Attached files
file | filename |
---|---|
8-K - IPGP - IPG PHOTONICS CORP | form8k.htm |
Exhibit
10.1
IPG
PHOTONICS CORPORATION
NON-EMPLOYEE DIRECTORS STOCK
PLAN
(As amended April 2,
2010)
IPG
Photonics Corporation has established this IPG Photonics Corporation
Non-Employee Directors Stock Plan to attract and retain Non-Employee Directors
of IPG Photonics Corporation.
1. DEFINITIONS
The
following terms shall have the following meanings unless the context indicates
otherwise:
1.1.
|
"Award" shall mean a
Stock Option, a SAR, a Stock Award, a Stock Unit, or a Cash
Award.
|
1.2.
|
"Award Agreement" shall
mean a written agreement between the Company and a Participant that
establishes the terms, conditions, restrictions and/or limitations
applicable to an Award, in addition to those established by the Plan and
by the Board.
|
1.3.
|
"Board" shall mean the
Board of Directors of the Company.
|
1.4.
|
"Cause" shall have the
meaning set forth in any written agreement between the Participant and the
Company. If there is no written agreement between the
Participant and the Company, or if such agreement does not define "Cause,"
then "Cause" shall have the meaning specified in the Award Agreement;
provided, that if the Award Agreement does not so specify, "Cause" shall
mean, as determined by the Board in its sole discretion, the
Participant: (i) engages in conduct that cause financial or
reputational injury to the Company; (ii) engages in any act of dishonesty
or misconduct that results in damage to the Company, or its business or
reputation or that the Board determines to adversely affect the value,
reliability or performance of the Participant to the Company; (iii)
refuses or fails to substantially comply with the human resources rules,
policies, directions and/or restrictions relating to harassment and/or
discrimination, or with compliance or risk management rules, policies,
directions and/or restrictions of the Company; or (iv) fails to cooperate
with the Company in any internal investigation or administrative,
regulatory or judicial proceeding. If any part of the
definition of Cause set forth in clauses (i) through (iv) above is deemed
applicable to a Participant, this shall not preclude or prevent the
reliance by the Company or the Board on any other part of the preceding
sentence that also may be applicable. An act or omission is
"willful" for this purpose if it was knowingly done, or knowingly omitted
to be done, by the Participant not in good faith and without reasonable
belief that the act or omission was in the best interest of the
Company.
|
1.5.
|
"Change in Control of the
Company" shall mean the occurrence of any one or more of the
following:
|
(a)
|
Any
"person" (as such term is defined in Section 3(a)(9) of the Exchange Act
and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act),
including a "group" (as defined in Section 13(d)(3) of the Exchange Act),
other than (i) the Company, (ii) any wholly-owned subsidiary of the
Company, or (iii) any employee benefit plan (or related trust) sponsored
or maintained by the Company or any Affiliate, becomes a "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company having fifty percent (50%) or
more of the combined voting power of the then-outstanding securities of
the Company that may be cast for the election of directors of the Company
(other than as a result of an issuance of securities initiated by the
Company in the ordinary course of business) (the "Company Voting
Securities"); provided, however, that the event described in this
paragraph (a) shall not be deemed to be a Change in Control by virtue of
any underwriter temporarily holding securities pursuant to an offering of
such securities;
|
(b)
|
During
any period of two consecutive years, individuals who at the beginning of
any such period constitute the Board (the "Incumbent Directors") cease for
any reason to constitute at least a majority of the Board, unless the
election, or the nomination for election by the stockholders of the
Company, of each new director of the Company during such period was
approved by a vote of at least two-thirds of the Incumbent Directors then
still in office;
|
(c)
|
As
the result of, or in connection with, any cash tender or exchange offer,
merger or other business combination, sale of all or substantially all of
the assets or contested election, or any combination of the foregoing
transactions, less than a majority of the combined voting power of the
then-outstanding securities of the Company or any successor corporation or
entity entitled to vote generally in the election of the directors of the
Company or such other corporation or entity after such transaction is held
in the aggregate by the holders of the securities of the Company entitled
to vote generally in the election of directors of the Company immediately
prior to such transaction; or
|
(d)
|
The
shareholders of the Company approve a plan of complete liquidation of the
Company.
