LONG TERM PERFORMANCE UNIT AGREEMENT PURSUANT TO
Exhibit
(10)-pp
LONG
TERM PERFORMANCE UNIT AGREEMENT PURSUANT TO
2003
LONG-TERM INCENTIVE PLAN
LONG
TERM
PERFORMANCE UNIT AGREEMENT, by Bausch & Lomb Incorporated, a New York
corporation (referred to hereinafter as the "Company"), dated as of February
24,
2004 in favor of the individual employee of the Company or one of its
subsidiaries (referred to hereinafter as the "Recipient") whose name appears
in
the Schedule of Awards included as Attachment I hereto (the “Schedule of
Awards”).
Under
the
2003 Long-Term Incentive Plan of the Company (referred to hereinafter as
the
"2003 LTI Plan"), approved by the shareholders of the Company on April 29,
2003,
the Compensation Committee (the "Committee") of the Board of Directors of
the
Company has authorized the execution and delivery of this Agreement. Capitalized
terms not defined in this Agreement shall have the meanings given to them
in the
2003 LTI Plan, and the Schedule of Awards.
This
Agreement provides for the award of Performance Units under Section 9 of
the
2003 LTI Plan based on achievement, over the Performance Period, of Company
performance criteria set forth in the Schedule of Awards included as Attachment
I hereto, which may include sales growth, return on net assets, earnings
or
other Company performance measures.
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth
and
for other good and valuable consideration, the parties hereto agree as
follows:
1. Award
of Long Term Performance Unit.
Subject
to all the terms and conditions of the 2003 LTI Plan and this Agreement,
the
Company hereby grants to Recipient the Long Term Performance Unit of the
Company
with the Target Award Value identified on the Schedule of Awards included
as
Attachment I hereto.
Recipient
acknowledges that Long Term Performance Units issued by the Company hereunder
are an award and are neither options nor sales to Recipient.
2. Distribution
of Performance Award.
(a) Calculation
of Performance Award.
All or a
portion of the Performance Units hereunder shall vest and be paid as a
Performance Award to the Recipient, in accordance with and subject to this
Agreement, to the extent the Company’s performance over the two-year performance
period meets or exceeds the Performance Criteria set forth on Attachment
I.
Company performance during the Performance Period shall be applied to the
Award
calculation matrix approved at the time of grant by the Committee. Actual
Performance Awards will range from 0-200% of Target Award Value. Determination
and approval of Performance Awards shall be in the sole discretion of the
Committee, except for the limited circumstances set forth in Section
2(f).
(b) Payment
of Performance Awards.
(i) Form
of Payment.
Performance Awards may be paid in cash, common stock of the Company, or deferred
common stock units of the Company. Where payment is in common stock or deferred
common stock units of the Company, the number of shares or deferred stock
equivalent units of the Company that are paid to the Recipient or credited
to
the Recipient’s deferral account shall be based on the average of the high and
low market prices for the Company’s Common Stock on the New York Stock Exchange
on the date which immediately precedes the payment date. A Performance Award
payable in cash may also be deferred into any investment choice under the
Company’s Executive Deferral Compensation Plan.
A
Recipient may
select payment of all or any portion of an Award in cash only if (1) the
Recipient has at the time of payment satisfied stock ownership guidelines
of the
Company then in effect and (2) the Recipient has provided at least ten (10)
days
advance written notice to the Company’s Senior Vice President - Human Resources
of the election to accept payment in cash. Deferrals of cash or stock awards
must be under a valid election pursuant to the Company’s Executive Deferred
Compensation Plan.
(ii) Time
of Payment.
Awards
shall be paid in two equal installments, with the first payment after Committee
approval of actual performance and Award following the Period End Date
(generally, within 60 days after Period End Date) (the “First Payout Date”), and
the second being (“Second Payout Date”) within thirty (30) days after the one
year anniversary of the end of the Performance Period.
(c) General
Conditions to Payment of Awards.
