LUMINEX CORPORATION RESTRICTED SHARE UNIT AWARD AGREEMENT (2010 LTIP)
Exhibit 10.3
THIS RESTRICTED SHARE UNIT AWARD AGREEMENT (this “Agreement”) is made and entered into as of
the 11th day of March, 2010 (the “Grant Date”), between Luminex Corporation, a Delaware
corporation, (together with its Subsidiaries, the “Company”), and
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(the “Grantee”). Capitalized terms not otherwise defined herein shall have the meaning ascribed to such
terms in the Luminex Corporation 2010 Long Term Incentive Plan (the “LTIP”).
WHEREAS, the Company has adopted the LTIP under the Luminex Corporation Amended and Restated
2006 Equity Incentive Plan, as amended from time to time (the “Plan”), which provides for the
issuance of Performance Awards under the Plan in the form of Restricted Share Units; and
WHEREAS, pursuant to the LTIP, the Committee has granted a Performance Award of Restricted
Share Units to the Grantee as provided herein;
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. Grant of Restricted Share Units.
(a) The Company hereby grants to the Grantee an award (the “Award”) of [MAX AMT SPECIFIED IN
PLAN] Restricted Share Units (the “RSUs”) on the terms and conditions set forth in this Agreement
and as otherwise provided in the LTIP.
(b) The Grantee’s rights with respect to the Award shall remain forfeitable at all times prior
to the dates on which the restrictions shall lapse in accordance with Section 1(c) and
Section 2 hereof.
(c) Upon the completion of the Performance Period set forth in the LTIP and the Committee’s
determination of the achievement of the performance targets set forth on Schedule A of the
LTIP (the “Determination Date”), the number of RSUs granted hereby shall be immediately reduced to
equal the number of Eligible Units determined in accordance with the LTIP. In the event Grantee’s
employment with the Company terminates prior to the Determination Date for any reason, the number
of Eligible Units shall be zero. Grantee shall have no further rights with respect to any RSUs in
excess of the Eligible Units and such excess number shall be deemed cancelled for purposes of the
Plan.
2. Terms; Restricted Period.
(a) Except as provided herein and subject to such other exceptions as may be determined by the
Committee in its discretion, the “Restricted Period” for fifty percent (50%) of the Eligible Units
granted herein shall immediately expire on the Determination Date; the Restricted Period for the
remaining fifty percent (50%) of the Eligible Units granted herein shall expire on the second
anniversary of the completion of the Performance Period.
(b) No dividend equivalents shall be paid or payable with respect to the RSUs covered by this
Award. The Grantee shall not be entitled to voting rights with respect to the RSUs covered by
this Award.
(c) None of the RSUs may be sold, assigned, transferred, pledged, hypothecated or otherwise
encumbered or disposed of during the Restricted Period as to such RSUs.
(d) Except as otherwise determined by the Committee at or after the grant of the Award
hereunder, any RSUs as to which the applicable “Restricted Period” has not expired shall be
forfeited, and all rights of the Grantee to such Awards shall terminate, without further obligation
on the part of the Company, unless the Grantee remains in the continuous employment of the Company
or its Subsidiaries for the entire Restricted Period.
(e) Notwithstanding the foregoing, the Restricted Period shall automatically terminate as to
all Eligible Units awarded hereunder (as to which such Restricted Period has not previously
terminated), upon the occurrence of termination of the Grantee’s employment with the Company (or a
Subsidiary or Affiliate) after the end of the Performance Period which results from any of the
following: (i) Grantee’s death or disability (to be determined in the sole discretion of the
Committee); (ii) the involuntary termination of Grantee’s employment by the Company without Cause;
or (iii) Grantee ceases employment with the Company for Good Reason.
(f) Notwithstanding the foregoing, if a Change in Control occurs prior to the end of the
Performance Period, the Determination Date shall be the effective date of the Change in Control and
the Committee shall determine the Eligible Units by (i) applying the performance criteria set forth
in the LTIP using the effective date of the Change in Control as the end of the Performance Period,
and by appropriately and proportionately adjusting the performance criteria for such shortened
Performance Period, if applicable, and (ii) multiplying the number of Units so determined by .3333
if the Change in Control occurs in 2010, .6667 if the Change in Control occurs in 2011, and 1 if
the Change in Control occurs in 2012 (rounding the resulting number of Eligible Units to the
nearest whole number). Upon a Change in Control, the Restricted Period for any Eligible Units
awarded hereunder (as to which such Restricted Period has not previously terminated, and including
Eligible Units as a result of the application of the previous sentence) shall automatically
terminate.
