Thermo Fisher Scientific 10-Q Q3 2007 (Exhibit 10.2)


    Exhibit
      10.2

     

    

      THERMO
        FISHER SCIENTIFIC INC.

       

      DEFERRED
        COMPENSATION PLAN FOR DIRECTORS,

       

      As
        amended and restated effective as of November 10, 2006

       

      Section
        1.    Participation.  Any
        director of Thermo Fisher Scientific Inc. (the “Company”) may elect to have such
        percentage as he or she may specify of the fees otherwise payable to him
        or her
        deferred and paid to him or her as provided in this Plan.  A director
        who is also an employee of the Company or any subsidiary or parent of the
        Company shall not be eligible to participate in this Plan.  Each
        election to defer fees to be paid in any calendar year shall be made by notice
        in writing delivered to the Secretary of the Company no later than December
        31
        of the preceding year, in such form as the Secretary shall designate, and
        each
        election shall be applicable only with respect to fees earned during the
        calendar year designated in the form.  The term “participant” as used
        herein refers to any director who shall have made an election.  No
        participant may defer the receipt of any fees to be earned after the date
        on
        which he or she shall cease to be a director of the Company (the “deferral
        termination date”).

       

      Section
        2.   Establishment
        of Deferred Compensation
        Accounts.  There shall be established
        for each participant an account to be designated as that participant’s deferred
        compensation account.

       

      Section
        3.    Allocations
        to Deferred Compensation
        Accounts.  There shall be allocated to
        each participant’s deferred compensation account, as of the end of each quarter,
        an amount equal to his or her fees for that quarter which that participant
        shall
        have elected to have deferred pursuant to Section 1.

       

      Section
        4.    Stock
        Units and Stock Unit Accounts.  All
        amounts allocated to a participant’s deferred compensation account pursuant to
        Section 3 and Section 5 shall be converted, at the end of each quarter, into
        stock units by dividing the accumulated balance in the deferred compensation
        account as of the end of that quarter by the last sale price per share of
        the
        Company’s common stock as reported in The Wall Street
Journal, for the last trading day of that quarter.  The
        number of stock units, so determined, rounded to the nearest one-hundredth
        of a
        share, shall be credited to a separate stock unit account to be established
        for
        the participant, and the aggregate value thereof as of the last business
        day of
        that quarter shall be charged to the participant’s deferred compensation
        account.  No amounts credited to the participant’s deferred
        compensation account pursuant to Section 5 subsequent to the close of the
        fiscal
        year in which occurs the participant’s deferral termination date shall be
        converted into stock units.  Any such amount shall be distributed in
        cash as provided in Section 8.  A maximum number of 321,757
        shares of the Company’s common stock may be represented by stock units credited
        under this Plan, subject to proportionate adjustment in the event of any
        stock
        dividend, stock split or other capital change affecting the Company’s common
        stock.

       

      Section
        5.   Cash
        Dividend Credits.  Additional credits
        shall be made to a participant’s deferred compensation account, until all
        distributions shall have been made from the participant’s stock unit account, in
        amounts equal to the cash dividends (or the fair market value of dividends
        paid
        in property other than dividends payable in common stock of the Company)
        which
        the participant would have received from time to time had he or she been
        the
        owner on the record dates for the payment of such dividends of the number
        of
        shares of the Company’s common stock equal to the number of units in his or her
        stock unit account on those dates.

       

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

      Section
        6.    Stock
        Dividend Credits.  Additional credits
        shall be made to a participant’s stock unit account, until all distributions
        shall have been made from the participant’s stock unit account, of a number of
        units equal to the number of shares of the Company’s common stock, rounded to
        the nearest one-hundredth share, which the participant would have received
        from
        time to time as stock dividends had he or she been the owner on the record
        dates
        for the payments of such stock dividends of the number of units of the Company’s
        common stock equal to the number of units credited to his or her stock unit
        account on those dates.