Except
for the specific exceptions contained in Section 2(f) hereof, the Recipient
must
be an active, full-time employee of the Company on each of the First Payout
Date
and the Second Payout Date as a condition precedent to payment of the portion
of
the Award payable on such date.
(d) Partial
Performance Criteria Award.
If
actual company performance over the Performance Period is less than
the
Performance Criteria for that Performance Period, the Award payment shall
be
reduced to a percentage of the total Award which is based on application
of the
pre-approved performance matrix identified in the foregoing subparagraph
2(a).
(e) Awards
in Excess of the Target Award.
If
actual company performance for the Performance Period exceeds
the
Performance Criteria, the Committee shall, at the time it determines such
actual
company performance, make an Award in excess of the Target Award in an amount
which is based on application of the pre-approved performance matrix identified
in the foregoing subparagraph 2(a).
(f) Waiver
of Payout Conditions Upon Certain Events.
The
payout calculation and timing requirements of this Section 2 shall be waived
automatically and all Awards hereunder shall be paid in cash pro rata based
on
actual performance immediately (i) upon a Change in Control (as defined below),
or (ii) upon termination of Recipient’s employment due to death or disability
(as defined in Section 105(d)(4) of the internal Revenue Code of 1986, as
amended). Actual performance shall be determined in good faith by the Committee
and shall be based on the most recently reported results of the Company.
If, as
a result of a Change in Control, the Committee ceases to exist, changes,
or
fails to make such a determination, such a determination shall be based on
the
most recently reported results of the Company.
For
purposes of this Agreement "Change in Control" shall mean:
(i) the
acquisition by any individual, entity or group (within the meaning of Section
13(d) (3) or 14(d) (2) of the Exchange Act) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
20% or
more of either (A) the then outstanding shares of common stock of the Company
(the "Outstanding Company Common Stock") or (B) the combined voting power
of the
then outstanding voting securities of the Company entitled to vote generally
in
the election of directors (the "Outstanding Company Voting Securities");
provided, however, that the following acquisitions shall not constitute a
Change
of Control: (x) any acquisition directly from the Company (excluding an
acquisition by virtue of the exercise of a conversion privilege unless the
security being so converted was itself acquired directly from the Company),
(y)
any acquisition by the Company, (iii) any acquisition by any Recipient benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (z) any acquisition by any corporation
pursuant to a reorganization, merger or consolidation, if, following such
reorganization, merger or consolidation, the conditions described in clauses
(A), (B)
and
(C) of paragraph iii below are satisfied; or
(ii) Individuals
who, as of April 28, 2003, constitute the Board of Directors of the Company
(the
"Board" and the "Incumbent Board") cease for any reason to constitute at
least a
majority of the Board; provided, however, that any individual becoming a
director subsequent to April 28, 2003 whose election, or nomination for election
by the Company's shareholders, was approved by a vote of at least a majority
of
the directors then comprising the Incumbent Board shall be considered as
though
such individual were a member of the Incumbent Board, but excluding, for
this
purpose, any such individual whose initial assumption of office occurs as
a
result of either an actual or threatened election contest (as such terms
are
used in Rule 14a-11 of Regulation 14A promulgated under the Exchange Act)
or
other actual or threatened solicitation of proxies or consents by or on behalf
of a Person other than the Board; or
(iii) Approval
by the shareholders of the Company of a reorganization, merger binding share
exchange or consolidation, in each case, unless, following such reorganization,
merger, binding share exchange or consolidation, (A) (more than 60% of,
respectively, the then outstanding shares of common stock of the corporation
or
other entity resulting from such reorganization, merger, binding share exchange
or consolidation and the combined voting power of the then outstanding voting
securities of such corporation or other entity entitled to vote generally
in the
election of directors is then beneficially owned, directly or indirectly,
by all
or substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such reorganization, merger,
binding share exchange or consolidation, of the Outstanding Company Common
Stock
and Outstanding Company Voting Securities, as the case may be, (B) no Person
(excluding the Company, any Recipient benefit plan (or related trust) of
the
Company or such corporation resulting from such reorganization, merger, binding
share exchange or consolidation and any Person beneficially owning, immediately
