UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) July 27, 2005
HAEMONETICS CORPORATION
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(Exact name of registrant as specified in its charter)
Massachusetts 1-10730 04-2882273
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(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification No.)
400 Wood Road, Braintree, MA 02184
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 781-848-7100
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(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (see General Instruction A.2. below):
[ ] Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT.
DIRECTOR COMPENSATION
On July 27, 2005, the Board of Directors of Haemonetics Corporation
(the "Company"), approved increases in the compensation payable to directors who
are not employees of the Company, with the exception of the Chairman of the
Board. The increases in compensation are as follows: (i) the annual retainer
paid to the Chairman of the Audit Committee was increased from $4,000 to $8,000;
(ii) the annual retainer paid to the Chairman of the Compensation Committee was
increased from $4,000 to $6,000; (iii) the annual retainer paid to the Chairman
of the Nominating and Governance Committee was increased from $4,000 to $6,000
(no such retainer is payable when the Chairman of the Board serves as Chairman
of the Nominating and Governance Committee); (iv) the fee for each Audit
Committee meeting attended was increased from $500 per day to $1,000 per day;
(v) the fee for each Compensation Committee meeting attended was increased from
$500 per day to $750 per day; and (vi) the fee for each Nominating and
Governance Committee meeting attended was increased from $500 per day to $750
per day. No change was made in the following elements of Board Compensation: (i)
annual retainer for service on the Board, $24,000; (ii) fee for attendance at
Board meetings, $1,000 per day (if a telephone meeting, $500 per meeting); and
(iii) fee for attendance at telephone meetings of the Audit Committee,
Compensation Committee and Nominating and Governance Committee ($300 per
meeting). In addition, the annual grant of options for the purchase of shares of
common stock of the Company made to each director remains at 6,000 shares; and
the options granted to directors upon their initial election to the Board remain
at 20,000 shares of the Company's common stock.
On July 27, 2005, options for the purchase of 20,000 shares of common
stock of the Company were granted to each of the newly elected directors,
Richard J. Meelia and Ronald L. Merriman at an exercise price of $ 41.15 per
share under the Company's 2005 Long-Term Incentive Compensation Plan. Such
options vest immediately and expire in July 2012.
ADOPTION OF 2005 LONG-TERM INCENTIVE COMPENSATION PLAN
At the Company's Annual Meeting of Stockholders held on July 27, 2005,
the stockholders approved the Company's 2005 Long-Term Incentive Compensation
Plan (the "Plan"). This description is qualified by reference to the Plan, which
is attached as Exhibit 10.2.
Under the Plan, 3,100,000 shares of the Company's common stock are
available for issuance, subject to adjustment in the event of changes in
capitalization, reorganizations and similar events. Any shares that are subject
to the award of stock options shall be counted against this limit as one (1)
share for every one (1) share issued. Any shares that are subject to awards
other than stock options shall be counted against this limit as 2.1 shares for
every one (1) share granted. The Plan is administered by the Compensation and
Management Development Committee (the "Committee"), comprised entirely of
independent directors.
2
The Plan permits the issuance of awards consisting of stock options,
stock appreciation rights, restricted stock, performance shares, deferred
stock/restricted stock unit awards and other stock unit awards. Awards may be
granted under the Plan to all employees of the Company and its subsidiaries and
to directors of the Company. Options designated as incentive stock options may
be granted under the Plan only to officers and employees of the company or any
subsidiary.
The Plan provides that no participant may be granted in any fiscal
year:
. options to purchase more than 600,000 shares of the
Company's common stock;
. stock appreciation rights with respect to more than 250,000
shares of the Company's common stock;
. more than 250,000 shares of restricted stock;
. restricted stock units exceeding $7,000,000;
. deferred stock units exceeding $7,000,000;
. performance share units with respect to more than a fair
market value of 250,000 shares of the Company's common stock
(measured on the date of grant); or
. other stock-based awards exceeding $10,000,000.
The maximum aggregate number of shares that may be granted as awards in any one
fiscal year to a director who is not an employee shall be equal to the fair
market value of 10,000 shares (measured at the date of grant) and the maximum
aggregate number of shares that may be granted to any director who is not an
employee cumulatively under the Plan is 350,000.
The following is a brief outline of each award authorized by the Plan.
Each award grant will be evidenced by an award agreement which will specify the
terms and provisions of that award.
Stock Options. The option price for each option shall equal the
fair market value of the shares at the time the option is granted. The
option price may not be decreased with respect to an outstanding option
following the date of grant. Each option granted to a participant
expires at such time as the Committee determines at the time of grant,
provided that an option must expire no later than the seventh
anniversary of the date the option was granted.
Stock Appreciation Rights. A Stock Appreciation Right is an award
that consists of the right to be paid an amount measured by the
appreciation in the fair market value of shares of the Company's common
stock on the date of grant to the date of exercise of the right. The
grant price of the stock appreciation right shall equal the fair market
value of a share of the Company's common stock on the date of grant. A
stock appreciation right must expire no later than the seventh
anniversary of the date the stock appreciation right was granted. The
payment upon stock appreciation right exercise shall be made in shares
of the Company's common stock.
3
Restricted Stock. The Committee may impose such conditions and/or
restrictions on any restricted shares granted under the Plan as it may
deem advisable, including, without limitation, a requirement that
participants pay a stipulated purchase price for such restricted
shares, restrictions based upon the achievement of specific performance
goals, time-based restrictions on vesting following the attainment of
the performance goals, time-based restrictions, and/or restrictions
under applicable federal or state securities laws.
Deferred Stock and Restricted Stock Units. Deferred stock units
may be awarded to participants in lieu of payment of a bonus or other
award if so elected by a participant under such terms and conditions as
the Committee determines, including terms that provide for the grant of
deferred stock units valued in excess of the bonus or award deferred. A
participant must make an election to receive deferred stock units in
the calendar year before the calendar year in which the services
related to the award are first performed. The Committee may require a
participant to defer, or permit a participant to elect to defer receipt
of all or any portion of any payment of cash or shares that otherwise
would be due to such participant in payment or settlement of an award
under the Plan, to the extent consistent with Section 409A of the
Internal Revenue Code. Settlement of any deferred stock units shall be
made in a single sum of cash or shares.
Other Stock Unit Awards. Other stock unit awards that are valued
in whole or in part by reference to, or are otherwise based on, shares
or other property, may be granted to participants, either alone or in
addition to other awards granted under the Plan, and such stock units
shall also be available as a form of payment in the settlement of other
awards granted under the Plan.
