Exhibit 10.2
Danaher
Corporation
Non-Employee Directors’
Deferred Compensation Plan
As Amended and Restated Effective as
of January 1, 2009
Established under the
Danaher Corporation 2007 Stock
Incentive Plan
TABLE OF CONTENTS
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Page
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Article 1.
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Introduction
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1
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Article 2.
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Definitions
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1
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Article 3.
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Eligibility and
Participation
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4
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Article 4.
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Deferral
Opportunity
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4
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Article 5.
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Deferred
Compensation Accounts
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6
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Article 6.
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Beneficiary
Designation
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7
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Article 7.
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Rights of
Participants
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7
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i
Danaher
Corporation
Non-Employee Directors’
Deferred Compensation Plan
Article
1. Introduction.
The primary purpose of the Danaher
Corporation Non-Employee Directors’ Deferred Compensation
Plan (the “Sub-Plan”) is to provide non-employee
directors of Danaher Corporation, a Delaware corporation, with the
opportunity to voluntarily defer all or a portion of their
Compensation, subject to the terms of the Sub-Plan.
The Sub-Plan was established under,
and constitutes a part of, the Danaher Corporation 2007 Stock
Incentive Plan, as amended and restated effective as of
January 1, 2009 (the “2007 Stock Incentive Plan”).
For the avoidance of doubt, the Sub-Plan is subject to all
applicable terms of the 2007 Stock Incentive Plan, except for
Section 11 of the 2007 Stock Incentive Plan.
Article
2. Definitions
Capitalized terms not otherwise
defined herein shall have the same meanings set forth in the 2007
Stock Incentive Plan. Whenever used herein, the following terms
shall have the meanings set forth below, and, when the defined
meaning is intended, the term is capitalized:
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(a)
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“Administrator” means Administrator
as defined in Section 2 of the 2007 Stock Incentive Plan and
shall include any Employee to whom the Administrator has delegated
certain administrative functions related to the operation and
maintenance of the Sub-Plan.
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(b)
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“Chairperson Fees” means fees paid
by the Company to a Director, in cash, for serving as Chairperson
of a Board Committee during the relevant Plan Year and which is
exclusive of any Retainer or Meetings Fees earned during such Plan
Year.
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(c)
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“Change
in Control” of the Company means, and shall be deemed to have
occurred upon, any of the following events in accordance with
Section 409A of the Code:
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(i)
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a “change
in ownership of the Company” which means the date that any
one person, or more than one person acting as a group (as defined
below), acquires ownership of stock of the Company that, together
with stock held by such person or group, constitutes more than 50%
of the total fair market value or total voting power of the stock
of the Company; provided, that, if any one person or more than one
person acting as a group, is considered to own more than 50% of the
total fair market value or total voting power of the stock of the
Company, the acquisition of additional stock by the same person or
persons is not considered to cause a change in the ownership of the
Company (or to cause a “change in the effective
control” (as defined in subsection (ii) below). An
increase in the percentage of stock owned by any one person, or
persons acting as a group, as a result of a transaction in which
the Company acquires its stock in exchange for property will be
treated as an acquisition of stock for purposes of this
section.
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(ii)
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a “change
in effective control of the Company,” which means the date
that either: (A) any one person, or more than one person
acting as a group (as defined below), acquires (or has acquired
during the 12-month period ending on the date of the most recent
acquisition by such person or persons) ownership of stock of the
Company possessing 30% or more of the total voting power of the
stock of the Company; or (B) a majority of members of the
Board are replaced during any 12-month period by directors whose
appointment or election is not endorsed by a majority of the
members of the Board prior to the date of the appointment or
election.
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(iii)
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a “change
in the ownership of a substantial portion of the Company’s
assets,” which means the date that any one person, or more
than one person acting as a group (as defined below), acquires (or
has acquired during the 12-month period ending on the date of the
most recent acquisition by such person or persons) assets from the
Company that have a total gross fair market value equal to or more
than 40% of the total gross fair market value of all of the assets
of the Company immediately prior to such acquisition or
acquisitions. For this purpose, gross fair market value means the
value of the assets of the Company, or the value of the assets
being disposed of, determined without regard to any liabilities
associated with such assets. Notwithstanding the foregoing, a
Change of Control shall not occur when there is a transfer to an
entity that is controlled by the shareholders of the Company
immediately after the transfer, as provided in this paragraph
(iii). A transfer of assets by the Company is not treated as a
change in the ownership of such assets if the assets are
transferred to:
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(A)
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A shareholder
of the Company (immediately before the asset transfer) in exchange
for or with respect to its stock;
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(B)
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An entity, 50%
or more of the total value or voting power of which is owned,
directly or indirectly, by the Company;
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(C)
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A person, or
more than one person acting as a group (as defined below), that
owns, directly or indirectly, 50% or more of the total value or
voting power of all the outstanding stock of the Company;
or
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(D)
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An entity, at
least 50% of the total value or voting power of which is owned,
directly or indirectly, by a person described in paragraph
(C).
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Persons will not be considered to be
acting as a group solely because they purchase assets of the same
corporation at the same time, or (with respect to (i) and
(ii) above) as a result of the same public offering. However,
persons will be considered to be acting as a group if they are
owners of a corporation that enters into a merger, consolidation,
purchase or acquisition of assets, or similar business transaction
with the corporation. If a person, including an entity shareholder,
owns stock in both corporations that enter into a merger,
consolidation, purchase or acquisition of assets, or similar
transaction, such shareholder is considered to be acting as a group
with other shareholders in a corporation only to the extent of the
ownership in that corporation prior to the transaction giving rise
to the change and not with respect to the ownership interest in the
other corporation.
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(d)
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“Compensation” means the Retainer,
Meeting Fees and, if applicable, Chair-person Fees payable to a
Participant by the Company for services performed as a Director
during a Plan Year. In no event, however, shall amounts paid in the
form of Company stock, stock options or other Company securities
qualify as Compensation eligible for deferral under the
Sub-Plan.
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(e)
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“Director” means each member of the
Board of Directors of the Company who (i) is not an employee
of the Company or any Subsidiary of the Company, and
(ii) receives a Retainer, Meeting Fees and/or Chairperson Fees
for service on the Board of Directors.
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(f)
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“Effective Date” means
September 12, 2007.
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(g)
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“Meeting
Fees” means fees paid by the Company to a Director, in cash,
for attendance at Board and various Board committee meetings during
the relevant Plan Year, and which is exclusive of any Retainer or
Chairperson Fees earned during such Plan Year. For the purposes of
the Sub-Plan, “Meeting Fees” shall not include any fees
paid or payable in Company stock, stock options or other Company
securities.
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(h)
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“Participant” means any Director who
is actively participating in the Sub-Plan.
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(i)
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“Phantom
Shares” means a fictitious share of the Company which is a
unit of measurement of the amount payable to Participants under the
Plan and does not constitute stock or any other equity interest in
the Company (or any of its subsidiaries or affiliates) and does not
have any rights of equity ownership in the Company. The sole
significance of Phantom Shares is to establish a method of
measuring the number of shares of Common Stock distributable in
respect of amounts deferred under the Plan.
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(j)
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“Plan Year” means
the fiscal year of the Company beginning on January 1
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and ending on
December 31st.
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(k)
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“Retainer” means the annual cash
retainer paid by the Company and earned by a Director during the
relevant Plan Year with respect to the Director’s service on
the Board, and which is e
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