prior to such reorganization, merger, binding share exchange or consolidation,
directly or indirectly, 20% or more of the Outstanding Company Common Stock
or
Outstanding Company Voting Securities, as the case may be) beneficially owns,
directly or indirectly, 20% or more of, respectively, the then outstanding
shares of common stock of the corporation or other entity resulting from
such
reorganization, merger,
binding share exchange or consolidation or the combined voting power of the
then
outstanding voting securities of such corporation or other entity entitled
to
vote generally in the election of directors, and (C) at least a majority
of the
members of the board of directors of the corporation or other entity resulting
from such reorganization, merger, binding share exchange or consolidation
were
members of the Incumbent Board at the time of the execution of the initial
agreement providing for such reorganization, merger, binding share exchange
or
consolidation; or
(iv) Approval
by the shareholders of the Company of (A) a complete liquidation or dissolution
of the Company or (B) the sale or other disposition of all or substantially
all
of the assets of the Company, other than to a corporation or other entity,
with
respect to which following such sale or other disposition, (1) more than
60% of,
respectively, the then outstanding shares of common stock of such corporation
or
other entity and the combined voting power of the then outstanding voting
securities of such corporation or other entity entitled to vote generally
in the
election of directors is then beneficially owned, directly or indirectly,
by all
or substantially all of the individuals and entities who are the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such sale or other disposition
in
substantially the same proportion as their ownership, immediately prior to
such
sale or other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (2) no Person
(excluding the Company and any Recipient benefit plan (or related trust)
of the
Company or such corporation or other entity and any Person beneficially owning,
immediately prior to such sale or other disposition, directly or indirectly,
20%
or more of the Outstanding Company Common Stock or Outstanding Company Voting
Securities, as the case may be) beneficially owns, directly or indirectly,
20%
or more at respectively, the then outstanding shares of common stock of such
corporation or other entity and the combined voting power of the then
outstanding voting securities of such corporation or other entity entitled
to
vote generally in the election of directors, and (3) at least a majority
of the
members of the board of directors of such corporation or other entity were
members of the Incumbent Board at the time of the execution of the initial
agreement or action of the Board providing for such sale or other disposition
of
assets of the company.
(g) Maximum
Award.
In no
event shall the value of an actual Award paid hereunder exceed 200% of the
Target Award Value set forth on the Schedule of Awards.
3. General
Restriction.
This
award shall be subject to the requirement that if at any time the Board of
Directors shall determine, in its discretion, that the listing, registration
or
qualification of the shares subject to such award upon any securities exchange
or under any state or federal law, or the consent or approval of any government
regulatory body, is necessary or desirable as to a condition at or in connection
with, the granting of such award or the issue or vesting of shares thereunder,
such award may not be effective 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 of
Directors.
4. Non-Transferability
of Award.
The
award granted under this Agreement shall not be transferable by the Recipient
except as may be set forth in the Plan.
5. Withholding
Upon Award.
Recipient also may elect to have a portion of the payment issuable to him
or her
withheld by the Company in order to satisfy applicable federal, state and
local
withholding tax requirements.
6. No
Right to Employment
(a) Benefits
and rights provided under the Plan are wholly discretionary and, although
provided by the Company, do not constitute regular and periodic payments.
The
benefits and rights provided under the Plan are not to be considered part
of the
Recipient’s salary or compensation under Recipient’s employment for purposes of
calculating any severance, resignation, redundancy or other end of service
payments, vacation, bonuses, long-term service awards, indemnification, pension
or retirement benefits, or any other payments, benefits or rights of any
kind.
(b) The
Award
issued hereunder, and any future Awards under the Plan are entirely voluntary,
and at the complete discretion of the Company. Neither the Award nor any
future
Award by the Company shall be deemed to create any obligation to any further
Awards, whether or not such a reservation is explicitly stated at the time
of
such a grant. The Company has the right, at any time and/or on an annual
basis,
to amend, suspend or terminate the Plan; provided, however, that no such
amendment, suspension, or termination shall adversely affect the Recipient’s
rights hereunder.