Performance Shares. Performance share awards may be granted to
participants in such amounts and upon such terms as shall be determined
by the Committee. Each performance share shall have an initial value
equal to the fair market value of a share of the Company's common stock
on the date of grant. The Committee shall set performance goals in its
discretion which, depending on the extent to which they are met, will
determine the number and/or value of performance share awards that will
be paid out to the participant. Earned performance share awards may be
paid in the form of cash or in shares (or in a combination thereof)
that have an aggregate fair market value equal to the value of the
earned performance shares awards at the close of the applicable
performance period.
4
On July 27, 2005, the Committee approved the grant of options under the
Company's 2005 Long-Term Incentive Compensation Plan to the following named
executive officers. Such options vest at the rate of 25% per year over the four
years following the grant date (except in the case of death, termination or
retirement).
Number of Securities
Name Underlying Options Granted Exercise Price Expiration Date
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Brad Nutter 200,000 $ 41.15 7/27/12
Peter Allen 19,000 $ 41.15 7/27/12
Brian Concannon 19,000 $ 41.15 7/27/12
Ron Ryan 17,000 $ 41.15 7/27/12
Bob Ebbeling 19,000 $ 41.15 7/27/12
In addition, on July 27, 2005, the Committee approved the grant of
options for the purchase of an aggregate of 70,000 shares of the Company's
common stock under the 2005 Long-Term Incentive Compensation Plan to other
executive officers. All such options vest at the rate of 25% per year over the 4
years following the grant date (except in the case of death, termination or
retirement). All of such options were granted at an exercise price of $41.15 per
share.
Each option granted to named executive officers and other executive
officers will terminate on the earlier of the expiration by its terms on July
27, 2012, or: (i) three months after the employee ceases to be an employee of
the Company; or (ii) two years after the employee ceases to be an employee of
the Company due to retirement; and in each case can be exercised prior to
termination only to the extent shares were vested at the time employment
terminated. In the event of the death of the employee, any unvested options
would immediately become fully vested, and would be exercisable until expiration
on July 27, 2012. In the event of the disability of an employee, options would
continue to vest, and would be exercisable until expiration on July 27, 2012. In
the event of a change of control, any unvested options would immediately become
fully vested.
ITEM 9.01 FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits.
The following exhibits are filed as part of this report:
Exhibit Number Description
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10.1 Summary of Haemonetics Corporation Non-Employee Director
Compensation
10.2 Haemonetics Corporation 2005 Long-Term Incentive Compensation
Plan
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
HAEMONETICS CORPORATION
(Registrant)
Date: August 2, 2005
/s/ ALICIA R. LOPEZ
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Alicia Lopez, General Counsel and
Vice President of Administration
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Exhibit 10.1
10.1 Summary of Haemonetics Corporation Non-Employee Director Compensation
Applicability: All outside, non-employee directors, not including Chairman of
the board
COMPENSATION EFFECTIVE 10/03 EFFECTIVE 7/05
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Board Annual Retainer $24,000* $24,000*
Board Meeting Fees (participation in person) $1,000 per day $1,000 per day
Board Telephone Meetings $500 per meeting $500 per meeting
Audit Committee Chairman Annual Retainer $4,000* $8,000*
Compensation Committee Chairman Annual Retainer $4,000* $6,000*
Nominating & Governance Committee Chairman Annual $4,000* $6,000*
Retainer (except if Chairman of the Board)
Audit Committee Meeting Fees (participation in person) $500 per day $1,000 per day
Audit Committee Telephone Meetings $300 $300
Compensation Committee Meeting Fees (participation in $500 per day $750 per day
person)
Compensation Committee Telephone Meetings $300 $300
Nominating & Governance Committee Meetings Fees $500 per day $750 per day
(participation in person)
Nominating & Governance Committee Telephone Meetings $300 $300
Stock Options - Initial Grant 20,000 shares **
(unchanged)
Stock Options - Annually 6,000 shares **
(unchanged)
* Paid quarterly in advance, on the last day of each quarter
** Vesting immediately
Exhibit 10.2
HAEMONETICS CORPORATION
2005 LONG-TERM INCENTIVE
COMPENSATION PLAN
Effective July 27, 2005
TABLE OF CONTENTS
PAGE
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Article 1. Establishment, Objectives, and Duration.......................1
Article 2. Definitions...................................................1
Article 3. Administration................................................4
Article 4. Shares Subject to the Plan and Maximum Awards.................5
Article 5. Eligibility and Participation.................................6
Article 6. Stock Options.................................................7
Article 7. Stock Appreciation Rights.....................................8
Article 8. Restricted Stock..............................................9
Article 9. Deferred Stock/Restricted Stock Units........................10
Article 10. Other Stock Unit Awards......................................11
Article 11. Performance Shares...........................................11
Article 12. Performance Measures.........................................12
Article 13. Rights of Participants.......................................13
Article 14. Termination of Employment/Directorship.......................13
Article 15. Change in Control............................................14
Article 16. Amendment, Modification, and Termination.....................15
Article 17. Withholding..................................................15
Article 18. Successors...................................................16
Article 19. General Provisions...........................................16
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ARTICLE 1. ESTABLISHMENT, OBJECTIVES, AND DURATION
1.1 Establishment of the Plan. Haemonetics Corporation, a Massachusetts
corporation, hereby adopts the "Haemonetics Corporation 2005 Incentive
Compensation Plan" (hereinafter referred to as the "Plan"), as set forth in this
document. The Plan permits the grant of Nonqualified Stock Options, Incentive
Stock Options, Stock Appreciation Rights, Restricted Stock, Deferred
Stock/Restricted Stock Units, Other Stock Units and Performance Shares.
Subject to approval by the Company's stockholders, this Plan shall become
effective as of July 27, 2005 (the "Effective Date"). Awards may be granted
under this Plan prior to such stockholder approval; provided, the effectiveness
of such Awards shall be contingent on such stockholder approval being obtained.
1.2 Objectives of the Plan. The objectives of the Plan are to optimize
the profitability and growth of the Company through incentives that are
consistent with the Company's goals and that link the personal interests of
Participants to those of the Company's stockholders, to provide Participants
with an incentive for excellence in individual performance, and to promote
teamwork among Participants.
The Plan is further intended to provide flexibility to the Company and its
Subsidiaries in their ability to motivate, attract, and retain the services of
Participants who make significant contributions to the Company's success and to
allow Participants to share in that success.
1.3 Duration of the Plan. The Plan shall remain in effect, subject to
the right of the Committee to amend or terminate the Plan at any time pursuant
to Article 16 hereof, until the earlier of when (a) all Shares subject to it
shall have been purchased or acquired according to the Plan's provisions or (b)
the seventh (7th) anniversary of the Effective Date. However (in case of any
amendment to the previous sentence), in no event may an Award of an Incentive
Stock Option be granted under the Plan on or after the tenth (10th) anniversary
of the Effective Date.
