Exhibit 10.5 

 

AMENDMENT TO THE 

SUPPLEMENTAL SAVINGS ANDRETIREMENT PLAN 

FOR KEY SALARIED EMPLOYEES OF MILLIPORE CORPORATION 

 

WHEREAS Millipore Corporation (the “Company”) maintains the Supplemental Savings and Retirement Plan for KeySalaried Employees of Millipore Corporation (the “Plan”); and 

 

WHEREAS pursuant to Section 5 of the Plan, the Company may amend the Plan, subject to certain exceptions not relevant hereto. 

 

NOW, THEREFORE, the Plan is hereby amended, effective on the earliest date permitted pursuant to Section 5.1(2) of the Plan, as follows: 

 

Amendment of Section 4

 

1. Section 4 is hereby relettered as Section 4(a), and the first sentencethereof is hereby amended to read as follows: 

 

“AParticipant shall be vested in his Supplemental Plan benefit, if any, in accordance with the vesting provisions of the Retirement Plan, provided that his Supplemental Plan benefit shall become fully vested upon a Change of Control.” 

 

2. Section 4 (as heretofore amended) is further amended by adding a newSection 4(b) to read as follows: 

 

“(b) For purposes ofthis Plan, “Change of Control” shall mean the occurrence of any one of the following events: 

 

(1) any “person” (as such term is defined in Section 3(a)(9) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the Company representing 30% or more of thecombined voting power of the Company’s then outstanding securities eligible to vote for the election of the Board (the “Company Voting Securities”); provided, however, that the event described in this paragraph (1) shallnot be deemed to be a Change of Control if such event results from any of the following: (i) the acquisition of Company Voting Securities by the Company or any of its subsidiaries, (ii) the acquisition of Company Voting Securities by any employeebenefit plan (or related trust) sponsored or maintained by the Company or any of its subsidiaries, (iii) the acquisition of Company Voting Securities by any underwriter temporarily holding securities pursuant to an offering of such securities, or(iv) the acquisition of Company Voting Securities pursuant to a Non-Qualifying Transaction (as defined in paragraph (3) below); 

 

(2) individuals who, as of the date hereof, constitute the Board (the “Incumbent Directors”) cease for any reason to constitute at least amajority of the Board; provided, however, that any individual becoming a director subsequent to the date hereof, whose election or nomination for election was approved (either by a specific vote or by approval of the proxy statement ofthe Company in which such individual is named as a nominee for director, without written objection to such nomination) by a vote of at least two-thirds of the directors who were, as of the date of such approval, Incumbent Directors, shall be anIncumbent Director; provided, however, that no individual initially appointed, elected or nominated as a director of the Company 

as a result of an actual or threatened election contest with respect to the election or removal of directors or as a result of any other actual or threatenedsolicitation of proxies or consents by or on behalf of any person other than the Board shall be an Incumbent Director; 

 

(3) the consummation of a merger, consolidation, statutory share exchange or similar form of corporate transaction involving (i) the Company or (ii) anyof its wholly owned subsidiaries pursuant to which, in the case of this clause (ii), Company Voting Securities are issued or issuable (any event described in the immediately preceding clauses (i) or (ii), a “Reorganization”) or (iii) thesale or other disposition of all or substantially all of the assets of the Company to an entity that is not an affiliate of the Company (a “Sale”), unless immediately following such Reorganization or Sale: (A) more than 50% of the totalvoting power (in respect of the election of directors, or similar officials in the case of an entity other than a corporation) of (x) the entity resulting from such Reorganization, or the entity which has acquired all or substantially all of theassets of the Company (in either case, the “Surviving Entity”), or (y) if applicable, the ultimate parent entity that directly or indirectly has beneficial ownership of more than 50% of the total voting power (in respect of the election ofdirectors, or similar officials in the case of an entity other than a corporation) of the Surviving Entity (the “Parent Entity”), is represented by Company Voting Securities that were outstanding immediately prior to such Reorganization orSale (or, if applicable, is represented by shares into which such Company Voting Securities were converted pursuant to such Reorganization or Sale), (B) no person (other than any employee benefit plan (or related trust) sponsored or maintained bythe Surviving Entity or the Parent Entity) is or becomes the beneficial owner, directly or indirectly, of 30% or more of the total voting power (in respect of the election of directors, or similar officials in the case of an entity other than acorporation) of the outstanding voting securities of the Parent Entity (or, if there is no Parent Entity, the Surviving Entity) and (C) at least a majority of the members of the board of directors (or similar officials in the case of an entity otherthan a corporation) of the Parent Entity (or, if there is no Parent Entity, the Surviving Entity) following the consummation of the Reorganization or Sale were, at the time of the approval by the Board of the execution of the initial agreementproviding for such Reorganization or Sale, Incumbent Directors (any Reorganization or Sale which satisfies all of the criteria specified in (A), (B) and (C) above shall be deemed to be a “Non-Qualifying Transaction”); or 

 

(4) the stockholders of the Company approve a plan of complete liquidation ordissolution of the Company. 

 

Notwithstanding the foregoing, ifany person becomes the beneficial owner of 30% or more of the combined voting power of Company Voting Securities solely as a result of the acquisition of Company Voting Securities by the Company which reduces the number of Company Voting Securitiesoutstanding, such increased amount shall be deemed not to result in a Change of Control; provided, however, that if such person subsequently becomes the beneficial owner of additional Company Voting Securities that increases thepercentage of outstanding Company Voting Securities beneficially owned by such person, a Change of Control of the Company shall then be deemed to occur.” 

 

Full Force and Effect. Except as expressly amended hereby, the Plan shall continue in full force and effect in accordance with the terms thereofon the date hereof. 

 

Governing Law. The validity,interpretation, construction performance and enforcement of this Amendment shall be governed by the laws of the Commonwealth of Massachusetts without giving effect to the principles of conflict of laws thereof. 

 

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IN WITNESS WHEREOF, the Company has caused this Amendment to be executed this 18th day of November, 2003.

 
MILLIPORE CORPORATION
by
 
    /s/ Jeffrey Rudin
  
Name: Jeffrey Rudin
  
Title: Vice President, General Counsel

 

 

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