(c) The
Plan
shall not be deemed to constitute, and shall not be construed by the Recipient
to constitute, part of the terms and conditions of employment. The Company
shall
not incur any liability of any kind to the Recipient as a result of any change
or amendment, or any cancellation, of the Plan at any time.
(d) Participation
in the Plan shall not be deemed to constitute, and shall not be deemed by
the
Recipient to constitute, an employment or labor relationship of any kind
with
the Company.
7. Competing
Work Activities.
(a) Notwithstanding
anything to the contrary contained herein or in the Plan, if Recipient
voluntarily terminates his or her employment with the Company or is terminated
for misconduct or failure or refusal to perform his or her duties of employment
(as determined by the Committee), and within a period of one year after such
termination shall, directly or indirectly, engage in a competing activity
(as
defined below), Recipient shall be required to remit to the Company, with
respect to any Awards granted or paid on or after the date six months prior
to
such termination, the fair market value of such Award on the date of payment.
Such remittance shall be payable in cash or by certified or bank check or
by
delivery of shares of Common Stock of the Company registered in the name
of the
grantee duly assigned to the Company with the assignment guaranteed by a
bank,
trust company or member firm of the New York Stock Exchange, or by a combination
of the foregoing. Any such shares so delivered shall be deemed to have a
value
per share equal to the fair market value of the shares on such date. This
provision shall, however, become null and void, and Company's rights to any
remittance under this provision automatically shall be deemed waived, upon
a
Change in Control (as defined in Section 2 of this Agreement).
(b) For
purposes of this Section, Recipient will be deemed to be “engaged in a competing
activity” if he or she owns (other than as the owner of a less than 5% interest
in a company whose shares are publicly traded), manages, operates, controls,
is
employed by, or otherwise engages in or assists another to engage in any
activity or business which competes with any business or activity of the
Company
in which Recipient was engaged or involved, or which, as of the time of
Recipient's termination, was in a state of research or development by any
such
business of the Company.
(c) Nothing
contained in this Section shall be interpreted as or deemed to constitute
a
waiver of, or diminish or be in lieu at any other rights the Company may
possess
as a result of Recipient's direct or indirect involvement with a business
competing with the business of the Company.
8. Amendment
of this Agreement.
The
Board of Directors of the Company or the Committee may, from time to time,
require the termination, modification or amendment of the terms of this
Agreement, including, without limiting the foregoing generality, the making
of
such amendments or revisions as the Board or the Committee shall deem advisable,
provided, however, that no termination, modification or amendment of this
Agreement shall, without the written consent of the Recipient, impair his
or her
rights hereunder.
9. Notices.
Notices
hereunder shall be in writing and if to the Company shall be delivered
personally to the Secretary of the Company or mailed to its principal office,
▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, addressed to the
attention of the Secretary, and if to the Recipient shall be delivered
personally or mailed to the Recipient at his or her address as the same appears
on the records of the Company.
10. Interpretation
of this Agreement.
All
decisions and interpretations made by the Board of Directors or the Committee
with regard to any question arising hereunder or under the Plan shall be
binding
and conclusive on the Company and the Recipient. In the event there is any
inconsistency between the provision of this Agreement and of the Plan, the
provisions of the Plan shall govern.
11. Successors
and Assigns.
This
Agreement shall bind and inure to the benefit of the parties hereto and the
successors and assigns of the Company and to the extent provided herein to
the
personal representatives, legatees and heirs of the Recipient.
12. Severability
and Saving Provision.
The
parties intend that this Agreement shall be enforced to the maximum extent
possible. If a court of competent jurisdiction: (i) finds any provision of
this
Agreement to be unenforceable, that provision shall be deemed excised and
the
remainder of the Agreement shall continue in full force and effect; and (ii)
finds any provision of this Agreement to be unenforceable by reason of its
being
extended for too great a period of time, over too large a geographic area,
or
over too great a range of activities, the Agreement shall be interpreted
to
extend over the maximum period of time, geographic range and range of activities
as to which it may be enforceable.