       

      Section
        7.    Adjustments
        in the Event of Certain
        Transactions.  In the event of a stock
        dividend, stock split or combination of shares, or other distribution with
        respect to holders of Common Stock other than normal cash dividends, the
        number
        of units then credited to a participant’s stock unit account shall be
        appropriately adjusted on the same basis.  In the event of any
        recapitalization, merger or consolidation involving the Company, any transaction
        in which the Company becomes a subsidiary of another entity, any sale or
        other
        disposition of all or a substantial portion of the assets of the Company
        or any
        similar transaction, as determined by the Board, the Board in its discretion
        may
        terminate the Plan pursuant to Section 11.

       

      Section
        8.    Distribution
        of Stock and Cash After Participant’s Deferral Termination
        Date.  When a participant’s deferral
        termination date shall occur, the Company shall become obligated to make
        the
        distributions prescribed in the following paragraphs (a) and (b).

       

      (a)           The
        Company shall distribute to the participant the number of shares of the common
        stock of the Company which shall equal the total number of units accumulated
        in
        his or her stock unit account as of the close of the fiscal year in which
        the
        participant’s deferral termination date occurs.  Such distribution of
        stock shall be made in a single distribution within 60 days after the close
        of
        the fiscal year in which the participant’s deferral termination date
        occurs.  Distribution of stock made hereunder may be made from shares
        of common stock held in the treasury and/or from shares of authorized but
        previously unissued shares of common stock.

       

      (b)           The
        Company shall distribute to the participant sums in cash equal to the cash
        balance credited to his or her deferred compensation account as of the close
        of
        the fiscal year in which his or her deferral termination date occurs plus
        such
        additional amounts as shall be credited thereto from time to time thereafter
        pursuant to Section 5.  The cash distribution shall be made on the
        same date as the distribution made pursuant to paragraph (a) above, and shall
        consist of the entire cash balance credited to the participant’s deferred
        compensation account at the time of the distribution.

       

      (c)           If
        a participant’s deferral termination date shall occur by reason of his or her
        death or if he or she shall die after his or her deferral termination date
        but
        prior to receipt of all distributions of stock and cash provided for in this
        Section 8, all stock and cash remaining distributable hereunder shall be
        distributed to such beneficiary as the participant shall have designated
        in
        writing and filed with the Secretary of the Company or, in the absence of
        designation, to the participant’s personal representative.  Such
        distributions shall be made in the same manner and at the same intervals
        as they
        would have been made to the participant had he or she continued to
        live.

       

       

      
        
          
          

        

        
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      (d)           A
        participant may change the time of payment of the distribution to be made
        under
        Section 8(a) by submitting an election form to the Secretary of the
        Company.  Such election shall not take effect until at least 12 months
        after the date on which the election is made, the new distribution shall
        take
        place at least 5 years after the distribution date that would otherwise been
        applicable, and the election must be made at least 12 months prior to such
        distribution date.

       

      Section
        9.    Participant’s
        Rights Unsecured.  The right of any
        participant to receive distributions under Section 8 shall be an unsecured
        claim
        against the general assets of the Company.  The Company may but shall
        not be obligated to acquire shares of its outstanding common stock from time
        to
        time in anticipation of its obligation to make such distributions, but no
        participant shall have any rights in or against any shares of stock so acquired
        by the Company.  All such stock shall constitute general assets of the
        Company and may be disposed of by the Company at such time and for such purposes
        as it may deem appropriate.

       

      Section
        10.         Change in
        Control.

       

      10.1           Impact
        of Event

       

      In
        the
        event of a “Change in Control” as defined in Section 10.2, the Plan shall
        terminate and full distribution shall be made from all participants’ deferred
        compensation accounts and stock unit accounts effective upon the Change in
        Control.

       

      10.2           Definition
        of “Change in Control”

       

      "Change
        in Control" shall mean the occurrence of a "change in the ownership," a "change
        in the effective control" or a "change in the ownership of a substantial
        portion
        of the assets" of a corporation, as determined in accordance with this
        Section.  

       

      In
        order
        for an event described below to constitute a Change in Control with respect
        to a
        Participant, except as otherwise provided in part (b)(ii) of this Section,
        the
        applicable event must relate to the corporation for which the Participant
        is
        providing services, the corporation that is liable for payment of the
        Participant's Account Balance (or all corporations liable for payment if
        more
        than one), as identified by the Committee in accordance with Treas. Reg.
§
1.409A-3(i)(5)(ii)(A)(2), or such other corporation identified by the Committee
        in accordance with Treas. Reg. § 1.409A-3(i)(5)(ii)(A)(3).

