
Trust, as the case may be, shall be the sole
owner and beneficiary of any
such insurance. The Participant shall have no interest
whatsoever in any such policy or policies, and
at the request of the
Employers shall submit to medical examinations
and supply such information
and execute such documents as may be required
by the insurance company or
companies to whom the Employers have applied
for
insurance.
|
Thermo
Fisher Scientific Inc.,
A Delaware
corporation
|
|
By: |
/s/
Seth Hoogasian
|
Title:
|
Senior
Vice President, General Counsel and
|
Secretary
|
1.
|
I
have reviewed this Quarterly Report on Form 10-Q of Thermo Fisher
Scientific Inc.;
|
2.
|
Based
on my knowledge, this report does not contain any untrue statement
of a
material fact or omit to state a material fact necessary to make
the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
|
3.
|
Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects
the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this report;
|
4.
|
The
registrant’s other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
|
a) |
Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to
ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is
being
prepared;
|
b) |
Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision,
to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles;
|
c) |
Evaluated
the effectiveness of the registrant’s disclosure controls and procedures
and presented in this report our conclusions about the effectiveness
of
the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation;
and
|
d) |
Disclosed
in this report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of an
annual report) that has materially affected, or is reasonably likely
to
materially affect, the registrant’s internal control over financial
reporting; and
|
5.
|
The
registrant’s other certifying officer and I have disclosed, based on our
most recent evaluation of internal control over financial reporting,
to
the registrant’s auditors and the audit committee of the registrant’s
board of directors (or persons performing the equivalent
functions):
|
a) |
All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record,
process, summarize and report financial information;
and
|
1.
|
I
have reviewed this Quarterly Report on Form 10-Q of Thermo Fisher
Scientific Inc.;
|
2.
|
Based
on my knowledge, this report does not contain any untrue statement
of a
material fact or omit to state a material fact necessary to make
the
statements made, in light of the circumstances under which such statements
were made, not misleading with respect to the period covered by this
report;
|
3.
|
Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects
the
financial condition, results of operations and cash flows of the
registrant as of, and for, the periods presented in this report;
|
4.
|
The
registrant’s other certifying officer and I are responsible for
establishing and maintaining disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal
control over financial reporting (as defined in Exchange Act Rules
13a-15(f) and 15d-15(f)) for the registrant and
have:
|
a) |
Designed
such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to
ensure
that material information relating to the registrant, including its
consolidated subsidiaries, is made known to us by others within those
entities, particularly during the period in which this report is
being
prepared;
|
b) |
Designed
such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision,
to
provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles;
|
c) |
Evaluated
the effectiveness of the registrant’s disclosure controls and procedures
and presented in this report our conclusions about the effectiveness
of
the disclosure controls and procedures, as of the end of the period
covered by this report based on such evaluation;
and
|
d) |
Disclosed
in this report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent
fiscal quarter (the registrant’s fourth fiscal quarter in the case of an
annual report) that has materially affected, or is reasonably likely
to
materially affect, the registrant’s internal control over financial
reporting; and
|
5.
|
The
registrant’s other certifying officer and I have disclosed, based on our
most recent evaluation of internal control over financial reporting,
to
the registrant’s auditors and the audit committee of the registrant’s
board of directors (or persons performing the equivalent
functions):
|
a) |
All
significant deficiencies and material weaknesses in the design or
operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record,
process, summarize and report financial information;
and
|
b)
|
Any
fraud, whether or not material, that involves management or other
employees who have a significant role in the registrant’s internal control
over
financial
reporting.
|