Exhibit
10.1
COVIDIEN SUPPLEMENTAL
SAVINGS
AND RETIREMENT
PLAN
Amended and
Restated
Adopted by Tyco Healthcare Group
LP
Effective as of January 1,
2009
TABLE OF CONTENTS
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Page
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ARTICLE I
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PURPOSE
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1
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1.1
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Supplemental
Savings and Retirement Plan
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1
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1.2
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Background
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1
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1.3
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Benefits Under
the Tyco SSRP and the Plan
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1
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1.4
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Deferred
Compensation Plan
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2
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1.5
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Adoption of
Plan
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2
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ARTICLE II
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DEFINITIONS
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2
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2.1
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Account
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2
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2.2
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Administrative
Error Correction
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2
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2.3
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Affiliated
Company
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3
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2.4
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Annual
Enrollment Period
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3
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2.5
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Base
Salary
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3
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2.6
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Base Salary
Deferral
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3
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2.7
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Beneficiary(ies)
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3
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2.8
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Board
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3
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2.9
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Bonus
Compensation
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3
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2.10
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Bonus
Compensation Deferral
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4
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2.11
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Cause
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4
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2.12
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Change of
Control
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4
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2.13
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Code
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5
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2.14
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Commission
Compensation
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5
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2.15
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Company
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5
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2.16
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Company
Credit
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5
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2.17
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Compensation
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5
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2.18
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Compensation
Deferral
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6
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2.19
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Covidien
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6
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2.20
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Disability
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6
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2.21
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Discretionary
Credit
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6
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2.22
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Effective Date
and Amendment Effective Date
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6
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2.23
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Eligible
Employee
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6
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2.24
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Enrollment and
Payment Agreement
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7
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2.25
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Exchange
Act
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7
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2.26
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Fiscal
Year
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7
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2.27
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Matching
Credit
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7
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2.28
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Maximum
Matching Percentage
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7
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2.29
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Measurement
Funds
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7
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2.30
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Participant
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8
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2.31
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Payment
Date
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8
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2.32
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Plan
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8
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2.33
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Plan
Administrator
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8
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2.34
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Plan
Year
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8
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2.35
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Prior Eligible
Employee
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8
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i
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2.36
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Responsible Company
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8
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2.37
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Retirement
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8
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2.38
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RSIP
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8
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2.39
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RSIP Election
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8
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2.40
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Separation Date
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8
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2.41
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Separation from Service
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9
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2.42
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Separation Payment
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9
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2.43
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Specified Date Payment
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9
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2.44
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Spillover Deferrals
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9
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2.45
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Subsidiary Change of Control
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9
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2.46
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Tyco SSRP
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9
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2.47
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Unforeseeable Emergency
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9
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2.48
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Year of Service
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9
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ARTICLE III
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ADMINISTRATION
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9
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3.1
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Plan Administrator
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9
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ARTICLE IV
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PARTICIPATION
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10
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4.1
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Eligible Employees
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10
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4.2
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Prior Eligible Employees
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10
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ARTICLE V
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BASIC
DEFERRAL PARTICIPATION
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10
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5.1
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Election to Participate
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10
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5.2
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Amount of Deferral Election
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10
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5.3
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Deferral Limits
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11
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5.4
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Period of Commitment
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11
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5.5
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Vesting of Compensation Deferrals
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11