ARTICLE 2. DEFINITIONS
Whenever used in this Plan, the following terms shall have the meanings set
forth below, and when the meaning is intended, the initial letter of the word
shall be capitalized:
2.1 "Award" means, individually or collectively, a grant under this
Plan of Nonqualified Stock Options, Incentive Stock Options, Stock Appreciation
Rights, Restricted Stock, Deferred Stock/Restricted Stock Units, Other Stock
Units or Performance Shares.
2.2 "Award Agreement" means a written or electronic agreement entered
into by the Company and a Participant setting forth the terms and provisions
applicable to an Award granted under this Plan.
2.3 "Beneficial Owner" or "Beneficial Ownership" shall have the meaning
ascribed to such term in Rule 13d-3 of the General Rules and Regulations under
the Exchange Act.
2.4 "Board" or "Board of Directors" means the Board of Directors of the
Company.
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2.5 "Change in Control" shall be deemed to have occurred if any person
or any two or more persons acting as a group, and all affiliates of such person
or persons, who prior to such time owned less than thirty-five percent (35%) of
the then outstanding common stock of the Company, shall acquire such additional
shares of the Company's common stock in one or more transactions, or series of
transactions, such that following such transaction or transactions, such person
or group and affiliates beneficially own thirty-five percent (35%) or more of
the Company's common stock outstanding.
2.6 "Code" means the Internal Revenue Code of 1986, as amended from
time to time.
2.7 "Committee" means the committee appointed from time to time by the
Company's Board of Directors to administer the Plan. The full Board of
Directors, in its discretion, may act as the Committee under the Plan, whether
or not a Committee has been appointed, and shall do so with respect to grants of
Awards to non-employee Directors. The Committee may delegate to one or more
members of the Committee or officers of the Company, individually or acting as a
committee, any portion of its authority, except as otherwise expressly provided
in the Plan. In the event of a delegation to a member of the Committee, officer
or a committee thereof, the term "Committee" as used herein shall include the
member of the Committee, officer or committee with respect to the delegated
authority. Notwithstanding any such delegation of authority, the Committee
comprised of members of the Board of Directors and appointed by the Board of
Directors shall retain overall responsibility for the operation of the Plan.
2.8 "Company" means Haemonetics Corporation, a Massachusetts
corporation, and any successor thereto as provided in Article 18 hereof.
2.9 "Covered Employee" means a Participant who, as of the date of
vesting and/or payout of an Award, or the date the Company or any of its
Subsidiaries is entitled to a tax deduction as a result of the Award, as
applicable, is one of the group of "covered employees," as defined in the
regulations promulgated under Code Section 162(m), or any successor statute.
2.10 "Deferred Stock Unit" means an Award granted to a Participant
pursuant to Article 9 hereof.
2.11 "Director" means any individual who is a member of the Board of
Directors of the Company; provided, however, that any Director who is employed
by the Company shall be treated as an Employee under the Plan.
2.12 "Disability" shall mean a condition whereby the Participant is
unable to engage in any substantial gainful activity by reason of any medically
determinable physical impairment which can be expected to result in death or
which is or can be expected to last for a continuous period of not less than
twelve months, all as verified by a physician acceptable to, or selected by, the
Company.
2.13 "Effective Date" shall have the meaning ascribed to such term in
Section 1.1 hereof.
2.14 "Employee" means any employee of the Company or its Subsidiaries.
2.15 "Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, or any successor act thereto.
2.16 "Fair Market Value" as of any date and in respect of any Share
means the average of the high and low trading prices for the Shares as reported
on the New York Stock Exchange for that date, or if no such prices are reported
for that date, the average of the high and low trading prices on the next
preceding date for which such prices were reported, unless otherwise determined
by the Committee. In no event shall the fair market value of any Share be less
than its par value.
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2.17 "Incentive Stock Option" or "ISO" means an option to purchase
Shares granted under Article 6 hereof and that is designated as an Incentive
Stock Option and that is intended to meet the requirements of Code Section 422.
2.18 "Insider" shall mean an individual who is, on the relevant date, an
executive officer, director or ten percent (10%) beneficial owner of any class
of the Company's equity securities that is registered pursuant to Section 12 of
the Exchange Act, all as defined under Section 16 of the Exchange Act.
2.19 "Key Employee" shall mean an employee (as defined in Code Section
416(i) (but without regard to paragraph (5) thereof)) of the Company.
2.20 "Nonqualified Stock Option" or "NQSO" means an option to purchase
Shares granted under Article 6 hereof that is not intended to meet the
requirements of Code Section 422, or that otherwise does not meet such
requirements.
2.21 "Option" means an Incentive Stock Option or a Nonqualified Stock
Option.
2.22 "Option Price" means the price at which a Share may be purchased by
a Participant pursuant to an Option.
2.23 "Other Stock Unit Award" means an Award granted to a Participant,
as described in Article 10 hereof.
2.24 "Participant" means an Employee or Director who has been selected
to receive an Award or who has an outstanding Award granted under the Plan.
2.25 "Performance-Based Exception" means the performance-based exception
from the tax deductibility limitations of Code Section 162(m).
2.26 "Performance Share" means an Award granted to a Participant, as
described in Article 11 hereof.
2.27 "Period of Restriction" means the period during which the transfer
of Shares of Restricted Stock is limited in some way (based on the passage of
time, the achievement of performance goals, or upon the occurrence of other
events as determined by the Committee, at its discretion), and the Shares are
subject to a substantial risk of forfeiture, pursuant to the Restricted Stock
Award Agreement, as provided in Article 8 hereof.
2.28 "Person" shall have the meaning ascribed to such term in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof and the
rules promulgated thereunder, including a "group" as defined in Section 13(d)
thereof and the rules promulgated.
2.29 "Restricted Stock" means an Award granted to a Participant pursuant
to Article 8 hereof.
2.30 "Restricted Stock Unit" means an Award granted to a Participant
pursuant to Article 9 hereof.
2.31 "Shares" means shares of the Company's common stock, par value $.01
per share.
-3-
2.32 "Stock Appreciation Right" or "SAR" means an Award granted pursuant
to the terms of Article 7 hereof.
2.33 "Subsidiary" means any corporation, partnership, joint venture, or
other entity in which the Company, directly or indirectly, has a majority voting
interest. With respect to Incentive Stock Options, "Subsidiary" means any
entity, domestic or foreign, whether or not such entity now exists or is
hereafter organized or acquired by the Company or by a Subsidiary that is a
"subsidiary corporation" within the meaning of Code Section 424(d) and the rules
thereunder.
2.34 "Ten Percent Shareholder" means an employee who at the time an ISO
is granted owns Shares possessing more than ten percent of the total combined
voting power of all classes of stock of the Company or any Subsidiary, within
the meaning of Code Section 422.
