DANAHER CORPORATION & SUBSIDIARIES RETIREMENT & SAVINGS PLAN

Exhibit 4.1

DANAHER CORPORATION & SUBSIDIARIES

RETIREMENT & SAVINGS PLAN

ADOPTED EFFECTIVE DECEMBER 1, 1986

AMENDED AND RESTATED EFFECTIVE JANUARY 1, 2008

INDEX TO THE

DANAHER CORPORATION & SUBSIDIARIES

RETIREMENT & SAVINGS PLAN

 

DANAHER CORPORATION & SUBSIDIARIES

RETIREMENT & SAVINGS PLAN

WHEREAS, effective as of December 1, 1986, Chicago Pneumatic Tool Company established the Chicago Pneumatic Tool Company Retirement & Savings Plan (the “Original Plan”) to which were transferred assets of the former Chicago Pneumatic Tool Company Employee Stock Ownership Plan and Trust and the former Payroll Based Employee Stock Ownership Plan of Chicago Pneumatic Tool Company; and

WHEREAS, effective as of January 1, 1987, DH Holdings Corporation became the plan sponsor of the Original Plan, and the Original Plan was amended and restated as the DH Holdings Corp. Retirement & Savings Plan (the “Prior Plan”), and thereafter was amended; and

WHEREAS, effective as of October 1, 1988, Danaher Corporation (the “Plan Sponsor”) adopted the Danaher Corporation Salaried Employees’ Retirement and Savings Plan (the “Salaried Plan”); and

WHEREAS, effective as of October 1, 1989, the Salaried Plan was merged with the Prior Plan; and

WHEREAS, generally effective as of December 1, 1989, the Plan Sponsor became the plan sponsor of the Prior Plan, and the Prior Plan was amended and restated as the Danaher Corporation Retirement & Savings Plan (the “First Danaher Plan”) and thereafter was amended; and

WHEREAS, generally effective as of December 1, 1989, the First Danaher Plan was amended and restated as the Danaher Corporation & Subsidiaries Retirement & Savings Plan (the “Second Danaher Plan”) and thereafter was amended; and

WHEREAS, generally effective as of January 1, 1997, the Second Danaher Plan was amended and restated as the Danaher Corporation & Subsidiaries Retirement & Savings Plan (the “Third Danaher Plan”) and thereafter was amended; and

WHEREAS, generally effective as of December 27, 1999, the Third Danaher Plan was amended and restated as the Danaher Corporation & Subsidiaries Retirement & Savings Plan (the “Fourth Danaher Plan”) to effect the mergers of the API Plan, the Kollmorgen Plan, the Newtown Plan, and the Securaplane Plan and the trustee-to-trustee transfer of certain account balances from the Warner Plan; and

WHEREAS, generally effective as of December 27, 2000, the Plan Sponsor amended and restated the Fourth Danaher Plan to effect the mergers of the United Power Plan, the Anatel Plan, the Hecon Plan, and the Hart Plan and to comply with certain recent changes in the tax laws (hereafter, the “Fifth Danaher Plan”); and

WHEREAS, the Fifth Danaher Plan was subsequently amended five (5) times, on August 27, 2002, December 23, 2003, December 30, 2004, December 29, 2005, December 11, 2006, May 11, 2007, and December 2007, to (i) spin off accounts of non-collectively bargained associates to the Danaher Corporate & Subsidiaries Savings Plan effective November 30, 2002, resulting in this Plan benefiting only employees subject to collective bargaining, (ii) adopt the three year cliff vesting schedule for employer contributions as required by EGTRRA effective December 27, 2003, (iii) adopt the new required minimum distribution requirements effective January 1, 2003, (iv) reflect the mergers into this Plan of the Delevan Plan and the Deltran Plan effective November 1, 2004, (v) reflect the mergers into this Plan of the Thomson Bay City Plan and the Thomson Hourly Plan effective December 30, 2005, (vi) reflect the transfer of assets from the Leica Plan effective December 29, 2006, (vii) change the Plan Year to a calendar year effective January 1, 2007, (viii) to comply with the final regulations under Code Sections 401(k) and 401(m) effective December 27, 2006, (ix) to permit an employee to delay commencement of required minimum distributions until April 1 following the later of termination of employment or attainment of age 70  ¹ / 2 , (x) reflect the participation of Veeder-Root Altoona union associates effective April 1, 2007, (xi) reflect the participation of Gilbarco union associates as provided under the collective bargaining agreement ratified July 2007, (xii) to comply with the Pension Protection Act of 2006 effective January 1, 2008, and (xiii) reflect certain changes in fiduciary and settlor responsibilities with respect to the Plan effective December 5, 2007.

NOW, THEREFORE, to incorporate the foregoing amendments into an amended and restated document, the Appointing Committee has adopted, by appropriate resolutions, this the Danaher Corporation & Subsidiaries Retirement & Savings Plan (this “Plan”) as hereinafter amended and restated to be effective as of January 1, 2008, except as shall be otherwise specifically provided in this Plan.

It is intended that this Plan, together with the related Trust Agreement, shall constitute a “profit sharing plan with a cash or deferred arrangement” that shall meet the requirements of the Code and ERISA, and that the Plan shall be interpreted, wherever possible, to comply with the Code and ERISA, each as amended by the Uruguay Round Agreements Act, the Uniform Services Employment and Reemployment Rights Act of 1994, the Small Business Job Protection Act of 1996, the Taxpayer Relief Act of 1997, the Internal Revenue Service Restructuring Act and Reform Act of 1998, the Community Renewal Tax Relief Act of 2000, the Economic Growth and Tax Relief Reconciliation Act of 2001, and the Pension Protection Act of 2006, and all formal regulations, rulings, and guidance issued thereunder.

 

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ARTICLE I

DEFINITIONS

As used in this Plan, each of the following terms shall have the respective meaning set forth below unless a different meaning shall be plainly required by the context.

1.1 The term “ Account ” shall mean, with respect to a Participant, the aggregate of the Subaccounts maintained on behalf of the Participant to record his or her interest in this Plan.

1.2 The term “ Actual Contribution Percentage ” shall mean, with respect to an Eligible Participant Testing Group for a Plan Year, the ratio (expressed as a percentage) of (a) the sum of the Contribution Percentages of each Eligible Participant in such group for the Plan Year to (b) the number of such Eligible Participants.

1.3 The term “ Actual Contribution Percentage Test ” shall mean the test that shall be considered to be met with respect to an Eligible Participant Testing Group for a Plan Year if either Subsection (a) or Subsection (b) below is true:

(a) The Actual Contribution Percentage for Highly Compensated Eligible Participants in such group for the Plan Year is not greater than one and twenty-five hundredths (1.25) multiplied by the Actual Contribution Percentage for Nonhighly Compensated Eligible Participants in such group for the Plan Year.

(b) The Actual Contribution Percentage for Highly Compensated Eligible Participants in such group for the Plan Year is not greater than two (2) multiplied by the Actual Contribution Percentage for Nonhighly Compensated Eligible Participants in such group for the Plan Year, and the difference between the Actual Contribution Percentage for Highly Compensated Eligible Participants in such group for the Plan Year and the Actual Contribution Percentage for Nonhighly Compensated Eligible Participants in such group for the Plan Year is not greater than two percent (2%).

Notwithstanding the foregoing, if so elected by the Plan Administrator for a Plan Year, for purposes of the Actual Contribution Percentage Test for such Plan Year and each subsequent Plan Year until the election shall be revoked in accordance with any procedures therefor established by the Department of Treasury, the Actual Contribution Percentage for Nonhighly Compensated Eligible Participants for the last preceding Plan Year shall be used.

Furthermore, if the Plan Administrator elects to apply Code Section 410(b)(4)(B) in determining that, with respect to an Eligible Participant Testing Group for the Plan Year, the portion

 

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of this Plan providing Matching Contributions meets Code Section 410(b), the Plan Administrator may elect to exclude from the Eligible Participant Testing Group for purposes of the Actual Contribution Percentage Test all Nonhighly Compensated Eligible Participants who have not attained age twenty–one (21).

1.4 The term “ Actual Deferral Percentage ” shall mean, with respect to an Eligible Employee Testing Group for a Plan Year, the ratio (expressed as a percentage) of (a) the sum of the Deferral Percentages of each Eligible Employee in such group for the Plan Year to (b) the number of such Eligible Employees.

1.5 The term “ Actual Deferral Percentage Test ” shall mean the test that shall be considered to be met with respect to an Eligible Employee Testing Group for a Plan Year if either Subsection (a) or Subsection (b) below is true:

(a) The Actual Deferral Percentage for Highly Compensated Eligible Employees in such group for the Plan Year is not greater than one and twenty-five hundredths (1.25) multiplied by the Actual Deferral Percentage for Nonhighly Compensated Eligible Employees in such group for the Plan Year.

(b) The Actual Deferral Percentage for Highly Compensated Eligible Employees in such group for the Plan Year is not greater than two (2) multiplied by the Actual Deferral Percentage for Nonhighly Compensated Eligible Employees in such group for the Plan Year, and the difference between the Actual Deferral Percentage for Highly Compensated Eligible Employees in such group for the Plan Year and the Actual Deferral Percentage for Nonhighly Compensated Eligible Employees in such group for the Plan Year is not greater than two percent (2%).

Notwithstanding the foregoing, if so elected by the Plan Administrator for a Plan Year, for purposes of the Actual Deferral Percentage Test for such Plan Year and each subsequent Plan Year until the election shall be revoked in accordance with any procedures therefor established by the Department of Treasury, the Actual Deferral Percentage for Nonhighly Compensated Eligible Employees for the last preceding Plan Year shall be used.

Furthermore, if the Plan Administrator elects to apply Code Section 410(b)(4)(B) in determining that, with respect to an Eligible Employee Testing Group for the Plan Year, the portion of the Plan providing Salary Deferral Contributions meets Code Section 401(k)(3)(A)(i), the Plan Administrator may elect to exclude from the Eligible Employee Testing Group for purposes of the Actual Deferral Percentage Test all Nonhighly Compensated Eligible Employees who have not attained age twenty–one (21) and have not completed one (1) Year of Service uninterrupted by a One–year Break in Service.

 

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1.6 The term “ Affiliated Employer ” shall mean, with respect to an Employer, any corporation or other entity that is required to be aggregated with the Employer under Code Section 414(b), 414(c), 414(m), or 414(o).

