Exhibit 10.33


 


THE EXCESS SAVINGS PLAN


 


OF


 


CELERA CORPORATION


 


 


Effective July 1,
2008


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page No.

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
   

  	
  Definitions

  	
   

  	
  1

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
   

  	
  Purpose of Plan

  	
   

  	
  5

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
   

  	
  Eligibility

  	
   

  	
  6

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
   

  	
  Benefits

  	
   

  	
  7

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
   

  	
  Investment Direction

  	
   

  	
  10

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
   

  	
  Administration

  	
   

  	
  13

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
   

  	
  Amendment and Termination

  	
   

  	
  16

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
   

  	
  Trust

  	
   

  	
  17

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
   

  	
  Miscellaneous

  	
   

  	
  18

  	
   

  



 

















 


THE EXCESS SAVINGS PLAN


 


OF


 


CELERA CORPORATION


 


The Celera Corporation, a
Delaware corporation having its principal place of business in Alameda,
California, hereby adopts as of July 1, 2008, The Excess Savings Plan of
Corporation.


 


Prior to July 1,
2008, Celera Corporation was operated as a business unit of Applera
Corporation, became a wholly-owned subsidiary of Applera Corporation, and after
its split-off from Applera Corporation, Celera Corporation became a separate
public company.  In addition to providing
retirement benefits where contributions are limited under the Savings Plan
because of the application of Code Section 415 and Code Section 401(a)(17)
for Employees of Celera, this Plan is being established to administer accrued
benefits and account balances earned pursuant to the Excess Benefit Plan of
Applera Corporation and the Applera Corporation Supplemental Executive
Retirement Plan by Participants who previously were Employees of Applera
Corporation.


 


ARTICLE 1


Definitions


 


The words and phrases
defined hereinafter shall have the following meaning:


 


Section 1.1
– Act.  Shall mean the Employee
Retirement Income Security Act of 1974, as amended.


 


Section 1.2
– Beneficiary.  Shall mean the
person or persons named under the provisions of Section 4.4 of this Plan.


 


Section 1.3
– Board of Directors.  Shall mean
the Board of Directors of the Company.


 


Section 1.4
– Change in Control Event.  shall
mean and shall be deemed to occur upon a Change in Ownership, a Change in
Effective Control, or a Change in Ownership of Substantial Assets.  For this purpose:


 


(a)           A
“Change in Ownership” shall mean that a
person or group acquires more 


 


1

















 


than fifty percent (50%) of the aggregate fair market value or voting
power of the capital stock of the Company, including for this purpose capital
stock previously acquired by such person or group; provided, however, that a
Change in Ownership shall not be deemed to occur hereunder if, at the time of
any such acquisition, such person or group owns more than fifty percent (50%)
of the aggregate fair market value or voting power of the Company’s capital
stock.


 


(b)           A
“Change in Effective Control” shall mean
that (a) a person or group acquires (or has acquired during the
immediately preceding twelve (12)-month period ending on the date of the most
recent acquisition by such person or group) ownership of the capital stock of
the Company possessing thirty percent (30%) or more of the total voting power
of the Company, or (b) a majority of the members of the Board of the Company
is replaced during any twelve (12)-month period, whether by appointment or
election, without endorsement by a majority of the members of the Board prior
to the date of such appointment or election.


 


(c)           A
“Change in Ownership of Substantial Assets”
shall mean that any person or group acquires (or has acquired during the
immediately preceding twelve (12)-month period ending on the date of the most
recent acquisition) assets of the Company with an aggregate gross fair market
value of not less than forty percent (40%) of the aggregate gross fair market
value of the assets of the Company immediately prior to such acquisition.  For this purpose, gross fair market value
shall mean the fair value of the affected assets determined without regard to
any liabilities associated with such assets.


 


The Board shall determine whether a Change in Control
Event has occurred hereunder in a manner consistent with the provisions of Section 409A
and the regulations and applicable guidance promulgated thereunder.


 


Section 1.5
– Code.  Shall mean the Internal
Revenue Code of 1986, as amended, or as it may be amended from time to time.


 


Section 1.6–
Company.  Shall mean the Celera
Corporation, a Delaware corporation, or any successor to it in ownership of all
or substantially all of its assets.


 


Section 1.7–
Committee.  Shall mean the
Committee as appointed by the Board of Directors and shall be the same
Committee as constituted under Article 10 of the Celera Corporation
Deferred Compensation Plan.


