FISHER SCIENTIFIC INTERNATIONAL
INC.
DEFERRED COMPENSATION
PLAN
Effective January 1,
2006
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
DEFINITIONS AND
GENERAL PROVISIONS
|
|
|
1
|
|
|
|
|
|
|
|
|
|
|
|
|
ELIGIBILITY AND
PARTICIPATION
|
|
|
4
|
|
|
|
|
|
|
|
|
|
|
|
|
DEFERRED
COMPENSATION AND MATCHING CREDITS
|
|
|
5
|
|
|
|
|
|
|
|
|
|
|
|
|
VESTING
|
|
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
DISTRIBUTION OF
BENEFITS
|
|
|
6
|
|
|
|
|
|
|
|
|
|
|
|
|
PLAN
ADMINISTRATION
|
|
|
8
|
|
|
|
|
|
|
|
|
|
|
|
|
AMENDMENT AND
TERMINATION
|
|
|
10
|
|
|
|
|
|
|
|
|
|
|
|
|
MISCELLANEOUS
PROVISIONS
|
|
|
11
|
|
i
FISHER SCIENTIFIC INTERNATIONAL
INC.
DEFERRED COMPENSATION
PLAN
The Fisher
Scientific International Inc. Deferred Compensation Plan (the
“Plan”) is hereby adopted effective as of
January 1, 2006 by Fisher Scientific International Inc., a
Delaware corporation (the “Company”), for the benefit
of a select group of the management and highly compensated
employees of the Company and of its affiliated entities.
A. The
Company desires to adopt the Plan in order to provide certain of
its highly compensated and management employees with the
opportunity to defer a portion of their base salary and bonus
amounts otherwise payable to them.
B. The
Company intends for the Plan to be an unfunded, nonqualified
deferred compensation arrangement as provided under the Employee
Retirement Income Security Act of 1974, as amended
(“ERISA”), and to satisfy the requirements of a
“top hat” plan thereunder and under Labor
Regulation Section 2520.104-23.
C. The Plan
is intended to comply with the requirements of The American Jobs
Creation Act of 2004 (“AJCA”) and new Section 409A
of the Internal Revenue Code of 1986, as amended
(“Code”). To the extent inconsistent with
Section 409A or regulations or guidance issued thereunder,
this Plan shall be amended and/or interpreted to conform to such
requirements within applicable time limitations established by the
Internal Revenue Service (“IRS”).
DEFINITIONS AND GENERAL
PROVISIONS
1.1
Definitions . Unless the context requires otherwise, the
terms defined in this Article shall have the meanings set forth
below unless the context clearly requires another meaning. When the
defined meaning is intended, the term is capitalized:
(a)
Account . The bookkeeping account described in
Section 3.3 under which contributions and earnings are
credited on behalf of a Participant.
(b) Base
Salary . The base compensation earned by an Eligible Employee
for services rendered and paid in accordance with normal payroll
practice.
(c)
Beneficiary . The person(s) entitled to receive any
distribution hereunder upon the death of a Participant. The
Beneficiary for benefits payable under this Plan shall be the
beneficiary designated by the Participant in accordance with
procedures established by the Management Subcommittee as of the
Participant’s date of death, or, in the absence of any such
designation, the Participant’s estate.
(d)
Board . The Board of Directors of the Company.
(e)
Bonus . An amount paid or payable by the Employer to an
Eligible Employee for a Plan Year that is not part of the Eligible
Employee’s base salary, wages or commissions but is based on
the Eligible Employee’s performance under certain pre-agreed
criteria for the Employer during the Plan Year, including, but not
limited to amounts received under the Long-Term Incentive Program
and any other bonus or incentive program. Unless the context
clearly indicates otherwise, a Bonus includes a Performance-Based
Bonus.
(f)
Code . The Internal Revenue Code of 1986, as amended from
time to time.
(g)
Company . Fisher Scientific International Inc. or any
successor thereto.
(h)
Distributions . The standard form of payment shall be a
single lump sum payment in Shares as determined by the Management
Subcommittee to the extent permitted by Code Section 409A and
regulations thereunder.
(i)
Effective Date . January 1, 2006.
(j)
Eligible Employee . Any Employee who is (i) among a
select group of management or highly compensated employees (within
the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of
ERISA), and (ii) designated by the Management Subcommittee as
eligible to make contributions under Article II of the
Plan.
