COVIDIEN SUPPLEMENTAL SAVINGS AND RETIREMENT PLAN
Addendum or Modifications
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COVIDIEN SUPPLEMENTAL SAVINGS AND RETIREMENT PLAN
Addendum or Modifications
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COVIDIEN SUPPLEMENTAL SAVINGS
AND RETIREMENT PLAN
Amended and Restated
Adopted by Tyco Healthcare Group LP
Effective as of January 1, 2009
TABLE OF CONTENTS
COVIDIEN SUPPLEMENTAL SAVINGS AND
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.
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.
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.
2.3 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.
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;
(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
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”
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.
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