 


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Section 1.8
– Defined Contribution Account – Shall mean the book account which
reflects the credits under Section 4.1(a) of the Plan,  adjusted to take into account investment
income and gain or loss experienced by the Measurement Funds as selected by the
Participant or other investment as selected by the Committee.


 


Section 1.9 –
Defined Contribution Credit – Shall mean the credit to a Participant’s
Defined Contribution Account under Section 4.1(a) of the Plan.


 


Section 1.10
– Effective Date.  Shall mean July 1,
2008.


 


Section 1.11
– Employee.  Shall mean any
person, including any officer or director who is employed in the service of the
Company and who is a participant in the Savings Plan.


 


Section 1.12
– Grandfathered Benefits – Shall mean any benefit or credit under the
Prior Plan or the SERP which has been transferred to the Plan in connection
with the Company’s split-off from Applera Corporation, and which was vested
prior to January 1, 2005 and has been determined to be exempt from the
provisions of Section 409A of the Code pursuant to IRS regulations.


 


Section 1.13 – Measurement
Funds.  Shall mean a fund selected by
the Committee for the purpose of crediting additional amounts to a Participant’s
Defined Contribution Account or SERP Accrued Benefit Account.  A Participant may elect one or more of the
Measurement Funds.  The Committee may, in
its sole discretion, discontinue, substitute or add a Measurement Fund on a
prospective basis at any time and in any manner it deems appropriate.


 


Section 1.14
– Plan.  The Excess Savings Plan
of  Celera Corporation.


 


Section 1.15
– Prior Plan.  The Excess Benefit
Plan of Applera Corporation, including amounts earned and vested prior to January 1,
2005, such amounts shall be governed by the terms of the Prior Plan in effect
on October 3, 2004 and nothing in this Plan Document shall affect amounts
previously earned and vested under the Prior Plan.  It is intended that all amounts earned and
vested under the Prior Plan prior to January 1, 2005 shall be considered
grandfathered from the application of Section 409A.


 


Section 1.16
– Prior Plan Account.  Shall mean
the book account which reflects the account balance transferred from the Prior
Plan under Section 4.1(b) of the Plan,  adjusted 


 


3

















 


to take into
account investment income and gain or loss experienced by the Measurement Funds
as selected by the Participant or other investment as selected by the
Committee.


 


Section 1.17
– Prior Savings Plan.  Shall mean
the Employee 401(k) Savings Plan of Applera Corporation.


 


Section 1.18 – Plan Year.  Shall mean
each twelve (12) consecutive month period from July 1 to the next
succeeding June 30.


 


Section 1.19 –
Savings Plan.  – Shall mean the
Celera Corporation 401(k) Plan.


 


Section 1.20
– Section 409A – Shall mean Section 409A of the Code and the
Treasury regulations and applicable guidance promulgated thereunder.


 


Section 1.21
– Section 409A Benefits – Shall mean any benefit or credit which
first became vested after December 31, 2004 or accrued or was credited
after December 31, 2004 including amounts accrued or credited under the
Prior Plan which has been transferred to the Plan in connection with the
Company’s split-off from Applera Corporation.


 


Section 1.22
– SERP – Shall mean the Applera Corporation Supplemental Executive
Retirement Plan.


 


Section 1.23
– SERP Accrued Benefit Account – Shall mean the book account established
to hold a Participant’s accrued benefit, if any, earned pursuant to Article 4
of the SERP, during such Participant’s employment with Applera, calculated as
of July 1, 2008 (or such other relevant date as specified by the
Committee), which has been transferred to the Plan following the Company’s
split-off from Applera Corporation, adjusted to take into account investment
income and gain or loss (but no further benefit accrual) experienced by the
Measurement Funds as selected by the Participant or other investment as
selected by the Committee.


 


Section 1.24
– Specified Employee – Shall mean one of the top fifty (50) highest
compensated employees of the Company and its controlled group determined
pursuant to the Company’s procedures and consistent with Section 409A and
the regulations promulgated thereunder.


 


Any word or phrase that
is not a defined term in this section, which is a defined word or term in the
Savings Plan,  the Prior Plan or the SERP
and is used in this Plan, shall have the same meaning as it does in the Plan in
which it appears.


