FORM OF KINETIC CONCEPTS, INC. 2004 EQUITY PLAN INTERNATIONAL RESTRICTED STOCK UNIT AWARD AGREEMENT
Exhibit 10.4
Award Number:
Grantee Name:
FORM OF KINETIC CONCEPTS, INC.
2004 EQUITY PLAN
INTERNATIONAL RESTRICTED STOCK UNIT AWARD AGREEMENT
THIS RESTRICTED STOCK UNIT AWARD AGREEMENT (the “Award Agreement”) is made and entered into as of _______________, 200__ (the “Date of Grant”), by and between Kinetic Concepts, Inc.,
a Texas corporation (the “Company”), and [_________________________] (the “Grantee”). Capitalized terms not defined herein shall have the meaning ascribed to them in the Company’s 2004 Equity Plan (the “Plan”).
Where the context permits, references to the Company or any of its Subsidiaries or affiliates shall include the successors to the foregoing.
Pursuant to the Plan, the Administrator has determined that the Grantee is to be granted Restricted Stock Units, subject to the terms and conditions set forth in the Plan and herein, and hereby grants such
Restricted Stock Units. Each Restricted Stock Unit represents a hypothetical Common Share and will, at all times as the Award Agreement is in effect, be equal in value to one Common Share.
1. Grant of Restricted Stock Units. The Company hereby grants to the Grantee [_______] Restricted Stock Units (the "Award") on the terms and conditions set forth in the
Award Agreement and as otherwise provided in the Plan.
2. Terms and Conditions of Award. The Award shall be subject to the following terms, conditions and restrictions:
(a) Vesting. The Restricted Stock Units shall vest at such time or times,
and/or upon the occurrence of such events as are set forth in Appendix A
hereto. 1
(b) Nontransferability. Restricted Stock Units and any interest therein, may
not be sold, transferred, pledged, hypothecated, assigned or otherwise
encumbered or disposed of, except by will or the laws of descent and
distribution, to the extent applicable. Any attempt to dispose of any
Restricted Stock Units in contravention of any such restrictions shall be
null and void and without effect.
________________________
1 Pursuant to the terms of the Plan, a registered Stock Unit cannot vest earlier than three years following the Date of Grant, provided that if vesting is conditioned on satisfying performance goals, the Restricted Stock Unit can vest earlier than
three years following the Date of rant, but not earlier than one year following the Date of Grant.
(c) Rights as a Shareholder. Restricted Stock Units represent only
hypothetical shares; therefore, the Grantee is not entitled to any of the
rights or benefits generally accorded to stockholders with respect
thereto, except upon vesting, to the extent provided in Paragraph 2(d).
(d) Benefit Upon Vesting. Upon the vesting of a Restricted Stock Unit, the
Grantee shall be entitled to receive, within 30 days of the date on which
such Restricted Stock Unit vests, an amount in cash, Shares or a
combination of the foregoing, as determined by the Administrator in its
sole discretion equal, per Restricted Stock Unit, to the sum of (1) the
Fair Market Value of a Share on the date on which such Restricted
Stock Unit vests and (2) the aggregate amount of cash dividends paid
with respect to a Share during the period commencing on the Date of
Grant and terminating on the date on which such unit vests.
(e) Effect of Conduct Constituting Cause; Termination of Employment or
Service; or Change in Control.
(i) If at any time (whether before or after termination of
employment
or service) the Administrator determines that the
Grantee has
engaged in conduct that would constitute Cause for
termination,
consistent with local law and regulations, the
Administrator may
provide for the immediate forfeiture of the Award
(including any
securities, cash or other property issued upon
settlement of the
Award), whether or not the Restricted Stock Units
have vested,
consistent with local law and regulations.
Any such determination
by the Administrator shall be final, conclusive and
binding on all
persons.
(ii) If the Grantee’s active employment with or service to the Company
and any Subsidiary or affiliate terminates for any
reason, then the
Grantee shall immediately forfeit any rights to the
Restricted Stock
Units that have not vested as of the date of
termination, if any, the
Grantee shall have no further rights theretoand
such Restricted
Stock Units shall immediately terminate; provided
that if a
Subsidiary or affiliate ceases to be a Subsidiary
or affiliate of the
Company, then, as of such date of cessation, the
Grantee's
employment with or service to the Subsidiary or
affiliate shall be
deemed to have terminated; and further provided
that if Grantee
transfers from the Company to its Subsidiary or
affiliate or from
one of the Company’s Subsidiaries or
affiliates to another, such
transfer shall not constitute a termination of
employment for
purposes of the vesting of the Award, unless
otherwise determined
by the Administrator.