13. Tax
Matters.
(a) The
Company shall have the power and the right to deduct or withhold, or require
Recipient to remit to the Company, an amount sufficient to satisfy taxes
imposed
under the laws of any country, state, province, city or other jurisdiction,
including but not limited to income taxes, capital gain taxes, transfer taxes,
and social security contributions, that are required by law to be withheld
with
respect to the Award, the sale of shares, if any, acquired upon payout of
the
Award, and/or payment of dividends on shares acquired upon payout of the
Award.
(b) Recipient
agrees to take all steps necessary to comply with all applicable provisions
of
laws of any country, state, province, city or other jurisdiction in exercising
his or her rights under the Plan and this Agreement.
14. Administration
and Compliance with Laws.
(a) This
Agreement shall be subject to all applicable laws, rules, and regulations,
and
to such approvals by any governmental agencies or national securities exchanges
as may be required.
(b) The
Company is issuing the Awards hereunder. Furthermore, this Agreement is not
derived from any preexisting labor relationship between the Recipient and
the
Company, but rather from a mercantile relationship.
(c) The
Company will administer the Plan from the U.S. and New York State law and
the
Federal laws of the United States (except those provisions relating to conflicts
of law) will govern all Awards issued under the Plan.
15. Privacy. As
a
condition of the Award, the Recipient consents to the collection, use, and
transfer of personal data as described in this Section to the full extent
permitted by and in full compliance with applicable law.
(a) The
Recipient understands that the Company holds, by means of an automated data
file, certain personal information about the Recipient, including, but not
limited to, name, home address and telephone number, date of birth, social
insurance number, salary, nationality, job title, any shares or directorships
held in the Company, details of all options or other entitlement to shares
awarded, cancelled, exercised, vested, unvested, or outstanding in the
Recipient’s favor, for the purpose of managing and administering the Plan
(“Data”).
(b) The
Recipient further understands that part or all of his/her Data may be also
held
by the Company and/or it Subsidiaries, pursuant to a transfer made in the
past
with his/her consent, in respect of any previous Award, which was made for
the
same purposes of managing and administering of previous award/incentive plans,
or for other purposes.
(c) The
Recipient further understands that his/her local employer will transfer Data
to
the Company and/or its Subsidiaries among themselves as necessary for the
purposes of implementation, administration, and management of the Recipient’s
participation in the Plan, and that the Company and/or its Subsidiary may
transfer data among themselves, and/or each, in turn, further transfer Data
to
any third parties assisting the Company in the implementation, administration,
and management of the Plan (“Data Transferees”).
(d) The
Recipient understands that the Company and/or its Subsidiaries, as well as
the
Data Transferees, are or may be located in his or her country of residence
or
elsewhere, such as the United States. The Recipient authorizes the Company
and/or its Subsidiaries, as well as Data Transferees to receive, possess,
use,
retain, and transfer Data in electronic or other form, for the purposes of
implementing, administering, and managing his or her participation in the
Plan,
including any transfer of such Data, as may be required for the administration
of the Plan and/or the subsequent holding of shares on his or her behalf,
to a
broker or third party with whom the shares acquired on exercise may be
deposited.
(e) The
Recipient understands that he or she may show his/her opposition to the
processing and transfer of his/her Data, and, may at any time, review the
Data,
request that any necessary amendments be made to it, or withdraw his or her
consent herein in writing by contacting the Company. The Recipient further
understands that withdrawing consent may affect his or her ability to
participate in the Plan.
16. General.
The
Recipient has received, and therefore has full knowledge of and understands,
the
terms and conditions of this Agreement. The Recipient acknowledges that copies
of the complete rules of the Plan have also been made available to him/her
at
his/her work center with his/her local employer.
IN
WITNESS WHEREOF, the Company and the Recipient have executed this Agreement
on
the day and year first above written.
BAUSCH
& LOMB INCORPORATED
By:__________________________________
▇▇▇▇
▇.
▇▇▇▇▇▇
Secretary
RECIPIENT
By: _____________________________________
Name
Printed: _____________________________________