 


4

















 


ARTICLE 2


Purpose
of Plan


 


Section 2.1
- Purpose.  This Plan is designed
to provide retirement benefits payable out of the general assets of the Company
where contributions are limited under the Savings Plan because of the
application of Code Section 415 and Code Section 401(a)(17) and the
provisions of the Savings Plan which implement such sections.  In addition to providing retirement benefits
where contributions are limited under the Savings Plan because of the
application of Code Section 415 and Code Section 401(a)(17) for
Employees of Celera, this Plan is being established to administer accrued
benefits and account balances earned pursuant to the Prior Plan and/or the SERP
by Participants who previously were Employees of Applera Corporation.


 


5

















 


ARTICLE 3


Eligibility


 


Section 3.1
- Eligibility.  Participation in
the Plan shall be limited to a select group of management or highly compensated
Employees of the Company, as determined by the Committee in its sole
discretion.  From that group, the
Committee shall select in its sole discretion, Employees to participate in the
Plan.


 


6

















 


ARTICLE 4


Benefits


 


Section 4.1 – Amount of Benefits. 
The benefit payable under this Plan shall be equal to the sum of the
following amounts:


 


(a)                   an amount equal to the
Company Matching Contributions which would have been allocated on behalf of the
Employee under Section 1.10 of the Savings Plan if the limitations of Code
Sections 401(a)(17) and 415 were inapplicable; and


 


(b)                  the account balance, if
any, under the Prior Plan attributable to the account balance accumulated
pursuant to the Prior Savings Plan because such contributions were limited due
to the application of Code Section 415 and Code Section 401(a)(17)
and the provisions of the Prior Savings Plan which implemented such sections
which account balance, under the Prior Plan has been transferred to and assumed
by the Company; and


 


(c)                   an amount equal to the SERP Accrued Benefit Account,
if any.


 


In order to receive a Defined Contribution Credit, pursuant
to Section 4.1(a) of the Plan, the Employee must make a Deferral
Contribution to the Savings Plan equal to the Section 402(g) of the
Code limitation.  The amount of the
Defined Contribution Credit under this Plan shall be equal to the lesser of (i) six
percent (6%) of the Employee’s gross compensation before pre-tax reductions or (ii) the
Section 402(g) of the Code limitation offset by the Company Matching
Contribution in the Savings Plan.


 


Section 4.2 – Form of Benefit Payment.


 


(a)                   Grandfathered Benefits payable to or on behalf of an
Employee or his Beneficiary resulting from the provisions of Section 4.1
shall be payable as follows:


 


(i)      The form of a benefit payable under Section
4.1(a) shall be in a lump sum.


 


(ii)     A Grandfathered Benefit payable under
Section 4.1(b) shall be paid in accordance with the terms of the Prior Plan,
including the election forms executed by the Participant pursuant to the Prior
Plan.  Notwithstanding the foregoing, if
the lump sum present value of an Employee’s benefit at time of payment is equal
to or less than $5,000, such benefit shall be paid in a lump sum.


 


7














 


(iii)         The benefit payable pursuant to the SERP
shall be paid in accordance with the terms of the SERP, including the election
forms, if any, executed by the Participant under the SERP.


 


(b)                  Section 409A Benefits. Benefits under both Section 4.1(a) and
(b) shall be paid in a lump sum.


 


Section 4.3 - Time of Benefit Payments.


 


(a)                   Grandfathered Benefits due under this Plan shall be
paid at such time or times following the Employee’s termination, retirement or
death as the Committee in its discretion determines.


 


(b)                  Unless distributed earlier as provided in this Plan
and/or permitted pursuant to Code Section 409A, distributions of a
Participant’s Section 409A Benefits and SERP Accrued Benefit Account, if
any, shall be paid or shall commence within sixty (60) days of the earlier of a
Participant’s separation from service or death. If a Participant is classified
as a Specified Employee at the time of such Participant’s separation from
service, then, to the extent necessary to comply with Section 409A of the
Code, distributions of such Participant’s Code Section 409A Benefits and
SERP Accrued Benefit Account shall be paid (or commence) during the thirty (30)
day period following the six (6) month anniversary of such Participant’s
separation from service.


 


Section 4.4 - Beneficiary in the Event of Death.


 


(a)                   Each Employer shall have the
right, at any time, to designate his Beneficiary for purposes of the Section 4.1(a) Defined
Contribution Account to receive any benefits payable under the Plan upon his
death. The Beneficiary designated under the Plan may be the same as or
different from the Beneficiary designation under any other plan of the Company
in which the Employee participates.


