þ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Delaware | 13-3668640 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification No.) |
Page | ||||||||
PART I FINANCIAL INFORMATION
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Item 1. |
Financial Statements
|
|||||||
3 | ||||||||
4 | ||||||||
5 | ||||||||
6 | ||||||||
7 | ||||||||
Item 2. | 20 | |||||||
Item 3. | 27 | |||||||
Item 4. | 28 | |||||||
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||||||||
Item 1. | 28 | |||||||
Item 1A. | 28 | |||||||
Item 2. | 30 | |||||||
Item 3. | 30 | |||||||
Item 4. | 30 | |||||||
Item 5. | 30 | |||||||
Item 6. | 30 | |||||||
31 | ||||||||
Ex-10.49 Amended and Restated Waters Retirement Restoration Plan | ||||||||
Ex-10.52 Amended and Restated Waters 401(K) Restoration Plan | ||||||||
Ex-31.1 Section 302 Certification of the C.E.O. | ||||||||
Ex-31.2 Section 302 Certification of the C.F.O. | ||||||||
Ex-32.1 Section 906 Certification of the C.E.O. | ||||||||
Ex-32.2 Section 906 Certification of the C.F.O. |
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
Table of Contents
Three Months Ended
September 29, 2007
September 30, 2006
$
255,082
$
212,993
97,556
88,189
352,638
301,182
105,446
84,366
48,233
42,801
153,679
127,167
198,959
174,015
105,577
87,397
21,974
19,138
2,176
1,403
344
69,232
65,733
(14,783
)
(13,565
)
8,061
6,877
62,510
59,045
9,227
8,669
$
53,283
$
50,376
$
0.53
$
0.49
99,821
101,845
$
0.52
$
0.49
101,712
103,074
Table of Contents
Nine Months Ended
September 29, 2007
September 30, 2006
$
749,472
$
636,049
286,573
257,250
1,036,045
893,299
307,171
249,396
141,959
124,403
449,130
373,799
586,915
519,500
301,707
261,903
59,811
57,836
6,434
3,980
7,670
218,963
188,111
(41,306
)
(37,470
)
21,353
18,374
199,010
169,015
29,881
26,704
$
169,129
$
142,311
$
1.68
$
1.38
100,457
103,135
$
1.65
$
1.36
102,352
104,570
Table of Contents
Nine Months Ended
September 29, 2007
September 30, 2006
$
169,129
$
142,311
644
945
5,283
3,805
20,902
21,741
(2,199
)
(5,703
)
20,508
20,095
19,177
15,253
15,044
34,766
(22,473
)
(43,760
)
3,498
(1,032
)
(12,283
)
(7,514
)
37,359
17,717
10,759
9,299
1,545
(1,530
)
266,893
206,393
(45,023
)
(38,567
)
(7,105
)
(16,181
)
(3,532
)
(35,200
)
724
(90,136
)
(54,748
)
1,100,549
320,161
(1,093,495
)
(261,740
)
(1,081
)
51,225
26,924
(180,749
)
(227,769
)
18,656
6,440
(2,310
)
(4,602
)
(107,205
)
(140,586
)
7,547
6,920
77,099
17,979
514,166
493,588
$
591,265
$
511,567
Table of Contents
Table of Contents
Balance at
Accruals for
Settlements
Balance at
Beginning of Period
Warranties
Made
End of Period
$
12,619
$
8,866
$
(8,744
)
$
12,741
$
11,719
$
12,661
$
(12,676
)
$
11,704
Three Months Ended
Nine Months Ended
September 29,
September 30,
September 29,
September 30,
2007
2006
2007
2006
$
795
$
1,034
$
2,485
$
3,286
5,173
4,786
15,336
14,582
1,138
1,305
3,081
3,873
$
7,106
$
7,125
$
20,902
$
21,741
Table of Contents
Options Issued and Significant Assumptions Used to Estimate Option Fair Values
September 29, 2007
September 30, 2006
47
39
4.5
%
4.3
%
6.0
6.0
.280
.270
Weighted-average Exercise Price and Fair Values of Options on the Date of Grant
September 29, 2007
September 30, 2006
$
48.88
$
39.38
$
18.19
$
14.16
Weighted Average
Number of Shares
Price per Share
Exercise Price
9,507
$9.39 to $80.97
$
38.44
47
$
48.88
$
48.88
(1,831
)
$10.69 to $49.03
$
26.77
(75
)
$21.39 to $72.06
$
51.46
7,648
$9.39 to $80.97
$
41.20
Table of Contents
September 29, 2007
September 30, 2006
Weighted-Average
Weighted-Average
Shares
Price
Shares
Price
315
$
43.02
$
249
$
54.07
300
$
42.73
(56
)
$
42.73
$
(12
)
$
46.54
$
496
$
48.44
300
$
42.73
September 29, 2007
December 31, 2006
$
56,949
$
51,568
20,923
17,400
113,249
99,469
$
191,121
$
168,437
Table of Contents
$
368
4,408
68
44,608
29,866
1,417
80,735
3,636
3,774
11,574
$
61,751
$
950
1,837
142
3,716
7,707
285
14,637
812
$
13,825
Table of Contents
Nine Months Ended
September 29, 2007
September 30, 2006
$
1,038,799
$
911,882
$
169,347
$
145,544
$
1.69
$
1.41
$
1.65
$
1.39
Table of Contents
September 29, 2007
December 31, 2006
Weighted-
Weighted-
Average
Average
Gross Carrying
Accumulated
Amortization
Gross Carrying
Accumulated
Amortization
Amount
Amortization
Period
Amount
Amortization
Period
$
108,517
$
40,434
10 years
$
103,930
$
33,294
10 years
126,982
70,778
4 years
108,072
60,223
4 years
10,627
6,997
9 years
10,352
6,166
9 years
18,404
7,292
8 years
14,813
5,831
8 years
$
264,530
$
125,501
7 years
$
237,167
$
105,514
8 years
Table of Contents
Table of Contents
Table of Contents
Balance
Balance
December 31,
September 29,
2006
Charges
Utilization
2007
$
1,433
$
$
(670
)
$
763
48
(48
)
$
1,481
$
$
(718
)
$
763
Three Months Ended September 29, 2007
Weighted-Average
Net Income
Shares
Per Share
(Numerator)
(Denominator)
Amount
$
53,283
99,821
$
0.53
1,658
233
$
53,283
101,712
$
0.52
Three Months Ended September 30, 2006
Weighted-Average
Net Income
Shares
Per Share
(Numerator)
(Denominator)
Amount
$
50,376
101,845
$
0.49
1,153
76
$
50,376
103,074
$
0.49
Nine Months Ended September 29, 2007
Weighted-Average
Net Income
Shares
Per Share
(Numerator)
(Denominator)
Amount
$
169,129
100,457
$
1.68
1,514
381
$
169,129
102,352
$
1.65
Nine Months Ended September 30, 2006
Weighted-Average
Net Income
Shares
Per Share
(Numerator)
(Denominator)
Amount
$
142,311
103,135
$
1.38
1,168
267
$
142,311
104,570
$
1.36
Table of Contents
Three Months Ended
Nine Months Ended
September 29, 2007
September 30, 2006
September 29, 2007
September 30, 2006
$
53,283
$
50,376
$
169,129
$
142,311
12,801
3,057
21,165
13,111
(7,422
)
(103
)
(12,180
)
(9,417
)
2,598
36
4,263
3,296
(4,824
)
(67
)
(7,917
)
(6,121
)
7,977
2,990
13,248
6,990
(713
)
(1,038
)
249
363
(464
)
(675
)
5,220
5,220
12,733
2,990
17,793
6,990
$
66,016
$
53,366
$
186,922
$
149,301
Table of Contents
Three Months Ended
September 29, 2007
September 30, 2006
U.S.