|
Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
any person acquires beneficial ownership of more than fifty percent (50%) of the
Company Voting Securities as a result of the acquisition of Company Voting
Securities by the Company which reduces the number of Company Voting Securities
outstanding; provided, however, that if after such acquisition by the Company
such person becomes the beneficial owner of additional Company Voting Securities
that increases the percentage of outstanding Company Voting Securities
beneficially owned by such person, a Change in Control transaction shall then
occur.
|
Notwithstanding
the foregoing, to the extent necessary to avoid subjecting Participants to
interest and additional tax under Section 409A of the Code, no "Change in
Control" will be deemed to occur unless and until paragraph (a), (b), (c)
or (d), above, and the preceding paragraph are satisfied and Section
409A(a)(2)(A)(v) of the Code is
satisfied.
|
1.6.
|
"Code" shall mean the
Internal Revenue Code of 1986, as amended from time to
time.
|
1.7.
|
"Committee" shall mean
(i) the Board or (ii) a committee or subcommittee of the Board appointed
by the Board from among its members. The Committee may be the
Board's Compensation Committee. Unless the Board determines
otherwise, the Committee shall be comprised solely of not less than two
members who each shall qualify as a "Non-Employee Director" within the
meaning of Rule 16b-3(b)(3) (or any successor rule) under the Exchange
Act.
|
1.8.
|
"Common Stock" shall
mean the voting, common stock, $0.0001 par value per share, of the
Company.
|
1.9.
|
"Company" shall mean
IPG Photonics Corporation, a Delaware
corporation.
|
1.10.
|
"Disability" means the
total and permanent disability of a Participant (incurred while in the
active service of the Company) based on proof satisfactory to the
Board. Total and permanent disability shall be as defined in
the Company’s long-term disability plan, if any, or as otherwise provided
by the Company.
|
Notwithstanding
the foregoing, to the extent necessary to avoid subjecting an
individual to interest and additional tax under Section 409A of the
Code, such individual shall not be deemed to have a Disability unless and until
Section 409A(a)(2)(C) is satisfied.
1.11.
|
"Dividend Equivalent
Right" shall mean the right to receive an amount equal to the
amount of any dividend paid with respect to a share of Common Stock
multiplied by the number of shares of Common Stock underlying or with
respect to a Stock Option, a SAR, or a Stock Unit, and which shall be
payable in cash, in Common Stock, or in the form of Stock Units, or a
combination of any or all of the
foregoing.
|
1.12.
|
"Effective Date" shall
mean the date on which the Plan is adopted by the
Board.
|
1.13.
|
"Exchange Act" shall
mean the Securities Exchange Act of 1934, as amended from time to time,
including applicable regulations
thereunder.
|
1.14.
|
“Fair Market Value of the
Common Stock" shall mean:
|
(a)
|
if
the Common Stock is readily tradeable on a national securities exchange or
other market system, the closing price of the Common Stock on the date of
calculation (or on the last preceding trading date if Common Stock was not
traded on such date), or
|
(b)
|
if
the Common Stock is not readily tradeable on a national securities
exchange or other market system, the value as determined in good faith by
the Board.
|
1.15.
|
"Non-Employee Director"
shall mean a member of the Board who is not an employee of the Company or
any of its affiliates.
|
1.16.
|
"Nonqualified Stock
Option" shall mean a Stock Option that does not qualify as an
"incentive stock option" as such term is used in Code Section
422.
|
1.17.
|
“Nonvoting Stock” shall
mean the capital stock of any class or classes having no voting power to
elect the directors of a
corporation.
|
1.18.
|
"Participant" shall
mean any Non-Employee Director to whom an Award has been granted by the
Board under the Plan.
|
1.19.
|
"Plan" shall mean the
IPG Photonics Corporation Non-Employee Directors Stock Plan, as
amended.
|
1.20.
|
"Recapitalization" shall
mean any stock split, stock dividend, recapitalization, combination of
shares, exchange of shares or other change affecting the Company’s
outstanding shares of capital stock as a class without the Company’s
receipt of consideration.
|
1.21.