(iii) Upon the occurrence of a Change in Control, all unvested
Restricted Stock Units shall immediately vest,
unless the Award is
either assumed or an equitable substitution is made
therefor. In
addition, if the Grantee’s employment with or
service to the
Company and any Subsidiary thereof is terminated
other than for
Cause within 24 months following a Change in
Control, all
outstanding unvested Restricted Stock Units shall
immediately
vest.
(f) Taxes In Connection With the Grant or Vesting of the Award.
(i) Pursuant to Section 14 of the Plan, the Company (or Subsidiary or
affiliate, as the case may be) has the right to
require the Grantee to
remit to the Company (or Subsidiary or affiliate,
as the case may
be) in cash an amount sufficient to satisfy
Grantee’s income tax,
social insurance, payroll tax, payment on account
or other tax
related withholding (“Tax-Related
Items”) related to the Award.
Regardless of any action the Company (or Subsidiary
or affiliate)
takes with respect to any or all Tax-Related Items,
the Grantee has
the ultimate liability for all Tax-Related Items
legally due by the
Grantee and remains responsible for payment of
same. The
Company or Subsidiary (or affiliate): (1) makes no
representations
or undertakings regarding the treatment of any
Tax-Related Items
in connection with any aspect of the Award,
including the grant
and vesting of the Restricted Stock Unit, and the
subsequent sale of
Shares acquired pursuant to the Award and the
receipt of any
dividends or dividend equivalents; and (2) does not
commit to
structure the terms of the grant or any aspect of
the Award to
reduce or eliminate the Grantee’s liability
for Tax-Related Items.
(ii) In the event that the Company or Subsidiary (or affiliate) is
required to withhold any Tax-Related Item as a
result of the grant
or vesting of the Restricted Stock Units, or
subsequent sale of
Shares or receipt of dividends or dividend
equivalents, the Grantee
shall pay or make adequate arrangements
satisfactory to the
Company and/or the Subsidiary (or affiliate) to
satisfy all
withholding and payment on account obligations of
the Company
and/or the Subsidiary (or affiliate). With
the approval of the
Administrator and if permissible under local law,
the Grantee may
elect to have the Company withhold from delivery
Shares or
deliver Shares, in each case, having a value equal
to the aggregate
required minimum Tax-Related Items withholding to
be collected
by the Company or any Subsidiary or affiliate
thereof. Such
Shares shall be valued at their Fair Market Value
on the date on
which the amount of tax to be withheld is
determined. The
Grantee agrees to allow the Company and/or the
Subsidiary (or
affiliate) to withhold all applicable Tax-Related
Items legally
payable by the Grantee from the Grantee’s
wages or other cash
compensation paid to the Grantee by the Company
and/or the
Subsidiary (or affiliate) or from the proceeds of
the sale of the
Shares. Alternatively, or in addition, with
the approval of the
Administrator and if permissible under local law,
to the extent that
Grantee is not able to otherwise pay the
Tax-Related Items
withholding, the Grantee agrees that, the Company
may sell or
arrange for the sale of Shares that the Grantee
acquires to meet the
withholding obligation for Tax-Related Items;
and/or withhold
Shares, provided that the Company withholds only
the amount of
Shares necessary to satisfy the minimum withholding
amount.
Finally, the Grantee shall pay to the Company or
the Subsidiary (or
affiliate) any amount of Tax-Related Items that the
Company or
the Subsidiary (or affiliate) may be required to
withhold as a result
of the Grantee’s participation in the Plan or
the Grantee’s Award
that cannot be satisfied by the means previously
described. The
Company may refuse to deliver the Shares if the
Grantee fails to
comply with the Grantee’s obligations in
connection with the Tax
Related Items as described in this paragraph.
3. Adjustments. The Award and all rights and obligations under the Award Agreement are subject to Section 5 of the Plan.
4. Notice. Whenever any notice is required or permitted hereunder, such notice shall be in writing and shall be given by personal delivery, facsimile, first class
mail, certified or registered with return receipt requested. Any notice required or permitted to be delivered hereunder shall be deemed to have been duly given on the date that it is personally delivered or, whether actually received or not, on the fifth
business day after depositing in the post or 24 hours after transmission by facsimile to the respective parties named below.