U.S.
U.S.
Retirement
Non-U.S.
U.S.
Retirement
Non-U.S.
Pension
Healthcare
Pension
Pension
Healthcare
Pension
Plans
Plan
Plans
Plans
Plan
Plans
$
1,732
$
64
$
290
$
1,979
$
68
$
279
1,351
69
196
1,132
60
166
(1,327
)
(30
)
(97
)
(1,174
)
(23
)
(79
)
(466
)
(14
)
(14
)
(21
)
(14
)
179
5
309
3
$
1,455
$
89
$
394
$
2,225
$
91
$
369
Nine Months Ended
September 29, 2007
September 30, 2006
U.S.
U.S.
U.S.
Retirement
Non-U.S.
U.S.
Retirement
Non-U.S.
Pension
Healthcare
Pension
Pension
Healthcare
Pension
Plans
Plan
Plans
Plans
Plan
Plans
$
5,614
$
192
$
870
$
5,937
$
204
$
837
3,953
207
588
3,396
180
498
(3,993
)
(90
)
(291
)
(3,522
)
(69
)
(237
)
(466
)
(58
)
(42
)
(63
)
(42
)
583
15
927
9
$
5,633
$
267
$
1,182
$
6,675
$
273
$
1,107
Table of Contents
Three Months Ended
Nine Months Ended
September 29, 2007
September 30, 2006
September 29, 2007
September 30, 2006
$
174,442
$
150,809
$
516,519
$
450,079
54,352
44,337
162,137
131,563
26,288
17,847
70,816
54,407
255,082
212,993
749,472
636,049
86,886
79,407
256,328
233,151
10,670
8,782
30,245
24,099
97,556
88,189
286,573
257,250
$
352,638
$
301,182
$
1,036,045
$
893,299
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Balance
Balance
December 31,
September 29,
2006
Charges
Utilization
2007
$
1,433
$
$
(670
)
$
763
48
(48
)
$
1,481
$
$
(718
)
$
763
Table of Contents
Nine Months Ended
September 29, 2007
September 30, 2006
$
169,129
$
142,311
39,685
35,348
20,902
21,741
15,044
34,766
(22,473
)
(43,760
)
37,359
17,717
10,759
9,299
(3,512
)
(11,029
)
266,893
206,393
(90,136
)
(54,748
)
(107,205
)
(140,586
)
7,547
6,920
$
77,099
$
17,979
The change in accounts receivable in the 2007 Period compared to the 2006 Period is
primarily attributable to the timing of payments made by customers and the higher sales
volume in the 2007 Period as compared to the 2006 Period. The days-sales-outstanding
(DSO) increased to 70 days at September 29, 2007 from 68 days at September 30, 2006.
Inventory growth was lower in the 2007 Period compared to the 2006 Period primarily
due to the 2006 Period having a higher ramp-up of new products launched later in that year
and the increased levels of Alliance inventory during the 2006 outsourcing transition to
Singapore.
The 2007 Period changes in accounts payable and other current liabilities and other
changes compared to the 2006 Period is primarily attributable to the reclassification
within these line items of certain pension and income tax liabilities from current to
long-term liabilities required by the recently adopted Statement of Financial Accounting
Standard No. 158 Employers Accounting for Defined Benefit Pension and Other
Postretirement Plans and FIN 48. The overall net change in these items can be attributed
to an increase in accounts payable resulting from the timing of payments to vendors, an
increase in income tax liabilities and an increase in accrued compensation resulting from
the $12.6 million contribution into the Waters Employee Investment Plan partially offset
by the reduction in the pension liability relating to the freezing of the pay credit
accrual in the U.S. Pension Plans. The contribution into the Waters Employee Investment
Plan will be made in the first quarter of 2008.
Net cash provided from deferred revenue and customer advances in both the 2007 Period
and 2006 Period was a result of the installed base of customers renewing annual service
contracts.
Table of Contents
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Table of Contents
30
Total Number
of Shares
Maximum
Total
Purchased as Part
Dollar Value of
Number of
Average
of Publicly
Shares that May Yet
Shares
Price Paid
Announced
Be Purchased Under
Period
Purchased
per Share
Programs (1)
the Programs
$
$
372,046
402
60.21
402
353,751
353,751
402
60.21
402
353,751
(1)
The Company purchased an aggregate of 2.5 million shares of its
outstanding common stock in the 2007 Period in open market
transactions pursuant to a repurchase program that was announced on
February 27, 2007 (the 2007 Program). The 2007 Program authorized
the repurchase of up to $500.0 million of common stock in open market
transactions over a two-year period.
Exhibit
Number
Description of Document
Amended and Restated Waters Retirement Restoration Plan, Effective January 1, 2008
Amended and Restated Waters 401(k) Restoration Plan, Effective January 1, 2008
Chief Executive Officer Certification Pursuant to 18 U.S.C. Section 1350, as
Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Chief Financial Officer Certification Pursuant to 18 U.S.C. Section 1350, as
Adopted Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
Chief Executive Officer Certification Pursuant to 18 U.S.C. Section 1350, as
Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
Chief Financial Officer Certification Pursuant to 18 U.S.C. Section 1350, as
Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
Table of Contents
31
Waters Corporation
/s/
John Ornell
John Ornell
Date: November 2, 2007
Vice President, Finance and
Administration and Chief Financial Officer
PREAMBLE
|
1 | |||
|
||||
ARTICLE I DEFINITIONS
|
2 | |||
|
||||
ARTICLE II ELIGIBILITY
|
4 | |||
|
||||
2.1
Generally
|
4 | |||
|
||||
ARTICLE III PARTICIPANT ACCOUNTS
|
5 | |||
|
||||
3.1
Generally
|
5 | |||
3.2
Amount Credited to Participant
|
5 | |||
3.3
Termination of Account
|
6 | |||
|
||||
ARTICLE IV FORM AND TIMING OF BENEFITS
|
7 | |||
|
||||
4.1
Distributable Events
|
7 | |||
4.2
Form of Benefit
|
7 | |||
4.3
Timing of Distribution
|
8 | |||
4.4
Small Payments
|
8 | |||
4.5
Restriction on Timing of Distributions
|
9 | |||
|
||||
ARTICLE V VESTING
|
10 | |||
|
||||
ARTICLE VI ADMINISTRATION, AMENDMENT/TERMINATION AND FUNDING
|
11 | |||
|
||||
6.1
Administration
|
11 | |||
6.2
Right to Amend or Terminate
|
11 | |||
6.3
Funding
|
11 | |||
|
||||
ARTICLE VII GENERAL PROVISIONS
|
12 | |||
|
||||
7.1
Compliance with Section 409A
|
12 | |||
7.2
Payment to Minors and Incompetents
|
12 | |||
7.3
No Contract
|
12 | |||
7.4
Use of Masculine and Feminine; Singular and Plural
|
12 | |||
7.5
Non-Alienation of Benefits
|
12 | |||
7.6
Governing Law
|
12 | |||
|
||||
APPENDIX A PROVISIONS APPLICABLE TO CERTAIN EMPLOYEES OF WATERS-TA INSTRUMENTS LLC
|
1 | |||
|
||||
INTRODUCTION
|
2 | |||
ARTICLE A1 DEFINITIONS
|
3 | |||
ARTICLE A2 ELIGIBILITY
|
4 | |||
ARTICLE A3 AMOUNT OF BENEFIT
|
5 |
1
1.1 | Affiliate means any corporation which is a member of a controlled group of corporations (as defined in Section 414(b) of the Code) which includes the Corporation; any trade or business (whether or not incorporated) which is under common control (as defined in Section 414(c) of the Code) with the Corporation; any organization (whether or not incorporated) which is a member of an affiliated service group (as defined in Section 414(m) of the Code) which includes the Corporation; and any other entity required to be aggregated with the Corporation pursuant to regulations under Section 414(o) of the Code. | |
1.2 | Account means the notional account described in Section 3.1 maintained for each Participant. | |
1.3 | Basic Plan means the Waters Retirement Plan as in effect from time to time. | |
1.4 | Beneficiary means the individual designated by a Participant to receive benefits under this Plan in the event of the Participants death. In the event that no Beneficiary has been effectively designated, the Participants spouse shall be deemed the designated Beneficiary, or if the Participant has no spouse, his children, if any, per stirpes, and if none, the estate of the Participant shall be deemed the designated Beneficiary. | |
1.5 | Board means the Board of Directors of Waters Technologies Corporation. | |
1.6 | Code means the Internal Revenue Code of 1986, as amended from time to time, and any regulations issued thereunder. | |
1.7 | Committee means the persons appointed pursuant to Article IX of the Basic Plan to administer the Basic Plan. | |
1.8 | Corporation means Waters Technologies Corporation, a corporation organized and existing under the laws of the State of Delaware, or its successor or successors. | |
1.9 | Disability means a physical or mental incapacity that entitles a Participant to benefits under the Corporations group long-term disability (LTD) plan and either (i) the Participant is unable to engage in any substantial gainful activity by reason of such incapacity that can be expected to result in death or can be expected to last for a continuous period not less than twelve (12) months or (ii) such incapacity is expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months and the Participant has been receiving benefits under the group LTD plan for at least six (6) months. |
2
1.10 | Effective Date means January 1, 1995, except that this amendment and restatement shall be effective January 1, 2008. | |
1.11 | Employee means any person employed on a regular full-time or a regular part-time basis by a Participating Employer. | |