ARTICLE 3. ADMINISTRATION
3.1 General. Subject to the terms and conditions of the Plan, the Plan
shall be administered by the Committee. The members of the Committee shall be
appointed from time to time by, and shall serve at the discretion of, the Board
of Directors. The Committee shall have the authority to delegate administrative
duties to officers of the Company. For purposes of making Awards intended to
qualify for the Performance Based Exception under Code Section 162(m), to the
extent required under such Code Section, the Committee shall be comprised solely
of two or more individuals who are "outside directors", as that term is defined
in Code Section 162(m) and the regulations thereunder.
3.2 Authority of the Committee. Except as limited by law or by the
Certificate of Incorporation or Bylaws of the Company, and subject to the
provisions hereof, the Committee shall have full power to select Employees and
Directors who shall be offered the opportunity to participate in the Plan;
determine the sizes and types of Awards; determine the terms and conditions of
Awards in a manner consistent with the Plan (including, but not limited to,
termination provisions); construe and interpret the Plan and any agreement or
instrument entered into under the Plan; establish, amend, or waive rules and
regulations for the Plan's administration; and amend the terms and conditions of
any outstanding Award as provided in the Plan. Further, the Committee shall make
all other determinations that it deems necessary or advisable for the
administration of the Plan. As permitted by law and the terms of the Plan, the
Committee may delegate its authority herein. No member of the Committee shall be
liable for any action taken or decision made in good faith relating to the Plan
or any Award granted hereunder.
3.3 Decisions Binding. All determinations and decisions made by the
Committee pursuant to the provisions of the Plan and all related orders and
resolutions of the Committee shall be final, conclusive, and binding on all
persons, including the Company, its stockholders, Directors, Employees,
Participants, and their estates and beneficiaries, unless changed by the Board.
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ARTICLE 4. SHARES SUBJECT TO THE PLAN AND MAXIMUM AWARDS
4.1 Number of Shares Available for Grants. Subject to adjustment as
provided in Section 4.2 hereof, the number of Shares hereby reserved for
issuance to Participants under the Plan shall equal 3,100,000. Subject to
adjustment as provided in Section 4.2 hereof, the maximum number of Shares that
may be issued pursuant to Incentive Stock Options shall not exceed 500,000. Any
Shares that are subject to Awards of Stock Options shall be counted against this
limit as one (1) Share for every one (1) Share issued. Any Shares that are
subject to Awards other than Stock Options shall be counted against this limit
as 2.1 Shares for every one (1) Share granted.
Any Shares covered by an Award (or portion of an Award) granted under the
Plan which is cashed out, forfeited, canceled or expires shall be deemed not to
have been delivered for purposes of determining the maximum number of Shares
available for delivery under the Plan. If a Participant tenders shares (either
actually, by attestation or otherwise) to pay all or any part of the Option
Price or purchase price on an Award or if any shares payable with respect to any
Award are retained by the Company in satisfaction of the Participant's
obligation for taxes, the number of shares actually tendered or retained shall
not become or again be, as the case may be, included in the Share limit
described in this Section 4.1.
Shares may be authorized or unissued shares. The Committee shall determine
the appropriate methodology for calculating the number of Shares issued pursuant
to the Plan.
The following limitations shall apply to the grant of any Award to a
Participant in a fiscal year:
(a) Stock Options: The maximum aggregate number of Shares that may be
granted in the form of Stock Options pursuant to Awards granted
in any one fiscal year to any one Participant shall be 600,000.
(b) SARs: The maximum aggregate number of Shares that may be granted
in the form of Stock Appreciation Rights pursuant to Awards
granted in any one fiscal year to any one Participant shall be
250,000.
(c) Restricted Stock: The maximum aggregate number of Shares that may
be granted with respect to Awards of Restricted Stock granted in
any one fiscal year to any one Participant shall be 250,000.
(d) Deferred Stock/Restricted Stock Unit Awards: The maximum
aggregate grant or award with respect to Awards of Deferred Stock
Units made in any one fiscal year to any one Participant may not
exceed $7,000,000. The maximum aggregate grant with respect to
Awards of Restricted Stock Units made in any one fiscal year to
any one Participant may not exceed $7,000,000.
(e) Other Stock Unit Awards: The maximum aggregate grant with respect
to Awards of Other Stock Units made in any one fiscal year to any
one Participant may not exceed $10,000,000.
(f) Performance Shares Awards: The maximum aggregate grant with
respect to Awards of Performance Shares made in any one fiscal
year to any one Participant shall be equal to the Fair Market
Value of 250,000 Shares (measured on the date of grant).
-5-
Notwithstanding anything in the Plan to the contrary and subject to
adjustment as provided in Section 4.2, the maximum aggregate number of Shares
that may be granted as Awards in any one fiscal year to a Director shall be
equal to the Fair Market Value of 10,000 Shares (measured on the date of grant)
and the maximum aggregate number of Shares that may be granted as Awards to any
Director cumulatively under this Plan is 350,000.
The maximum amount that may be paid under the Annual Target Bonus Plan in
any one fiscal year to a participant in that plan shall be $2 million.
4.2 Adjustments in Authorized Shares. Upon a change in corporate
capitalization, such as a stock split, stock dividend or a corporate
transaction, such as any merger, consolidation, combination, exchange of shares
or the like, separation, including a spin-off, or other distribution of stock or
property of the Company, any reorganization (whether or not such reorganization
comes within the definition of such term in Code Section 368) or any partial or
complete liquidation of the Company, such adjustment shall be made in the number
and class of Shares that may be delivered under Section 4.1, in the number and
class of and/or price of Shares subject to outstanding Awards granted under the
Plan, and in the Award limits set forth in Section 4.1, as may be determined to
be appropriate and equitable by the Committee, in its sole discretion, to
prevent dilution or enlargement of rights.
4.3 Adjustment of Awards Upon the Occurrence of Certain Unusual or
Nonrecurring Events. The Committee may make adjustments in the terms and
conditions of, and the criteria included in, Awards in recognition of unusual or
nonrecurring events (including, without limitation, the events described in
Section 4.2 hereof) affecting the Company or the financial statements of the
Company or of changes in applicable laws, regulations, or accounting principles,
whenever the Committee determines that such adjustments are appropriate in order
to prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan; provided that, unless the
Committee determines otherwise at the time such adjustment is considered, no
such adjustment shall be authorized to the extent that such authority would be
inconsistent with the Plan's or any Award's meeting the requirements of Section
162(m) of the Code, as from time to time amended.
ARTICLE 5. ELIGIBILITY AND PARTICIPATION
5.1 Eligibility. Persons eligible to participate in this Plan include
all Employees and Directors of the Company and its Subsidiaries.