1.7 The term “ Annual Addition ” shall mean, with respect to a Participant for a Plan Year, the sum of (a) any Unilateral Employer Contributions credited to the Participant’s Account for the Plan Year; (b) any Discretionary Employer Contributions credited to the Participant’s Account for the Plan Year; (c) any Salary Deferral Contributions credited to the Participant’s Account for the Plan Year, less any amounts thereof distributed to the Participant as Excess Deferrals pursuant to Section 3.11(b) of this Plan; (d) any Matching Contributions credited to the Participant’s Account for the Plan Year; (e) any amounts credited to the Participant’s Account pursuant to Section 4.5 of this Plan for which the Plan Year is the limitation year; and (f) any amounts credited to the Participant’s account(s) for the limitation year under any other Defined Contribution Plan(s) (whether or not terminated) maintained by his or her Employer as shall be considered “annual additions” within the meaning of Code Section 415(c)(2). As used in this Section, the term “Employer” shall include all Affiliated Employers of the Employer, as determined under Code Sections 414(b) and 414(c), as applied in accordance with Code Section 415(h), and Code Sections 414(m) and 414(o).

1.8 The term “ Applicable Matching Contributions ” shall mean, with respect to an Eligible Participant for a Plan Year, the following: (a) the Matching Contributions (if any) that were made on the Eligible Participant’s behalf during the Plan Year or the next succeeding Plan Year that are attributable to the Salary Deferral Contributions (if any) that were made on his or her behalf for the Plan Year; less (b) any such Matching Contributions that were forfeited pursuant to Section 4.8(b) of this Plan; less (c) any such Matching Contributions that shall be forfeited pursuant to Section 3.9(b)(v) or 3.11(c) of this Plan.

1.9 The term “ Applicable Salary Deferral Contributions ” shall mean, with respect to an Eligible Employee for a Plan Year, the following: (a) the Salary Deferral Contributions (if any) that were made on the Eligible Employee’s behalf during the Plan Year or the next succeeding Plan Year from his or her Basic Compensation for the Plan Year; less (b) any such Salary Deferral Contributions that were distributed to the Eligible Employee pursuant to Section 4.8(b) of this Plan; less (c) in the case of a Nonhighly Compensated Eligible Employee, any such Salary Deferral Contributions that were distributed to the Eligible Employee as Excess Deferrals pursuant to Section 3.11(b) of this Plan.

1.10 The term “ Appointing Committee ” shall mean the Appointing Committee of the Plan Sponsor comprised of the Plan Sponsor’s Chief Financial Officer, its General Counsel, and its Vice President-Human Resources.

1.11 The term “ Basic Compensation ” shall mean, with respect to a Participant for a Plan Year, Valuation Period, Payroll Period, or other time period, (a) the total cash compensation (if any)

 

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paid to the Participant by his or her Employer during the Plan Year, Valuation Period, Payroll Period or other time period, including , but not limited to, salary, overtime pay, and bonuses, as reported on the Participant’s federal income tax withholding statement (Form W-2) but excluding (i) amounts realized from the exercise of a non-qualified stock option, or when restricted stock held by the Participant either becomes freely transferable or is no longer subject to a substantial risk of forfeiture, (ii) amounts realized from the sale, exchange or other disposition of stock under a qualified stock option, and (iii) amounts paid to the Participant as severance benefits, plus (b) the aggregate Salary Deferral Contributions (if any) and the aggregate of any elective deferrals made on the Participant’s behalf during the Plan Year under any other plan maintained by the Employer pursuant to Code Section 401(k) made on the Participant’s behalf during the Plan Year, Valuation Period, Payroll Period, or other time period, plus (c) the aggregate amounts (if any) contributed on the Participant’s behalf during the Plan Year, Valuation Period, Payroll Period, or other time period under any plan maintained by the Employer pursuant to Code Section 125. The term “Basic Compensation” shall include elective amounts that are not includible in the gross income of the Participant by reason of Code Section 132(f)(4). Notwithstanding the foregoing, a Participant’s Basic Compensation for a Plan Year shall not exceed the Compensation Limitation. For purposes of this Section, the term “Employer” shall include all Affiliated Employers of the Employer.

The term “Basic Compensation” shall also include the following payments if such payments are made by the later of (a) two and one-half (2  ¹ / 2 ) months following the Participant’s Severance from Service Date or (b) the end of the Plan Year that includes the Participant’s Severance from Service Date: (1) payments that, absent a severance from employment, would have been paid to the Employee while the Employee continued in Employment with his or her Employer and are regular compensation for services during the Employee’s regular working hours, compensation for services outside the Employee’s regular working hours (such as overtime or shift differential), commissions, bonuses, or other similar compensation; and (2) payments for accrued vacation but only if the Employee would have been able to use the vacation if Employment had continued.

1.12 The term “ Beneficiary ” shall mean, with respect to a Participant, an individual or entity that may be entitled to receive all or a portion of the Participant’s Account upon the Participant’s death and, with respect to a deceased Participant, an individual or entity that is receiving or shall be entitled to receive all or a portion of the Participant’s Account.

1.13 The term “ Benefit Commencement Date ” shall mean, with respect to a Participant or a Beneficiary of a deceased Participant, the date that all or a portion of the Participant’s Account may be payable to the Participant or Beneficiary, which date shall be selected by the Participant or Beneficiary in accordance with Article VI or shall be otherwise determined by the Plan Administrator pursuant to this Plan.

1.14 The term “ Benefits Committee ” shall mean the Benefits Committee of the Plan Sponsor appointed by the Appointing Committee.

 

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1.15 The term “ Code ” shall mean the Internal Revenue Code of 1986, as it may be amended from time to time.

1.16 The term “ Collectively Bargained Employee ” shall mean, with respect to an Employer, an Employee of the Employer who is in a unit of employees that is covered by a collective bargaining agreement.

1.17 The term “ Compensation ” shall mean, with respect to a Participant for a Plan Year, the Participant’s “wages” for the Plan Year, as such term shall be defined in Code Section 3401(a), that the Participant received from his or her Employer but determined without regard to any rules that limit the remuneration included in such wages based on the nature or location of the employment or the services performed. Furthermore, the term “Compensation” shall include the aggregate Salary Deferral Contributions (if any) made on the Participant’s behalf during the Plan Year, the aggregate of any other elective deferrals made on the Participant’s behalf during the Plan Year under any plan maintained by the Employer pursuant to Code Section 401(k), and the aggregate amounts (if any) contributed on the Participant’s behalf during the Plan Year under any plan maintained by the Employer pursuant to Code Section 125. The term “Basic Compensation” shall include elective amounts that are not includible in the gross income of the Participant by reason of Code Section 132(f)(4). Notwithstanding the foregoing, a Participant’s Compensation for a Plan Year shall not exceed the Compensation Limitation. For purposes of this Section, the term “Employer” shall include all Affiliated Employers of the Employer, as determined under Code Sections 414(b) and 414(c), as applied in accordance with Code Section 415(h), and Code Sections 414(m) and 414(o).

The term “Compensation” shall also include the following payments if such payments are made by the later of (a) two and one-half (2  ¹ / 2 ) months following the Participant’s Severance from Service Date or (b) the end of the Plan Year that includes the Participant’s Severance from Service Date: (1) payments that, absent a severance from employment, would have been paid to the Employee while the Employee continued in Employment with his or her Employer and are regular compensation for services during the Employee’s regular working hours, compensation for services outside the Employee’s regular working hours (such as overtime or shift differential), commissions, bonuses, or other similar compensation; and (2) payments for accrued vacation but only if the Employee would have been able to use the vacation if Employment had continued.

1.18 The term “ Compensation Limitation ” shall mean two hundred thousand dollars ($200,000), as adjusted pursuant to Code Section 401(a)(17)(B).

1.19 The term “ Continuous Service ” shall mean, with respect to a Participant, the aggregate years (and fractions thereof) included in the period of time between the Participant’s Employment Date and his or her first Severance from Service Date and, if applicable, each period of time between a Reemployment Date incurred by the Participant and his or her next succeeding Severance from Service Date.

 

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1.20 The term “ Contributing Employer ” shall mean, with respect to a Plan Year:

(a) For purposes of Sections 3.1 and 4.1 of this Plan, an Employer that, with respect to all or a group of its Eligible Participants, shall have agreed, in a form satisfactory to the Appointing Committee, to make Unilateral Employer Contributions on behalf of such Eligible Participants.

(b) For purposes of Sections 3.2 and 4.2 of this Plan, an Employer that, with respect to all or a group of its Eligible Participants, shall have stated its intention, in a form satisfactory to the Appointing Committee, to make Discretionary Employer Contributions on behalf of such Eligible Participants.

(c) For purposes of Sections 3.3 and 4.3 of this Plan, an Employer that, with respect to all or a group of its Eligible Participants, shall have agreed, in a form satisfactory to the Appointing Committee, to make Salary Deferral Contributions on behalf of such Eligible Participants.

(d) For purposes of Sections 3.4 and 4.4 of this Plan, an Employer that, with respect to all or a group of its Eligible Participants, shall have shall have stated its intention, in a form satisfactory to the Appointing Committee, to make Matching Contributions on behalf of such Eligible Participants.

1.21 The term “ Contribution Percentage ” shall mean, with respect to an Eligible Participant for a Plan Year, the ratio (expressed as a percentage rounded to the nearest hundredth) of (a) the Applicable Matching Contributions (if any) made on the Eligible Participant’s behalf for the Plan Year to (b) the Eligible Participant’s Basic Compensation for the Plan Year; provided, however, that, in determining, for purposes of this Section, the Basic Compensation for a Plan Year of each Eligible Participant in an Eligible Participant Testing Group for the Plan Year who became an Eligible Participant after the first (1st) day of the Plan Year, the Plan Administrator may, in accordance with Department of Treasury regulations under Code Section 401(m), determine that the Eligible Participant’s Basic Compensation for the Plan Year shall be only such portion thereof as he or she earned while an Eligible Participant during the Plan Year; and further provided, however, that, with respect to a Highly Compensated Eligible Participant for a Plan Year, for purposes of this Section, the Applicable Matching Contributions made on behalf of the Highly Compensated Eligible Participant shall be deemed to include any matching contributions made on his or her behalf under any plan maintained by an Affiliated Employer of his or her Employer under Code Section 401(k) (other than a plan that could not be aggregated with this Plan in accordance with regulations under Code Section 401(k)) for the plan year of such plan that ends with or within the Plan Year to the extent that such matching contributions would be “Applicable Matching Contributions” if made under this Plan.

 

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1.22 The term “ Controlled Group Employer ” shall mean, with respect to a Plan Year, the Plan Sponsor or any Affiliated Employer of the Plan Sponsor that shall be an Employer at any time during the Plan Year.