|
"Reorganization" shall
mean any of the following: (a) a merger or consolidation
in which the Company is not the surviving entity; (b) a sale,
transfer or other disposition of all or substantially all of the Company’s
assets; (c) a reverse merger in which the Company is the surviving
entity but in which the Company’s outstanding voting securities are
transferred in whole or in part to a person or persons different from the
persons holding those securities immediately prior to the merger; or
(d) any transaction effected primarily to change the state in which
the Company is incorporated or to create a holding company
structure.
|
1.22.
|
"Retirement" means
termination of Service (other than removal for Cause, death or Disability)
after completion of eight or more years of Service as a director, only if
the Non-Employee Director shall provide Services until the end of a full
one-year term (which for this purpose is until the next annual meeting of
shareholders) or, in the event of a classified board of directors in which
a class of directors is elected by shareholders and where a retiring
director may be serving a multi-year term, until the end of a
full year of such term (which for this purpose is until the next annual
meeting of shareholders).
|
1.23.
|
"SAR" shall mean a
grant by the Board to a Participant of a stock appreciation right as
described in Section 7 below.
|
1.24.
|
"Service" shall mean
the provision of services to the Company as a member of the Board of
Directors of the Company.
|
1.25.
|
"Stock" shall mean the
shares of capital stock of the
Company.
|
1.26.
|
"Stock Award" shall
mean a grant by the Board to a Participant of an Award of Common Stock as
described in Section 8.1 below.
|
1.27.
|
"Stock Option" shall
mean a grant by the Board to a Participant of an option to purchase Common
Stock as described in Section 6
below.
|
1.28.
|
"Stock Unit" shall mean
a grant by the Board to a Participant of an Award as described in Section
8.2 below.
|
1.29.
|
"Treasury Regulations"
shall mean the regulations promulgated under the Code by the United
States Department of the Treasury, as amended from time to
time.
|
1.30.
|
"Vest" shall
mean:
|
(a)
|
with
respect to Stock Options and SARs, when the Stock Option or SAR (or a
portion of such Stock Option or SAR) first becomes exercisable and remains
exercisable subject to the terms and conditions of such Stock Option or
SAR; or
|
(b)
|
with
respect to Awards other than Stock Options and SARs, when the Participant
has:
|
(i)
|
an
unrestricted right, title and interest to receive the compensation
(whether payable in Common Stock, cash or a combination of both)
attributable to an Award (or a portion of such Award) or to otherwise
enjoy the benefits underlying such Award;
and
|
(ii)
|
a
right to transfer an Award subject to no Company-imposed restrictions or
limitations other than restrictions and/or limitations imposed by Section
10 below.
|
1.31.
|
"Vesting Date" shall
mean the date or dates on which an Award
Vests.
|
1.32.
|
"Voting Stock" shall
mean the capital stock of any class or classes having general voting power
under ordinary circumstances, in the absence of contingencies, to elect
the directors of a corporation.
|
2. TERM OF PLAN. The
Plan shall be effective as of the Effective Date. The Plan shall
terminate on the 10th anniversary of the Effective Date, unless sooner
terminated by the Board under Section 13.1 below.
3. ELIGIBILITY
AND PARTICIPATION
3.1.
|
Eligibility. All
Non-Employee Directors shall be eligible to participate in the Plan and to
receive Awards.
|
3.2.
|
Participation. Participants
shall consist of such Non-Employee Directors as the Board in its sole
discretion designates to receive Awards under the
Plan.
|
4. ADMINISTRATION
4.1.
|
Responsibility. The
Board shall have the responsibility, in its sole discretion, to control,
operate, manage and administer the Plan in accordance with its
terms.
|
4.2.
|
Award
Agreement. Each Award granted under the Plan shall be
evidenced by an Award Agreement; provided, however, that
in the event of any conflict between a provision of the Plan and any
provision of an Award Agreement, the provision of the Plan shall
prevail.
|
4.3.
|
Authority of the
Board. The Board shall have all the discretionary
authority that may be necessary or desirable to enable it to discharge its
responsibilities with respect to the
Plan.
|
4.4.
|
Delegation of
Authority. The Board may delegate to the Committee all
or any part of its authority under the Plan. To the extent of
any such delegation, references in the Plan to the Board will be deemed to
be references to the Committee.
|
4.5.
|
Determinations and
Interpretations by the Board. All determinations and
interpretations made by the Board shall be binding and conclusive on all
Participants and their heirs, successors, and legal
representatives.
|
4.6.