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5.6
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Compensation Deferral Cancellation
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11
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ARTICLE VI
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SPILLOVER PARTICIPATION/MATCHING, COMPANY AND
DISCRETIONARY CREDITS
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11
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6.1
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Spillover Election
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11
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6.2
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Matching Credits
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11
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6.3
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Company Credits
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12
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6.4
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Discretionary Credits
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12
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6.5
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Vesting of Matching, Company and Discretionary
Credits
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13
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ARTICLE VII
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PARTICIPANT ACCOUNT
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13
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7.1
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Establishment of Account
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13
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7.2
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Earnings (or Losses) on Account
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13
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7.3
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Valuation of Account
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14
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7.4
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Statement of Account
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14
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7.5
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Payments from Account
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14
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7.6
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Separate Accounting
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14
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ARTICLE VIII
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PAYMENTS TO PARTICIPANTS
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14
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8.1
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Distribution Payments
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14
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ii
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8.2
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Change in Election
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15
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8.3
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Cash-Out Payments
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16
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8.4
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Death or Disability Benefit
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16
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8.5
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Valuation of Payments
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16
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8.6
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Unforeseeable Emergency
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16
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8.7
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Withholding Taxes
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16
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8.8
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Effect of Payment
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17
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8.9
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Delay of Payment for Specified
Employees
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17
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ARTICLE IX
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CLAIMS
PROCEDURES
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17
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9.1
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Filing a Claim
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17
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9.2
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Appeal of Denied Claims
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18
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9.3
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Legal Action
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18
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9.4
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Discretion of the Plan Administrator
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19
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ARTICLE X
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MISCELLANEOUS
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19
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10.1
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Protective Provisions
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19
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10.2
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Inability to Locate Participant or
Beneficiary
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19
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10.3
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Designation of Beneficiary
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19
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10.4
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No Contract of Employment
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19
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10.5
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No Limitation on Company Actions
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20
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10.6
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Obligations to Company
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20
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10.7
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No Liability for Action or Omission
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20
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10.8
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Nonalienation of Benefits
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20
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10.9
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Liability for Benefit Payments
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20
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10.10
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Covidien Guarantee
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21
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10.11
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Unfunded Status of Plan
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21
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10.12
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Forfeiture for Cause
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21
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10.13
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Governing Law
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22
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10.14
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Severability of Provisions
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22
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10.15
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Headings and Captions
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22
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10.16
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Gender, Singular and Plural
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22
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10.17
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Notice
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22
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10.18
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Amendment and Termination
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22
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10.19
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Special Rule Regarding Election Changes Prior
to December 31, 2008
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22
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iii
COVIDIEN SUPPLEMENTAL SAVINGS
AND
RETIREMENT PLAN
ARTICLE I
Purpose
1.1 Supplemental Savings and
Retirement Plan . The name of this Plan is the Covidien
Supplemental Savings and Retirement Plan. The Plan was created to
provide certain of the key employees of the Company with the
ability to defer receipt of compensation that would otherwise be
payable to them and to make up for amounts that could not be
contributed on their behalf as matching contributions under the
Covidien Retirement Savings and Investment Plan due to certain
restrictions applicable under the Code. Except for amounts that
were deferred and vested as of December 31, 2004, the terms of
this Plan are intended to, and shall be interpreted and applied so
as to, comply in all respects with the provisions of Code
Section 409A and regulations and rulings promulgated
thereunder and, if necessary, any provision shall be held null and
void to the extent such provision (or part thereof) fails to comply
with Section 409A or the regulations promulgated
thereunder.
1.2 Background . Effective as
of April 1, 1994, TME Management Corporation
(“TME”) adopted the Tyco Deferred Compensation Plan
(“Tyco DCP”) to allow a select group of key management
or other highly compensated employees of TME and its parents,
affiliates and subsidiaries to defer the receipt of compensation
that would otherwise be payable to them. All compensation deferrals
under the Tyco DCP were deferred and vested before January 1,
2005. Except as provided hereunder, such amounts and the earnings
thereon shall therefore continue to be administered in accordance
with the terms of the Tyco DCP as in effect prior to the adoption
of the Plan and shall constitute “grandfathered”
amounts that are not subject to Code Section 409A and the
regulations and rulings promulgated thereunder. TME amended and
restated the Tyco DCP, effective as of January 1, 2005 as the
Tyco Supplemental Savings and Retirement Plan (“Tyco
SSRP”). When Tyco’s healthcare business separated from
Tyco International Ltd. on June 29, 2007, and was renamed
Covidien Ltd., the Company adopted this Plan as a spin-off and
continuation of the Tyco SSRP solely with respect to employees and
Participants aligned with Tyco’s healthcare business unit and
the Accounts of such Participants (including grandfathered amounts)
were transferred to the Plan.
1.3 Benefits Under the Tyco SSRP
and the Plan . With respect to each Participant (or
Beneficiary, as applicable) who participated in the Tyco SSRP prior
to June 29, 2007 and who was aligned with Tyco’s
healthcare business unit, Tyco International Management Company
transferred from the Tyco SSRP to such Participant’s or
Beneficiary’s Account under the Plan an amount equal to the
value of the notional accounts credited to the Participant or
Beneficiary under the Tyco SSRP immediately prior to such transfer.