1.23 The term “ Deferral Percentage ” shall mean, with respect to an Eligible Employee for a Plan Year, the ratio (expressed as a percentage rounded to the nearest hundredth) of (a) the Applicable Salary Deferral Contributions (if any) made on the Eligible Employee’s behalf for the Plan Year to (b) the Eligible Employee’s Basic Compensation for the Plan Year; provided, however, that, in determining, for purposes of this Section, the Basic Compensation for a Plan Year of each Eligible Employee in an Eligible Employee Testing Group for the Plan Year who became an Eligible Employee after the first (1st) day of the Plan Year, the Plan Administrator may, in accordance with Department of Treasury regulations under Code Section 401(k), determine that the Eligible Employee’s Basic Compensation for the Plan Year shall be only such portion thereof as he or she earned while an Eligible Employee during the Plan Year; and further provided, however, that, with respect to a Highly Compensated Eligible Employee for a Plan Year, for purposes of this Section, the Applicable Salary Deferral Contributions made on behalf of the Highly Compensated Eligible Employee shall be deemed to include any salary deferral contributions made on his or her behalf under any plan maintained by an Affiliated Employer of his or her Employer under Code Section 401(k) (other than a plan that could not be aggregated with this Plan in accordance with regulations under Code Section 401(k)) for a plan year ending with or within the Plan Year that would be “Applicable Salary Deferral Contributions” if made under this Plan.

1.24 The term “ Defined Benefit Plan ” shall mean a pension plan that is not a Defined Contribution Plan.

1.25 The term “ Defined Contribution Plan ” shall mean a plan that provides for an individual account for each participant and for benefits based solely on the amount contributed to the participant’s account, and any income, expenses, gains, losses, and forfeitures that may be allocated to the participant’s account.

1.26 The term “ Discretionary Employer Contribution ” shall mean, with respect to an Employer, a contribution made to the Trust Fund by the Employer pursuant to Sections 3.2 and 4.2 of this Plan.

1.27 The term “ Discretionary Percentage ” shall mean, with respect to an Employer for a Plan Year, a percentage that shall be determined by the Employer for the Plan Year; provided, however, that the Plan Administrator may determine the Discretionary Percentage for Controlled Group Employers for a Plan Year.

1.28 The term “ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as it may be amended from time to time.

 

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1.29 The term “ Eligible Employee ” shall mean, with respect to an Employer for a Plan Year or a portion thereof, an Employee who has met the requirements of Section 2.3 of this Plan.

1.30 The term “ Eligible Employee Testing Group ” shall mean, with respect to a Plan Year, any of the following groups of Eligible Employees of one (1) or more Employers: (a) the Eligible Employees of the Controlled Group Employers for the Plan Year who were not Collectively Bargained Employees during the Plan Year; (b) with respect to each (if any) Employer that was not a Controlled Group Employer for the Plan Year, the Eligible Employees of the Employer (and any Affiliated Employer thereof) who were not Collectively Bargained Employees during the Plan Year; (c) each group of Eligible Employees of the Controlled Group Employers for the Plan Year who were Collectively Bargained Employees during the Plan Year and were included in the same collective bargaining unit; and (d) with respect to each (if any) Employer that was not a Controlled Group Employer for the Plan Year, each group of Eligible Employees of the Employer (and any Affiliated Employer thereof) for the Plan Year who were Collectively Bargained Employees during the Plan Year and were included in the same collective bargaining unit; provided, however, that, notwithstanding Subsections (c) and (d) above, the Plan Administrator may aggregate collective bargaining units in determining Eligible Employee Testing Groups for a Plan Year so long as any such aggregation is reasonable and reasonably consistent from Plan Year to Plan Year.

Notwithstanding the foregoing, if the Plan Administrator determines that (i) for a Plan Year this Plan satisfies the requirements of Code Sections 401(k), 401(m), 401(a)(4), and/or 410(b) only if aggregated with one or more plans of the Employer, as the term “plan” is defined in Treas. Reg. §1.401(k)-1(g)(11), or (ii) for a Plan Year one or more of such other plans of the Employer satisfy the requirements of Code Sections 401(k), 401(m), 401(a)(4), and/or 410(b) only if aggregated with this Plan, an Eligible Employee Testing Group shall also include all eligible employees in such other plans who would otherwise satisfy the requirements of such Eligible Employee Testing Group if such employees were participants in this Plan.

1.31 The term “ Eligible Participant ” shall mean, with respect to an Employer for a Plan Year or a portion thereof, an Employee who has met the requirements of Section 2.4 of this Plan.

1.32 The term “ Eligible Participant Testing Group ” shall mean, with respect to a Plan Year, any of the following groups of Eligible Participants of one (1) or more Employers: (a) the Eligible Participants of the Controlled Group Employers for the Plan Year who were not Collectively Bargained Employees during the Plan Year; (b) with respect to each (if any) Employer that was not a Controlled Group Employer for the Plan Year, the Eligible Participants of the Employer (and any Affiliated Employer thereof) who were not Collectively Bargained Employees during the Plan Year; (c) each group of Eligible Participants of the Controlled Group Employers for the Plan Year who were Collectively Bargained Employees during the Plan Year and were included in the same collective bargaining unit; and (d) with respect to each (if any) Employer that was not a Controlled Group Employer for the Plan Year, each group of Eligible Participants of the Employer (and any Affiliated Employer thereof) for the Plan Year who were Collectively Bargained Employees during the Plan

 

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Year and were included in the same collective bargaining unit; provided, however, that, notwithstanding Subsections (c) and (d) above, the Plan Administrator may aggregate collective bargaining units in determining Eligible Participant Testing Groups for a Plan Year so long as any such aggregation is reasonable and reasonably consistent from Plan Year to Plan Year.

Notwithstanding the foregoing, if the Plan Administrator determines that (i) for a Plan Year this Plan satisfies the requirements of Code Sections 401(k), 401(m), 401(a)(4), and/or 410(b) only if aggregated with one or more plans of the Employer, as the term “plan” is defined in Treas. Reg. §1.401(k)-1(g)(11), or (ii) for a Plan Year one or more of such other plans of the Employer satisfy the requirements of Code Sections 401(k), 401(m), 401(a)(4), and/or 410(b) only if aggregated with this Plan, an Eligible Participant Testing Group shall also include all eligible employees in such other plans who would otherwise satisfy the requirements of such Eligible Participant Testing Group if such employees were participants in this Plan.

1.33 The term “ Employee ” shall mean an individual who is an employee of an Employer and is included in a unit of employees that is covered by a collective bargaining agreement that provides for participation in this Plan; provided, however, that, an employee of an Employer shall not be considered to be an “Employee” prior to the date as of which the Employer became an “Employer,” as defined in Section 1.35 of this Plan; and further provided that no Leased Employee shall be an Employee; and finally provided that the term “Employee” shall not include any individual that an Employer treats as an independent contractor or a leased employee whether or not such individual would otherwise be an “Employee”.

1.34 The term “ Employee Contributions Subaccount ” shall mean, with respect to a Participant, the Subaccount (if any) maintained on the Participant’s behalf to record (a) (i) his or her after-tax employee contributions (plus any earnings thereon and minus any losses thereon) that were maintained under the Joslyn Plan as of December 31, 1996, (ii) his or her after-tax employee contributions (plus any earnings thereon and minus any losses thereon) that were maintained under the Kollmorgen Plan as of December 13, 2000, or (iii) his or her after-tax employee contributions (plus any earnings thereon and minus any losses thereon) that were maintained under the Leica Plan as of December 29, 2006; (b) any additions thereto; and (c) any deductions therefrom, all as determined in accordance with this Plan.

1.35 The term “ Employer ” shall mean any Employer that employs one or more Collectively Bargained Employees and that with the consent of the Appointing Committee, shall adopt this Plan and the Trust Agreement and shall remain an Employer.

1.36 The term “ Employer Contributions Subaccount ” shall mean, with respect to a Participant, the Subaccount (if any) maintained on the Participant’s behalf to record the Participant’s allocable share (if any) of any Unilateral Employer Contributions and the Participant’s allocable share (if any) of any Discretionary Employer Contributions, any additions thereto, and any deductions therefrom, all as determined in accordance with this Plan.

 

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1.37 The term “ Employment ” shall mean, with respect to an individual, employment of the individual by an Employer or an Affiliated Employer.

1.38 The term “ Employment Date ” shall mean, with respect to an employee of an Employer, the date that the employee first completes an Hour of Service, where the term “Hour of Service” shall be only as defined in Section 1.54(a) of this Plan.

1.39 The term “ Entry Date ” shall mean, with respect to an Employee, the later of (a) the date that the individual became an Employee, (b) the date that he or she completed his or her first (1 ^st ) Hour of Service, or (c) the date required pursuant to the terms of the collective bargaining agreement covering the Employee as set forth in Appendix A to this Plan.

1.40 The term “ Excess Aggregate Contributions ” shall mean, with respect to an Eligible Participant Testing Group for a Plan Year, such amount (if any) of the aggregate Applicable Matching Contributions made on behalf of the Highly Compensated Eligible Participants in such group for the Plan Year that the Plan Administrator shall determine pursuant to Section 3.10 of this Plan causes noncompliance with the Actual Contribution Percentage Test.

1.41 The term “ Excess Contributions ” shall mean, with respect to an Eligible Employee Testing Group for a Plan Year, such amount (if any) of the aggregate Applicable Salary Deferral Contributions made on behalf of the Highly Compensated Eligible Employees in such group for the Plan Year that the Plan Administrator shall determine pursuant to Section 3.9 of this Plan causes noncompliance with the Actual Deferral Percentage Test.

1.42 The term “ Excess Deferrals ” shall mean, with respect to a Participant for a calendar year, such portion (if any) of the Salary Deferral Contributions made for the calendar year on the Participant’s behalf that the Plan Administrator shall determine pursuant to Section 3.11 of this Plan to be distributable to the Participant pursuant thereto and in accordance with Code Sections 401(a) and 402(g) and the regulations thereunder.

1.43 The term “ Five-percent Owner ” shall mean, with respect to an Employer for a Plan Year, an individual who, at any time during the Plan Year, owns an interest in the Employer of more than five percent (5%), as determined in accordance with Code Section 416(i)(1).

1.44 The term “ Forfeiture ” shall mean, with respect to an Employer, an amount forfeited from the Account of an Employee or former Employee of the Employer pursuant to Section 3.9(b)(v), 3.10(b)(v), 3.11(c), or 5.4 of this Plan.

1.45 The term “ Forfeiture Allocation Date ” shall mean, with respect to an Employer, a the last day of a Quarter or any other Valuation Date during a Plan Year as of which the Plan

 

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Administrator shall direct the Trustee that amounts in the Employer’s Forfeitures Account shall be allocated pursuant to Section 4.7 of the Plan.