|
Liability. No
member of the Board, no member of the Committee and no employee of the
Company shall be liable for (a) any act or failure to act hereunder,
except in circumstances involving his or her gross negligence or willful
misconduct, or (b) any act or failure to act hereunder by any other member
or employee or by any agent to whom duties in connection with the
administration of the Plan have been delegated.
|
2
4.7.
|
Indemnification. Each
person who is or has been a member of the Committee or the Board, and any
individual or individuals to whom the Board has delegated authority under
this Section 4, will be indemnified and held harmless by the Company from
and against any loss, cost, liability, or expense that may be imposed upon
or reasonably incurred by him or her in connection with or as a result of
any claim, action, suit or proceeding to which he or she may be a party or
in which he or she may be involved by reason of any action taken, or
failure to act with respect to their duties on behalf of, under the Plan,
except in circumstances involving such person's gross negligence or
willful misconduct. Each such person will also be indemnified
and held harmless by the Company from and against any and all amounts paid
by him or her in a settlement approved by the Company, or paid by him or
her in satisfaction of any judgment, of or in a claim, action, suit or
proceeding against him or her and described in the previous sentence, so
long as he or she gives the Company an opportunity, at its own expense, to
handle and defend the claim, action, suit or proceeding before he or she
undertakes to handle and defend it. The foregoing right of
indemnification will not be exclusive of or limit any other rights of
indemnification to which a person who is or has been a member of the
Committee or the Board may be entitled under the Articles of Incorporation
or By-Laws of the Company, as a matter of law, agreement or otherwise,
including but not limited to any indemnification agreement between an
indemnified person hereunder and the Company as it may be amended from
time to time, or any power that the Company may have to indemnify him or
her or hold him or her harmless. Any person entitled to
indemnification under this Section shall have the right to elect to be
indemnified under this Section or any other arrangement or agreement
pursuant to which such person is entitled to indemnification from the
Company, or any combination
thereof.
|
5. SHARES
SUBJECT TO PLAN
5.1.
|
Available
Shares. At any given time, the maximum number of shares
of Common Stock that may be issued or transferred to Participants under
the Plan will be 0.75% of the number of Company shares outstanding (on a
fully-diluted basis) at the end of the plan year preceding the
then-current plan year, or on January 1, 2006, whichever is greater,
subject to adjustments made in accordance with Section 5.2
below. Notwithstanding the foregoing, the maximum number of
shares of Common Stock that may be issued or transferred to Participants
under the Plan shall be 486,666 shares. Shares of Common
Stock issued or transferred under the Plan may be either authorized or
unissued shares, shares of issued stock held in the Company's treasury, or
a combination of both, at the discretion of the Company. Any
shares of Common Stock underlying an Award which terminate by reason of
expiration, forfeiture, cancellation or otherwise without the issuance of
such shares shall again be available under the Plan. Awards
that are payable only in cash are not subject to this Section
5.1.
|
5.2.
|
Adjustment to
Shares. If there is any change in the Common Stock of
the Company, through merger, consolidation, Reorganization,
Recapitalization, stock dividend, stock split, reverse stock split,
split-up, split-off, spin-off, combination of shares, exchange of shares,
dividend in kind or other like change in capital structure or distribution
(other than normal cash dividends) to stockholders of the Company, an
adjustment shall be made to each outstanding Award so that each such Award
shall thereafter be with respect to or exercisable for such securities,
cash and/or other property as would have been received in respect of the
Common Stock subject to such Award had such Award been paid, distributed
or exercised in full immediately prior to such change or
distribution. Such adjustment shall be made successively each
time any such change or distribution shall occur. In addition,
in the event of any such change or distribution, in order to prevent
dilution or enlargement of Participants' rights under the Plan, the Board
shall have the authority to adjust, in an equitable manner, the number and
kind of shares that may be issued under the Plan, the number and kind of
shares subject to outstanding Awards, the exercise price applicable to
outstanding Stock Options, and the Fair Market Value of the Common Stock
and other value determinations applicable to outstanding
Awards. Appropriate adjustments may also be made by the Board
in the terms of any Awards granted under the Plan to reflect such changes
or distributions and to modify any other terms of outstanding Awards on an
equitable basis, including modifications of performance goals and changes
in the length of performance periods. In addition, the Board is authorized
to make adjustments to the terms and conditions of, and the criteria
included in, Awards in recognition of unusual or nonrecurring events
affecting the Company or the financial statements of the Company, or in
response to changes in applicable laws, regulations, or accounting
principles.