1.12 | Participant means an Employee participating in the Plan pursuant to Article II. | |
1.13 | Participating Employer means Waters Technologies Corporation and any Affiliate which has been authorized by the Board to participate in the Plan and has elected to do so. | |
1.14 | Pay means the annual compensation that would otherwise be recognized under the Basic Plan for benefit accrual purposes without regard to the limit on pensionable compensation under Code Section 401(a)(17). | |
1.15 | Plan means the Waters Retirement Restoration Plan as set forth in this document and as it may be amended from time to time. | |
1.16 | Plan Year means each twelve-month period beginning on January 1 and ending on the following December 31. | |
1.17 | Separation from Service means a termination of employment as defined in Treas. Regs. § 1.409A-1(h)(1). | |
1.18 | Specified Employee means a Participant who is a key employee (as defined in Section 416(i) of the Code without regard to paragraph (5) thereof). A Participant will be considered a key employee for the period commencing April 1 and ending on the March 31 thereafter if he or she was a key employee on the previous December 31 and such designation shall be effective solely for that period. |
3
2.1 | Generally . | |
A Basic Plan participant shall become a Participant hereunder if either: |
(a) | his Basic Plan retirement benefit is restricted or reduced by the Code Section 415 limitations on maximum pensions; or | ||
(b) | his Pay is not fully recognized under the Basic Plan because of the limitations imposed by Code Section 401(a)(17), and his annual base salary as of November 1, 2007 is at least $130,232.35 for 2008 Plan Year eligibility (increased each November 1st thereafter to reflect increases in the Consumer Price Index for the twelve-month period ending on the immediately preceding September 30 under section 215(i)(2)(A) of the Social Security Act). |
4
3.1 | Generally . | |
A notional Account shall be established and maintained for each Participant. A Participants Account shall be credited with Annual Pay Credits and Interest Credits, as defined in the Basic Plan, in accordance with Sections 3.2 and 3.3. Notwithstanding the foregoing, in no event will a Participants Account be credited with Annual Pay Credits for any Plan Year beginning on or after December 31, 2007. | ||
3.2 | Amount Credited to Participant . |
(a) | For Plan Years commencing prior to January 1, 2008, the amount credited to a Participants Account each Plan Year shall be equal to the sum of (i) and (ii), where (i) and (ii) are: |
(i) | An Annual Pay Credit equal to the excess, if any, of (A) over (B), where: |
(A) | is the Annual Pay Credit (as that term is defined under the Basic Plan) which would have been accrued by such Participant under the Basic Plan, if the provisions of the Basic Plan were administered without regard to the benefit limitations of Code Section 415 and regulations thereunder and the compensation limitations of Code Section 401(a)(17) and regulations thereunder; and | ||
(B) | is the Annual Pay Credit (as that term is defined under the Basic Plan) which is accrued by such Participant under the Basic Plan. |
(ii) | An Interest Credit based on the amount of the Participants Account as of the first day of each Plan Year. The Interest Credit shall be added to each Participants Account as of the last day of the Plan Year. |
(b) | For Plan Years commencing on or after January 1, 2008, an Interest Credit shall be credited to each Participants Account. Such Interest Credit shall be based on the amount of the Participants Account as of the first day of each Plan Year, and shall be added to each Participants Account as of the last day of the Plan Year. | ||
(c) | Except as otherwise provided in paragraph (d), for any year in which a Plan distribution is made to a Participant, his or her Interest Credit shall be based on the amount of the Participants Account as of the first day of the Plan Year for the period from the first day of such Plan Year to the end of the month preceding the month in which he or she receives a distribution from this Plan. In no event will Interest Credits continue after benefits have commenced. |
5
(d) | If a Participant elects to receive his or her Account in installments as set forth in Section 4.2(a)(ii), he or shall continue to receive Interest Credits until the year in which the final installment is paid. For such year, the Participants Interest Credit shall be based on the amount of the Participants Account as of the first day of the Plan Year for the period from the first day of such Plan Year to the end of the month preceding the month in which he or she receives the final installment payment from the Plan. In no event will Interest Credits continue after the final installment payment has been made. | ||
(e) | The rate of interest used to determine the amount of the Interest Credit shall be the one year constant maturity treasury yield on all actively traded U.S. Treasury Securities that have one year left to maturity as of the first business day in November preceding the Plan Year (as published in the Wall Street Journal ) plus 1/2%. In no event will the interest rate be less than 5% nor more than 10% for any twelve-month Plan Year. For the purposes of this paragraph, the constant maturity Treasury Bill rate shall be determined by calculating the yields on all actively traded U.S. Treasury securities and interpolating the yield for a Treasury Bill with exactly one year to maturity. |
3.3 | Termination of Account . | |
Upon the payment of a Participants Account in full in either a lump sum or installment payments, such Account shall cease to exist. |
6
4.1 | Distributable Events . | |
Benefits shall only be distributable from the Plan upon the occurrence of one of the following events: |
(a) | the Participants Separation from Service; | ||
(b) | the Participants death; or | ||
(c) | the Participants Disability. |
Benefits shall continue to be paid under this Plan regardless of whether the Participant is reemployed by the Corporation or an Affiliate. | ||
4.2 | Form of Benefit . |
(a) | Except as otherwise provided in Section A3.2, a Participants Account shall be distributed in one of the following forms: |
(i) | a single lump sum payment equal to the value of the Participants Account or the Actuarial Equivalent (as that term is defined in the Basic Plan) of the benefits provided in Appendix A; or | ||
(ii) | a series of annual installment payments where a Participant can choose to receive between two (2) and ten (10) such payments. |
If a Participant elects to receive his or her Account in the form described in paragraph (ii), he or she shall receive an initial installment payment equal to the balance of his or her Account multiplied by a ratio, the numerator of which is one and the denominator of which is the number of installments elected under subparagraph (ii) above. For each following year for which an installment payment is due, the amount of a Participants installment payment shall be equal to the remaining amount in his or her Account, plus the Interest Credit credited for such year, multiplied by a ratio, the numerator of which is one and the denominator of which is equal to the denominator used to calculate the first installment payment reduced by one for each installment payment that has previously been made to the Participant. | |||
(b) | A Participant shall make a written election concerning the form of payment for the distribution of his or her Account or Accrued Benefit (as that term is defined in the applicable appendix of the Basic Plan) no later than December 31, 2008. In the event that a Participant fails to make such written election, the Participant shall be deemed to have elected a single lump sum payment following Separation from Service. |
7
(c) | A Participant may elect to change the form of his or her distribution, or the timing of such distribution, or both, at the times permitted by the Committee, provided that: |
(i) | such election shall not take effect for a period of twelve (12) months from the date such election is submitted to Committee in the form required by Committee; and | ||
(ii) | the Participants Account shall not be distributed earlier than the fifth (5 th ) anniversary of the date the Participants Account would have been distributed based on his or her initial election, or, in the absence of an initial election, the default election made on his or her behalf. Notwithstanding the foregoing, a Participants Account shall be payable upon the Participants earlier death or Disability. |
(d) | Notwithstanding any provision of the Plan to the contrary, upon payment of a Participants Account, no other benefit shall be payable hereunder to the Participant or his Beneficiary. |