If to the Company: Kinetic Concepts, Inc.
Attn.:
Chief Financial Officer
0000
Xxxxxxx Xxxxx
Xxx
Xxxxxxx, XX 00000
U.S.A.
Phone:
0-(000) 000-0000
Fax:
0-(000) 000-0000
If to the Grantee: [Name of Grantee]
[Address]
______________________
Facsimile:
_____________
Either party may change such party’s address for notices by duly giving notice pursuant hereto.
5. Compliance with Laws.
(a) Shares (to the extent payable hereunder) shall not be issued pursuant to
the Award granted hereunder unless the issuance and delivery of such
Shares pursuant thereto shall comply with all relevant provisions of law,
including, without limitation, the U.S. Securities Act of 1933, as
amended, the U.S. Exchange Act and the requirements of any stock
exchange upon which the Shares may then be listed, and any applicable
local laws, and shall be further subject to the approval of counsel for the
Company with respect to such compliance. The Company shall be
under no obligation to effect the registration pursuant to the U.S.
Securities Act of 1933, as amended, of any interests in the Plan or any
Shares to be issued hereunder or to effect similar compliance under any
state laws.
(b) All certificates for Shares delivered under the Plan (to the extent
applicable) shall be subject to such stock-transfer orders and other
restrictions as the Administrator may deem advisable under the rules,
regulations, and other requirements of the U.S. Securities and Exchange
Commission, any stock exchange upon which the Shares may then be
listed, and any applicable federal, state or local securities law, and the
Administrator may cause a legend or legends to be placed on any such
certificates to make appropriate reference to such restrictions. The
Administrator may require, as a condition of the issuance and delivery
of certificates evidencing Shares pursuant to the terms hereof, that the
recipient of such Shares make such agreements and representations as
the Administrator, in its sole discretion, deems necessary or desirable.
6. Protections Against Violations of Agreement. No purported sale, assignment, mortgage, hypothecation, transfer, pledge, encumbrance, gift, transfer in trust
(voting or other) or other disposition of, or creation of a security interest in or lien on, any of the Shares underlying the Award by any holder thereof in violation of the provisions of the Award Agreement, the Plan or the Articles of Incorporation or the Bylaws of
the Company, will be valid, and the Company will not transfer any such Shares on its books nor will any such Shares be entitled to vote, nor will any dividends be paid thereon, unless and until there has been full compliance with such provisions to the satisfaction
of the Company. The foregoing restrictions are in addition to and not in lieu of any other remedies, legal or equitable, available to enforce said provisions.
7. Nature of Award.
(a) The Plan is established voluntarily by the Company, it is discretionary
in nature and it may be modified, amended, suspended or terminated by
the Company at any time, unless otherwise provided in the Plan and this
Award Agreement;
(a) The grant of the Award is voluntary and occasional and does not create
any contractual or other right to receive future grants of Restricted
Stock Units, or benefits in lieu of Restricted Stock Units, even if
Restricted Stock Units have been granted repeatedly in the past;
(c) All decisions with respect to future grants of Restricted Stock Units, if
any, will be at the sole discretion of the Company;
(d) Participation in the Plan is voluntary;
(e) The Award is an extraordinary item that does not constitute
compensation of any kind for services of any kind rendered to the
Company or the Subsidiary (or affiliate), and which is outside the scope
of the Grantee’s employment contract, if any;
(f) The Award is not a part of normal or expected compensation or salary
for any purposes, including, but not limited to, calculating any
severance, resignation, termination, redundancy, end of service
payments, bonuses, long-service awards, pension or retirement benefits
or similar payments;
(g) In consideration of the grant of the Award, no claim or entitlement to
compensation or damages shall arise from termination of the Award or
diminution in value of the Award resulting from termination of the
Grantee’s active employment by the Company or the Subsidiary (or
affiliate) (for any reason whatsoever and whether or not in breach of
local labor laws) and the Grantee shall release the Company and the
Subsidiary (or affiliate) from any such claim that may arise; if,
notwithstanding the foregoing, any such claim is found by a court of
competent jurisdiction to have arisen, then, by signing this Award
Agreement, the Grantee shall be deemed irrevocably to have waived the
Grantee’s entitlement to pursue such claim; and
(h) Notwithstanding any terms or conditions of the Plan to the contrary, in
the event of involuntary termination of the Grantee’s employment
(whether or not in breach of local labor laws), the Grantee’s right to
receive the Award and vest in Restricted Stock Units under the Plan, if
any, will terminate effective as of the date that the Grantee is no longer
actively employed and will not be extended by any notice period
mandated under local law (e.g., active employment would not include a
period of “garden leave” or similar period pursuant to local law);
furthermore, in the event of involuntary termination of employment
(whether or not in breach of local labor laws), the Grantee’s right to vest
in Restricted Stock Unit after termination of employment, if any, will be
measured by the date of termination of the Grantee’s active employment
and will not be extended by any notice period mandated under local
law.