The transfer of the value of such notional accounts pursuant to
this paragraph was in lieu of maintaining such credits and
liabilities under the Tyco SSRP and the transfer occurred as of
June 29, 2007.
1
Other than the
“grandfathered” amounts described in Section 1.2,
benefits for any Participant or Beneficiary that were credited
under the Tyco SSRP and transferred to this Plan will be determined
in accordance with the provisions of the Tyco SSRP, but paid in
accordance with this Plan, unless modifications to such transferred
benefits are specifically provided by a subsequent amendment to
this Plan. Benefits credited on and after the Effective Date shall
be determined in accordance with the provisions of this
Plan.
1.4 Deferred Compensation
Plan . The Company intends that the Plan shall at all times be
maintained on an unfunded basis for federal income tax purposes
under the Code, and administered as a non-qualified, “top
hat” plan exempt from the substantive requirements of the
Employee Retirement Income Security Act of 1974, as amended
(“ERISA”).
1.5 Adoption of Plan . The
Plan initially was adopted by Tyco Healthcare Group LP effective as
of June 29, 2007. Effective as of January 1, 2009, Tyco
Healthcare Group LP, by action of the Covidien Benefits Committee,
amended and restated the Plan.
ARTICLE II
Definitions
For ease of reference, the following
definitions will be used in the Plan:
2.1 Account .
“Account” means the bookkeeping account maintained on
the books of the Company used solely to calculate the amount
payable to each Participant who defers Compensation under this Plan
or is otherwise entitled to a benefit under Article VI and shall
not constitute a separate fund of assets. The term
“Account” includes the value of amounts transferred
from the Tyco SSRP in connection with the Company’s
separation from Tyco International Ltd. on June 29, 2007 (as
described in Section 1.2 above).
2.2 Administrative Error
Correction . “Administrative Error Correction”
means the discretion used by the Plan Administrator to permit an
Administrative Error to be corrected by allowing the affected
Eligible Employee’s or Participant’s Enrollment and
Payment Agreement to be processed after the end of the Annual
Enrollment Period or 30-day enrollment period for newly eligible
employees, as applicable. Corrections attributable to an Annual
Enrollment Period may be processed after such Annual Enrollment
Period ends but may not be processed after January 31 of the
Plan Year to which the Enrollment and Payment Agreement relates.
Corrections attributable to a 30-day enrollment period may be
processed after such period expires but may not be processed after
the later of (i) 30 days after such expiration date or
(ii) 60 days after the date the Eligible Employee is notified
of eligibility to participate in the Plan. Corrections under this
Section 2.2 shall only be allowed to the extent permitted
under Code Section 409A and the regulations and rulings
promulgated thereunder. “Administrative Error” means
(i) an error by an Eligible Employee or Participant to
properly complete or file an Enrollment and Payment Agreement, or
any other similar action, following a good faith attempt, or
(ii) the failure of the Plan Administrator or its delegate to
properly process an Eligible Employee or Participant’s
Enrollment and Payment Agreement.
2
2.3 Affiliated Company .
“Affiliated Company” shall mean (a) a corporation
which, together with the Company, is a member of a controlled group
of corporations (as defined in Code Section 414(b)),
(b) a trade or business (whether or not incorporated) which is
under common control (as defined in Code Section 414(c)) with
Covidien, (c) a corporation, partnership or other entity
which, together with Covidien, is a member of an affiliated service
group (as defined in Code Section 414(m)), (d) an
organization which is required to be aggregated with Covidien
pursuant to regulations promulgated under Code Section 414(o),
or (e) any service recipient or employer that is within a
controlled group of corporations as defined in Code Sections
1563(a)(1), (2) and (3) where the phrase “at least
50%” is substituted in each place “at least 80%”
appears and any service recipient or employer with trades or
businesses under common control as defined in Code
Section 414(c) and Treas. Reg. Section 1.414(c)-2 where
the phrase “at least 50%” is substituted in each place
“at least 80%” appears, provided, however, that when
the relevant determination is to be based upon legitimate business
criteria (as described in Treas. Reg.
Section 1.409A-1(b)(5)(iii)(E) and 1.409A-1(h)(3)), the phrase
“at least 20%” shall be substituted in each place
“at least 80%” appears as described above with respect
to both a controlled group of corporations and trades or businesses
under common control.