|
6. STOCK
OPTIONS
6.1.
|
In
General. The Board may, in its sole discretion, grant
Stock Options to Non-Employee Directors on or after the Effective
Date. The Stock Options so granted shall be Nonqualified Stock
Options. The Board shall, in its sole discretion, determine the
Non-Employee Directors who will receive Stock Options and the number of
shares of Common Stock underlying each Stock Option. Each Stock
Option shall be subject to such terms and conditions consistent with the
Plan as the Board may impose from time to time. In addition,
each Stock Option shall be subject to the terms and conditions set forth
in Sections 6.2 through 6.6 below.
|
6.2.
|
Exercise
Price. The Board shall specify the exercise price of
each Stock Option in the Award Agreement which exercise price shall not be
less than 100 percent of the Fair Market Value of the Common Stock on the
date of grant.
|
6.3.
|
Term of Stock
Option. The Board shall specify the term of each Stock
Option in the Award Agreement; provided, however, that
no Stock Option shall be exercisable after the 10th anniversary of the
date of grant of such Stock Option. Each Stock Option shall
terminate at such earlier times and upon such conditions or circumstances
as the Board shall, in its sole discretion, set forth in the Award
Agreement on the date of grant.
|
6.4.
|
Vesting
Date. The Board shall specify in the Award Agreement the
Vesting Date for each Stock Option. The Board may grant Stock
Options that are Vested, either in whole or in part, on the date of
grant. If the Board fails to specify a Vesting Date in the
Award Agreement, 25 percent of such Stock Option shall become exercisable
on each of the first four one-year anniversaries of the date of grant and
shall remain exercisable following such anniversary date until the Stock
Option expires in accordance with its terms under the Award Agreement or
under the terms of the Plan. The Vesting of a Stock Option may
be subject to such other terms and conditions as shall be determined by
the Board.
|
6.5.
|
Exercise of Stock
Options. The Stock Option exercise price may be paid in
cash or, in the sole discretion of the Board, by delivery to the Company
of shares of Common Stock then owned by the Participant, or by the
Company's withholding a portion of the shares of Common Stock for which
the Stock Option is exercisable, or by a combination of these
methods. If the Common Stock is readily tradeable on a national
securities exchange or other market system, payment may also be made by
delivering a properly executed exercise notice to the Company and
delivering a copy of irrevocable instructions to a broker directing the
broker to promptly deliver to the Company the amount of sale or loan
proceeds to pay the exercise price. To facilitate the
foregoing, the Company may enter into agreements for coordinated
procedures with one or more brokerage firms. The Board may
prescribe any other method of paying the exercise price that it determines
to be consistent with applicable law and the purpose of the Plan,
including, without limitation, in lieu of the delivery to the Company of
shares of Common Stock then owned by the Participant, providing the
Company with a notarized statement attesting to the number of shares owned
by the Participant, where, upon verification by the Company, the Company
would issue to the Participant only the number of incremental shares to
which the Participant is entitled upon exercise of the Stock
Option. In determining which methods a Participant may utilize
to pay the exercise price, the Board may consider such factors as it
determines are appropriate.
|
6.6.
|
Additional Terms and
Conditions. The Board may, by way of the Award
Agreements or otherwise, establish such other terms, conditions,
restrictions and/or limitations, if any, of any Stock Option, provided
they are not inconsistent with the
Plan.
|
7. SARS
7.1.
|
In
General. The Board may, in its sole discretion, grant
SARs to Non-Employee Directors. A SAR is a right to receive a
payment in cash, Common Stock or a combination of both, in an amount equal
to the excess of (x) the Fair Market Value of the Common Stock, or other
specified valuation, of a specified number of shares of Common Stock on
the date the SAR is exercised over (y) the Fair Market Value of the Common
Stock, or other specified valuation (which shall be no less than the Fair
Market Value of the Common Stock), of such shares of Common Stock on the
date the SAR is granted, all as determined by the Board; provided, however, that
if a SAR is granted retroactively in tandem with or in substitution for a
Stock Option, the designated Fair Market Value of the Common Stock in the
Award Agreement may be the Fair Market Value of the Common Stock on the
date such Stock Option was granted. Each SAR shall be subject
to such terms and conditions, including, but not limited to, a provision
that automatically converts a SAR into a Stock Option on a conversion date
specified at the time of grant, as the Board shall impose from time to
time in its sole discretion and subject to the terms of the
Plan.