5.2 Actual Participation. Subject to the provisions of the Plan, the
Committee may, from time to time, select from all eligible Employees and
Directors, those to whom Awards shall be granted and shall determine the nature
and amount of each Award, provided that Incentive Stock Options shall only be
awarded to Employees of the Company or its Subsidiaries.
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ARTICLE 6. STOCK OPTIONS
6.1 Grant of Options. Subject to the terms and provisions of the Plan,
Options may be granted to Participants in such number, and upon such terms, and
at any time and from time to time as shall be determined by the Committee.
6.2 Award Agreement. Each Option grant shall be evidenced by an Award
Agreement that shall specify the Option Price, the duration of the Option, the
number of Shares to which the Option pertains, and such other provisions as the
Committee shall determine which are not inconsistent with the terms of the Plan.
6.3 Option Price. The Option Price for each Option shall equal the Fair
Market Value of the Shares at the time such option is granted. No ISOs will be
granted to a Ten Percent Shareholder. The Option Price may not be decreased with
respect to an outstanding Option following the date of grant and no option will
be replaced with another option with a lower Option Price.
6.4 Duration of Options. Each Option granted to a Participant shall
expire at such time as the Committee shall determine at the time of grant,
provided that an Option must expire no later than the seventh (7th) anniversary
of the date the Option was granted.
6.5 Exercise of Options. Options shall be exercisable at such times and
be subject to such restrictions and conditions as the Committee shall in each
instance approve, which need not be the same for each grant or for each
Participant.
6.6 Payment. Options shall be exercised by the delivery of a written,
electronic or telephonic notice of exercise to the Company or its designated
agent, setting forth the number of Shares with respect to which the Option is to
be exercised, accompanied by full payment of the Option Price for the Shares.
Upon the exercise of any Option, the Option Price for the Shares being
purchased pursuant to the Option shall be payable to the Company in full either:
(a) in cash or its equivalent; (b) subject to the Committee's approval, by
delivery of previously acquired Shares having an aggregate Fair Market Value at
the time of exercise equal to the total Option Price (provided that the Shares
that are delivered must have been held by the Participant for at least six (6)
months prior to their delivery to satisfy the Option Price); (c) subject to the
Committee's approval, by authorizing a third party to sell Shares (or a
sufficient portion of the Shares) acquired upon exercise of the Option and
remitting to the Company a sufficient portion of the sales proceeds to pay the
Option Price; (d) subject to the Committee's approval, by a combination of (a),
(b), or (c); or (e) by any other method approved by the Committee in its sole
discretion. Unless otherwise determined by the Committee, the delivery of
previously acquired Shares may be done through attestation. No fractional shares
may be tendered or accepted in payment of the Option Price.
Unless otherwise determined by the Committee, cashless exercises are
permitted pursuant to Federal Reserve Board's Regulation T, subject to
applicable securities law restrictions, or by any other means which the
Committee determines to be consistent with the Plan's purpose and applicable
law.
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Subject to any governing rules or regulations, as soon as practicable after
receipt of notification of exercise and full payment, the Company shall deliver
to the Participant, in the Participant's name, Share certificates in an
appropriate amount based upon the number of Shares purchased pursuant to the
Option(s).
Unless otherwise determined by the Committee, all payments under all of the
methods indicated above shall be paid in United States dollars.
6.7 Restrictions on Share Transferability. The Committee may impose
such restrictions on any Shares acquired pursuant to the exercise of an Option
granted under this Article 6 as it may deem advisable, including, without
limitation, restrictions under applicable federal securities laws, under the
requirements of any stock exchange or market upon which such Shares are then
listed and/or traded, or under any blue sky or state securities laws applicable
to such Shares.
6.8 NONTRANSFERABILITY OF OPTIONS.
(a) Incentive Stock Options. No ISO granted under the Plan may be
sold, transferred, pledged, assigned, encumbered or otherwise
alienated or hypothecated, other than by will or by the laws
of descent and distribution. Further, all ISOs granted to a
Participant under the Plan shall be exercisable during such
Participant's lifetime only by such Participant.
(b) Nonqualified Stock Options. Except as otherwise provided in
the applicable Award Agreement, no NQSO may be sold,
transferred, pledged, assigned, encumbered or otherwise
alienated or hypothecated, other than by will or by the laws
of descent and distribution. Further, except as otherwise
provided in the applicable Award Agreement, all NQSOs granted
to a Participant shall be exercisable during such
Participant's lifetime only by such Participant.
6.9 Special Limitation on Grants of Incentive Stock Options. No ISO
shall be granted to an Employee under the Plan or any other ISO plan of the
Company or its Subsidiaries to purchase Shares as to which the aggregate Fair
Market Value (determined as of the date of grant) of the Shares which first
become exercisable by the Employee in any calendar year exceeds $100,000. To the
extent an Option initially designated as an ISO exceeds the value limit of this
Section 6.9 or otherwise fails to satisfy the requirements applicable to ISOs,
it shall be deemed a NQSO and shall otherwise remain in full force and effect.
ARTICLE 7. STOCK APPRECIATION RIGHTS
7.1 Grant of SARs. Subject to the terms and conditions of the Plan,
SARs may be granted to Participants at any time and from time to time as shall
be determined by the Committee.
Subject to the terms and conditions of the Plan, the Committee shall have
complete discretion in determining the number of SARs granted to each
Participant and, consistent with the provisions of the Plan, in determining the
terms and conditions pertaining to such SARs.
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The grant price of a SAR shall equal the Fair Market Value of a Share on
the date of grant.
7.2 SAR Agreement. Each SAR grant shall be evidenced by an Award
Agreement that shall specify the grant price, the term of the SAR, and such
other provisions as the Committee shall determine.
7.3 Term of SARs. The term of an SAR granted under the Plan shall be
determined by the Committee, in its sole discretion, provided that an SAR must
expire no later than the seventh (7th) anniversary of the date the SAR was
granted.
7.4 Exercise of SARs. SARs may be exercised upon whatever terms and
conditions the Committee, in its sole discretion, imposes upon them.
7.6 Payment of SAR Amount. Upon exercise of an SAR, a Participant shall
be entitled to receive payment from the Company in an amount determined by
multiplying:
(a) The amount by which the Fair Market Value of a Share on the
date of exercise exceeds the grant price of the SAR; by
(b) The number of Shares with respect to which the SAR is
exercised.
The payment upon SAR exercise shall be in Shares. Any Shares delivered in
payment shall be deemed to have a value equal to the Fair Market Value on the
date of exercise of the SAR.
7.7 Nontransferability of SARs. Except as otherwise provided in a
Participant's Award Agreement, no SAR granted under the Plan may be sold,
transferred, pledged, assigned, encumbered, or otherwise alienated or
hypothecated, other than by will or by the laws of descent and distribution.