2.4 Annual
Enrollment Period . “Annual Enrollment Period”
shall mean, with respect to a Plan Year, the period that begins on
a date specified by the Plan Administrator and that ends no later
than December 31 st of the year immediately
preceding the Plan Year for which elections made during such period
are effective.
2.5 Base Salary . “Base
Salary” means the annual rate of base salary paid to each
Participant as of any date of reference before any reduction for
any amounts deferred by the Participant pursuant to Code
Section 401(k) or Code Section 125, or pursuant to this
Plan or any other non-qualified plan which permits the voluntary
deferral of compensation.
2.6 Base Salary Deferral .
“Base Salary Deferral” means that portion of Base
Salary as to which a Participant has made an election to defer
receipt pursuant to Article V.
2.7 Beneficiary(ies) .
“Beneficiary” or “Beneficiaries” means the
person or persons designated by the Participant to receive payments
under this Plan in the event of the Participant’s death as
provided in Section 10.3.
2.8 Board .
“Board” means the Board of Directors of
Covidien.
2.9 Bonus Compensation .
“Bonus Compensation” means any performance-based cash
bonus or incentive compensation, payable to a Participant pursuant
a written plan that provides for annual payments thereunder, as of
any date of reference before any reduction for any amounts deferred
by the Participant pursuant to Code Section 401(k) or Code
Section 125, or pursuant to this Plan or any other
non-qualified plan which permits the voluntary deferral of
compensation. Bonus Compensation shall not include (i) any
special or one-time bonus payment, (ii) any amount paid under
any equity incentive plan, (iii) any bonus paid after
Separation from Service, and (iv) Commission
Compensation.
3
2.10 Bonus Compensation
Deferral . “Bonus Compensation Deferral” means that
portion of Bonus Compensation as to which a Participant has made an
election to defer receipt pursuant to Article V.
2.11 Cause .
“Cause” means a Participant’s
(i) substantial failure or refusal to perform duties and
responsibilities of his or her job as required by the Company,
(ii) violation of any fiduciary duty owed to the Company,
(iii) conviction of a felony or misdemeanor,
(iv) dishonesty, (v) theft, (vi) violation of
Company rules or policy, or (vii) other egregious conduct,
that has or could have a serious and detrimental impact on the
Company and its employees. The Plan Administrator, in its sole and
absolute discretion, shall determine Cause. Examples of
“Cause” may include, but are not limited to, excessive
absenteeism, misconduct, insubordination, violation of Company
policy, dishonesty, and deliberate unsatisfactory performance
(e.g., employee refuses to improve deficient
performance).
2.12 Change of Control .
“Change of Control” means any of the following
events:
(a) any “person” (as
defined in Sections 13(d) and 14(d) of the Exchange Act), excluding
for this purpose (i) Covidien or any subsidiary company
(wherever incorporated) of Covidien as defined by Section 86
of the Companies Act 1981 of Bermuda, as amended (a
“Subsidiary”) and (ii) any employee benefit plan
of Covidien or any Subsidiary (or any person or entity organized,
appointed or established by Covidien for or pursuant to the terms
of any such plan that acquires beneficial ownership of voting
securities of Covidien), is or becomes the “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act)
directly or indirectly of securities of Covidien representing more
than 30% of the combined voting power of Covidien’s
then-outstanding securities; provided, however, that no Change of
Control will be deemed to have occurred as a result of a change in
ownership percentage resulting solely from an acquisition of
securities by Covidien;
(b) persons who, as of the Amendment
Effective Date, constitute the Board (the “Incumbent
Directors”) cease for any reason (including without
limitation, as a result of a tender offer, proxy contest, merger or
similar transaction) to constitute at least a majority thereof,
provided that any person becoming a Director of Covidien subsequent
to the Amendment Effective Date shall be considered an Incumbent
Director if such person’s election or nomination for election
was approved by a vote of at least 50% of the Incumbent Directors;
but provided further that any such person whose initial assumption
of office is in connection with an actual or threatened proxy
contest relating to the election of members of the Board or other
actual or threatened solicitation of proxies or consents by or on
behalf of a “person” (as defined in Sections 13(d) and
14(d) of the Exchange Act) other than the Board, including by
reason of agreement intended to avoid or settle any such actual or
threatened contest or solicitation, shall not be considered an
Incumbent Director;
4
(c) consummation of a
reorganization, merger or consolidation or sale or other
disposition of at least 80% of the assets of Covidien (a
“Business Combination”), in each case, unless,
following such Business Combination, all or substantially all of
the individuals and entities who were the beneficial owners of
outstanding voting securities of Covidien immediately prior to such
Business Combination beneficially own directly or indirectly more
than 50% of the combined voting power of the then-outstanding
voting securities entitled to vote generally in the election of
directors, as the case may be, of the company resulting from such
Business Combination (including, without limitation, a company
which, as a result of such transaction, owns Covidien or all or
substantially all of Covidien’s assets either directly or
through one or more Subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business
Combination, of the outstanding voting securities of Covidien;
or
(d) approval by the stockholders of
Covidien of a complete liquidation or dissolution of
Covidien.