8. Data Privacy: The Grantee explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Grantee’s
personal data as described in this document by and among, as applicable, the Company and the Subsidiary and affiliates for the exclusive purpose of implementing, administering and managing the Grantee’s participation in the Plan.
The Grantee hereby understands that the Company and the Subsidiary (or affiliates) hold certain personal information about the Grantee, including, but not limited to, the Grantee’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares of stock or directorships held in the Company, details of all options or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in the Grantee’s favor, for the purpose of implementing, administering and managing the Plan (“Data”). The Grantee hereby understands that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in the Grantee’s country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than the Grantee’s country. The Grantee hereby understands that the Grantee may request a list with the names and addresses of any potential recipients of the Data by contacting the Grantee’s local human resources representative. The Grantee authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing the Grantee’s participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom the Grantee may elect to deposit any Shares acquired upon vesting of the Award. The Grantee hereby understands that Data will be held only as long as is necessary to implement, administer and manage the Grantee’s participation in the Plan. The Grantee hereby understands that the Grantee may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Grantee’s local human resources representative. The Grantee hereby understands, however, that refusing or withdrawing the Grantee’s consent may affect the Grantee’s ability to participate in the Plan. For more information on the consequences of the Grantee’s refusal to consent or withdrawal of consent, the Grantee hereby understands that the Grantee may contact the appropriate human resources representative responsible for Grantee’s country at the local or regional level.
9. Failure to Enforce Not a Waiver. The failure of the Company to enforce at any time any provision of the Award Agreement shall in no way be construed to be a
waiver of such provision or of any other provision hereof.
10. Governing Law. The Award Agreement shall be governed by and construed according to the laws of the State of Texas without regard to its principles of conflict of
laws. For purposes of litigating any dispute that arises under this Award or Award Agreement, the parties hereby submit to and consent to the jurisdiction of the State of Texas, agree that such litigation shall be conducted in the courts of San Antonio, Texas,
or the federal courts for the United States for the Western District of Texas, and no other courts, where this Award grant is made and/or performed.
11. Incorporation of the Plan. The Plan, as it exists on the date of the Award Agreement and as amended from time to time, is hereby incorporated by reference and made a
part hereof, and the Award and the Award Agreement shall be subject to all terms and conditions of the Plan. In the event of any conflict between the provisions of the Award Agreement and the provisions of the Plan, the terms of the Plan shall control, except
as expressly stated otherwise. The term “Section” generally refers to provisions within the Plan (except where denoted otherwise); provided, however, the term “Paragraph” shall refer to a provision of the Award Agreement.
12. Amendments. The Award Agreement may be amended or modified at any time, but only by an instrument in writing signed by each of the parties hereto.
13. Agreement Not a Contract of Employment. Neither the Plan, the granting of the Award, the Award Agreement nor any other action taken pursuant to the Plan shall
constitute or be evidence of any agreement or understanding, express or implied, that the Grantee has a right to continue to be employed by, or to provide services as a director, consultant or advisor to, the Company, any Subsidiary or affiliate thereof for any
period of time or at any specific rate of compensation.
14. Authority of the Administrator. The Administrator shall have full authority to interpret and construe the terms of the Plan and the Award Agreement. The
Administrator shall have the exclusive discretion to determine where the Grantee is no longer actively employed for purposes of the Award. The determination of the Administrator as to any such matter of interpretation or construction shall be final, binding and
conclusive.
15. Binding Effect. The Award Agreement shall apply to and bind the Grantee and the Company and their respective permitted assignees or transferees, heirs, legatees,
executors, administrators and legal successors.
