|
Delaware
(State or Other
Jurisdiction
of
Incorporation)
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0001-33155
(Commission File
No.)
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04-3444218
(IRS
Employer
Identification
No.)
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1.
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Re-election
of directors:
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||||||||||
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Nominee
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Votes
For
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Votes
Withheld
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|||||||||
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Valentin
P. Gapontsev, Ph.D.
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37,564,031
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404,864
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|||||||||
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Eugene
Shcherbakov, Ph.D.
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37,661,151
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307,744
|
|||||||||
|
Igor
Samartsev
|
37,661,485
|
307,410
|
|||||||||
|
Robert
A. Blair
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36,750,842
|
1,218,053
|
|||||||||
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Michael
C. Child
|
34,494,777
|
3,474,118
|
|||||||||
|
John
H. Dalton
|
37,037,674
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931,221
|
|||||||||
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Henry
E. Gauthier
|
36,750,183
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1,218,712
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|||||||||
|
William
S. Hurley
|
37,417,931
|
550,964
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|||||||||
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William
F. Krupke, Ph.D.
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36,502,703
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1,466,192
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|||||||||
|
2.
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To
amend Non-Employee Directors Stock Plan to increase the maximum number of
shares of common stock that may be issued or transferred to any
non-employee director participating in such plan by 320,000
shares.
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|||||||
|
Votes
For
|
Votes
Against
|
Abstentions
|
||||||
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25,762,422
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12,109,094
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97,379
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||||||
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3.
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Ratification
of the appointment of Deloitte & Touche LLP as the Company’s
independent registered public accounting firm for 2010:
|
|||||||
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Votes
For
|
Votes
Against
|
Abstentions
|
||||||
|
43,709,964
|
147,394
|
76,098
|
||||||
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Exhibit
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Number
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Description
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10.1
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Non-Employee
Directors Stock Plan, as amended.
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IPG
PHOTONICS CORPORATION
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June
8, 2010
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/s/
Angelo P. Lopresti
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Angelo
P. Lopresti
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||||
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Vice
President, General Counsel & Secretary
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Exhibit
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||
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Number
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Description
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10.1
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Non-Employee
Directors Stock Plan, as amended.
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.1
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"Award" shall mean a
Stock Option, a SAR, a Stock Award, a Stock Unit, or a Cash
Award.
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.2
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"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.
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.3
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"Board" shall mean the
Board of Directors of the Company.
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.4
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"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.
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.5
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"Change in Control of the
Company" shall mean the occurrence of any one or more of the
following:
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|
.A
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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;
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.B
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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;
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.C
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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
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.D
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The
shareholders of the Company approve a plan of complete liquidation of the
Company.
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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.
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.6
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"Code" shall mean the
Internal Revenue Code of 1986, as amended from time to
time.
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.7
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"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.
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.8
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"Common Stock" shall
mean the voting, common stock, $0.0001 par value per share, of the
Company.
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.9
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"Company" shall mean
IPG Photonics Corporation, a Delaware
corporation.
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.10
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"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.
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.11
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"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.
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.12
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"Effective Date" shall
mean the date on which the Plan is adopted by the
Board.
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.13
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"Exchange Act" shall
mean the Securities Exchange Act of 1934, as amended from time to time,
including applicable regulations
thereunder.
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.14
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“Fair Market Value of the
Common Stock" shall mean:
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.A
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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
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.B
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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.
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.15
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"Non-Employee Director"
shall mean a member of the Board who is not an employee of the Company or
any of its affiliates.
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.16
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"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.
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.17
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“Nonvoting Stock” shall
mean the capital stock of any class or classes having no voting power to
elect the directors of a
corporation.
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.18
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"Participant" shall
mean any Non-Employee Director to whom an Award has been granted by the
Board under the Plan.
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.19
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"Plan" shall mean the
IPG Photonics Corporation Non-Employee Directors Stock Plan, as
amended.
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.20
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"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.
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.21
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"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.
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.22
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"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).
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.23
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"SAR" shall mean a
grant by the Board to a Participant of a stock appreciation right as
described in Section 7 below.
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.24
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"Service" shall mean
the provision of services to the Company as a member of the Board of
Directors of the Company.
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.25
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"Stock" shall mean the
shares of capital stock of the
Company.
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.26
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"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.
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.27
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"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.
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.28
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"Stock Unit" shall mean
a grant by the Board to a Participant of an Award as described in Section
8.2 below.
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.29
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"Treasury Regulations"
shall mean the regulations promulgated under the Code by the United
States Department of the Treasury, as amended from time to
time.
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.30
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"Vest" shall
mean:
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.A
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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
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.B
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with
respect to Awards other than Stock Options and SARs, when the Participant
has:
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(i)
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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
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(ii)
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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.
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.31
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"Vesting Date" shall
mean the date or dates on which an Award
Vests.
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.32
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"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.
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.1
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Eligibility. All Non-Employee
Directors shall be eligible to participate in the Plan and to receive
Awards.
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.2
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Participation. Participants shall
consist of such Non-Employee Directors as the Board in its sole discretion
designates to receive Awards under the
Plan.
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.1
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Responsibility. The Board shall
have the responsibility, in its sole discretion, to control, operate,
manage and administer the Plan in accordance with its
terms.
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.2
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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.
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.3
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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.
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.4
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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.
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.5
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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.
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.6
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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.
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.7
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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.
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.1
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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.
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.2
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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.
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|
.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.
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.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.
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.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.
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.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.
|
|
.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
|
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.
|
|
.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.
|
|
.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.
|
|
.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.
|
|
.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.
|
|
.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.
|
|
.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.
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.3
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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.
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.1
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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:
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.A
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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
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.B
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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:
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(i)
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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
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(ii)
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the
date the Award would otherwise
expire.
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.2
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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.
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.3
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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:
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.A
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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
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.B
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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.
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.1
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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.
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.2
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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.
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.1
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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.
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.2
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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:
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.A
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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
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.B
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modify
the requirements as to eligibility for Awards under the
Plan.
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.3
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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.
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.1
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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.
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.2
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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.
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.3
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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.
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.4
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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.
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.5
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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.
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.6
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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.
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.7
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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.
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.8
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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.
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.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.
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