 


(b)                  An Employee
shall designate his Beneficiary in the form and manner specified by the
Committee. An Employee shall have the right to change his Beneficiary by
complying with the terms of the Committee’s rules and procedures, as in
effect from time to time. If a married Participant names someone other than his
spouse as a Beneficiary, a spousal consent, in the form designated by the
Committee, must be signed by that Participant’s spouse and returned to the
Committee. Upon the acceptance by the Committee of a new Beneficiary
designation, all Beneficiary designations previously made shall be canceled. The
Committee shall be entitled to rely 


 


8

















 


on the last Beneficiary designation made by the Employee and accepted
by the Committee prior to his death.


 


(c)                   No designation or change in
designation of a Beneficiary shall be effective until received and acknowledged
in writing by the Committee or its designated agent.


 


(d)                  Upon the death of an Employee, any remaining benefits
due under this Plan to an Employee other than benefits resulting from
subsection 4.1(b) shall be distributed to (i) the Beneficiary
designated by the Employee under this Plan, or if none, (ii) the
Beneficiary designated by the Employee under the Prior Plan, or if none, (iii) the
Beneficiary designated by the Employee under the Savings Plan, or if none, (iv) the
estate of the deceased Employee.


 


Section 4.5 - Benefits Unfunded. Benefits
payable under this Plan shall be paid by the Company each year out of its
general assets and shall not be funded in any manner.


 


Section 4.6 - Vesting. An Employee shall not
have a right to a benefit under this Plan unless:


 


(a)                   he has completed years of vesting service under the
Savings Plan or the Prior Savings Plan in accordance with the following
schedule:


 


	
  Years of Vesting Service

  	
   

  	
  Vested Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Less than 1

  	
   

  	
  0

  	
  %

  
	
  1 but less than
  2

  	
   

  	
  25

  	
  %

  
	
  2 but less than
  3

  	
   

  	
  50

  	
  %

  
	
  3 but less than
  4

  	
   

  	
  75

  	
  %

  
	
  4 or more

  	
   

  	
  100

  	
  %

  



 


(b)                  he has completed years of vesting service under the
SERP in accordance with Section 4.3 of the SERP.


 


For purposes of determining
vesting service under the Plan, years of vesting service shall include service
with Applera Corporation.


 


Section 4.7 – Forfeiture. A forfeiture shall
occur when an Employee terminates employment and is less than one hundred
percent (100%) vested as described in Section 4.6. The unvested interest
in the Employee’s benefit shall be forfeited at the end of the first Plan Year
during which the Employee terminated employment. Any forfeiture shall


 


9

















 


be restored at the same time as the forfeiture is restored in the
Savings Plan or the SERP, if applicable.


 


Any benefits forfeited
under the Plan may be used by the Company to pay Plan expenses or to fund any
Employer Defined Contribution Credits.


 


ARTICLE 5


Investment Direction


 


Section 5.1 – Investment of Defined Contribution
Credit. A Participant shall elect, in such form and manner and at the time
as the Committee may direct or permit, the percentage of his or her Defined
Contribution Credit and SERP Accrued Benefit Account, if any, that will be
deemed invested in each Measurement Fund. An initial investment election of a
Participant shall be made at the time specified by the Committee for existing
Participants and for new Participants, the date the Participant commences or
recommences participation in the Plan. The Participant may make changes to such
investment elections at such times and in such manner as the Committee may
permit, and such elections shall apply to his or her Defined Contribution
Credit and SERP Accrued Benefit Account, if any, from and after the effective
date of such election. Any investment election timely and properly made
pursuant to this Section 5.1 with respect to a Participant’s Defined
Contribution Credit and/or SERP Accrued Benefit Account, if any, shall remain
in effect until changed by the Participant. The Committee shall have complete
discretion to adopt and revise procedures to be followed in making investment
elections.


 


Section 5.2 – Investment of Existing Defined
Contribution Account. A Participant, in connection with his or initial
Defined Contribution Credit election or SERP Accrued Benefit Account election,
if any, in accordance with Section 5.1 above, shall elect, in such form,
at the time, and in the manner as the Committee may direct or permit, the
percentage of his or her exiting Defined Contribution Account and/or SERP
Accrued Benefit Account, if any, that will be deemed invested in each
Measurement Fund. The Participant may make changes to such investment elections
at such times and in such manner as the Committee may permit, and such
elections shall apply to his or her Defined Contribution Account and/or SERP
Accrued Benefit Account, if any, from after the effective date of such election.
Any investment election timely and properly made pursuant to this Section 5.2
with respect to a Participant’s Defined Contribution Account or SERP Accrued
Benefit Account, if any, shall remain in effect until changed by the
Participant. The Committee shall have complete discretion to adopt and revise
procedures to be followed in making investment elections.