       

      In
        determining whether an event shall be considered a "change in the ownership,"
        a
        "change in the effective control" or a "change in the ownership of a substantial
        portion of the assets" of a corporation, the following provisions shall
        apply:

       

      (a)          A
        "change in the ownership" of the applicable corporation shall occur on the
        date
        on which any one person, or more than one person acting as a group, acquires
        ownership of stock of such corporation 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 such corporation, as determined in accordance
        with Treas. Reg. § 1.409A-3(i)(5)(v).  If a person or group is
        considered either to own more than 50% of the total fair market value or
        total
        voting power of the stock of such corporation, or to have effective control
        of
        such corporation within the meaning of part (b) of this Section, and such
        person
        or group acquires additional stock of such corporation, the acquisition of
        additional stock by such person or group shall not be considered to cause
        a
        "change in the ownership" of such corporation.

       

       

      
        
          
          

        

        
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      (b)          A
        "change in the effective control" of the applicable corporation shall occur
        on
        either of the following dates:

       

      (i)           The
        date on which any one person, or more than one person acting as a group,
        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
        such
        corporation possessing 40% or more of the total voting power of the stock
        of
        such corporation, as determined in accordance with Treas. Reg. §
1.409A-3(i)(5)(vi).  If a person or group is considered to possess 40%
        or more of the total voting power of the stock of a corporation, and such
        person
        or group acquires additional stock of such corporation, the acquisition of
        additional stock by such person or group shall not be considered to cause
        a
        "change in the effective control" of such corporation; or

       

       

       (ii)       
        The date on which a majority of the members of the applicable corporation's
        board of directors is replaced during any 12-month period by directors whose
        appointment or election is not endorsed by a majority of the members of such
        corporation's board of directors before the date of the appointment or election,
        as determined in accordance with Treas. Reg. § 1.409A-3(i)(5)(vi).  In
        determining whether the event described in the preceding sentence has occurred,
        the applicable corporation to which the event must relate shall only include
        a
        corporation identified in accordance with Treas. Reg. § 1.409A-3(i)(5)(ii) for
        which no other corporation is a majority shareholder.

       

      (c)          A
        “change in the ownership of a substantial portion of the assets” of the
        applicable corporation shall occur on the date on which any one person, or
        more
        than one person acting as a group, 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 corporation 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 corporation immediately before such acquisition or acquisitions,
        as determined in accordance with Treas. Reg. § 1.409A-3(i)(5)(vii).  A
        transfer of assets shall not be treated as a “change in the ownership of a
        substantial portion of the assets” when such transfer is made to an entity that
        is controlled by the shareholders of the transferor corporation, as determined
        in accordance with Treas. Reg. § 1.409A-3(i)(5)(vii)(B).

       

      Section
        11.    Amendment
        and Termination of the Plan.  The Board
        of Directors of the Company may amend or terminate the Plan at any time and
        from
        time to time, provided, however, that no amendment adversely
        affecting credits already made to any participant’s deferred compensation
        account or stock unit account may be made without the consent of that
        participant or, if that participant has died, that participant’s
        beneficiary.  Upon termination of the Plan, the Company shall be
        obligated to distribute to the participant either of the following as the
        Board
        of Directors of the Company, in its sole discretion, may
        determine:  (i) the number of shares of the common stock of the
        Company which shall equal the total number of units accumulated in the
        participant’s stock unit account as of the effective date of termination of the
        Plan or (ii) a sum in cash equal to the balance credited to the participant’s
        deferred compensation account as of the effective date of termination of
        the
        Plan.

       

       

      
        
          
          

        

        
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      Section
        12.    Section
        409A.  This Plan is intended to comply
        with all applicable law, including Code Section 409A of the Internal Revenue
        Code and related Treasury guidance and regulations, and shall be operated
        and
        interpreted in accordance with this intention.

       

      


       

      


       

      Adopted
        by the Board of Directors on September 12, 2007

       

       

       

       

       

       

       

       

       

       

       

       

       

       

      
        
          
          

        

        
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