3. Termination of Restrictions. Settlement of an Eligible Unit shall be made within
30 days (with the date of payment selected by the Company in its sole discretion) of the
termination of the Restricted Period related to such Eligible Unit. Subject to the provisions of
the Plan, any settlement of an RSU pursuant to this Award shall be made through the issuance to the
Grantee (or to the executors or administrators of Grantee’s estate, after the Company’s receipt of
notification of Grantee’s death, as the case may be) of a stock certificate for a number of Shares
equal to the number of the RSUs to be settled. Following receipt of such Shares, the Grantee may
receive, hold, sell or otherwise dispose of such Shares free and clear of the restrictions imposed
under the LTIP and this Agreement.
4. Certain Payments upon a Change in Control. In the event that any settlement of
Eligible Units pursuant to this Agreement causes the aggregate payments or benefits to be made or
afforded to the Grantee under this Agreement, together with any other payments or benefits received
or to be received by the Grantee, in connection with a Change in Control (collectively, “Total
Change in Control Payments”) to exceed one hundred ten percent (110%) of the maximum amount
permitted under Section 280G of the Code to be received without incurring an excise tax under
Section 4999 of the Code (the “280G Maximum”), then the Company shall pay to Grantee an additional
amount, in cash, necessary to reimburse the Grantee on an after-tax basis, as described below, for
any excise tax payable by the Grantee under Section 4999 of the Code. If Total Change in Control
Payments, however, do not exceed one hundred ten percent (110%) of the 280G Maximum, then, at the
election of the Grantee, (i) such payments or benefits shall be payable or provided to the Grantee
over the minimum period necessary to reduce the
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present value of such payments or benefits to an amount which is one dollar ($1.00) less than
the 280G Maximum or (ii) the payments or benefits to be provided under this Agreement (or any other
agreement or arrangement between the Grantee and the Company) shall be reduced to the extent
necessary to avoid incurrence of the excise tax under Section 4999 of the Code, with the allocation
of the reduction among such payments and benefits to be determined by the Grantee. For purposes of
determining the amount of any payment described in this Section 4, the Grantee shall be
deemed to have been reimbursed on an after-tax basis for any excise tax described herein if the
Grantee has received (a) the amount of such excise tax and (b) the amount of any taxes (including
federal, state and local income taxes as well as any excise tax under Section 4999 of the Code)
payable on account of the reimbursement for such excise tax and any such income and excise taxes
payable on account of such reimbursement for income and excise taxes. In the event that the
Grantee and the Company fail to agree as to the amount described herein within fifteen (15) days
following a Change in Control, such amount will be determined by a firm of independent accountants
(the cost of which shall be born by the Company or its successor) mutually agreed upon by the
Grantee and the Company within thirty (30) days following the Change in Control. The Company shall
reimburse the Grantee for any additional income and/or excise taxes (and any penalties and interest
thereon) as may be determined to be payable by any taxing authority in respect of any excise tax
imposed under Section 4999 of the Code and any reimbursement described herein. The payment
described in this paragraph shall be payable on the thirtieth day following the Change in Control,
or as soon thereafter as is practicable if an accounting firm is determining the amount. For the
avoidance of doubt, Grantee shall be entitled to an additional payment as described in this
Section 4 if and only if (i) the Restricted Period of any RSUs terminates pursuant to
Section 2(f) or otherwise in connection with a Change in Control, or (ii) any RSUs become
Eligible Units pursuant to Section 2(f).
5. No Right to Continued Employment. This Agreement shall not be construed as giving
Grantee the right to be retained in the employ of the Company of its Subsidiaries, and the Company
or its Subsidiaries may at any time dismiss Grantee from employment, free from any liability or any
claim under the LTIP but subject to the terms of the Grantee’s Employment Agreement, if any.