4.3 | Timing of Distribution . | |
Except as otherwise provided under Section 4.4 or Section 4.5, a Participants distribution shall occur at the following time: |
(a) | Lump Sum Payment . Lump sum distributions shall be made on or before the ninetieth (90 th ) day immediately following the date on which the Participant incurs a Separation from Service with the Participating Employer. The exact date of such payment within the ninety-day period shall be determined by the Corporation in its discretion. | ||
(b) | Installment Payments . Annual installment payments shall commence within 90 days after the date of the Participants date of Separation from Service, and shall be made on each subsequent anniversary of the date of the Participants Separation from Service until all installment payments have been made. |
4.4 | Small Payments . | |
Notwithstanding Section 4.2 above, if the value of a Participants Account under this Plan is not greater than the applicable amount under Section 402(g)(1)(B) ($15,500 for 2007), determined as of the date of the Participants Separation from Service with the Participating Employer, an automatic lump sum payment of such amount shall be made to the Participant (or his Beneficiary in the event of the Participants death before commencement of his retirement benefit) on or before the ninetieth (90 th ) day immediately following the date of the Participants Separation from Service. | ||
Notwithstanding any provision of the Plan to the contrary, upon payment of such lump sum distribution, no other benefit shall be payable hereunder to the Participant or his Beneficiary. |
8
4.5 | Restriction on Timing of Distributions . | |
In the event that any stock of the Corporation or any entity within the same controlled group (as defined in Section 414(b) of the Code), is publicly traded on an established securities market as defined in Section 1.409A-1(i) of the regulations under Section 409A of the Code, distributions to a Specified Employee may not commence before the date that is six (6) months after the Specified Employees date of Separation from Service, or, if earlier than the end of the six-month period, the date of the death of the Specified Employee. | ||
If a Participants distribution is restricted under this Section 4.5, such distribution shall be made on the earlier of the first day of the seventh month following the date of the Participants Separation from Service or the date of the Specified Employees death. All subsequent distributions shall be paid in the manner specified in Section 4.2. |
9
10
6.1 | Administration . | |
This Plan shall be administered by the Corporation through the Committee in a manner consistent with the administration of the Basic Plan as set forth in the Basic Plan, except as specifically provided herein. | ||
The Committee shall have full discretion to interpret and administer this Plan and its decision in any matter involving the interpretation and application of this Plan shall be final and binding on all parties. | ||
6.2 | Right to Amend or Terminate . | |
The Corporation reserves the right to amend, modify, suspend or terminate this Plan in whole or in part at any time by action of its Board or the Boards duly appointed delegate. No amendment shall reduce a Participants Account under this Plan as of the amendment date, except to the extent that the Participant agrees in writing to such reduction. | ||
6.3 | Funding . | |
This Plan is unfunded. Benefits under this Plan will be paid from the general assets of the Participating Employer. The rights of a Participant or Beneficiary shall be those of an unsecured creditor of the Corporation and the Participating Employers. |
11
7.1 | Compliance with Section 409A . | |
This Plan is intended to be operated in good faith compliance with the requirements of Section 409A of the Code and its accompanying regulations, and any additional guidance issued under Section 409A. To the extent that any provision of this Plan violates Section 409A, such provision shall be deemed inoperative and the remaining provisions of the Plan shall continue to be fully effective. | ||
7.2 | Payment to Minors and Incompetents . | |
If any Participant or Beneficiary entitled to receive any benefits hereunder is a minor or is deemed by the Committee or is adjudged to be legally incapable of giving valid receipt and discharge for such benefits, they will be paid to such person or institution as the Committee may designate or to the, duly appointed guardian. Such payment shall, to the extent made, be deemed a complete discharge of any such payment under the Plan. | ||
7.3 | No Contract . | |
This Plan shall not be deemed a contract of employment with any Participant, nor shall any provision of the Plan affect the right of the Corporation or any Affiliate to terminate a Participants employment. | ||
7.4 | Use of Masculine and Feminine; Singular and Plural . | |
Wherever used in this Plan, the masculine gender will include the feminine gender and the singular will include the plural, unless the context indicates otherwise. | ||
7.5 | Non-Alienation of Benefits . | |
No amount payable to, or held under the Plan for the account of, any Participant or Beneficiary shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and any attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be void; nor shall any amount payable to, or held under the Plan for the account of, any Participant be in any manner liable for his debts, contracts, liabilities, engagements, or torts, or be subject to any legal process to levy upon or attach. | ||
7.6 | Governing Law . | |
The provisions of the Plan shall be interpreted, construed, and administered in accordance with the laws of the Commonwealth of Massachusetts. |
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7.7 | Captions . | |
The captions contained in the Plan are inserted only as a matter of convenience and for reference and in no way define, limit, enlarge, or describe the scope or intent of the Plan, nor in any way affect the construction of any provision of the Plan. |
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A-1
A-2
A1.1 | Frozen TA Participant means a Grandfathered TA Participant (as that term is defined in the Basic Plan) who was a participant in the Basic Plan on December 31, 2007 and who ceased to accrue a benefit under the Basic Plan for Plan Years commencing after December 31, 2007 as a result of the freeze of the Basic Plan. | |
A1.2 | Special TA Participant means a Protected TA Participant (as that term is defined in the Basic Plan) who was designated by the Corporation to be eligible to participate in the Plan pursuant to Section A2.1(a) and is entitled to a benefit as described in Section A3.2. | |
A1.3 | TA means the TA Instruments division of Waters-TA Instruments LLC or its successor or successors. | |
A1.4 | TA Plan means the TA Instruments, Inc. Employees Pension Plan in effect as of December 31, 1996. |
A-3
A2.1 | Eligibility . |
(a) | A Protected TA Participant (as that term is defined in the Basic Plan) shall become a Participant hereunder if he or she is designated as a Participant hereunder by the Corporation pursuant to a certification signed by the Committee. | ||
(b) | A Frozen TA Participant shall be eligible to participate in the Plan effective January 1, 2008 pursuant to a certification signed by the Committee. |
A-4
A3.1 | Special TA Participant Benefits . | |
The benefit payable under this Plan to a Special TA Participant shall equal the excess, if any, of (a) over (b) where: |
(a) | is the benefit such Participant would have been entitled to under the TA Instruments, Inc. Employees Pension Plan as in effect as of December 31, 1996 had he continued to actively participate in such plan until the date he terminates employment with TA and determined as if the provisions of such plan were administered without regard to the benefit limitations of Code Section 415 and regulations thereunder and, solely with respect to Pay earned on and after January 1, 1997, the compensation limitations of Code Section 401(a)(17) and regulations thereunder; and | ||
(b) | is the Accrued Benefit which is payable to such Participant under the Basic Plan. |
A3.2 | Frozen TA Participant Benefits . | |
The benefit payable under this Plan to a Frozen TA Participant shall equal the excess, if any, of (a) over (b) where: |
(a) | is the Accrued Benefit (as that term is defined under the Basic Plan) which would have been paid to such Participant under the Basic Plan under the terms of the Basic Plan as if such terms continued to be in effect after December 31, 2007, if the provisions of the Basic Plan were administered without regard to the benefit limitations of Code Section 415 and regulations thereunder and, solely with respect to Pay earned on and after January 1, 1997, the compensation limitations of Code Section 401(a)(17) and regulations thereunder; and | ||