(k)
Employee . Any person who, on or after the Effective Date,
is receiving remuneration for personal services rendered to an
Employer (or who would be receiving such remuneration except for an
authorized leave of absence).
(l)
ERISA . The Employee Retirement Income Security Act of 1974,
as amended from time to time.
(m)
Employer . The Company, or a successor thereto which adopts
the Plan, and its Related Employers.
(n)
Management Subcommittee . The Management Subcommittee of the
Compensation Committee of the Board of Directors. The Management
Subcommittee has the authority to oversee the administration of the
Plan.
(o)
Participant . Any Eligible Employee who meets the
eligibility requirements for participation in the Plan as set forth
in Article II and who has an Account under the
Plan.
(p)
Performance-Based Bonus . Subject to additional guidance
and/or regulations issued by the Treasury Department and/or the
IRS, a Performance-Based Bonus is a Bonus that is based on services
performed over a period of at least twelve (12) months and
that satisfies the following:
(i) the payment of
the Bonus or the amount of the Bonus is contingent on the
satisfaction of organizational or individual performance criteria;
and
2
(ii) the
performance criteria are not substantially certain to be met at the
time a deferral election is permitted.
A
Performance-Based Bonus may include payments based on subjective
performance criteria, except that:
(i) any subjective
performance criteria must relate to the performance of the
Participant, a group of service providers that includes the
Participant, or a business unit for which the Participant provides
services (which may include the entire Employer); and
(ii) the
determination that any subjective performance criteria have been
met must not be made by the Participant or a family member of the
Participant (as defined in Code Section 267(c)(4) applied as if the
family of an individual includes the spouse of any member of the
family).
(q)
Plan . The Fisher Scientific International Inc. Deferred
Compensation Plan, as set forth herein, and as such Plan may be
amended from time to time hereafter.
(r) Plan
Year . The fiscal year of the Plan, which is the twelve
(12) consecutive month period beginning January 1 and ending
December 31.
(s)
Related Employers . With respect to the Company, a
controlled group of corporations (as defined in Code
Section 414(b)), trades or business (whether or not
incorporated) which are under common control (as defined in Code
Section 414(c)), or an affiliated service group (as defined in
Code Sections 414(m) and (o)).
(t)
Reporting Person . Eligible Employees who are subject to
Section 16 of the Securities Exchange Act of 1934, as
amended.
(u)
Separation from Service or Separate from Service . A
termination of employment occurring when an Employee ceases to be
an Employee of the Employer. An Eligible Employee does not
“Separate from Service” or have a “Separation
from Service” if, in connection with a change of employment,
the Employee’s new employer is an Employer (as defined in
Section 1.1(n)).
(v)
Shares . The common shares, with $.01 per share par value,
of the Company.
(w) Total
Disability . For purposes of the Plan, Total Disability
means:
(i) the
Participant is unable to engage in any substantial gainful activity
by reason of any medically determinable physical or mental
impairment which can be expected to result in death or can be
expected to last for a continuous period of not less than twelve
(12) months; or
(ii) the
Participant is, by reason of any medically determinable physical or
mental impairment which can be expected to result in death or can
be expected to last for a continuous period of not less than twelve
(12) months, receiving income replacement
3
benefits for a
period of not less than three (3) months under an accident or
health plan covering the Employer’s employees.
1.2 General
Provisions . The masculine wherever used herein shall include
the feminine; singular and plural forms are interchangeable.
Certain terms of more limited application have been defined in the
provisions to which they are principally applicable. The division
of the Plan into Articles and Sections with captions is for
convenience only and is not to be taken as limiting or extending
the meaning of any of its provisions.
ELIGIBILITY AND
PARTICIPATION
2.1 General
Eligibility Conditions . To become eligible to participate in
the Plan, an individual must be (a) among a select group of
management or highly compensated employees within the meaning of
Sections 201(2), 301(a)(3), and 401(a)(1) of ERISA, and
(b) designated as an Eligible Employee by the Management
Subcommittee to make Base Salary or Bonus deferral contributions
under the Plan. In order to receive a benefit under the Plan,
however, a Participant must also meet the requirements of
Sections 2.2 and 2.3.