 


10

















 


Section 5.3 – Proportionate Allocation. In
making any election described in Sections 5.1 and 5.2 above, the Participant
shall specify, in any whole percentage, the percentage of his or her Defined
Contribution Account, and/or SERP Accrued Benefit Account, if any, to be
allocated to a Measurement Fund (as if the Participant was making an investment
in that Measurement Fund with that portion of his or her Defined Contribution
Account and/or SERP Accrued Benefit Account, if any, as the case may be). Such
election shall be made in such form and manner as the Committee shall direct or
permit.


 


Section 5.4 – Crediting or Debiting Method. The
performance of each Measurement Fund (either positive or negative) will be
determined by the Committee, in its reasonable discretion, based on the
performance of the Measurement Funds themselves. A Participant’s Defined
Contribution Account and/or SERP Accrued Benefit Account, if any, shall be
credited or debited on a daily basis based on the performance of each
Measurement Fund selected by the Participant, as determined by the Committee in
its sole discretion, as though (a) a Participant’s Defined Contribution
Account was invested in the Measurement Fund(s) selected by the
Participant, in the percentages applicable as of the close of business on such
date and at the closing price on such date; (b) the portion of the SERP
Accrued Benefit Account, if any, that was credited was invested in the
Measurement Fund(s) selected by the Participant, in the percentages
applicable as of the close of business on the business day on which such
amounts were credited to the SERP Accrued Benefit Account at the closing price
on such date; and (c) any distribution made to a Participant that
decreases such Participant’s Defined Contribution Account, and SERP Accrued
Benefit Account ceased being invested in the Measurement Fund(s), in the
percentages applicable, as of the business day prior to the distribution, at
the closing price on such date.


 


Section 5.5 – No Actual Investment. Notwithstanding
any other provision of the Plan that may be interpreted to the contrary, the
Measurement Funds are to be used for measurement purposes only, and a
Participant’s election of any such Measurement Fund, the allocation of his or
her Defined Contribution Account and/or SERP Accrued Benefit Account thereto,
the calculation of additional amounts and the crediting or debiting of such
amounts to a Participant’s Defined Contribution Account or SERP Accrued Benefit
Account shall not be considered or construed in any manner as an actual
investment of, or as a requirement or direction to actually invest, his or her
Defined Contribution Account or SERP Accrued Benefit Account, if any, in any
such Measurement Fund. In the event that the Company or the trustee of the
Trust, in its own discretion, decides to invest funds in any or all of the
Measurement Funds, no Participant shall have any rights in or to such
investments themselves. Without limiting the foregoing, a Participant’s Defined



 


11

















 


Contribution
Account and SERP Accrued Benefit Account shall at all times be a bookkeeping
entry only and shall not represent any investment made on his or her behalf of
the Company or the Trust. The Participant shall at all times remain an
unsecured creditor of the Company.


 


12

















 


ARTICLE 6


Administration


 


Section 6.1 - Committee
Duties. The Plan shall be administered by a
Committee which shall be appointed by the Board of Directors and shall be the
same Committee as constituted under Article 10 of The Celera Corporation
Deferred Compensation Plan. Members of the Committee may be participants under
the Plan. The Committee shall also have the absolute discretion and authority
to (a) make, amend, interpret, and enforce all appropriate rules and
regulations for the administration of the Plan and (b) decide or resolve
any and all questions, including interpretations of the Plan, as may arise in
connection with the Plan. Any individual serving on the Committee who is a
participant shall not vote or act on any matter relating solely to himself. When
making a determination or calculation, the Committee shall be entitled to rely
on information furnished by an Employee or the Company.


 


Section 6.2  - Agents. In the
administration of the Plan, the Committee may, from time to time, employ agents
and delegate to them such administrative duties as it sees fit (including
acting through a duly appointed representative) and may from time to time
consult with counsel who may be counsel to the Company.


 


Section 6.3 - Binding
Effect of Decisions. The decision
or action of the Committee with respect to any question arising out of or in
connection with the administration, interpretation and application of the Plan
and the rules and regulations promulgated hereunder shall be final and
conclusive and binding upon all persons having any interest in the Plan.


 


Section 6.4 - Indemnity
of Committee. The Company shall indemnify and
hold harmless the members of the Committee and any Employee to whom the duties
of the Committee may be delegated against any and all claims, losses, damages,
expenses, or liabilities arising from any action or failure to act with respect
to the Plan, except in the case of willful misconduct by the Committee or any
of its members or any such Employee.