16. Tax Representation. The Grantee has reviewed with his or her own tax advisors the federal, state, local and worldwide tax consequences of the transactions contemplated
by the Award Agreement. The Grantee is relying solely on such advisors and not on any statement or representations of the Company or any of its agents. The Grantee understands that he or she (and not the Company) shall be responsible for any tax liability
that may arise as a result of the transactions contemplated by the Award Agreement.
17. Language. If the Grantee has received this or any other document related to the Plan translated into a language other than English and if the translated version is
different than the English version, the English version will control.
18. Electronic Delivery. The Company may, in its sole discretion, decide to deliver any documents related to the Award granted under and participation in the Plan or
future awards that may be granted under the Plan by electronic means or to request the Grantee’s consent to participate in the Plan by electronic means. The Grantee hereby consents to receive such documents by electronic delivery and, if requested, to
agree to participate in the Plan through an on-line or electronic system established and maintained by the Company or another third party designated by the Company.
19. Acceptance. The Grantee hereby acknowledges receipt of a copy of the Plan and the Award Agreement. Grantee has read and understands the terms and provisions
thereof, and accepts the Award subject to all the terms and conditions of the Plan and the Award Agreement.
20. Severability. The provisions of this Award Agreement are severable and if any one or more provisions are determined to be illegal or otherwise unenforceable, in whole
or in part, the remaining provisions shall nevertheless be binding and enforceable.
Special Notice for Canadian Grantees: You understand and agree that by accepting this Award, the benefit you will receive upon the vesting of the Restricted Stock Unit will be settled in Shares only, and not in cash, not withstanding the terms of paragraph
2(d) above.
Special Notice for Italian Grantees: You understand and agree that by accepting this Award, the benefit you will receive upon the vesting of the Restricted Stock Unit will be settled in cash only, and not in Shares, notwithstanding the terms of paragraph 2(d) above.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed and delivered the Award Agreement on the day and year first above written.
KINETIC
CONCEPTS, INC.
By:
Name:
Title:
GRANTEE
Signature:
Name:
Address:
Telephone
No.:
Social
Security No.:
|
|
Number of |
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Date of Grant |
Restricted StockUnits |
|
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APPENDIX A
[This Appendix sets forth the procedure for determining whether and when the Restrictions on the Award will lapse. The Restrictions on the Award will lapse according to the following schedule, subject to acceleration as described below:]
|
Lapse Date, |
Portion of Award with respect to which |
|
Anniversary of Grant Date |
Restricted Lapse |
|
2010 |
1/3 |
|
2011 |
1/3 |
|
2012 |
1/3 |
Performance Based Acceleration
[Acceleration of lapsing is based on the Company’s performance against the prior fiscal year’s Consolidated Financial Metric (“CFM”) for the Company, which will be calculated by the Compensation Committee in accordance with the Company’s Annual Incentive Bonus Guidelines (the “AIB”). For each 25% increase in the CFM over the prior fiscal year’s CFM, lapsing of Restrictions will be accelerated by 1 year for the entire Award, as follows:
|
% Improvement |
First Lapse Date, |
Second Lapse Date |
Third Lapse Date |
|
over prior year's CFM |
Anniv. of Grant Date |
Anniv. of Grant Date |
Anniv. of Grant Date |
|
25% |
2009 |
2010 |
2011 |
|
50% |
2008 |
2009 |
2010 |
|
75% |
2007 |
2008 |
2009 |
The Compensation Committee will determine the Company’s CFM performance against the prior fiscal year’s CFM on a quarterly basis at the next regularly scheduled Board meeting following the end of each fiscal quarter. The CFM will be calculated in the same manner as under the AIB, with such adjustments for special and non-recurring items as the Compensation Committee deems appropriate. The quarterly CFM measurement will be made based on performance over the last twelve months ending with the coinciding fiscal quarter. If a CFM target is achieved after the date to which lapsing would be accelerated, then the Restrictions on the corresponding portion of the Award will lapse on the date that the Compensation Committee makes the determination that the CFM target has been achieved.]
[Acceleration of lapsing will be based on the following performance criteria, as determined by the Compensation Committee of the Board of Directors. Restricted Stock Units may be subject to complete forfeiture and vesting may ensue after employee's services
cease.]