|
3
8. STOCK
AWARDS AND STOCK UNITS
8.1.
|
Stock
Awards. The Board may, in its sole discretion, grant
Stock Awards to Non-Employee Directors as additional compensation or in
lieu of other compensation for services to the Company. A Stock
Award shall consist of shares of Common Stock which shall be subject to
such terms and conditions as the Board in its sole discretion determines
appropriate including, without limitation, restrictions on the sale or
other disposition of such shares and the Vesting Date with respect to such
shares. The Board may require the Participant to deliver a duly
signed stock power, endorsed in blank, relating to the Common Stock
covered by such Stock Award and/or that the stock certificates evidencing
such shares be held in custody or bear restrictive legends until the
restrictions thereon shall have lapsed. With respect to shares
of Common Stock subject to a Stock Award, the Participant shall have all
of the rights of a holder of shares of Common Stock, including the right
to receive dividends and to vote the shares, unless the Board determines
otherwise on the date of grant.
|
8.2.
|
Stock
Units. The Board may, in its sole discretion, grant
Stock Units to Non-Employee Directors as additional compensation or in
lieu of other compensation for services to the Company. A Stock
Unit is a hypothetical share of Common Stock represented by a notional
account established and maintained (or caused to be established or
maintained) by the Company for such Participant who receives a grant of
Stock Units. Stock Units shall be subject to such terms and
conditions as the Board, in its sole discretion, determines appropriate
including, without limitation, determinations of the Vesting Date with
respect to such Stock Units and the criteria for the Vesting of such Stock
Units. Subject to Section 8.3, a Stock Unit granted by the
Board shall provide for payment in cash or shares of Common Stock at such
time or times as the Award Agreement shall specify. The Board
shall determine whether a Participant who has been granted a Stock Unit
shall also be entitled to a Dividend Equivalent
Right.
|
8.3.
|
Payout of Stock
Units. Subject to a Participant's election to defer in
accordance with Section 13.3 below, upon the Vesting of a Stock Unit, the
shares of Common Stock representing the Stock Unit shall be distributed to
the Participant, unless the Board, in its sole discretion, provides for
the payment of the Stock Unit in cash (or partly in cash and partly in
shares of Common Stock) equal to the value of the shares of Common Stock
which would otherwise be distributed to the
Participant.
|
9. CHANGE
IN CONTROL
9.1.
|
Accelerated
Vesting. Notwithstanding any other provision of this
Plan to the contrary, if there is a Change in Control of the Company, all
outstanding Awards shall accelerate, including, without limitation,
acceleration of the Vesting Date and/or payout of such
Awards.
|
9.2.
|
Cashout. The
Board, in its sole discretion, may determine that, upon the occurrence of
a Change in Control of the Company, all or a portion of certain
outstanding Awards shall terminate within a specified number of days after
notice to the holders, and each such holder shall receive an amount equal
to the value of such Award on the date of the Change in Control, and with
respect to each share of Common Stock subject to a Stock Option or SAR, an
amount equal to the excess of the Fair Market Value of such shares of
Common Stock immediately prior to the occurrence of such Change in Control
of the Company over the exercise price per share of such Stock Option or
SAR. Such amount shall be payable in cash, in one or more kinds
of property (including the property, if any, payable in the transaction)
or in a combination thereof, as the Board, in its sole discretion, shall
determine.
|
9.3.
|
Assumption or Substitution of
Awards. Notwithstanding anything contained in the Plan
to the contrary, the Board may, in its sole discretion, provide that an
Award may be assumed by any entity which acquires control of the Company
or may be substituted by a similar award under such entity's compensation
plans.
|
10. TERMINATION
OF SERVICE
10.1.