2.2 Specific
Conditions for Active Participation . To participate actively
in the Plan ( i.e. , to make deferrals hereunder), an
Eligible Employee must execute or acknowledge either a Base Salary
and/or Bonus deferral agreement, or otherwise agree to defer some
or all of his Base Salary or Bonus in accordance with such other
procedures, including electronic enrollment, as are established by
the Management Subcommittee from time to time (the “Deferral
Agreement”). A Participant’s Deferral Agreement shall
be maintained by or on behalf of the Management Subcommittee and
must be executed, acknowledged, filed or submitted electronically
within thirty (30) days of first becoming eligible to
participate in the Plan and, for all subsequent deferral elections
after initial participation:
(a) For a
Performance-Based Bonus, no later than six (6) months before
the end of the twelve (12)-month performance period for which the
Performance-Based Bonus is awarded;
(b) If the
Bonus is not a Performance-Based Bonus, in advance of the beginning
of the Plan Year during which such Bonus is expected to be
earned;
(c) If a Base
Salary deferral, in advance of the beginning of the Plan Year;
or
(d) At such
other time as may be required by guidance and regulations issued
under Code Section 409A.
An election to
participate and defer Base Salary or Bonus shall be irrevocable
with respect to the amounts to which it applies and may be amended,
revoked or suspended by the Participant only effective as of the
January 1 st
following the amendment, revocation
or suspension in accordance with procedures established by the
Management Subcommittee, unless regulations or other guidance
issued under Code Section 409A permit amendment, revocation or
suspension as of some other time.
4
2.3 Eligibility
List; Suspension of Active Participation . The Management
Subcommittee shall maintain a written list of those Employees who
then qualify as Eligible Employees under the Plan. Any Participant
not listed as an Eligible Employee for a given Plan Year shall
cease to have the right to defer any amounts for such Plan Year.
However, any amounts credited to the Account of a Participant whose
participation is suspended shall otherwise continue to be
maintained under the Plan in accordance with its terms.
2.4 Termination
of Participation . Once an Eligible Employee becomes a
Participant, such individual shall continue to be a Participant
until such individual ceases: (i) to be described as an
Eligible Employee, and (ii) to have any vested interest in the
Plan (as a result of distributions made to such Participant or his
Beneficiary, if applicable, or otherwise).
3.1 Deferral
Contributions . Pursuant to the provisions of Article II
and this Article III, a Participant and the Employer may, by mutual
agreement, provide for deferred and postponed payment of a portion
of the Participant’s Base Salary or Bonus which otherwise
would be paid for the applicable Plan Year(s) for services to be
rendered in such year(s) (referred to as “Deferral
Contributions”). All elections to defer all or part of Base
Salary or Bonus must be made in accordance with Section 2.2
above. A Participant who is an Eligible Employee may defer up to
one hundred percent (100%) of his Base Salary and/or Bonus. The
Management Subcommittee may, in its discretion, establish and
change from time to time a minimum and maximum amount that may be
so deferred by Participants. Elections shall be made in accordance
with procedures established by the Management Subcommittee. In
addition, special limitations may be established by the Management
Subcommittee to apply to the deferral of any amount that a
Participant is expected to receive.
3.2 Suspension
of Deferrals . Deferral Contributions hereunder will be
automatically suspended during any unpaid leave of absence or
temporary layoff. Deferral Contributions suspended in accordance
with the provisions of this paragraph shall be automatically
resumed, without the necessity of any action by the Participant,
upon return to employment at the expiration of such suspension
period.
3.3 Record of
Account . Solely for the purpose of measuring the amount of the
Employer’s obligations to each Participant or his
Beneficiaries under the Plan, the Management Subcommittee will
maintain a separate bookkeeping record as an “Account,”
for each Participant in the Plan. The Management Subcommittee will
credit a Participant’s Deferral Contributions for each Plan
Year to the Participant’s Account from time to time as the
deferred amounts otherwise would have been earned by the
Participant.
Unless the
Management Subcommittee, in its sole discretion, provides for
another method of investing amounts under the Plan, a
Participant’s Account shall be invested in whole Shares. Any
surplus cash shall be held separately and invested in Shares when
sufficient value has been achieved. On the date when Deferral
Contributions are credited to the Participant’s Account, the
Management Subcommittee shall direct that such Deferral
Contributions be applied
5
toward the
purchase of Shares and will credit the Participant’s Account
with a number of Shares having a Value equal to the
Participant’s Deferral Contributions. For purposes of this
Plan, the “Value” of a Share on a particular day shall
mean
|