1.46 The term “ Forfeitures Account ” shall mean, with respect to an Employer, an account maintained by the Trustee to record the Forfeitures that arise with respect to Employees or former Employees of such Employer, any additions thereto and any deductions therefrom, all as determined in accordance with this Plan; provided, however, that, as of the date (if any) that the Employer ceases to be a Controlled Group Employer, (a) any amount in the Employer’s Forfeitures Account shall be allocated among the Forfeitures Accounts of the Employers who are, as of such date, Controlled Group Employers in the manner determined by the Plan Administrator and (b) if, in accordance with Section 1.35 of this Plan, the Employer shall remain an Employer for any time after such date, the Employer’s Forfeitures Account shall continue to be maintained for purposes of recording the Forfeitures that arise subsequently with respect to Employees or former Employees of such Employer, which shall be credited to the Accounts of Employees of such Employer in accordance with Article IV of this Plan.

1.47 The term “ Gilbarco ” shall mean Gilbarco, Inc. or its successor.

1.48 The term “ Gilbarco Employee ” shall mean an Employee of Gilbarco at its location in Greensboro, NC who is covered by a collective bargaining agreement with Teamsters Local Union No. 391, affiliated with the International Brotherhood of Teamsters.

1.49 The term “ Highly Compensated Eligible Employee ” shall mean, with respect to an Employer for a Plan Year, an Eligible Employee who is a Highly Compensated Employee for the Plan Year.

1.50 The term “ Highly Compensated Eligible Participant ” shall mean, with respect to an Employer for a Plan Year, an Eligible Participant who is a Highly Compensated Employee for the Plan Year.

1.51 The term “ Highly Compensated Employee ” shall be defined in Subsection (a) below subject to the rules provided in Subsection (b) below:

(a) Definition . With respect to an Employer for a Plan Year, a Highly Compensated Employee of the Employer for the Plan Year shall be an individual described in any of Paragraphs (i) through (iii) below:

(i) An employee who performed services for the Employer during the Plan Year and who, during the preceding Plan Year, received Compensation in excess of eighty thousand dollars ($80,000), as adjusted by the Secretary of the Treasury in accordance with Code Section 414(q)(1); provided, however, that the Plan Administrator may elect, for any Plan Year, to apply the additional requirement that an employee described in this Paragraph shall not be considered to be a

 

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Highly Compensated Employee unless he or she was a member of the Top-paid Group for the preceding Plan Year.

(ii) An employee who performed services for the Employer during the Plan Year and who was a Five-percent Owner during the Plan Year or the preceding Plan Year.

(iii) A former employee who separated (or was deemed to have separated) from the service of the Employer prior to the Plan Year, who performed no services for the Employer during the Plan Year, and who was a Highly Compensated Employee for either the Plan Year in which he or she separated from the service of the Employer or any Plan Year ending on or after his or her fifty-fifth (55th) birthday.

(b) Rules . For purposes of this Section, the determination of the Highly Compensated Employees of an Employer for a Plan Year shall be made in accordance with regulations under Code Section 414(q) and Paragraphs (i) through (v) below:

(i) The term “Top-paid Group” shall mean the twenty percent (20%) of the employees of the Employer who received the highest Compensation; provided, however, that, for purposes of determining the employees of the Employer who shall be included in the Top-paid Group for the Plan Year, the following groups of employees shall be excluded: (A) employees who have not completed six (6) months of service; (B) employees who normally work fewer than seventeen and one-half (17-1/2) hours per week; (C) employees who normally work during not more than six (6) months during any year; and (D) employees who have not attained age twenty-one (21).

(ii) With respect to an employee or former employee of the Employer for the Plan Year, the term “Compensation” shall include the aggregate of any other elective deferrals made on the individual’s behalf during the Plan Year under any plan maintained by the Employer pursuant to Code Section 401(k) and the aggregate amounts (if any) contributed on his or her behalf during the Plan Year under any plan maintained by the Employer pursuant to Code Section 125.

(iii) The term “Employer” shall include, for purposes of determining an individual’s Compensation and all other purposes other than determining who is a Five-percent Owner, all Affiliated Employers of the Employer.

(iv) The term “employee” shall not include an individual who is a nonresident alien described in Code Section 414(q)(11).

1.52 The term “ Hour of Service ” shall be defined in Subsection (a) below subject to the rules in Subsection (b) below:

(a) Definition . With respect to an employee of an Employer, an Hour of Service shall be an hour described in any of Paragraphs (i), (ii) or (iii) below:

 

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(i) Each hour for which the employee is paid, or entitled to payment, for the performance of duties for the Employer (a “Performance Hour”).

(ii) Each hour for which the employee is paid, or entitled to payment, by the Employer on account of a period of time during which the employee did not perform duties (irrespective of whether the employment relationship had terminated) due to vacation, holiday, illness, incapacity (including disability), layoff, jury duty, military duty, or leave of absence (an “Absence Hour”).

(iii) Each hour during which the employee performed duties and for which the Employer awards or agrees to back pay, irrespective of mitigation of damages (a “Back-pay Performance Hour”), and each hour during which the employee did not perform or would not have performed duties and for which the Employer awards or agrees to back pay, irrespective of mitigation of damages (a “Back-pay Absence Hour”).

(b) Rules . For purposes of this Section, an employee’s Hours of Service shall be calculated and credited in accordance with Paragraphs (b) and (c) of Section 2530.200b-2 of the United States Department of Labor Regulations and the following:

(i) For purposes of calculating Absence Hours, a payment shall be deemed to be made by, or due to the employee from, the Employer regardless of whether such payment is made by or due from the Employer directly or indirectly through, among others, a trust fund or insurer to which the Employer contributes or pays premiums and regardless of whether contributions made or due to the trust fund, insurer, or other entity are for the benefit of particular employees of the Employer or are on behalf of a group of employees of the Employer in the aggregate.

(ii) An Absence Hour shall not be based on a payment to the employee that was made or is due (A) under a plan maintained solely for the purpose of complying with applicable workers’ compensation, unemployment compensation, or disability insurance laws or (B) solely to reimburse the employee for medical or medically related expenses incurred by the employee.

(iii) A Performance Hour or an Absence Hour that is also a Back-pay Performance Hour or a Back-pay Absence Hour, respectively, shall be credited as only one (1) Hour of Service.

(iv) No more than five hundred one (501) Hours of Service shall be credited for a continuous period of Absence Hours or Back-pay Absence Hours, whether or not such period occurs in one (1) or more than one (1) Plan Year or other computation period.

 

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(v) For purposes of Paragraph (b)(1) of Section 2530.200b-2 of the United States Department of Labor regulations, forty (40) Hours of Service shall be credited for each week of Absence Hours or Back-pay Absence Hours.

(vi) The term “Employer” shall include all Affiliated Employers of the Employer.

1.53 The term “ Joslyn ” shall mean Joslyn Corporation or an Affiliated Employer thereof that shall have been participating in the Joslyn Plan as of December 31, 1996.

1.54 The term “ Joslyn Plan ” shall mean the former Joslyn Corporation & Subsidiaries Savings and Profit Sharing Plan.

1.55 The term “ Kollmorgen ” shall mean Kollmorgen Corporation or an Affiliated Employer thereof that shall have been participating in the Kollmorgen Plan as of December 1, 2000.

1.56 The term “ Kollmorgen Plan ” shall mean the former Kollmorgen Corporation 401(k) Savings & Investment Plan.

1.57 The term “ Leased Employee ” shall mean any person (other than an employee of the Employer) who pursuant to an agreement between the Employer and any other person (“leasing organization”) has performed services for the Employer (or for the Employer and related persons determined in accordance with Code Section 414(n)(6)) on a substantially full time basis for a period of at least one year, and such services are performed under the primary direction or control by the employer. Contributions or benefits provided to a leased employee by the leasing organization which are attributable to services performed for the Employer shall be treated as provided by the Employer. A leased employee shall not be considered an employee of the Employer if: (1) such employee is covered under a money purchase pension plan providing (i) a nonintegrated employer contribution rate of at least 10% of Compensation, (ii) immediate participation, and (iii) full and immediate vesting; and (2) leased employees do not constitute more than 20% of the Employer’s nonhighly compensated work force.

1.58 The term “ Leica ” shall mean Leica Microsystems Inc.

1.59 The term “ Leica Plan ” shall mean the former Leica Microsystems Inc. 401(k) Savings Plan.

1.60 The term “ Life Annuity ” shall mean, with respect to a Participant or the spouse of a deceased Participant, a series of monthly payments to the Participant or spouse for his or her life under which the last payment shall be made as of the first day of the month in which the Participant or spouse dies.

 

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1.61 The term “ Matching Contribution ” shall mean, with respect to a Participant, a contribution made to the Trust Fund on the Participant’s behalf by his or her Employer pursuant to Sections 3.4 and 4.4 of this Plan.

1.62 The term “ Matching Contributions Subaccount ” shall mean, with respect to a Participant, the Subaccount (if any) maintained on the Participant’s behalf to record the Matching Contributions made on his or her behalf, any additions thereto and any deductions therefrom, all as determined in accordance with this Plan.

1.63 The term “ Merged API Plan ” shall mean the former API Delevan, Inc.-U.A.W. Money Purchase Pension Plan that was merged into the Delevan Plan effective as of July 1, 1997, or the former API Deltran, Inc.-U.A.W. Money Purchase Pension Plan that was merged into the former Deltran Plan effective as of February 10, 1997.

1.64 The term “ Merged Kollmorgen Plan ” shall mean either the former Kollmorgen Employees’ Defined Contribution Retirement Plan as in effect on December 31, 1990 or the Sierracin Corporation 401(k) Savings Plan as in effect on July 1, 1998.

1.65 The term “ Nonforfeitable Account ” shall mean, with respect to a Participant, the portion (if any) of the Participant’s Account that is nonforfeitable as determined pursuant to Article V of this Plan.

1.66 The term “ Nonhighly Compensated Eligible Employee ” shall mean, with respect to an Employer for a Plan Year, an Eligible Employee who is not a Highly Compensated Employee of the Employer for the Plan Year.

1.67 The term “ Nonhighly Compensated Eligible Participant ” shall mean, with respect to an Employer for a Plan Year, an Eligible Participant who is not a Highly Compensated Employee of the Employer for the Plan Year.

1.68 The term “ Normal Retirement Date ” shall mean, with respect to a Participant, the Participant’s sixty-fifth (65th) birthday.

1.69 The term “ One-year Break in Service ” shall mean, with respect to a Participant, the first three hundred sixty-five (365) consecutive days during the Participant’s latest Period of Severance, which such One-year Break in Service shall be deemed to occur as of the three hundredth and sixty-fifth (365th) such day.

1.70 The term “ Participant ” shall mean an Employee or former Employee who is participating in this Plan pursuant to Article II of the Plan.