2.13 Code .
“Code” means the Internal Revenue Code of 1986, as
amended (and any regulations thereunder).
2.14 Commission Compensation
. “Commission Compensation” means any sales commission
paid to a Participant during a Plan Year before such commission is
reduced for any amounts deferred by the Participant pursuant to
Code Section 401(k) or Code Section 125, or any other
non-qualified plan which permits the voluntary deferral of
compensation.
2.15 Company .
“Company” means Tyco Healthcare Group LP, a Delaware
limited partnership, and its parents, subsidiaries, Affiliated
Companies and successors (excluding any parent, subsidiary or
Affiliated Company that has not been approved by the Company for
participation in this Plan). Where the context so requires,
“Company” used in reference to a Participant means the
specific entity that is part of the Company as defined herein that
employs the Participant at any relevant time.
2.16 Company Credit .
“Company Credit” means an amount credited by the
Company for the benefit of a Participant pursuant to
Section 6.3.
2.17 Compensation .
“Compensation” means an Eligible Employee’s
(i) Base Salary as in effect from time to time during a Plan
Year, (ii) Commission Compensation paid during a Plan Year and
(iii) Bonus Compensation earned for an applicable Fiscal Year.
For purposes of determining a Participant’s Company Credits
under Section 6.3 and Discretionary Credits under
Section 6.4 for any Plan Year, Compensation shall include only
Base Salary, Bonus Compensation and Commission Compensation
actually paid to the Participant during such Plan Year. Moreover,
for purposes of Spillover Deferral elections under
Section 6.1, Compensation shall not include
Commission
5
Compensation. In no event shall any of the
following items be treated as Compensation hereunder:
(i) payments from this Plan or any other Company nonqualified
deferred compensation plan; (ii) income from the exercise of
nonqualified stock options or from the disqualifying disposition of
incentive stock options, income realized upon the vesting of
restricted stock or the delivery of shares in respect of restricted
stock units or performance share units (or other similar items of
income related to equity compensation grants, exercises or vesting
events); (iii) reimbursement for moving expenses or other
relocation expenses; (iv) mortgage interest differentials;
(v) payment for reimbursement of taxes;
(vi) international assignment premiums, allowances or other
reimbursements; (vii) bonuses, other than bonus payments
specifically identified in the definition of Bonus Compensation in
Section 2.9; or (vii) any other payments as determined by
the Plan Administrator in its sole discretion.
2.18 Compensation Deferral .
“Compensation Deferral” means that portion of
Compensation as to which a Participant has made an annual
irrevocable election to defer receipt pursuant to Article V or
Section 6.1. A Participant’s Compensation Deferral may
consist of Base Salary Deferrals, Bonus Compensation Deferrals,
Spillover Deferrals, or a combination thereof, as applicable to the
Participant.
2.19 Covidien .
“Covidien” means Covidien Ltd., a Bermuda
corporation.
2.20 Disability .
“Disability” means that a Participant either
(i) has been determined to be eligible for Social Security
disability benefits or (ii) is eligible to receive benefits
under the Company’s long-term disability program as in effect
at the time of disability.
2.21 Discretionary Credit .
“Discretionary Credit” means any amount credited to a
Participant’s Account under Section 6.4.
2.22 Effective Date and Amendment
Effective Date . “Effective Date” means the
original effective date of the Plan, which is June 29, 2007.
“Amendment Effective Date” means the effective date of
this amendment and restatement of the Plan, which is
January 1, 2009.