(b) | is the Accrued Benefit which is payable to such Participant under the Basic Plan. |
A-5
PREAMBLE
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1 | |||
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ARTICLE I DEFINITIONS
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2 | |||
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ARTICLE II PARTICIPATION
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5 | |||
2.1 Eligibility
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5 | |||
2.2 Election to Make Contributions
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5 | |||
2.3 ParticipationGenerally
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5 | |||
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ARTICLE III PARTICIPANT CONTRIBUTIONS
|
7 | |||
3.1 Nature of Participant Contributions
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7 | |||
3.2 Pre-Tax Contributions
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7 | |||
3.3 Incentive Bonus Deferrals
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7 | |||
3.4 Cancellation of Deferral Elections
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7 | |||
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ARTICLE IV EMPLOYER CONTRIBUTIONS
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8 | |||
4.1 Eligibility for Matching Contributions
|
8 | |||
4.2 Amount of Matching Contribution
|
8 | |||
4.3 Eligibility for Transition Benefit
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8 | |||
4.4 Amount of Transition Benefit
|
8 | |||
4.5 Transfer Account
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9 | |||
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ARTICLE V INVESTMENT AND VALUATION
|
10 | |||
5.1 Investment of Accounts
|
10 | |||
5.2 Valuation of Accounts
|
10 | |||
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ARTICLE VI DISTRIBUTIONS
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11 | |||
6.1 Distribution ElectionsPre-2005 Contributions
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11 | |||
6.2 Distribution Elections2005-2006 Contributions
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11 | |||
6.3 Distribution ElectionsPost-2006 Contributions
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12 | |||
6.4 Distribution ElectionsTransition Benefit
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12 | |||
6.5 Form of Distribution
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13 | |||
6.6 Timing of Distribution
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13 | |||
6.7 Small Payments
|
14 | |||
6.8 Emergency Payments
|
14 | |||
6.9 Restriction on Timing of Distributions
|
15 | |||
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ARTICLE VII VESTING
|
16 | |||
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ARTICLE VIII ADMINISTRATION, FUNDING AND AMENDMENT/TERMINATION
|
17 | |||
8.1 Administration
|
17 | |||
8.2 Funding
|
17 | |||
8.3 Amendment and Termination
|
17 | |||
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ARTICLE IX GENERAL PROVISIONS
|
18 | |||
9.1 Compliance with Section 409A
|
18 | |||
9.2 Payment to Minors and Incompetents
|
18 |
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9.3 No Contract
|
18 | |||
9.4 Use of Masculine and Feminine; Singular and Plural
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18 | |||
9.5 Non-Alienation of Benefits
|
18 | |||
9.6 Governing Law
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18 | |||
9.7 Captions
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19 |
(a) | to allow Eligible Employees to defer Pay on a non-qualified basis; | ||
(b) | to restore Matching Contributions that cannot be made under the Waters Employee Investment Plan (the Basic Plan) due to the operation of the pay limit under the Internal Revenue Code (the Code) Section 401(a)(17); and | ||
(c) | to provide for certain Transition Benefits. |
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1.1 | Account means the credit balance of a Participant under the Plan represented by his or her Pre-Tax Contributions Account, Matching Contributions Account, Incentive Bonus Deferrals Account, Transfer Account and Transition Benefit Account, if applicable, and investment earnings and losses credited to each under the terms of the Plan. | |
1.2 | Affiliate means Waters Technologies Corporation and any other trade or business (whether or not incorporated) which is under common control (as defined in Code Sections 414(b) and 414(c)) with the Corporation; but only for the period during which such other corporation or such other trade or business and the Corporation are members of such controlled group with the Corporation; any organization (whether or not incorporated) which is a member of an affiliated service group (as defined in Code Section 414(m)) which includes the Corporation; and any other entity required to be aggregated with the Corporation pursuant to regulations under Code Section 414(o). | |
1.3 | Basic Plan means the Waters Employee Investment Plan. | |
1.4 | Beneficiary means the person or persons designated by the Participant or former Participant to receive benefits under this Plan in the event of the Participants death. If the Participant does not designate a Beneficiary under this Plan, the Beneficiary shall be determined pursuant to Section 9.3 of the Basic Plan. | |
1.5 | Board means the Board of Directors of Waters Technologies Corporation. | |
1.6 | Code means the Internal Revenue Code of 1986, as amended from time to time and any regulations issued thereunder. Reference to any section of the Code shall include any successor provision thereto. | |
1.7 | Committees means the EBAC and EBIC designated by the Corporation to administer the Basic Plan in accordance with Section 10.1 of the Basic Plan. | |
1.8 | Corporation means Waters Technologies Corporation, a corporation organized and existing under the laws of the State of Delaware, or its successor or successors. | |
1.9 | EBAC means the Employee Benefit Administration Committee designated to administer the Basic Plan in accordance with Section 10.1 of the Basic Plan. | |
1.10 | EBIC means the Employee Benefit Investment Committee designated to manage the investments of the Basic Plan in accordance with Section 10.1 of the Basic Plan. | |
1.11 | Effective Date means August 19, 1994, except that this amendment and restatement shall be effective January 1, 2008. |
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1.12 | Eligible Employee means an Employee who is included in the eligible class described in Section 2.1. | |
1.13 | Employee means any person employed on a regular full-time or a regular part-time basis by a Participating Employer. | |
1.14 | Incentive Bonus means any Management Incentive Plan or Performance Incentive Plan bonus approved by the Board. | |
1.15 | Incentive Bonus Deferrals mean deferrals of a Participants Incentive Bonus made on behalf of a Participant pursuant to Section 3.3 of the Plan. | |
1.16 | Incentive Bonus Deferral Accounts means a Participants interest in the Plan attributable to Incentive Bonus Deferrals for a Plan Year(s). | |
1.17 | Matching Contributions means a credit made on behalf of a Participant as described in Section 4.2. | |
1.18 | Matching Contributions Account means the Participants interest in the Plan attributable to Matching Contributions for a Plan Year(s). | |
1.19 | Participant means an Eligible Employee who is participating in the Plan pursuant to Section 2.1. | |
1.20 | Participating Employer means the Corporation or any Affiliate which has been authorized by the Board to participate in the Plan and has elected to do so. | |
1.21 | Pay means the annual compensation that would otherwise be recognized under the Basic Plan for salary deferral purposes without regard to the limit on pensionable compensation under Code Section 401(a)(17), plus such other elements of compensation that may be permitted by the EBAC to be voluntarily deferred from time to time under rules and procedures it may adopt. Pay shall include amounts paid as commissions. | |
1.22 | Plan means the Waters 401(k) Restoration Plan as set forth in this document and as amended from time to time. | |
1.23 | Plan Year means the twelve-month period beginning each January 1 and ending each December 31. | |
1.24 | Pre-Tax Contributions mean the salary reduction contributions made on behalf of a Participant pursuant to Section 3.2. | |
1.25 | Pre-Tax Contributions Account means a Participants interest in the Plan attributable to Pre-Tax Contributions for a Plan Year(s). | |
1.26 | Rabbi Trust means a trust established by the Corporation for the accumulation and investment of Pre-Tax Contributions, Matching Contributions, Incentive Bonus |