 


Section 6.5 — Claims Procedure


 


(a)                   Presentation of Claim. Any application for benefits, inquiries
about the Plan or inquiries about present or future rights under the Plan must
be submitted to the Committee in writing by the Participant or Beneficiary of a
deceased 


 


13

















 


Participant (such Participant or Beneficiary being
referred to below as a “Claimant”).


 


(b)                  Notification of Decision. The Committee shall consider a Claimant’s
claim within ninety (90) days after the Committee receives the claim, unless
special circumstances require an extension of time, in which case the Committee
has up to an additional ninety (90) days for processing the claim. If an
extension of time for processing is required, written or electronic notice of
the extension shall be furnished to the applicant before the end of the initial
ninety (90)-day period describing the special circumstances necessitating the
additional time and the date by which the Committee is to render its decision. The
Committee shall notify the Claimant in writing:


 


(i)    that the Claimant’s
requested determination has been made, and that the claim has been allowed in
full; or


 


(ii)   that the
Committee has reached a conclusion contrary, in whole or in part, to the
Claimant’s requested determination, and such notice must set forth in a manner
calculated to be understood by the Claimant:


 


(1)   the specific
reason(s) for the denial of the claim, or any part of it;


 


(2)   specific reference(s) to
pertinent provisions of the Plan upon which such denial was based;


 


(3)   a description of
any additional material or information necessary for the Claimant to perfect
the claim, and an explanation of why such material or information is necessary;
and


 


(4)   an explanation of
the claim review procedure set forth in Section 6.5(c) below.


 


(c)                   Review of a Denied Claim. Within 60 days after receiving a notice
from the Committee that a claim has been denied, in whole or in part, a
Claimant (or the Claimant’s duly authorized representative) may file with the
Committee a written request for a review of the denial of the claim, which
request shall set forth all of the grounds on which such request is based, all
facts in support of the request and any other matters that the Claimant
believes are 


 


14

















 


pertinent.
Thereafter, the Committee shall give the Claimant (or the Claimant’s duly
authorized representative), a reasonable opportunity for a full and fair review
of the claim and adverse benefit determination including:


 


(i)    the opportunity
to receive, upon request and free of charge, copies of all documents, records
and other information relevant to the Claimant’s claim for benefits;


 


(ii)   the opportunity
to submit written comments, other documents or information; and


 


(iii)  a review that
takes into account all comments, documents, records, and other information
submitted by the Claimant relating to the claim, without regard to whether such
information was submitted or considered in the initial benefit determination.


 


(d)                  Decision on Review. The Committee shall render its decision on review
promptly, and not later than 60 days after the filing of a written request for
review of the denial, unless a hearing is held or other special circumstances
require additional time, in which case the Committee’s decision must be
rendered within 120 days after such date. Such decision must be written in a
manner calculated to be understood by the Claimant, and it must contain:


 


(i)    specific reasons
for the decision;


 


(ii)   specific
reference(s) to the pertinent Plan provisions upon which the decision was
based;


 


(iii)  a description of
any additional material or information necessary for the claimant to perfect
the claim and an explanation of why such material or information is necessary,
and


 


(iv)  a description of
the Plan’s review procedures and the time limits applicable to such procedures,
including a statement of the claimant’s right to bring a civil action under Section 502(a) of
ERISA following an adverse benefit determination on review.


 


(e)                   Legal Action. A Claimant’s compliance with the foregoing
provisions of this Section 6.5 is a mandatory prerequisite to a Claimant’s
right to commence any legal action with respect to any claim under the Plan.


 


15

















 


ARTICLE 7


Amendment and Termination


 


Section 7.1 - Amendment and Termination. While
the Company intends to maintain this Plan in conjunction with the Pension Plan
and the Savings Plan for as long as necessary, the Company acting through its
Board, reserves the right to amend and/or terminate it at any time for whatever
reasons it may deem appropriate.


 


Section 7.2 - Committee and Amendment of Plan.
Notwithstanding Section 7.1 above, the Committee shall be authorized to
amend the Plan without the approval of the Board. However, the Committee shall
not have the authority to amend the Plan if such amendment shall have a
financial impact to the Company of one million dollars or more.


 


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ARTICLE 8


Trust


 


Section 8.1 – Establishment of the Trust
Notwithstanding the Unfunded Status of the Plan. The Company may establish
a grantor Trust, and may transfer over to the Trust such assets as the Company
determines, in its sole discretion, are necessary to provide, on a present
value basis, for its respective future liabilities created with respect to the
Defined Contribution Account, and the SERP Accrued Benefit.