 

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1.71 The term “ Payroll Period ” shall mean, with respect to an Employee, a period with respect to which the Employee receives a payroll check or otherwise is paid for services that he or she performs during the period for an Employer.

1.72 The term “ Period of Severance ” shall mean, with respect to a Participant as of a Reemployment Date, the period of time between the Participant’s last preceding Severance from Service Date and such Reemployment Date; provided, however, that, with respect to a Participant whose Severance from Service Date occurred as a result of an absence that constituted a Parental Leave, solely for purposes of determining the Participant’s Period of Severance, the Participant’s Severance from Service Date shall be deemed to be the second (2nd) anniversary of the date that the Participant’s absence began, or, if earlier, the date that the Participant’s Employment terminated; where, for purposes of this Section, the term “Parental Leave” shall mean a period of the Participant’s absence from Employment because of (a) the Participant’s pregnancy, (b) the birth of his or her child, (c) the placement of a child with the Participant for adoption, or (d) the care of his or her child for a period immediately following the child’s birth or placement; provided that the Plan Administrator may require, on a uniform and nondiscriminatory basis, that the Participant timely furnish to the Plan Administrator such information as may reasonably be required for the Plan Administrator to determine that the Participant’s absence qualifies as a Parental Leave and to calculate the number of days of such Parental Leave.

1.73 The term “ Plan ” shall mean the Danaher Corporation & Subsidiaries Retirement & Savings Plan, as herein amended and restated and as it may be amended from time to time.

1.74 The term “ Plan Administrator ” shall mean the Benefits Committee appointed by the Appointing Committee and charged with the general responsibility for the administration of this Plan pursuant to Article VII.

1.75 The term “ Plan Sponsor ” shall mean Danaher Corporation, with principal offices located in Washington, D.C., and its successors and assigns.

1.76 The term “Plan Year” shall mean the twelve (12)-consecutive-month period ending on a December 31. The Plan Year shall constitute the “limitation year” for purposes of Code Section 415.

1.77 The term “ Prior Employer Contributions Subaccount ” shall mean, with respect to a Participant, the Subaccount (if any) maintained to record the employer contributions (plus any earnings thereon and minus any losses thereon) that were maintained on the Participant’s behalf under a Prior Plan, any additions thereto and any deductions therefrom, all as determined in accordance with this Plan; where, for purposes of this Section, the term “Prior Plan” shall mean (i) the Joslyn Plan, (ii) the Kollmorgen Plan effective December 13, 2000, (iii) the Delevan Plan effective December 2, 2004, (iv) the Deltran Plan effective December 2, 2004, (v) the Thomson Bay City Plan effective December

 

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30, 2005, (vi) the Thomson Hourly Plan effective December 30, 2005, and (vii) the Leica Plan effective December 29, 2006.

1.78 The term “ Prior Matching Contributions Subaccount ” shall mean, with respect to a Participant, the Subaccount (if any) maintained to record the matching contributions (plus any earnings thereon and minus any losses thereon) that were maintained on the Participant’s behalf under a Prior Plan, any additions thereto and any deductions therefrom, all as determined in accordance with this Plan; where, for purposes of this Section, the term “Prior Plan” shall mean (i) the Joslyn Plan, and (ii) the Deltran Plan effective December 2, 2004.

1.79 The term “ Qualified Annuity ” shall mean, with respect to a Participant, (a) a Life Annuity payable to the Participant if he or she shall not have a spouse as of his or her Benefit Commencement Date or (b) a Qualified Joint and Survivor Annuity payable to the Participant and his or her spouse if the Participant shall have a spouse as of his or her Benefit Commencement Date.

1.80 The term “ Qualified Joint and Survivor Annuity ” shall mean, with respect to a Participant and his or her spouse on the Participant’s Benefit Commencement Date, a Life Annuity payable to the Participant and, commencing as of the first day of the month next succeeding the month in which the Participant’s death occurs, a Life Annuity payable to the spouse (if then living) under which the monthly payment to the spouse shall equal fifty percent (50%) of the monthly payment to the Participant.

1.81 The term “ Qualified Pre-retirement Survivor Annuity ” shall mean, with respect to the spouse of a deceased Participant, a Life Annuity payable to the spouse as of his or her Benefit Commencement Date, which shall be based on fifty percent (50%) of the Participant’s Account or Subaccount with respect to which the spouse shall be entitled to receive such annuity.

1.82 The term “ Reemployment Date ” shall mean, with respect to a former employee of an Employer who has incurred a Severance from Service Date, the date (if any) following the Severance from Service Date that the individual first completes an Hour of Service, where the term “Hour of Service” shall be defined only as in Section 1.52(a) of this Plan.

1.83 The term “ Required Beginning Date ” shall mean, with respect to a Participant, the April 1 of the calendar year following the later of (i) the calendar year in which the Participant attains age 70  ¹ / 2 or (ii) the calendar year in which the Participant retires from Employment; provided, however, that minimum distributions to a Five-percent Owner (as defined in Section 10.2(d) of the Plan) shall commence by April 1 of the calendar year following the calendar year in which the Participant attains age 70  ¹ / 2 ; further provided, however, that an Employee other than a Five-percent Owner may elect to commence distributions as of April 1 of the calendar year following the calendar year in which the Employee attains age 70  ¹ / 2 as provided in Section 6.15 of the Plan and such distributions shall be considered in-service distributions rather than minimum distributions and shall be subject to applicable withholding. Any Employee who attained age 70  ¹ / 2 in calendar years prior to

 

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2007 may elect to stop distributions and later recommence distributions by April 1 of the calendar year following the calendar year in which the Employee terminates Employment, and there shall be no new Benefit Commencement Date upon recommencement unless the Participant is required to receive his or her Nonforfeitable Account in the form of a Qualified Annuity under the terms of this Plan unless otherwise waived.

1.84 The term “ Salary Deferral Contribution ” shall mean, with respect to a Participant, an amount of the Participant’s Basic Compensation that is contributed on his or her behalf to the Trust Fund pursuant to Sections 3.3 and 4.3 of this Plan.

1.85 The term “ Salary Deferral Contributions Subaccount ” shall mean, with respect to a Participant, the Subaccount (if any) maintained to record (a) the Salary Deferral Contributions made on the Participant’s behalf; (b) (i) any elective deferral contributions (plus any earnings thereon and minus any losses thereon) that were maintained on the Participant’s behalf under the Joslyn Plan as of December 31, 1996, (ii) any elective deferral contributions (plus any earnings thereon and minus any losses thereon) that were maintained on the Participant’s behalf under the Kollmorgen Plan as of December 13, 2000, (iii) any elective deferral contributions (plus any earnings thereon and minus any losses thereon) that were maintained on the Participant’s behalf under the Delevan Plan as of December 2, 2004, and (iv) any elective deferral contributions (plus any earnings thereon and minus any losses thereon) that were maintained on the Participant’s behalf under the Deltran Plan as of December 2, 2004, (v) any elective deferral contributions (plus any earnings thereon and minus any losses thereon) that were maintained on the Participant’s behalf under the Thomson Bay City Plan as of December 30, 2005, (vi) any elective deferral contributions (plus any earnings thereon and minus any losses thereon) that were maintained on the Participant’s behalf under the Thomson Hourly Plan as of December 30, 2005, and (vii) any elective deferral contributions (plus any earnings thereon and minus any losses thereon) that were maintained on the Participant’s behalf under the Leica Plan as of December 29, 2006; (c) any additions thereto; and (d) any deductions therefrom, all as determined in accordance with this Plan.

1.86 The term “ Salary Deferral Limit ” shall mean, with respect to a calendar year, the amount determined in accordance with the following table as it may be adjusted under Code Section 402(g), except to the extent permitted under Article XII of this Plan and Code Section 414(v):

 

 

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1.87 The term “ Severance from Service Date ” shall mean, with respect to a Participant who becomes absent from Employment (with or without compensation), the date determined in accordance with Subsection (a) or (b) below, as applicable, except as otherwise provided in Subsection (c) below, if and as applicable:

(a) If the Participant’s absence resulted from the termination of his or her Employment because the Participant quit, was discharged, retired, or died, the date of such termination of his or her Employment.

(b) If the Participant’s absence did not result from the termination of his or her Employment as described in Subsection (a) above, the earlier of the date that his or her Employment subsequently terminates, as described in Subsection (a), or the date determined in accordance with Paragraph (i) or (ii) below, as applicable:

(i) If the Participant’s absence constituted an authorized leave of absence, the date one (1) year following the expiration thereof if the Participant shall have failed to return to Employment from such leave of absence without reasonable cause, as determined by the Employer or Affiliated Employer; or

(ii) The first (1st) anniversary of the first day of the Participant’s absence if Paragraph (i) above is not applicable.

(c) Notwithstanding Subsections (a) and (b) above, the Participant shall not be deemed to have incurred a Severance from Service Date if:

(i) The Participant completes at least one (1) Hour of Service within the twelve (12)-month period beginning on the earlier of the date that the Participant’s Employment terminated or the date that the Participant’s absence from Employment began, where the term “Hour of Service” shall be defined only as in Section 1.52(a) of this Plan; or

(ii) The Participant entered service in the armed forces of the United States and the Participant becomes an Employee again within the period of time required by USERRA to preserve his or her reemployment rights.

1.88 The term “ Subaccount ” shall mean, with respect to a Participant, any of the following subaccounts as may be maintained on the Participant’s behalf by the Trustee in accordance with the terms of this Plan: (a) an Employer Contributions Subaccount, (b) a Salary Deferral Contributions

 

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Subaccount, (c) a Matching Contributions Subaccount, (d) an Employee Contributions Subaccount, (e) a Transferred Contributions Subaccount, and (f) any other Subaccount as the Trustee may maintain on the Participant’s behalf as the Plan Administrator may deem necessary.

1.89 The term “ Thomson ” shall mean Thomson Industries, Inc. and its subsidiaries.

1.90 The term “ Thomson Bay City Plan ” shall mean the former Thomson Retirement Savings Plan.

1.91 The term “ Thomson Saginaw Employee ” shall mean an Employee of Thomson at its location in Saginaw, Michigan who is covered by a collective bargaining agreement with the International Union, United Automotive, Aerospace, and Agricultural Implement Workers of America (UAW) and its Local No. 2275, Unit I.

1.92 The term “ Thomson Hourly Plan” shall mean the former Thomson Retirement Savings Plan for Hourly-Rated Employees.

1.93 The term “ Transferred Contribution ” shall mean, with respect to a Participant, an amount rolled over or trustee-to-trustee transferred to the Trust Fund on the Participant’s behalf pursuant to Section 3.6 of this Plan.