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Deferrals, Transfer Accounts and Transition Benefits, the terms of which are governed by a separate trust agreement. | ||
1.27 | Separation from Service means a termination of employment as defined in Treas. Regs. § 1.409A-1(h)(1). | |
1.28 | Specified Employee means a Participant who is a key employee (as defined in Section 416(i) of the Code without regard to paragraph (5) thereof). A Participant will be considered a key employee for the period commencing April 1 and ending on the March 31 thereafter if he or she was a key employee on the previous December 31 and such designation shall be effective solely for that period. | |
1.29 | Transfer Account means any liability transferred to the Corporation on behalf of a Participant from a prior non-qualified arrangement which provided supplemental retirement benefits for certain eligible employees of a newly Participating Employer. | |
1.30 | Transition Benefit means the Employer contribution made in accordance with Sections 4.3 and 4.4 of the Plan. | |
1.31 | Transition Benefit Account means a Participants interest in the Plan attributable to the Transition Benefit. | |
1.32 | Valuation Date means each business day that the New York Stock Exchange is open for trading, or such other dates established by the EBAC. |
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2.1 | Eligibility . | |
A Basic Plan participant shall be eligible to participate in this Plan for a Plan Year if such Employee is part of a select group of management or highly compensated employees as such terms are defined in the Employee Retirement Income Security Act of 1974, as amended from time to time; and either: |
(a) | has a base annual salary as of November 1, 2007 of at least $130,232.35 for 2008 Plan Year eligibility (increased each November 1st thereafter to reflect increases in the Consumer Price Index for the twelve-month period ending on the immediately preceding September 30 under section 215(i)(2)(A) of the Social Security Act); or | ||
(b) | was a Participant in the Plan in a prior Plan Year. |
2.2 | Election to Make Contributions . | |
An Eligible Employee must file a written election to make contributions to the Plan as of the date specified below in the Plan Year preceding the Plan Year for which the contributions will be made: |
Type of Contribution | Election Deadline | |
Pre-Tax Contributions
|
December 15 | |
|
||
Incentive Bonus Deferrals
|
June 30 |
This election is irrevocable and shall remain in effect for the entirety of the Plan Year with respect to which it is made, except as otherwise provided in Section 3.4. | ||
A new election must be made for each Plan Year in which the Participant wishes to make Pre-tax Contributions and/or Incentive Bonus Deferrals to the Plan. | ||
2.3 | ParticipationGenerally . |
(a) | Eligible Employees shall only be eligible to commence participation in the Plan on January 1. | ||
(b) | A former Participant who is reemployed will only be treated as an Eligible Employee under Section 2.1 if: |
(i) | he or she has been paid all amounts previously accrued under the Plan and was ineligible to participate in the Plan prior to the date of such distribution; or |
- 5 -
(ii) | he or she has been ineligible to participate in the Plan at any time during the twenty-four (24) month period ending on the date he or she again becomes an Eligible Employee. |
- 6 -
3.1 | Nature of Participant Contributions . | |
All Participant contributions under the Plan shall be Pre-Tax Contributions as defined under Section 3.2 or Incentive Bonus Deferrals as defined under Section 3.3. | ||
3.2 | Pre-Tax Contributions . | |
A Participant may authorize a Participating Employer to defer up to thirty percent (30%) his or her Pay as Pre-Tax Contributions to the Plan. The Participants Pay shall be reduced each pay period by the designated percentage, and such contributions shall be credited to the Participants Pre-Tax Contributions Account. | ||
This election is irrevocable and shall remain in effect for the entirety of the Plan Year with respect to which it is made, except as otherwise provided in Section 3.4 | ||
The EBAC may establish other rules and procedures which shall govern the election of Pre-Tax Contributions under this Section 3.2. Such rules and procedures shall be binding upon all Participants. | ||
3.3 | Incentive Bonus Deferrals . | |
A Participant may authorize the Participating Employer to defer up to fifty percent (50%) of his or her Incentive Bonus as Incentive Bonus Deferrals to the Plan. The Participants Incentive Bonus shall be reduced by the designated percentage, and such contribution will be credited to the Participants Incentive Bonus Deferrals Account. | ||
This election is irrevocable and shall remain in effect for the entirety of the Plan Year with respect to which it is made, except as otherwise provided in Section 3.4 | ||
The EBAC may establish other rules and procedures which shall govern the election of Incentive Bonus Deferrals under this Section 3.3. Such rules and procedures shall be binding upon all Participants. | ||
3.4 | Cancellation of Deferral Elections . | |
If the Participant has received a distribution from the Basic Plan, or any similar plan of the Corporation, due to a hardship distribution under Section 1.401(k)-1(d)(3) of the regulations accompanying the Code, the Participants election to make Pre-Tax Contributions and/or Incentive Bonus Deferrals to this Plan shall be automatically cancelled for the remainder of the Plan Year. |
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4.1 | Eligibility for Matching Contributions . | |
Each Participant who has made deferrals to this Plan during a Plan Year shall be eligible for a Matching Contribution. | ||
4.2 | Amount of Matching Contribution . | |
The Matching Contribution Account of a Participant eligible to receive Matching Contributions under Section 4.1 shall be credited with an amount equal to one hundred percent (100%) of up to the first six percent (6%) of the Participants Pay in excess of the limit in effect under Section 401(a)(17) of the Code ($230,000 for 2008), or such other amount as the Secretary of the Treasury may determine for such Plan Year in accordance with Section 401(a)(17) of the Code, deferred to this Plan as Pre-Tax Contributions and/or Incentive Bonus Deferrals. | ||
4.3 | Eligibility for Transition Benefit . | |
Each Participant who receives a Transition Benefit under the Basic Plan that is less than the full amount that would otherwise be payable due to the limit in effect under Section 401(a)(17) of the Code ($230,000 for 2008) or the limit on contributions set forth in Section 415(c) of the Code, or such other amount as the Secretary of the Treasury may determine, shall be eligible to receive a Transition Benefit under this Plan. | ||
4.4 | Amount of Transition Benefit . | |
The amount of the Transition Benefit paid to the Transition Benefit Account of each Participant eligible pursuant to Section 4.3 shall be equal to the excess, if any, of (a) over (b) where: |
(a) | is the Transition Benefit (as that term is defined under the Basic Plan) which would have been contributed on behalf of such Participant under the Basic Plan if the provisions of the Basic Plan were administered without regard to the compensation limitations of Code Section 401(a)(17), and regulations thereunder, and the contribution limitations of Section 415(c) of the Code, and the regulations thereunder; and | ||
(b) | is the Transition Benefit (as that term is defined under the Basic Plan ) which is contributed on behalf of such Participant under the Basic Plan. |
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4.5 | Transfer Account . | |
A Participants Transfer Account, if any, is intended to be funded by a Rabbi Trust deposit made by the Participating Employer equal to the liability transferred from the prior plan of the newly Participating Employer on behalf of such Participant. No amounts shall be contributed to a Participants Transfer Account and no new Transfer Accounts shall be established after December 31, 2007. |
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5.1 | Investment of Accounts . | |
A Participants Account shall be deemed to be invested at the Participants election in one percent (1%) increments in one or more investment funds offered under the Plan. The terms, conditions and procedures under which a Participant may elect to invest his or her Account hereunder shall be specified by the Committees, in their sole discretion, from time to time. | ||