Further, except as otherwise provided in a Participant's Award Agreement, all
SARs granted to a Participant under the Plan shall be exercisable during such
Participant's lifetime only by such Participant.
ARTICLE 8. RESTRICTED STOCK
8.1 Grant of Restricted Stock. Subject to the terms and provisions of
the Plan, the Committee, at any time and from time to time, may grant Shares of
Restricted Stock to Participants in such amounts as the Committee shall
determine.
8.2 Restricted Stock Agreement. Each Restricted Stock grant shall be
evidenced by a Restricted Stock Award Agreement that shall specify the Period(s)
of Restriction, the number of Shares of Restricted Stock granted, and such other
provisions as the Committee shall determine which are not inconsistent with the
terms of this Plan.
8.3 Transferability. Except as provided in the Award Agreement, the
Shares of Restricted Stock granted herein may not be sold, transferred, pledged,
assigned, encumbered, or otherwise alienated or hypothecated until the end of
the applicable Period of Restriction established by the Committee and specified
in the Restricted Stock Award Agreement, or upon earlier satisfaction of any
other conditions, as specified by the Committee in its sole discretion and set
forth in the Restricted Stock Award Agreement. All rights with respect to the
Restricted Stock granted to a Participant under the Plan shall be available
during such Participant's lifetime and prior to the end of the Period of
Restriction only to such Participant.
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8.4 Other Restrictions. The Committee may impose such other conditions
and/or restrictions on any Shares of Restricted Stock granted pursuant to the
Plan as it may deem advisable including, without limitation, a requirement that
Participants pay a stipulated purchase price for each Share of Restricted Stock,
restrictions based upon the achievement of specific performance goals,
time-based restrictions on vesting following the attainment of the performance
goals, time-based restrictions, and/or restrictions under applicable federal or
state securities laws.
To the extent deemed appropriate by the Committee, the Company may retain
the certificates representing Shares of Restricted Stock in the Company's
possession until such time as all conditions and/or restrictions applicable to
such Shares have been satisfied.
Except as otherwise provided in the Award Agreement, Shares of Restricted
Stock covered by each Restricted Stock grant made under the Plan shall become
freely transferable by the Participant after the last day of the applicable
Period of Restriction.
8.5 Voting Rights. If the Committee so determines, Participants holding
Shares of Restricted Stock granted hereunder may be granted the right to
exercise full voting rights with respect to those Shares during the Period of
Restriction.
8.6 Dividends and Other Distributions. During the Period of
Restriction, Participants holding Shares of Restricted Stock granted hereunder
(whether or not the Company holds the certificate(s) representing such Shares)
may, if the Committee so determines, be credited with dividends paid with
respect to the underlying Shares while they are so held. The Committee may apply
any restrictions to the dividends that the Committee deems appropriate. Without
limiting the generality of the preceding sentence, if the grant or vesting of
Restricted Shares granted to a Covered Employee is designed to comply with the
requirements of the Performance-Based Exception, the Committee may apply any
restrictions it deems appropriate to the payment of dividends declared with
respect to such Restricted Shares, such that the dividends and/or the Restricted
Shares maintain eligibility for the Performance-Based Exception.
ARTICLE 9. DEFERRED STOCK AND RESTRICTED STOCK UNITS
9.1 Award of Deferred Stock Units. Subject to the terms and provisions
of the Plan, the Committee, at any time and from time to time, may award
Deferred Stock Units to Participants in lieu of payment of a bonus or other
Award if so elected by a Participant under such terms and conditions as the
Committee shall determine, including terms that provide for the grant of
Deferred Stock Units valued in excess of the bonus or Award deferred.
9.2 Election to Receive Deferred Stock Units. A Participant must make
an election to receive Deferred Stock Units in the calendar year before the
calendar year in which the services related to the Award are first performed.
The Committee may require a Participant to defer, or permit (subject to any
conditions as the Committee may from time to time establish) a Participant to
elect to defer, receipt of all or any portion of any payment of cash or Shares
that
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otherwise would be due to such Participant in payment or settlement of an Award
under the Plan, to the extent consistent with Section 409A of the Code. (Such
payments may include, without limitation, provisions for the payment or
crediting of reasonable interest in respect of deferred payments credited in
cash, and the payment or crediting of dividend equivalents in respect of
deferred amounts credited in stock equivalents.) Settlement of any Deferred
Stock Units shall be made in a single sum of cash or Shares.
9.3 Grant of Restricted Stock Units. Subject to the terms and
provisions of the Plan, the Committee, at any time and from time to time, may
grant Restricted Stock Units to Participants in such amounts as the Committee
may determine.
9.4 Restricted Stock Units Agreement. Each Restricted Stock Unit grant
shall be evidenced by a Restricted Stock Unit Award Agreement that shall specify
the date or dates and any other terms and conditions on which the Restricted
Stock Units may vest and such other terms and conditions of the grant as the
Committee shall determine.
9.5 Form and Timing of Payment of Restricted Stock Units. Payment of
vested Restricted Stock Units, or, if a Restricted Stock Unit Award is subject
to partial vesting, the vested portion of such Award, shall be made in a single
sum of cash or Shares or a combination thereof as soon as practicable after the
Restricted Stock Units or portion of the Award vests, but in no event later than
2 1/2 months after the calendar year in which vesting occurs. It is intended
that a Restricted Stock Unit Award be exempt from the application of Section
409A of the Code as a "short-term deferral."
ARTICLE 10. OTHER STOCK UNIT AWARDS
10.1 Grant of Other Stock Unit Awards. Subject to the terms of the Plan,
Other Stock Unit Awards that are valued in whole or in part by reference to, or
are otherwise based on, Shares or other property, may be granted to
Participants, either alone or in addition to other Awards granted under the
Plan, and such Other Stock Units shall also be available as a form of payment in
the settlement of other Awards granted under the Plan. Other Stock Units shall
be granted upon such terms, and at any time and from time to time, as shall be
determined by the Committee.
10.2 Award Agreement. Each Other Stock Unit grant shall be evidenced by
an Other Stock Unit Agreement that shall specify the restrictions upon such
Other Stock Units, if any, the number of Other Stock Units granted, and such
other provisions as the Committee shall determine which are not inconsistent
with the terms of this Plan.
ARTICLE 11. PERFORMANCE SHARES
11.1 Grant of Performance Shares Awards. Subject to the terms of the
Plan, Performance Shares Awards may be granted to Participants in such amounts
and upon such terms, and at any time and from time to time, as shall be
determined by the Committee.
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11.2 Award Agreement. At the Committee's discretion, each grant of
Performance Shares Awards may be evidenced by an Award Agreement that shall
specify the initial value, the duration of the Award, the performance measures,
if any, applicable to the Award, and such other provisions as the Committee
shall determine which are not inconsistent with the terms of the Plan.