1.94 The term “ Transferred Contributions Subaccount ” shall mean, with respect to a Participant, the Subaccount (if any) maintained on the Participant’s behalf to record the Transferred Contributions made on his or her behalf, any additions thereto and any deductions therefrom, all as determined in accordance with this Plan.

1.95 The term “ Trust Agreement ” shall mean the Trust Agreement Between Danaher Corporation and Fidelity Management Trust Company, as it may be amended from time to time, whereby the Trustee holds the assets of this Plan.

1.96 The term “ Trust Fund ” shall mean all cash, securities, life insurance, and real estate, and any and all other property held by the Trustee pursuant to the terms of the Trust Agreement, any additions thereto and any deductions therefrom.

1.97 The term “ Trustee ” shall mean the trustee or trustees designated in the Trust Agreement or designated pursuant to any procedure therefor provided in the Trust Agreement.

1.98 The term “ Unilateral Employer Contribution ” shall mean, with respect to an Employer, a contribution made to the Trust Fund by the Employer pursuant to Section 3.1 of this Plan.

 

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1.99 The term “ USERRA ” shall mean the Uniformed Services Employment and Reemployment Act of 1994, as it may be amended from time to time, or any subsequent corresponding law.

1.100 The term “ Valuation Date ” shall mean the last day of a calendar month.

1.101 The term “ Valuation Period ” shall mean the time period beginning on the day after a Valuation Date and ending on the next succeeding Valuation Date.

1.102 The term “ Veeder-Root ” shall mean Veeder-Root Company or its successor.

1.103 The term “ Veeder-Root Altoona Employee ” shall mean an Employee of Veeder-Root at its location in Altoona, Pennsylvania who is covered by a collective bargaining agreement with the United Steelworkers of America, AFL-CIO-CLC and its Local No. 6521.

1.104 The term “ Vested Portion ” shall mean, with respect to a Participant’s Employer Contributions Subaccount or Matching Contributions Subaccount, the portion of the Subaccount that shall not be subject to the vesting schedule in Section 5.1(a) of this Plan as determined in accordance with the following:

(a) Employer Contributions Subaccount . The Vested Portion of the Participant’s Employer Contributions Subaccount shall constitute the portion thereof (if any) that is attributable to contributions made thereto prior to July 1, 1988.

(b) Matching Contributions Subaccount . The Vested Portion of the Participant’s Matching Contributions Subaccount shall constitute the portion thereof (if any) that is attributable to contributions made thereto prior to July 1, 1988.

1.105 The term “ Year of Service ” shall mean, with respect to a Participant, the first three hundred sixty-five (365) consecutive days during the Participant’s Continuous Service or any subsequent period of three hundred sixty-five (365) consecutive days during his or her Continuous Service.

 

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ARTICLE II

PARTICIPATION

2.1 Continued Participation . Subject to Section 2.8 of this Plan:

(a) Eligible Employee . An Eligible Employee on December 31, 2007, other than an individual who ceased being an Eligible Employee on that date, shall remain an Eligible Employee on January 1, 2008.

(b) Eligible Participant . An Eligible Participant on December 31, 2007, other than an individual who ceased being an Eligible Participant on that date, shall remain an Eligible Participant on January 1, 2008.

(c) Participant . A Participant on December 31, 2007, other than an individual who ceased being a Participant on that date, shall remain a Participant on January 1, 2008.

2.2 Commencement of Participation . Subject to Section 2.7 of this Plan, an Employee shall become a Participant on the earliest date specified in Subsections (a) through (i) below, if and as applicable:

(a) Eligible Employee Electing Salary Deferral Contributions . An Employee shall become a Participant on the later of (i) the date as of which he or she becomes an Eligible Employee pursuant to Section 2.3 of this Plan or (ii) the date as of which he or she first has in effect an election relating to Salary Deferral Contributions pursuant to Section 3.3 of this Plan.

(b) Eligible Participant . An Employee shall become a Participant on the date as of which he or she becomes an Eligible Participant pursuant to Section 2.4 of this Plan.

(c) Employee with Transferred Contributions . An Employee who makes, or on whose behalf is made, a Transferred Contribution to this Plan shall become a Participant as of the date of the Trustee’s receipt of such Transferred Contribution.

(d) Kollmorgen Plan Participant . An individual who was a participant in the Kollmorgen Plan on December 13, 2000, other than an individual whose participation terminated in the Kollmorgen Plan on that date, shall become a Participant on December 13, 2000.

(e) Delevan Plan Participant . An individual who was a participant in the Delevan Plan on December 2, 2004, other than an individual whose participation in the Delevan Plan terminated on that date, shall become a Participant on December 2, 2004.

 

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(f) Deltran Plan Participant . An individual who was a participant in the Deltran Plan on December 2, 2004, other than an individual whose participation in the Deltran Plan terminated on that date, shall become a Participant on December 2, 2004.

(g) Thomson Bay City Plan Participant . An individual who was a participant in the Thomson Bay City Plan on December 30, 2005, other than an individual whose participation in the Thomson Bay City Plan terminated on that date, shall become a Participant on December 30, 2005.

(h) Thomson Hourly Plan Participant . An individual who was a participant in the Thomson Hourly Plan on December 30, 2005, other than an individual whose participation in the Thomson Hourly Plan terminated on that date, shall become a Participant on December 30, 2005.

(i) Leica Plan Participant . An individual who was a participant in the Leica Plan on December 29, 2006, other than an individual whose participation in the Leica Plan terminated on that date, shall become a Participant on December 29, 2006.

2.3 Participation as an Eligible Employee . Subject to Sections 2.5 and 2.6 of this Plan:

(a) In General . Except as otherwise provided in Subsections (b) through (g) below, as applicable, an Employee shall become an Eligible Employee on his or her Entry Date, provided that the individual is an Employee on such Entry Date.

(b) Kollmorgen Employee . An Employee of Kollmorgen on December 1, 2000, shall become an Eligible Employee on that date.

(c) Delevan Employee . A Delevan Employee on November 1, 2004, shall become an Eligible Employee on that date.

(d) Deltran Employee . A Deltran Employee on November 22, 2004, shall become an Eligible Employee on that date.

(e) Thomson Saginaw Employee . A Thomson Saginaw Employee on January 1, 2006, shall become an Eligible Employee on that date.

(f) Veeder-Root Altoona Employee . A Veeder-Root Altoona Employee on April 1, 2007, shall become an Eligible Employee on that date.

(g) Gilbarco Employee . A Gilbarco Employee on September 1, 2007, shall become an Eligible Employee on that date.

 

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2.4 Participation as an Eligible Participant . Subject to Sections 2.5 and 2.6 of this Plan:

(a) In General . Except as otherwise provided in Subsections (b) through (h) below, as applicable, an Employee shall become an Eligible Participant on the earlier of (1) the date required pursuant to the terms of the collective bargaining agreement covering the Employee as set forth in Appendix B to this Plan or (2) the anniversary of his or her Entry Date that coincides with or next follows the later of (i) the date that the individual became an Employee or (ii) the date that he or she completed one (1) Year of Service uninterrupted by a One-year Break in Service, provided that the individual is an Employee on such anniversary.

(b) Kollmorgen Employee . An Employee of Kollmorgen on December 1, 2000, who has completed one (1) Year of Service uninterrupted by a One-year Break in Service shall become an Eligible Participant on December 1, 2000.

(c) Delevan Employee . A Delevan Employee on November 1, 2004, who has satisfied the service requirements of his or her collective bargaining agreement as set forth in Appendix B shall become an Eligible Participant on November 1, 2004.

(d) Deltran Employee . A Deltran Employee on November 22, 2004, who has satisfied the service requirements of his or her collective bargaining agreement as set forth in Appendix B shall become an Eligible Participant on November 22, 2004.

(e) Thomson Saginaw Employee . A Thomson Saginaw Employee on January 1, 2006, who has completed one (1) Year of Service uninterrupted by a One-year Break in Service shall become an Eligible Participant on January 1, 2006.

(f) Veeder-Root Altoona Employee . A Veeder-Root Altoona Employee who has completed one (1) Year of Service uninterrupted by a One-year Break in Service shall become an Eligible Participant on April 1, 2007.

(g) Gilbarco Employee Hired Prior to September 1, 2007 . A Gilbarco Employee whose Employment Date precedes September 1, 2007 and who was in Employment with Gilbarco on August 31, 2007, shall become an Eligible Participant on September 1, 2007.

(h) Gilbarco Employee Hired on or after September 1, 2007 . A Gilbarco Employee whose Employment Date is on or after September 1, 2007 shall become an Eligible Participant in accordance with the provisions of Subsection (a) of this Section 2.4.

2.5 Former Employee . In the case of a former Employee who did not become an Eligible Employee pursuant to Section 2.3 of this Plan or who did not become an Eligible Participant pursuant to Section 2.4 of this Plan, as applicable, solely because he or she was not an Employee on the date as of which he or she would have become an Eligible Employee or an Eligible Participant, the individual shall become an Eligible Employee or an Eligible Participant, as applicable, on the later of (a) such

 

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date or (b) the date that he or she completes his or her first (1st) Hour of Service as a rehired Employee.

2.6 Former Eligible Employee or Former Eligible Participant . A former Employee who once was an Eligible Employee or an Eligible Participant shall again become an Eligible Employee or an Eligible Participant, respectively, on the date that he or she completes his or her first (1st) Hour of Service as a rehired Employee.

2.7 Participant in Former Plan .

(a) Joslyn Plan Participant . An individual who was not a Participant on January 1, 2008, but who was a participant in the Joslyn Plan or a predecessor thereof during any time period ending before December 31, 1996, shall become a Participant on any such date as coincides with or follows January 1, 2008, that such individual completes his or her first (1st) Hour of Service as an Employee.

(b) Kollmorgen Plan Participant . An individual who was not a Participant on January 1, 2008, but who was a Participant in the Kollmorgen Plan during any time period ending before December 13, 2000, shall become a Participant on any such date as coincides with or following January 1, 2008, that such individual completes his or her first (1st) Hour of Service as an Employee.

(c) Delevan Plan Participant . An individual who was not a Participant on January 1, 2008, but who was a Participant in the Delevan Plan during any time period ending before December 2, 2004, shall become a Participant on any such date as coincides with or following January 1, 2008, that such individual completes his or her first (1st) Hour of Service as an Employee.

(d) Deltran Plan Participant . An individual who was not a Participant on January 1, 2008, but who was a Participant in the Deltran Plan during any time period ending before December 2, 2004, shall become a Participant on any such date as coincides with or following January 1, 2008, that such individual completes his or her first (1st) Hour of Service as an Employee.