|
Termination of Service Due to
Death, Disability or Retirement. Subject to any written
agreement between the Company and a Participant, if a Participant's
Service is terminated due to death, disability or
Retirement:
|
(a)
|
all
non-Vested portions of Awards held by the Participant on the date of the
Participant's death or the date of the termination of his or her Service
for disability or Retirement, as the case may be, shall immediately become
vested; and
|
(b)
|
all
Vested portions of Awards held by the Participant on the date of the
Participant's death or the date of the termination of his or her Service
for disability or Retirement, as the case may be, shall remain exercisable
until the earlier of:
|
|
(i)
|
the
end of the 12-month period following the date of the Participant's death
or the date of the termination of his or her Service for disability or
Retirement, as the case may be, or
|
|
(ii)
|
the
date the Award would otherwise
expire.
|
10.2.
|
Termination of Service for
Cause. Subject to any written agreement between the
Company and a Participant, if a Participant's Service is terminated by the
Company because of a removal for Cause, all Awards held by the Participant
on the date of the termination of Service, whether Vested or non-Vested,
shall immediately be forfeited by the Participant as of such
date. A Participant's Service shall be deemed to have removed
for Cause if, after the Participant's Service has terminated, facts and
circumstances are discovered that would have justified a removal for
Cause.
|
10.3.
|
Other Terminations of
Service. Subject to any written agreement between the
Company and a Participant, if a Participant's Service is terminated for
any reason other than for Cause, death, disability or
Retirement:
|
(a)
|
all
non-Vested portions of Awards held by the Participant on the date of the
termination of his or her Service shall immediately be forfeited by such
Participant as of such date; and
|
(b)
|
all
Vested portions of Awards held by the Participant on the date of the
termination of his or her Service shall remain exercisable until the
earlier of (i) the end of the 90-day period following the date of the
termination of the Participant's Service or (ii) the date the Award would
otherwise expire.
|
11. TAXES
11.1.
|
Withholding
Taxes. The Company will have the power and the right to
deduct or withhold, or require a Participant to remit to the Company, an
amount sufficient to satisfy federal, state, and local taxes, domestic or
foreign, required by law or regulation to be withheld with respect to any
taxable event arising under the
Plan.
|
11.2.
|
Use of Common Stock to Satisfy
Withholding Obligation. With respect to withholding
required upon the exercise of Stock Options or SARs, upon the lapse of
restrictions on a Stock Award, or upon any other taxable event arising as
a result of Awards granted hereunder, the Company may satisfy the minimum
withholding requirement for supplemental wages, in whole or in part, by
withholding shares of Stock having a Fair Market Value (determined on the
date the Participant recognizes taxable income on the Award) equal to the
minimum withholding tax required to be collected on the
transaction. The Participant may elect, subject to the approval
of the Board, to deliver the necessary funds to satisfy the withholding
obligation to the Company, in which case there will be no reduction in the
shares of Common Stock otherwise distributable to the
Participant.
|
4
12. AMENDMENT
AND TERMINATION
12.1.
|
Termination of
Plan. The Board may suspend or terminate the Plan at any
time with or without prior notice; provided, however, that
no action authorized by this Section 12.1 shall reduce the amount of any
outstanding Award or change the terms and conditions thereof without the
Participants' consent.
|
12.2.
|
Amendment of
Plan. The Board may amend the Plan at any time with or
without prior notice; provided, however, that
no action authorized by this Section 12.2 shall reduce the amount of any
outstanding Award or change the terms and conditions thereof without the
Participants' consent. No amendment of the Plan shall, without
the approval of the stockholders of the
Company:
|
(a)
|
increase
the total number of shares which may be issued under the Plan by amending
the formula and/or limit contained in Section 5.1 hereof;
or
|
(b)
|
modify
the requirements as to eligibility for Awards under the
Plan.
|
In
addition, the Plan shall not be amended without the approval of such amendment
by the Company's stockholders if such amendment is required under the rules and
regulations of the stock exchange or national market system on which the Common
Stock is listed.