Investment income or losses credited to such Account shall reflect the actual experience of the funds in which the Participants Account is deemed to be invested. During the absence of a valid election by a Participant, the contributions made by or on behalf of such Participant shall be credited to such fund as the Committees shall determine to be a prudent investment at that time. | ||
5.2 | Valuation of Accounts . | |
A Participants Account shall be valued as of each Valuation Date under procedures established by the EBAC. |
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6.1 | Distribution ElectionsPre-2005 Contributions . | |
Contributions made prior to 2005 and any earnings thereon shall be distributed in the form and at the time elected by the Participant prior to the effective date of this amendment and restatement. | ||
Notwithstanding the foregoing, and except as otherwise provided below, a Participant may elect to change the form of his or her distribution, or the timing of such distribution, or both, at the times permitted by the EBAC, provided that such change in form or time of payment must be made no later than twelve (12) months prior to the date on which the Participant has a Separation from Service. If a Participant elects to change the form or timing of payment, but has a Separation from Service prior to the twelfth month following such change, the Participants contributions made prior to 2005 and any earnings thereon shall be distributed in the form and/or at the time elected by the Participant prior to the most recent change. | ||
Any distribution election made with respect to contributions made prior to 2005 shall apply to all contributions made prior to 2005, regardless of the source of such contributions or the year in which such contributions were made. | ||
6.2 | Distribution Elections2005-2006 Contributions . | |
Contributions made during 2005 and 2006 and any earnings thereon shall be distributed in the form and at the time elected by the Participant prior to the effective date of this amendment and restatement. | ||
Notwithstanding the foregoing, a Participant may elect to change the form of his or her distribution, or the timing of such distribution, or both, at the times permitted by the EBAC, provided that: |
(a) | such election shall not take effect for a period of twelve (12) months measured from the date such election is submitted to EBAC in the form required by EBAC; and | ||
(b) | the Participants Account shall not be distributed earlier than the fifth (5 th ) anniversary of the date the Participants Account would have been distributed based on his or her initial election, or, in the absence of an initial election, the default election made on his or her behalf. Notwithstanding the foregoing, a Participants Account shall be payable upon the Participants earlier death or disability (as defined in Section 409A of the Code). |
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6.3 | Distribution ElectionsPost-2006 Contributions . | |
A Participant shall make elections regarding the form and timing of the payment of his or her contributions made after 2006 and any earnings thereon by making distribution elections in the manner required by EBAC concurrent with his or her election to participate under Article III. A Participant shall make such an election for each Plan Year in which contributions are made to the Plan on his or her behalf. A Participant may make separate elections as to the form and timing of distributions with respect to each type of contribution made on his or her behalf (Pre-Tax Contributions, Incentive Bonus Deferrals, Matching Contributions and Transition Benefits) for a Plan Year. | ||
A Participant may elect to change the form of his or her distribution, or the timing of such distribution, or both, at the times permitted by the EBAC, provided that: |
(a) | such election shall not take effect for a period of twelve (12) months from the date such election is submitted to EBAC in the form required by EBAC; and | ||
(b) | the Participants Account shall not be distributed earlier than the fifth (5 th ) anniversary of the date the Participants Account would have been distributed based on his or her initial election, or, in the absence of an initial election, the default election made on his or her behalf. Notwithstanding the foregoing, a Participants Account shall be payable upon the Participants earlier death or Disability (as defined in Section 409A of the Code). |
Such change may be made with respect to a particular type of contribution, either for all Plan Years in which such contribution was made or with respect to one or more such Plan Years. The Participant shall inform EBAC in the manner required by EBAC regarding which contributions (source and year of contribution) are affected by any election to change the form or timing of a distribution. | ||
6.4 | Distribution ElectionsTransition Benefit . | |
A Participants Transition Benefit Account under this Plan shall be distributed in the form of a single lump sum payment upon Separation from Service. | ||
A Participant may elect to change the form of his or her distribution, or the timing of such distribution, or both, at the times permitted by the EBAC, provided that: |
(a) | such election shall not take effect for a period of twelve (12) months from the date such election is submitted to EBAC in the form required by EBAC; and | ||
(b) | the Participants Transition Benefit Account shall not be distributed earlier than the fifth (5 th ) anniversary of the date the Participants Transition Benefit Account would have been distributed based on his or her initial election, or, in the absence of an initial election, the default election made on his or her behalf. |
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Notwithstanding the foregoing, a Participants Account shall be payable upon the Participants earlier death or Disability (as defined in Section 409A of the Code). |
6.5 | Form of Distribution . |
(a) | Unless a Participant elects another form of benefit as described in paragraph (b), a Participants Account under this Plan shall be distributed in the form of a single lump sum payment upon Separation from Service. | ||
(b) | In lieu of the single lump sum benefit described in paragraph (a), a Participant may elect to receive his or her Account in the form of substantially equal annual installment payments. A Participant may choose to receive between two (2) and ten (10) such payments. However, for purposes of Section 409A of the Code, such installment payments shall be treated as a single payment made on the date the first such installment payment is made. | ||
(c) | Upon a Participants death prior to the full distribution of the Participants Account, payment will be made to the Participants Beneficiary as soon as practicable after the Participants death. Such benefit shall be paid in the form of a single lump sum payment, equal either to the balance of the Participants undistributed Account, or, if the Participant had commenced installment payments before his death, the amount of the remaining unpaid installment payments. |
6.6 | Timing of Distribution . |
(a) | Each Participant shall make an election as to the timing of the distribution of his or her Account upon his or her Separation from Service with the Corporation or a Participating Employer. For post-2006 contributions, a Participant may, but is not required to, make an election to receive a distribution of all or part of his or her Account prior to his or her Separation from Service. | ||
(b) | A Participant shall elect to receive a distribution of his or her Account following his or her Separation from Service with the Corporation or a Participating Employer on one of the following dates: |
(i) | his or her date of Separation from Service; or | ||
(ii) | the one year anniversary of his or her date of Separation from Service. |
Except as otherwise provided herein, payments shall be made no later than the ninetieth (90 th ) day following the date elected by the Participant in accordance with this paragraph (b). | |||
(c) | A Participant who elects to receive his or her distribution on a date occurring prior to his or her Separation from Service shall elect the month and year in which such distribution will be made, provided that such year shall not be earlier than the second (2 nd ) Plan Year following the Plan Year in which the Participant |
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contributes the amounts to be so distributed. Distributions shall be made on the 10 th day of the designated month, provided that if the 10 th day of the month is not a business day, as determined by EBAC, such payment shall be made on the business day immediately prior. A Participant who elects a distribution prior to Separation from Service under this paragraph (c) shall be deemed to have made an election to receive a distribution on the earlier of his or her date of distribution elected under this paragraph (c) or his or her date of Separation from Service. | |||