 


Section 8.2 – Interrelationship of the Plan and
the Trust. The provisions of the Plan and the Plan Agreement shall govern
the rights of a Participant to receive distributions pursuant to the Plan. The
provisions of the Trust shall govern the rights of the Company, Participants,
and the creditors of the Company to the assets transferred to the Trust.


 


Section 8.3 – Distributions From the Trust. The
Company’s obligations under the Plan may be satisfied with Trust assets
distributed pursuant to the terms of the Trust, and any such distribution shall
reduce the Company’s obligations under the Plan.


 


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ARTICLE 9


Miscellaneous


 


Section 9.1 – Status of Plan. The Plan is
intended to be a plan that is not qualified within the meaning of Code Section 401(a) and
that “is unfunded and is maintained by an employer primarily for the purpose of
providing deferred compensation for a select group of management or highly
compensated employees” within the meaning of ERISA Sections 201(2), 301(a)(3),
and 401(a)(1). The Plan shall be administered and interpreted to the extent
possible in a manner consistent with that intent.


 


Section 9.2 – Unsecured General Creditor. Participants
and their Beneficiaries, heirs, successors, and assigns shall have no legal or
equitable rights, interests, or claims in any property or assets of the Company.
For purposes of the payment of benefits under the Plan, any and all of the
Company’s assets shall be, and remain, the general, unpledged unrestricted
assets of the Company. The Company’s obligation under the Plan shall be merely
that of an unfunded and unsecured promise to pay money in the future.


 


Section 9.3 – Company’s Liability. This Plan
supersedes and shall be in lieu of all prior plans, arrangements, or
understandings regarding the benefits provided by the Plan, whether written or
oral.


 


Section 9.4 – Nonassignability. Neither a
Participant nor any other person shall have any right to commute, sell, assign,
transfer, pledge, anticipate, mortgage, or otherwise encumber, transfer,
hypothecate, alienate, or convey in advance of actual receipt, the amounts, if
any, payable hereunder, or any part thereof, which are, and all rights to which
are expressly declared to be, unassignable and non-transferable. No part of the
amounts payable shall, prior to actual payment, be subject to seizure,
attachment, garnishment, or sequestration for the payment of any debts,
judgments, alimony, or separate maintenance owed by a Participant or any other
person, be transferable by operation of law in the event of a Participant’s or
any other person’s bankruptcy or insolvency, or be transferable to a spouse as
a result of a property settlement or otherwise.


 


Section 9.5 – Not a Contract of Employment. The terms and
conditions of the Plan shall not be deemed to constitute a contract of
employment between the Company and a Participant. Such employment is hereby
acknowledged to be an “at will” employment relationship that can be terminated
at any time for any reason, or no reason, with or without cause, and with or
without notice, except as otherwise expressly provided in a written employment
agreement. Nothing in the Plan shall be deemed to give a 


 


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Participant the right to be
retained in the service of the Company as an Employee or to interfere with the
right of any Employer to discipline or discharge the Participant at any time.


 


Section 9.6 – Furnishing Information. A Participant
or his or her Beneficiary shall cooperate with the Committee by furnishing any
and all information requested by the Committee and take such other actions as
may be requested in order to facilitate the administration of the Plan and the
payments of benefits hereunder, including but not limited to taking such
physical examinations as the Committee may deem necessary.


 


Section 9.7 – Terms. Whenever any
words are used herein in the masculine, they shall be construed as though they
were in the feminine in all cases where they would so apply; and whenever any
words are used herein in the singular or in the plural, they shall be construed
as though they were used in the plural or the singular, as the case may be, in
all cases where they would so apply.


 


Section 9.8 – Captions. The captions
of the articles, sections, and paragraphs of the Plan are for convenience only
and shall not control or affect the meaning or construction of any of its
provisions.


 


Section 9.9 – Governing Law. The
provisions of the Plan shall be construed and interpreted according to the
internal laws of the State of Connecticut without regard to its conflicts of
laws principles.


 


Section 9.10 – Notice. Any notice or
filing required or permitted to be given to the Committee under the Plan shall
be sufficient if in writing and hand-delivered, or sent by registered or
certified mail, to the address below:


 


Celera Corporation

1401 Harbor Bay Parkway 

Alameda, California 94502

Attn:  Vice President,  Site & Human Resources Services


 


Such notice shall be deemed
given as of the date of delivery or, if delivery is made by mail, as of the
date shown on the postmark on the receipt for registration or certification.