2.23 Eligible Employee .
“Eligible Employee” for all purposes under this Plan
other than eligibility for a Company Credit under Section 6.3
includes any individual who (i) was eligible to participate in
the Plan on December 31, 2008, or (ii) is (A) a
common law employee on the payroll of any United States Subsidiary
of Covidien Ltd. (other than Puerto Rico), (B) a U.S. citizen
or a resident alien permanently assigned to work in the United
States, and (C) has a Base Salary for the relevant Plan Year
that equals or exceeds $125,000, or such other higher amount as
determined by the Plan Administrator in its sole discretion to
reflect cost-of-living adjustments. Solely for purposes of
determining eligibility for Company Credits under Section 6.3,
“Eligible Employee” includes any employee of the
Company who meets the requirements set forth in (i), (ii)(A) and
(ii)(B) above and who, for a relevant Plan Year, is paid
Compensation in excess of the limitation on includible compensation
under Code Section 401(a)(17). Notwithstanding the foregoing,
employees eligible to participate in any “Non-U.S. Covidien
Retirement Plan”
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shall not be Eligible Employees for purposes of
the Plan. A “Non-U.S. Covidien Retirement Plan” is
defined as any pension or retirement plan, program or scheme
established outside the United States of America that is either
sponsored by a non-US Covidien Affiliated Company or is mandated by
a governmental body or under the terms of a bargaining agreement
and shall include any termination or retirement indemnity program
and the national social security arrangements in Italy, Portugal
and Spain, but shall exclude national social security arrangements
in any other country.
2.24 Enrollment and Payment
Agreement . “Enrollment and Payment Agreement”
means the authorization form that an Eligible Employee files with
the Plan Administrator to elect a Compensation Deferral under the
Plan for a Plan Year, and/or to elect the timing and form of
distribution for Company Credits or Discretionary Credits for a
Plan Year. An Enrollment and Payment Agreement may be filed in any
form so designated by the Plan Administrator, including
electronically.
2.25 Exchange Act .
“Exchange Act” means the Securities Exchange Act of
1934, as amended.
2.26 Fiscal Year .
“Fiscal Year” means the Company’s fiscal year,
which is the 52- or 53-week period ending on the last Friday of
each September.
2.27 Matching Credit .
“Matching Credit” means an amount credited to a
Participant’s Account under Section 6.2.
2.28 Maximum Matching
Percentage . “Maximum Matching Percentage” for any
Plan Year means the maximum matching contribution percentage
available under the RSIP for such Plan Year for an individual who
has the same Years of Service as the Participant (disregarding any
limit on the amount of matching contributions to the RSIP imposed
as a result of the operation of the limitations in Code Sections
401(a)(17), 402(g) or 415(c), (or any other limit imposed by the
Plan or the Plan Administrator in its sole discretion).
2.29 Measurement Funds .
“Measurement Funds” means one or more of the
independently established funds or indices that are identified by
the Plan Administrator. These Measurement Funds are used solely to
calculate the earnings that are credited to each
Participant’s Account(s) in accordance with Article VII
below, and do not represent any beneficial interest on the part of
the Participant in any asset or other property of the Company. The
determination of the increase or decrease in the performance of
each Measurement Fund shall be made by the Plan Administrator in
its reasonable discretion. Measurement Funds may be replaced, new
funds may be added, or both, from time to time in the discretion of
the Plan Administrator; provided that if the Measurement Funds
hereunder correspond with funds available for investment under the
RSIP, then, unless the Plan Administrator otherwise determines in
its discretion, any addition, removal or replacement of investment
funds under the RSIP shall automatically result in a corresponding
change to the Measurement Funds hereunder.
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2.30 Participant .
“Participant” means any employee who satisfies the
eligibility requirements and has an Account set forth in Article IV
or a former employee who has an Account that is not fully
distributed. In the event of the death or incompetency of a
Participant, the term means his or her personal representative or
guardian. An individual shall remain a Participant until that
individual has received full payment of all amounts credited to the
Participant’s Account.
2.31 Payment Date .
“Payment Date” means February 15 of each
respective Plan Year.
2.32 Plan .
“Plan” means this Plan, entitled the Covidien
Supplemental Savings and Retirement Plan, as amended from time to
time hereafter.
2.33 Plan Administrator .
“Plan Administrator” means the Retirement
Administrative Committee appointed in accordance with the Covidien
Ltd. Governance Structure to manage and administer the Plan (or,
where the context so requires, any delegate of the Plan