(d) | In the event a Participant who has elected to receive a distribution under paragraph (c) incurs a Separation from Service with the Corporation or a Participating Employer prior to the designated date of distribution, such distribution shall be made in accordance with the Participants election under paragraph (b). |
6.7 | Small Payments . | |
Notwithstanding Section 6.5, if the value of a Participants Account under this Plan is less than the limit under Section 402(g) of the Code ($15,500 for 2008), determined as of the date of the Participants Separation from Service with the Participating Employer, an automatic lump sum payment of such amount shall be made to the Participant (or his Beneficiary in the event of the Participants death before commencement of his retirement benefit) as soon as practicable following the Participants Separation from Service. | ||
Notwithstanding any provision of the Plan to the contrary, upon payment of such lump sum value, no other benefit shall be payable hereunder to the Participant or his Beneficiary. | ||
6.8 | Emergency Payments . | |
A Participant may from time to time request, in such manner as may be satisfactory to the EBAC, that the Board authorize an unforeseeable emergency payment to such Participant. Any such distribution shall be for the sole purpose of enabling such Participant to meet his or her severe financial hardship resulting from: an illness or accident of the Participant, the Participants spouse, the Participants Beneficiary or the Participants dependent (as defined in Section 152 of the Code without regard to Section 152(b)(1), (b)(2) and (d)(1)(B)); loss of the Participants property due to casualty; or similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant. Childrens educational expenses and the purchase or improvement of a residence are specifically excluded as events deemed to constitute an emergency for purposes of this Section 6.8. | ||
The amount payable to a Participant under this Section 6.8 shall not exceed the lesser of the amount reasonably necessary to satisfy the emergency need (including amounts required to pay taxes and penalties arising from such distribution) or the balance in the Participants Pre-Tax Contributions Account, excluding any earnings thereon. In |
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determining the amount to be distributed, the EBAC shall take into account amounts reasonably available from other resources of the Participant. | ||
6.9 | Restriction on Timing of Distributions . | |
In the event that any stock of the Corporation or any entity within the same controlled group (as defined in Section 414(b) of the Code), is publicly traded on an established securities market as defined in Section 1.409A-1(i) of the Regulations under Section 409A of the Code, distributions upon Separation from Service to a Specified Employee may not commence before the date that is six (6) months after the Specified Employees date of Separation from Service, or, if earlier than the end of the six-month period, the date of the death of the Specified Employee. | ||
If a Participants distribution is restricted under this Section 6.9, such distribution shall be made on the earlier of the first day of the seventh month following the date of the Participants Separation from Service or the date of the Specified Employees death. All subsequent distributions shall be paid in the manner specified under Section 6.5. |
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8.1 | Administration . | |
The Committees shall have full discretion to interpret and administer this Plan and their decisions in any matter involving the interpretation and application of this Plan shall be final and binding on all parties. | ||
8.2 | Funding . | |
This Plan will be unfunded. Contributions are intended to be invested under a Rabbi Trust and remain part of the general assets of the Corporation. Benefits under this Plan will be paid from the general assets of the Participating Employers and from Corporation-held assets intended to be held under the Rabbi Trust. The rights of a Participant or Beneficiary shall be those of an unsecured creditor of the Corporation and the Participating Employers. | ||
8.3 | Amendment and Termination . | |
The Corporation reserves the right to amend, modify, suspend or terminate this Plan in whole or in part at any time by action of its Board or the Boards duly appointed delegate. No amendment shall reduce the Account credited to a Participant under this Plan as of the amendment date, except to the extent that the Participant agrees in writing to such reduction. |
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9.1 | Compliance with Section 409A . | |
This Plan is intended to be operated in good faith compliance with the requirements of Section 409A of the Code and its accompanying regulations, and any additional guidance issued under Section 409A. To the extent that any provision of this Plan violates Section 409A, such provision shall be deemed inoperative and the remaining provisions of the Plan shall continue to be fully effective. | ||
9.2 | Payment to Minors and Incompetents . | |
If any Participant or Beneficiary entitled to receive any benefits hereunder is a minor or is deemed by the EBAC or is adjudged to be legally incapable of giving valid receipt and discharge for such benefits, payment will be made to such person or institution as the EBAC may designate or to the duly appointed guardian. Such payment shall, to the extent made, be deemed a complete discharge of any such payment under the Plan. | ||
9.3 | No Contract . | |
This Plan shall not be deemed a contract of employment with any Participant, nor shall any provision of the Plan affect the right of the Corporation or any Affiliate to terminate a Participants employment. | ||
9.4 | Use of Masculine and Feminine; Singular and Plural . | |
Wherever used in this Plan, the masculine gender will include the feminine gender and the singular will include the plural, unless the context indicates otherwise. | ||
9.5 | Non-Alienation of Benefits . | |
No amount payable to, or held under the Plan for the account of, any Participant or Beneficiary shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or charge, and any attempt to so anticipate, alienate, sell, transfer, assign, pledge, encumber, or charge the same shall be void; nor shall any amount payable to, or held under the Plan for the account of, any Participant be in any manner liable for his or her debts, contracts, liabilities, engagements, or torts, or be subject to any legal process to levy upon or attach. | ||
9.6 | Governing Law . | |
The provisions of the Plan shall be interpreted, construed, and administered in accordance with the laws of the Commonwealth of Massachusetts. |
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9.7 | Captions . | |
The captions contained in the Plan are inserted only as a matter of convenience and for reference and in no way define, limit, enlarge, or describe the scope or intent of the Plan nor in any way affect the construction of any provision of the Plan. |
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1. | I have reviewed this quarterly report on Form 10-Q of Waters Corporation; | |
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 registrants other certifying officer(s) 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 registrants 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 registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants 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 registrants 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 registrants internal control over financial reporting. |
/s/ Douglas A. Berthiaume | ||||
Douglas A. Berthiaume | ||||
Chief Executive Officer | ||||
1. | I have reviewed this quarterly report on Form 10-Q of Waters Corporation; | |
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 registrants other certifying officer(s) 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 registrants 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 registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer(s) and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of registrants 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 registrants 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 registrants internal control over financial reporting. |
/s/ John Ornell | ||||
John Ornell | ||||
Chief Financial Officer | ||||
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By: |
/s/ Douglas A. Berthiaume
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Chief Executive Officer |
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By: |
/s/John Ornell
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Chief Financial Officer |