(e) Thomson Bay City Plan Participant . An individual who was not a Participant on January 1, 2008, but who was a Participant in the Thomson Bay City Plan during any time period ending before December 30, 2005, shall become a Participant on any such date as coincides with or following January 1, 2008, that such individual completes his or her first (1st) Hour of Service as an Employee.

(f) Thomson Hourly Plan Participant . An individual who was not a Participant on January 1, 2008, but who was a Participant in the Thomson Hourly Plan during any time period ending before December 30, 2005, shall become a Participant on any such date as coincides with or following January 1, 2008, that such individual completes his or her first (1st) Hour of Service as an Employee.

 

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(g) Leica Plan Participant . An individual who was not a Participant on January 1, 2008, but who was a participant in the Leica Plan during any time period ending before December 29, 2006, shall become a Participant on any such date as coincides with or following January 1, 2008, that such individual completes his or her first (1st) Hour of Service as an Employee.

2.8 Termination of Participation .

(a) Eligible Employee . An Eligible Employee who ceases being an Employee shall cease being an Eligible Employee.

(b) Eligible Participant . An Eligible Participant who ceases being an Employee shall cease being an Eligible Participant.

(c) Participant . A Participant shall cease being a Participant on the earlier of (i) the date of his or her death or (ii) the date as of which an Account is no longer maintained for him or her.

 

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ARTICLE III

CONTRIBUTIONS

3.1 Unilateral Employer Contributions . With respect to each Employer that shall be a Contributing Employer for purposes of this Section, as of each Valuation Date, (a) with respect to each individual who was an Eligible Participant of the Employer at any time during the one (1) or more Payroll Periods included in the Valuation Period ending on such Valuation Date, there shall be made a Unilateral Employer Contribution in an amount equal to the Unilateral Contribution Amount; and (b) as soon as administratively possible after the Valuation Date, the Employer shall pay to the Trustee an amount equal to the aggregate Unilateral Employer Contributions so determined for the Valuation Period ending on such date; provided, however, that, if the Valuation Date is a Forfeiture Allocation Date for the Employer, the Employer shall pay to the Trustee an amount equal to the excess (if any) of such aggregate Unilateral Employer Contributions over the balance in the Employer’s Forfeitures Account (if any) as of such Valuation Date.

For purposes of this Section 3.1, the term “ Unilateral Contribution Amount ” shall mean, with respect to an Eligible Participant, (a) or (b), as applicable:

(a) Except as otherwise required pursuant to (b) below, an amount equal to three percent (3%) of the Eligible Participant’s Basic Compensation for the Payroll Period; or

(b) The amount required pursuant to the terms of the collective bargaining agreement covering the Eligible Participant as set forth in Appendix C to this Plan.

3.2 Discretionary Employer Contributions . With respect to each Employer that shall be a Contributing Employer for purposes of this Section, if the Discretionary Percentage for the Employer for a Plan Year exceeds zero percent (0%), as of the last day of the Plan Year, (a) a Discretionary Employer Contribution shall be made on behalf of the group of individuals each of whom shall have been an Eligible Participant of the Employer on the last day of the Plan Year in an amount equal to the Discretionary Percentage multiplied by the aggregate Basic Compensation of such Eligible Participants for such Plan Year; and (b) as soon as administratively possible after the last day of the Plan Year, the Employer shall pay to the Trustee an amount equal to the Discretionary Employer Contribution so determined; provided, however, that, if the last day of the Plan Year is a Forfeiture Allocation Date for the Employer, the Employer shall pay to the Trustee an amount equal to the excess (if any) of such Discretionary Employer Contribution over the difference (if positive) between (a) the balance in the Employer’s Forfeitures Account (if any) as of such date and (b) any amount thereof as shall have been earmarked as of such date to be used as all or part of the Employer’s Unilateral Employer Contribution (if any) for the Valuation Period then ending pursuant to Section 3.1 of this Plan and/or the Employer’s Matching Contributions (if any) for the Valuation Period then ending pursuant to Section 3.4 of this Plan.

 

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3.3 Salary Deferral Contributions .

(a) Right to Defer . Subject to this Section, an Eligible Employee of an Employer that shall be a Contributing Employer for purposes of this Section may elect to have a percentage of his or her Basic Compensation for each Payroll Period during which he or she shall be an Eligible Employee and shall have in effect an election with respect thereto withheld by his or her Employer and paid to the Trust Fund as a Salary Deferral Contribution. The designated percentage of an Eligible Employee’s Basic Compensation that he or she may elect to have withheld as a Salary Deferral Contribution shall be as follows: (i) with respect to a Nonhighly Compensated Eligible Employee and to an Eligible Employee who is a Collectively Bargained Employee, (A) effective prior to January 1, 2009, a whole percentage between one percent (1%) and twenty percent (20%), inclusive, and (B) effective on and after January 1, 2009, a whole percentage between one percent (1%) and seventy-five percent (75%); and (ii) with respect to a Highly Compensated Eligible Employee other than a Highly Compensated Eligible Employee who is a Collectively Bargained Employee, (A) a whole percentage between one percent (1%) and twenty percent (20%), inclusive, if the Eligible Employee is not an Eligible Participant and (B) otherwise, a whole percentage between one percent (1%) and nine percent; provided, however, that the Plan Administrator may also take any such actions as the Plan Administrator may determine to be necessary or desirable in order to avoid distributions of Excess Contributions pursuant to Section 3.9(b)(iii) or 3.11(c) of this Plan, including, but not limited to, requiring that the designated percentage of a Highly Compensated Eligible Employee’s Basic Compensation to be withheld as a Salary Deferral Contribution shall not exceed a specified percentage determined by the Plan Administrator.

(b) Elections . Subject to any procedures established by the Plan Administrator pursuant to Subsection (d) below, a Participant may make, change, or revoke an election with respect to Salary Deferral Contributions only as described in Paragraphs (i) through (iii) below:

(i) Initial Election and Changes . An Eligible Employee may make his or her initial election to have Salary Deferral Contributions made on his or her behalf by properly completing an election form and filing it with the Plan Administrator. Such initial election shall be effective for successive Payroll Periods starting with the Payroll Period that begins on or as soon as administratively possible after the Eligible Employee’s Entry Date or, if the Eligible Employee has not filed a properly completed election form with the Plan Administrator by such date, starting with the Payroll Period that begins on or as soon as administratively possible after the Eligible Employee files a properly completed election form with the Plan Administrator so long as the Eligible Employee remains an Eligible Employee on the first (1 ^st ) day of such Payroll Period.

An Eligible Employee who has in effect an election to have Salary Deferral Contributions made on his or her behalf may change such election by properly completing an election form and filing it with the Plan Administrator. Such election shall be effective for successive Payroll Periods starting with the Payroll Period beginning as soon as administratively possible on or after the Eligible

 

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Employee files the election form with the Plan Administrator so long as the individual remains an Eligible Employee on the first day of such Payroll Period.

(ii) Revocations . An Eligible Employee may at any time revoke an existing election with respect to Salary Deferral Contributions by filing with the Plan Administrator a new election form that provides for such revocation. Any such revocation shall be effective for Payroll Periods beginning as soon as administratively possible after the date that the Eligible Employee files the election form with the Plan Administrator.

(iii) Deemed Elections . Except as otherwise provided by the Plan Administrator, the Salary Deferral Contributions designated to be made on behalf of an Eligible Employee on the last election form properly completed by the Eligible Employee and filed with the Plan Administrator shall continue until the earlier of (A) the date that the individual ceases to be an Eligible Employee or (B) the effective date of a subsequent election form with respect to Salary Deferral Contributions properly completed by the Eligible Employee and filed with the Plan Administrator.

(c) Employer Withholding and Transmittal to Trust Fund . Each Employer who has Eligible Employees on whose behalf elections with respect to Salary Deferral Contributions shall be in effect for a Payroll Period shall withhold the designated Salary Deferral Contribution from each such Eligible Employee’s Basic Compensation in accordance with the respective such election. Then, as soon as administratively possible after each Valuation Date, the Employer shall pay to the Trustee the aggregate Salary Deferral Contributions that were withheld from its Eligible Employees’ Basic Compensation for the Valuation Period that ends on such date; provided, however, that, notwithstanding an election with respect to Salary Deferral Contributions made by a Highly Compensated Eligible Employee, the Plan Administrator may take any such actions as the Plan Administrator may determine to be necessary or desirable in order to avoid distributions of Excess Contributions pursuant to Section 3.9(b)(iii) of this Plan, including, but not limited to, prohibiting the payment to the Trustee of Salary Deferral Contributions that would otherwise be so paid on behalf of the Highly Compensated Eligible Employee for the remainder of a Plan Year and specifying the amount of any Salary Deferral Contribution that would otherwise be paid to the Trustee on behalf of the Highly Compensated Eligible Employee as may be so paid.

(d) Election Form Procedures . The Plan Administrator shall adopt and may amend procedures to be followed by Eligible Employees in electing to make, to change, or to revoke Salary Deferral Contributions and, pursuant thereto, may, among other actions, format election forms, establish deadlines for elections, develop an approval process for elections, and determine the methods under which a Participant’s Salary Deferral Contributions may be distributed to him or her, if necessary, pursuant to Section 3.9 or 3.11 of this Plan.

(e) Suspension of Salary Deferral Contributions . Notwithstanding the foregoing Subsections, an Eligible Employee who has received a hardship distribution pursuant to Section 6.11

 

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of this Plan shall not be permitted to have Salary Deferral Contributions made on his or her behalf for six (6) months following the Eligible Employee’s receipt of the hardship distribution.

3.4 Matching Contributions .

(a) Required Contributions . With respect to each Employer that shall be a Contributing Employer for purposes of this Section, as of each Valuation Date, (a) with respect to each individual who was an Eligible Participant of the Employer at any time during the one (1) or more Payroll Periods included in the Valuation Period ending on such Valuation Date and on whose behalf a Salary Deferral Contribution was made for any such Payroll Period, there shall be made a Matching Contribution with respect to each such Salary Deferral Contribution in an amount equal to the Match Amount; and (b) as soon as administratively possible after the Valuation Date, the Employer shall pay to the Trustee an amount equal to the aggregate Matching Contributions so determined for the Valuation Period ending on such date; provided, however, that, if the Valuation Date is a Forfeiture Allocation Date for the Employer, the Employer shall pay to the Trustee an amount equal to the excess (if any) of such aggregate Matching Contributions over the difference between (i) the balance in the Employer’s Forfeitures Account (if any) as of such Valuation Date and (ii) any amount thereof as shall have been earmarked as of such Valuation Date to be used as all or part of the Employer’s Unilateral Employer Contribution (if any) for the respective Valuation Period pursuant to Section 3.1 of this Plan.