12.3.
|
Amendment or Cancellation of
Award Agreements. The Board may amend or modify any
Award Agreement at any time by mutual agreement between the Company and
the Participant or such other persons as may then have an interest
therein. In addition, by mutual agreement between the Company
and a Participant or such other persons as may then have an interest
therein, Awards may be granted to a Non-Employee Director in substitution
and exchange for, and in cancellation of, any Awards previously granted to
such Non-Employee Director under the Plan, or any award previously granted
to such Non-Employee Director under any other present or future plan of
the Company or any present or future plan of an entity which (i) is
purchased by the Company, (ii) purchases the Company, or (iii) merges into
or with the Company.
|
13. MISCELLANEOUS
13.1.
|
Other
Provisions. Awards granted under the Plan may also be
subject to such other provisions (whether or not applicable to an Award
granted to any other Participant) as the Company determines on the date of
grant to be appropriate, including, without limitation, for the forfeiture
of, or restrictions on resale or other disposition of, Common Stock
acquired under any Stock Option, for the acceleration of Vesting of Awards
in the event of a Change in Control of the Company, for the payment of the
value of Awards to Participants in the event of a Change in Control of the
Company, or to comply with federal and state securities
laws.
|
13.2.
|
Transferability. Each
Award granted under the Plan to a Participant shall not be transferable
otherwise than by will or the laws of descent and distribution, and Stock
Options and SARs shall be exercisable, during the Participant's lifetime,
only by the Participant. In the event of the death of a
Participant, each Stock Option or SAR theretofore granted to him or her
shall be exercisable during such period after his or her death as the
Board shall, in its sole discretion, set forth in the Award Agreement on
the date of grant and then only by the executor or administrator of the
estate of the deceased Participant or the person or persons to whom the
deceased Participant's rights under the Stock Option or SAR shall pass by
will or the laws of descent and distribution. Notwithstanding
the foregoing, the Board, in its sole discretion, may permit the
transferability of a Stock Option by a Participant solely to members of
the Participant's immediate family or trusts or family partnerships or
other similar entities for the benefit of such persons, and subject to
such terms, conditions, restrictions and/or limitations, if any, as the
Board may establish and include in the Award
Agreement.
|
13.3.
|
Election to Defer Compensation
Attributable to Award. The Board may, in its sole
discretion and subject to Code Section 409A, allow a Participant to elect
to defer the receipt of any compensation attributable to an Award under
guidelines and procedures to be established by the Board after taking into
account the advice of the Company's tax
counsel.
|
13.4.
|
Listing of Shares and Related
Matters. If at any time the Board shall determine that
the listing, registration or qualification of the shares of Common Stock
subject to an Award on any securities exchange or under any applicable
law, or the consent or approval of any governmental regulatory authority,
is necessary or desirable as a condition of, or in connection with, the
granting of an Award or the issuance of shares of Common Stock thereunder,
such Award may not be exercised, distributed or paid out, as the case may
be, in whole or in part, unless such listing, registration, qualification,
consent or approval shall have been effected or obtained free of any
conditions not acceptable to the
Board.
|
13.5.
|
No Right to Continued Service
or to Grants. A Participant's rights, if any, to
continue to serve the Company as a director shall not be enlarged or
otherwise affected by his or her designation as a Participant under the
Plan. The adoption of the Plan shall not be deemed to give any
Non-Employee Director or any other individual any right to be selected as
a Participant or to be granted an
Award.
|
13.6.
|
Governing
Law. The Plan, all Awards granted hereunder, and all
actions taken in connection herewith shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to
principles of conflict of laws, except as superseded by applicable federal
law. Participants and the Company each submit and consent to
the jurisdiction of the courts in the Commonwealth of Massachusetts,
County of Worcester, including the Federal Courts located therein, should
Federal jurisdiction requirements exist in any action brought to enforce
(or otherwise relating to) this Plan or an Award
Agreement.
|
13.7.
|
Other
Benefits. No Award granted under the Plan shall be
considered compensation for purposes of computing benefits under any
retirement plan of the Company nor affect any benefits or compensation
under any other benefit or compensation plan of the Company, now or
subsequently in effect.
|
13.8.
|
No Fractional
Shares. No fractional shares of Common Stock shall be
issued or delivered pursuant to the Plan or any Award. The
Board shall determine whether cash, Common Stock, Stock Options, or other
property shall be issued or paid in lieu of fractional shares or whether
such fractional shares or any rights thereto shall be forfeited or
otherwise eliminated.
|
13.9.
|
Compliance With Code Section
409A. Any provision of the Plan that becomes subject to
Code Section 409A, will be interpreted and applied consistent with that
Section and the applicable Treasury Regulations.
|
5