11.3 Value of Performance Shares Awards. Each Performance Share shall
have an initial value equal to the Fair Market Value of a Share on the date of
grant. The Committee shall set performance goals in its discretion which,
depending on the extent to which they are met, will determine the number and/or
value of Performance Shares Awards that will be paid out to the Participant. For
purposes of this Article 11, the time period during which the performance goals
must be met shall be called a "Performance Period."
11.4 Earning of Performance Shares Awards. Subject to the terms of this
Plan, after the applicable Performance Period has ended, the holder of
Performance Shares Awards shall be entitled to receive a payout based on the
number and value of Performance Shares Awards earned by the Participant over the
Performance Period, to be determined as a function of the extent to which the
corresponding performance goals have been achieved.
11.5 Form and Timing of Payment of Performance Shares Awards. Payment of
earned Performance Shares Awards shall be as determined by the Committee and, if
applicable, as evidenced in the related Award Agreement. Subject to the terms of
the Plan, the Committee, in its sole discretion, may pay earned Performance
Shares Awards in the form of cash or in Shares (or in a combination thereof)
that have an aggregate Fair Market Value equal to the value of the earned
Performance Shares Awards at the close of the applicable Performance Period.
Such Shares may be delivered subject to any restrictions deemed appropriate by
the Committee. No fractional shares will be issued. The determination of the
Committee with respect to the form of payout of such Awards shall be set forth
in the Award Agreement pertaining to the grant of the Award or the resolutions
establishing the Award.
Unless otherwise provided by the Committee, Participants holding
Performance Shares shall be entitled to receive dividend units with respect to
dividends declared with respect to the Shares represented by such Performance
Shares.
11.6 Nontransferability. Except as otherwise provided in a Participant's
Award Agreement, Performance Shares Awards may not be sold, transferred,
pledged, assigned, encumbered, or otherwise alienated or hypothecated, other
than by will or by the laws of descent and distribution. Such dividends may be
subject to the same accrual, forfeiture, and payout restrictions as apply to
dividends earned with respect to Shares of Restricted Stock, as set forth in
Section 8.6 hereof, as determined by the Committee.
ARTICLE 12. PERFORMANCE MEASURES
Unless and until the Committee proposes for shareholder vote and the
Company's shareholders approve a change in the general performance measures set
forth in this Article 12, the attainment of which may determine the degree of
payout and/or vesting with respect to
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Awards to Covered Employees that are designed to qualify for the
Performance-Based Exception, the performance measure(s) to be used for purposes
of such grants shall be chosen from among: revenue, earnings per share,
operating income, net income (before or after taxes), cash flow (including, but
not limited to, operating cash flow and free cash flow), gross profit, growth in
any of the preceding measures, gross profit return on investment, gross margin
return on investment, working capital, gross margins, EBIT, EBITDA, return on
equity, return on assets, return on capital, revenue growth, total shareholder
return, economic value added, customer satisfaction, technology leadership,
number of new patents, employee retention, market share, market segment share,
product release schedules, new product innovation, cost reduction through
advanced technology, brand recognition/acceptance, and product ship targets.
Additionally, the Committee may exclude the impact of an event or occurrence
which the Committee determines should appropriately be excluded, including an
event not within the reasonable control of the Company's management.
Performance measures may be set either at the corporate level, subsidiary
level, division level, or business unit level.
Awards that are designed to qualify for the Performance-Based Exception,
and that are held by Covered Employees, may not be adjusted upward (the
Committee shall retain the discretion to adjust such Awards downward).
If applicable tax and/or securities laws change to permit Committee
discretion to alter the governing performance measures without obtaining
shareholder approval of such changes, the Committee shall have sole discretion
to make such changes without obtaining shareholder approval.
ARTICLE 13. RIGHTS OF PARTICIPANTS
13.1 Employment. Nothing in the Plan shall confer upon any Participant
any right to continue in the Company's or its Subsidiaries' employ, or as a
Director, or interfere with or limit in any way the right of the Company or its
Subsidiaries to terminate any Participant's employment or directorship at any
time.
13.2 Participation. No Employee or Director shall have the right to be
selected to receive an Award under this Plan, or, having been so selected, to be
selected to receive a future Award.
13.3 Rights as a Stockholder. Except as provided in Sections 8.5, 8.6
and 11.5 or in the applicable Award Agreement consistent with Articles 8, 9, 10,
or 11, a Participant shall have none of the rights of a shareholder with respect
to shares of Common Stock covered by any Award until the Participant becomes the
record holder of such Shares.
ARTICLE 14. TERMINATION OF EMPLOYMENT/DIRECTORSHIP
Upon termination of the Participant's employment or directorship for any
reason other than Disability, death, or, in the case of NQSOs, retirement, an
Option granted to the Participant may be exercised by the Participant or
permitted transferee at any time on or prior to the earlier of the expiration
date of the Option or the expiration of three (3) months after the date of
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termination but only if, and to the extent that, the Participant was entitled to
exercise the Option at the date of termination. Upon termination of the
Participant's employment or directorship due to retirement (as defined in the
Award Agreement), a NQSO granted to the Participant may be exercised by the
Participant or permitted transferee at any time on or prior to the earlier of
the expiration date of the Option or the expiration of two (2) years after the
date of termination due to retirement (as defined in the Award Agreement) but
only if, and to the extent that, the Participant was entitled to exercise the
Nonqualified Stock Option at the date of termination. Upon termination of the
Participant's employment or directorship for any reason other than Disability or
death, all Awards other than Options shall be treated as set forth in the
applicable Award Agreement. If the employment or directorship of a Participant
terminates by reason of the Participant's Disability or death, all Awards shall
be treated as set forth in the applicable Award Agreements.
Unless otherwise determined by the Committee, an authorized leave of
absence pursuant to a written agreement or other leave entitling an Employee to
reemployment in a comparable position by law or rule shall not constitute a
termination of employment for purposes of the Plan unless the Employee does not
return at or before the end of the authorized leave or within the period for
which re-employment is guaranteed by law or rule. For purposes of this Article,
a "termination" includes an event which causes a Participant to lose his
eligibility to participate in the Plan (e.g., an individual is employed by a
company that ceases to be a Subsidiary). In the case of a nonemployee director,
the meaning of "termination" includes the date that the individual ceases to be
a director of the Company or its Subsidiaries.
Notwithstanding the foregoing, the Committee has the authority to prescribe
different rules that apply upon the termination of employment of a particular
Participant, which shall be memorialized in the Participant's original or
amended Award Agreement or similar document.
An Award that remains unexercised after the latest date it could have been
exercised under any of the foregoing provisions or under the terms of the Award
shall be forfeited.