 


Any notice or filing
required or permitted to be given to a Participant under the 


 


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Plan shall be sufficient if
in writing and hand-delivered, or sent by mail, to the last known address of
the Participant.


 


Section 9.11 – Successors. The
provisions of the Plan shall bind and inure to the benefit of the Participant’s
Company and its successors and assigns and the Participant and the Participant’s
designated Beneficiaries.


 


Section 9.12 – Spouse’s Interest. The interest
in the benefits hereunder of a spouse of a Participant who has predeceased the
Participant shall automatically pass to the Participant and, except as
otherwise provided in Section 9.15, shall not be transferable by such
spouse in any manner, including but not limited to such spouse’s will, nor
shall such interest pass under the laws of intestate succession.


 


Section 9.13 – Validity. In case any
provision of the Plan shall be determined to be illegal or invalid for any
reason, said illegality or invalidity shall not affect the remaining parts
hereof, but the Plan shall be construed and enforced as if such illegal or
invalid provision had never been inserted herein.


 


Section 9.14 – Incompetency. If the Committee
determines in its discretion that a benefit under the Plan is to be paid to a
minor, a person declared incompetent, or to a person incapable of handling the
disposition of that person’s property, the Committee may direct payment of such
benefit to the guardian, legal representative, or person having the care and
custody of such minor, incompetent, or incapable person. The Committee may
require proof of minority, incompetence, incapacity, or guardianship, as it may
deem appropriate, prior to distribution of the benefit. Any payment of a
benefit shall be a payment for the account of the Participant and the
Participant’s Beneficiary, as the case may be, and shall be a complete
discharge of any liability under the Plan for such payment amount.


 


Section 9.15 – Legal Fees to Enforce Rights
After Change in Control Event. The Company is aware that
upon the occurrence of a Change in Control Event, the Board or (which might
then be composed of new members) or a shareholder of the Company, or of any
successor corporation might then cause or attempt to cause the Company or such
successor to refuse to comply with its obligations under the Plan and might
cause or attempt to cause the Company to institute, or may institute,
litigation seeking to deny Participants the benefits intended under the Plan. In
these circumstances, the purpose of the Plan could be frustrated. Accordingly,
if, following a Change in Control Event, it should appear to any participant
that the Company, or any successor corporation has 


 


20

















 


failed to comply with any of
its obligations under the Plan or any agreement thereunder or, if the Company,
or any other person takes any action to declare the Plan void or unenforceable
or institutes any litigation or other legal action designed to deny, diminish,
or to recover from any participant the benefits intended to be provided, then
the Company irrevocably authorize such participant to retain counsel of his or
her choice at the expense of the Company to represent such participant in
connection with the initiation or defense of any litigation or other legal
action, whether by or against the Company or any director, officer,
shareholder, or other person affiliated with the Company or any successor
thereto in any jurisdiction.


 


Section 9.16 – Tax
Withholding. The Company or
the trustee of the Trust shall withhold, in such manner as determined by the
Company or the trustee (as the case may be) in its sole discretion, from any
payments made to a Participant under the Plan such amount or amounts as may be
required to comply with all federal, state, and local income, employment, and
other withholding obligations.


 


Section 9.17 – Effect
on Other Employee Benefit Plans. Any benefit
paid or payable under this Plan shall not be included in a Participant’s
compensation for purposes of computing benefits under any employee benefit plan
maintained or contributed to by an Employer except as may otherwise be required
under the terms of such employee benefit plan.


 


Section 9.18 – Compliance
with Section 409A. The Plan and the benefits provided hereunder are
intended to comply with Section 409A and the regulations and guidance
issued thereunder to the extent applicable thereto. Notwithstanding any
provision of the Plan to the contrary, the Plan shall be interpreted and
construed consistent with this intent. Although the Company intends to
administer the Plan so that it will comply with, the requirements of Section 409A,
the Company, do not represent or warrant that the Plan will comply with Section 409A
or any other provision of federal, state, local, or non-United States law. Neither
the Company, its subsidiaries, nor their respective directors, officers,
employees or advisers shall be liable to any Participant (or any other individual
claiming a benefit through the Participant) for any tax, interest, or penalties
the Participant might owe as a result of participation in the Plan.


 


The information contained herein has been provided
by Celera Corporation and is the sole responsibility of Celera Corporation.


 


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