(b) Definition . For purposes of this Section, the term “ Match Amount ” shall mean, with respect to an Eligible Participant, (i) or (ii), as applicable:

(i) Except as otherwise required pursuant to (ii) below, an amount equal to the lesser of (A) fifty percent (50%) of the Salary Deferral Contribution or (B) three percent (3%) of the Eligible Participant’s Basic Compensation for the Payroll Period from which the Salary Deferral Contribution was withheld.

(ii) The amount required pursuant to the terms of the collective bargaining agreement covering the Eligible Participant as set forth in Appendix D to this Plan.

3.5 Additional Employer Contributions . Notwithstanding any other provision of this Plan:

(a) Corrective Contributions . An Employer shall make any such contribution to the Trust Fund on behalf of an Eligible Employee or an Eligible Participant as the Plan Administrator may determine shall be required to correct a Participant’s Account, including, but not limited to, a correction to include an individual who was erroneously excluded from participation in this Plan.

(b) Required Contributions . An Employer shall make any such contribution to the Trust Fund on behalf of an Eligible Employee or an Eligible Participant as the Plan Administrator may determine shall be required to comply with USERRA.

 

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3.6 Transferred Contributions .

(a) Rollovers . A Participant shall be entitled, upon receipt of the consent of the Plan Administrator, to have transferred to the Trust Fund cash or other property constituting:

(i) a direct rollover of an eligible rollover distribution from (1) a qualified plan described in Code Section 401(a) or 403(a), excluding after-tax employee contributions, (2) an annuity contact described in Code Section 403(b), excluding after-tax employee contributions, or (3) an eligible plan under Code Section 457(b) which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state; and

(ii) a participant contribution of an eligible rollover distribution from (1) a qualified plan described in Code Section 401(a) or 403(a), (2) an annuity contact described in Code Section 403(b), or (3) an eligible plan under Code Section 457(b) which is maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state; and

(iii) a participant rollover contribution of the portion of a distribution from an individual retirement account or annuity described in Code Section 408(a) or 408(b) that is eligible to be rolled over and would otherwise be includible in gross income.

For purposes of this Section 3.6(a), “eligible rollover distribution” shall be as defined in Code Section 402(f)(2)(A) and “direct rollover” shall be a direct trustee-to-trustee transfer in accordance with Code Section 401(a)(31).

(b) Trustee-to-trustee Transfers .

(i) Individual Transfer . A Participant shall be entitled, upon receipt of the consent of the Plan Administrator, to have transferred to the Trust Fund, in the form of a trustee-to-trustee transfer, cash or other property representing his or her account in, or benefits under, another qualified trust or a qualified annuity plan.

(ii) Plan Transfer . Pursuant to any merger of this Plan with another qualified plan, or any transfer of assets to this Plan from another qualified plan, the Plan Administrator may determine that all or any portion of the amount trustee-to-trustee transferred to the Plan on a Participant’s behalf shall be deemed to be a Transferred Contribution made on the Participant’s behalf.

 

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3.7 Conditional Employer Contributions . Any contribution made to the Trust Fund by an Employer pursuant to Section 3.1, 3.2, 3.3, 3.4 or 3.5 of this Plan shall be conditioned upon its deductibility under Code Section 404 and shall be subject to reversion to the Employer in accordance with Section 3.8 of this Plan.

3.8 Reversion of Employer Contributions . No contribution made to the Trust Fund by an Employer pursuant to Section 3.1, 3.2, 3.3, 3.4 or 3.5 of this Plan may revert to the Employer except as follows:

(a) Mistake of Fact . If the Employer made the contribution by reason of a mistake of fact, the contribution, to the extent attributable to the mistake of fact, may be returned to the Employer within one (1) year after the payment of the contribution.

(b) Deductibility . If the Internal Revenue Service disallows a deduction taken by the Employer for the contribution under Code Section 404, the contribution, to the extent determined to be nondeductible, may be returned to the Employer within one (1) year after the disallowance of the deduction.

Upon any reversion of a Salary Deferral Contribution pursuant to this Section, the Employer receiving the reversion shall pay the amount of such Salary Deferral Contribution to the Participant (or former Participant) on whose behalf the Salary Deferral Contribution was made as soon as administratively possible after the Employer’s receipt thereof.

3.9 Actual Deferral Percentage Test .

(a) In General . As soon as possible after the end of each Plan Year, the Plan Administrator shall determine whether the Actual Deferral Percentage Test is met with respect to each Eligible Employee Testing Group for the Plan Year; provided, however, that the Actual Deferral Percentage Test shall be deemed to have been met with respect to an Eligible Employee Testing Group for the Plan Year if all of the Eligible Employees in such group are (i) Highly Compensated Eligible Employees for the Plan Year or (ii) Nonhighly Compensated Eligible Employees for the Plan Year. If the Actual Deferral Percentage Test is not met with respect to an Eligible Employee Testing Group, the Plan Administrator shall take the steps in Subsection (b) below.

(b) Corrections for Compliance with Actual Deferral Percentage Test . Notwithstanding any other provision of this Plan, in order that the Actual Deferral Percentage Test shall be met for the Plan Year with respect to an Eligible Employee Testing Group, the Plan Administrator shall determine and cause to be distributed the Excess Contributions of the Eligible Employee Testing Group for the Plan Year in accordance with Paragraphs (i) through (vi) below:

(i) Reduction of Deferral Percentages . The Plan Administrator shall determine a reduced Deferral Percentage for one (1) or more Highly Compensated Eligible Employees

 

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in the Eligible Employee Testing Group pursuant to the following leveling process: (A) first, the Deferral Percentage for the Highly Compensated Eligible Employee in such group with the highest Deferral Percentage shall be reduced to equal the greater of the percentage that enables the Actual Deferral Percentage Test to be met or the second (2nd) highest Deferral Percentage of any Highly Compensated Eligible Employee in such group; (B) secondly, the Deferral Percentage for the Highly Compensated Eligible Employee in such group with the second (2nd) highest Deferral Percentage (before the reduction in (A) above) shall be reduced to equal the greater of the percentage that enables the Actual Deferral Percentage Test to be met or the third (3rd) highest Deferral Percentage of any Highly Compensated Eligible Employee in such group; and (C) such leveling process shall be continued only until the Actual Deferral Percentage Test is met when such reduced Deferral Percentages are used; provided, however, that, in the event that more than one (1) Highly Compensated Eligible Employee has the same Deferral Percentage, each such Eligible Employee’s Deferral Percentage shall be reduced (if at all) to the same percentage, which shall be determined on a pro-rata basis if necessary.

(ii) Determination of Excess Contributions . The Plan Administrator shall determine the Excess Contributions as the sum, with respect to the group of Highly Compensated Eligible Employees whose Deferral Percentages were reduced pursuant to Paragraph (i) above, of the product, calculated for each such Highly Compensated Eligible Employee, of (A) the Highly Compensated Eligible Employee’s Basic Compensation as was used to determine his or her Deferral Percentage before such reduction and (B) the difference between (I) such Deferral Percentage and (II) his or her Deferral Percentage after such reduction.

(iii) Determination of Individual Excess Contributions . The Plan Administrator shall determine, with respect to the Highly Compensated Eligible Employees in the Eligible Employee Testing Group, his or her Individual Excess Contributions as the difference between his or her Applicable Salary Deferral Contributions and his or her Applicable Salary Deferral Contributions after any reduction thereof in accordance with the following leveling process: (A) first, the Applicable Salary Deferral Contributions of the Highly Compensated Eligible Employee in such group with the highest Applicable Salary Deferral Contributions shall be reduced such that either (I) his or her Individual Excess Contributions equal the Excess Contributions or (II) his or her Applicable Salary Deferral Contributions equal the second (2nd) highest Applicable Salary Deferral Contributions of any Highly Compensated Eligible Employee in such group, based on whichever reduction is less; (B) secondly, the Applicable Salary Deferral Contributions of the Highly Compensated Eligible Employee in such group with the second (2nd) highest Applicable Salary Deferral Contributions shall be reduced such that either (I) the aggregate Individual Excess Contributions so determined equal the Excess Contributions or (II) his or her Applicable Salary Deferral Contributions equal the third (3rd) highest Applicable Salary Deferral Contributions of any Highly Compensated Eligible Employee in such group, based on whichever reduction is less; and (C) such leveling process shall be continued only until the aggregate Individual Excess Contributions so determined equal the Excess Contributions; provided, however, that, in the event that more than one (1) Highly Compensated Eligible Employee has the same amount of Applicable Salary Deferral

 

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Contributions, each such Eligible Employee’s Applicable Salary Deferral Contributions shall be reduced (if at all) to the same amount, which shall be determined on a pro-rata basis if necessary.

(iv) Distribution of Distributable Excess Contributions . On any Distribution Date, the Plan Administrator shall cause to be distributed to each Highly Compensated Eligible Employee in the Eligible Employee Testing Group (other than any such Highly Compensated Eligible Employee who has no balance in his or her Salary Deferral Contributions Subaccount) his or her Distributable Excess Contributions (if any) (or any such lesser amount as remains in his or her Salary Deferral Contributions Subaccount), plus or minus any earnings or losses, respectively, allocable thereto as determined pursuant to Paragraph (vi)(A) below.

(v) Forfeiture of Matching Contributions . Any Matching Contributions attributable to a Participant’s Distributable Excess Contributions, plus or minus any earnings or losses, respectively, allocable thereto as determined pursuant to Paragraph (vi)(B) below, shall be forfeited as of the Distribution Date applicable pursuant to Paragraph (iv) above.

(vi) Determination of Earnings or Losses .

(A) Distributable Excess Contributions . The earnings or losses allocable to a Participant’s Distributable Excess Contributions as of the applicable Distribution Date shall equal (I) the aggregate earnings or losses allocable to the Participant’s Salary Deferral Contributions for the Plan Year multiplied by (II) a fraction, the numerator of which is the amount of the Participant’s Distributable Excess Contributions and the denominator of which is (1) the balance in the Participant’s Salary Deferral Contributions Subaccount as of the first (1st) day of the Plan Year plus (2) the Salary Deferral Contributions made on the Participant’s behalf for the Plan Year.

(B) Forfeited Matching Contributions . The earnings or losses allocable to a Participant’s Matching Contributions forfeited pursuant to Paragraph (v) above as of the applicable Distribution Date shall equal (I) the earnings or losses allocable to the Matching Contributions made on the Participant’s behalf for all or the portion of the Plan Year preceding the Distribution Date multiplied by (II) a fraction, the numerator of which is the amount of the Matching Contributions to be forfeited and the denominator of which is (1) the balance in the Participant’s Matching Contributions Subaccount as of the first (1st) day of the Plan Year plus (2) the Matching Contributions made on the Participant’s behalf