ARTICLE 15. CHANGE IN CONTROL
In the event of (1) any sale or conveyance to another entity of all or
substantially all of the property and assets of the Company or (2) a Change in
Control, unless otherwise specifically prohibited under applicable laws, or by
the rules and regulations of any governing governmental agencies or national
securities exchange or trading system, or unless the Committee shall otherwise
specify in the Award Agreement, the Board, in its sole discretion, may:
(a) elect to terminate Options or SARs in exchange for a cash payment
equal to the amount by which the Fair Market Value of the Shares
subject to such Option to the extent the Option or SAR has vested
exceeds the exercise price with respect to such Shares;
(b) elect to terminate Options or SARs provided that each Participant
is first notified of and given the opportunity to exercise
his/her vested Options for a specified period of time (of not
less than 15 days) from the date of notification and before the
Option or SAR is terminated;
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(c) permit Awards to be assumed by a new parent corporation or a
successor corporation (or its parent) and replaced with a
comparable Award of the parent corporation or successor
corporation (or its parent);
(d) amend an Award Agreement or take such other action with respect
to an Award that it deems appropriate; or
(e) implement any combination of the foregoing.
ARTICLE 16. AMENDMENT, MODIFICATION, AND TERMINATION
16.1 Amendment, Modification, and Termination. Subject to the terms of
the Plan, the Board may at any time and from time to time, alter, amend,
suspend, or terminate the Plan in whole or in part.
16.2 Awards Previously Granted. Notwithstanding any other provision of
the Plan to the contrary, no termination, amendment, or modification of the Plan
shall adversely affect in any material way any Award previously granted under
the Plan, without the written consent of the Participant holding such Award.
16.3 Shareholder Approval Required for Certain Amendments. Shareholder
approval will be required for any amendment of the Plan that does any of the
following: (a) increases the maximum number of Shares subject to the Plan; (b)
changes the designation of the class of persons eligible to receive ISOs under
the Plan; or (c) modifies the Plan in a manner that requires shareholder
approval under applicable law or the rules of a stock exchange or trading system
on which Shares are traded.
ARTICLE 17. WITHHOLDING
The Company shall have the power and the right to deduct or withhold, or
require a Participant to remit to the Company, an amount sufficient to satisfy
any applicable taxes (including social security or social charges), domestic or
foreign, required by law or regulation to be withheld with respect to any
taxable event arising as a result of this Plan. The Participant may satisfy,
totally or in part, such Participant's obligations pursuant to this Section 17
by electing to have Shares withheld, to redeliver Shares acquired under an
Award, or to deliver previously owned Shares that have been held for at least
six (6) months, provided that the election is made in writing on or prior to (i)
the date of exercise, in the case of Options or SARs; (ii) the date of payment,
in the case of Performance Shares/Deferred Stock Units/Restricted Stock Units;
or (iii) the expiration of the Period of Restriction in the case of Restricted
Stock. Any election made under this Section 17 may be disapproved by the
Committee at any time in its sole discretion. If an election is disapproved by
the Committee, the Participant must satisfy his obligations pursuant to this
paragraph in cash.
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ARTICLE 18. SUCCESSORS
All obligations of the Company under the Plan with respect to Awards
granted hereunder shall be binding on any successor to the Company, whether the
existence of such successor is the result of a direct or indirect purchase,
through merger, consolidation, or otherwise, of all or substantially all of the
business, stock and/or assets of the Company.
ARTICLE 19. GENERAL PROVISIONS
19.1 Gender and Number. Except where otherwise indicated by the context,
any masculine term used herein also shall include the feminine; the plural shall
include the singular and the singular shall include the plural.
19.2 Severability. If any provision of the Plan shall be held illegal or
invalid for any reason, the illegality or invalidity shall not affect the
remaining parts of the Plan, and the Plan shall be construed and enforced as if
the illegal or invalid provision had not been included.
19.3 Requirements of Law. The granting of Awards and the issuance of
Shares under the Plan shall be subject to all applicable laws, rules, and
regulations, and to such approvals by any governmental agencies or national
securities exchanges as may be required.
19.4 Securities Law Compliance. With respect to Insiders, transactions
under this Plan are intended to comply with all applicable conditions of Rule
16b-3 or its successors under the Exchange Act, unless determined otherwise by
the Board. To the extent any provision of the Plan or action by the Committee
fails to so comply, it shall be deemed null and void, to the extent permitted by
law and deemed advisable by the Board.
19.5 Listing. The Company may use reasonable endeavors to register
Shares issued pursuant to Awards with the United States Securities and Exchange
Commission or to effect compliance with the registration, qualification, and
listing requirements of any state or foreign securities laws, stock exchange, or
trading system.
19.6 Inability to Obtain Authority. The inability of the Company to
obtain authority from any regulatory body having jurisdiction, which authority
is deemed by the Company's counsel to be necessary to the lawful issuance and
sale of any Shares hereunder, shall relieve the Company of any liability in
respect of the failure to issue or sell such Shares as to which such requisite
authority shall not have been obtained.
19.7 No Additional Rights. Neither the Award nor any benefits arising
under this Plan shall constitute part of an employment contract between the
Participant and the Company or any Subsidiary, and accordingly, subject to
Section 16.2, this Plan and the benefits hereunder may be terminated at any time
in the sole and exclusive discretion of the Committee without giving rise to
liability on the part of the Company for severance payments.
19.8 Noncertificated Shares. To the extent that the Plan provides for
issuance of certificates to reflect the transfer of Shares, the transfer of such
Shares may be effected on a noncertificated basis, to the extent not prohibited
by applicable law or the rules of any stock exchange or trading system.
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19.9 Governing Law. The Plan and each Award Agreement shall be governed
by the laws of Massachusetts, excluding any conflicts or choice of law rule or
principle that might otherwise refer construction or interpretation of the Plan
to the substantive law of another jurisdiction. Unless otherwise provided in the
Award Agreement, recipients of an Award under the Plan are deemed to submit to
the exclusive jurisdiction and venue of the federal or state courts whose
jurisdiction covers Massachusetts, to resolve any and all issues that may arise
out of or relate to the Plan or any related Award Agreement.
19.10 Compliance with Code Section 409A. No Award that is subject to
Section 409A of the Code shall provide for deferral of compensation that does
not comply with Section 409A of the Code, unless the Board, at the time of
grant, specifically provides that the Award is not intended to comply with
Section 409A of the Code. Notwithstanding any provision in the Plan to the
contrary, with respect to any Award subject to Section 409A, distributions on
account of a separation from service may not be made to Key Employees before the
date which is six (6) months after the date of separation from service (or, if
earlier, the date of death of the employee).
Dated as of July 27, 2005 HAEMONETICS CORPORATION
By: /s/ Brad Nutter
---------------------------
Chief Executive Officer
Date of Shareholder Approval: July 27, 2005
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