6. Adjustments. The Committee shall make adjustments in the terms and conditions of,
and the criteria included in, this Award in recognition of unusual or nonrecurring events
(including, without limitation, the events described in Section 4.2 of the Plan) affecting
the Company, or the financial statements of the Company, or of changes in applicable laws,
regulations, or accounting principles, whenever the Committee determines that such adjustments are
appropriate in order to prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the LTIP.
7. Amendment to Award. Subject to the restrictions contained in the Plan and the
LTIP, the Committee may waive any conditions or rights under, amend any terms of, or alter,
suspend, discontinue, cancel or terminate the Award, prospectively or retroactively; provided that
any such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination
that would adversely affect the rights of the Grantee or any holder or beneficiary of the Award
shall not to that extent be effective without the consent of the Grantee, holder or beneficiary
affected.
8. Withholding of Taxes. Upon the lapse of the Restricted Period and the issuance of
Shares with respect to any portion of this Award, the Company shall satisfy any applicable
withholding obligations or withholding taxes (“Withholding Taxes”) as set forth by Internal Revenue
Service guidelines for the employer’s minimum statutory withholding with respect to Grantee and
issue Shares to the Grantee without restriction. As a condition to receiving settlement of the
RSUs hereunder, the Company may require Grantee to pay to the Company, and the Company shall have
the right and is hereby authorized to withhold from any payments hereunder or from any compensation
or other amount owing to Grantee, an amount of cash necessary for the Company to satisfy any
Withholding Taxes in respect of this
Award. In its sole and absolute discretion, the Company may satisfy the required Withholding
Taxes by withholding from the Shares otherwise issuable pursuant to settlement of the Award that
number of whole Shares necessary to satisfy Withholding Taxes with respect to such Shares based on
the Fair Market Value of the Shares as of the date the Restricted Period ends.
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9. Section 409A. Notwithstanding anything herein to the contrary, to the maximum
extent permitted by applicable law, the settlement of the Eligible Units to be made to the Grantee
pursuant to this Agreement is intended to qualify as a “short-term deferral” pursuant to Section
1.409A-1(b)(4) of the Regulations and this Agreement shall be interpreted consistently therewith.
However, to the extent the settlement of any Eligible RSUs upon Grantee’s termination of employment
do not qualify for an exception from treatment as non-qualified deferred compensation subject to
Section 409A of the Code, then (a) such amount shall not be payable unless Grantee’s termination of
employment constitutes a “separation from service” within the meaning of Section 1.409A-1(h) of the
Regulations and (b) if Grantee is a “specified employee” at such time for purposes of Section
409A(a)(2)(B)(i) of the Code, then to the extent delayed settlement of any portion of the Eligible
RSUs to which Grantee is entitled under this Agreement is required in order to avoid a prohibited
distribution under Section 409A(a)(2)(B)(i) of the Code, such portion of the Eligible RSUs shall
not be provided to Grantee prior to the earlier of (x) the expiration of the six-month period
measured from the date of the Grantee’s “separation from service” with the Company or (y) the date
of Grantee’s death. Upon the earlier of such dates, settlement of all Eligible RSUs shall occur as
otherwise provided in this Agreement.
10. Plan and LTIP Govern. The Grantee hereby acknowledges receipt of a copy of the
LTIP and the Plan and agrees to be bound by all the terms and provisions thereof. The terms of
this Agreement are governed by the terms of the LTIP and the Plan, and in the case of any
inconsistency between the terms of this Agreement and the terms of the LTIP and the Plan, the terms
of the LTIP and the Plan shall govern.
11. Severability. If any provision of this Agreement is, or becomes, or is deemed to
be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or the Award, or
would disqualify the Plan or Award under any laws deemed applicable by the Committee, such
provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot
be construed or deemed amended without, in the determination of the Committee, materially altering
the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction,
Person or Award, and the remainder of the Plan and Award shall remain in full force and effect.
12. Notices. All notices required to be given under this Grant shall be deemed to be
received if delivered or mailed as provided for herein, to the parties at the following addresses,
or to such other address as either party may provide in writing from time to time.
To the Company:
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Luminex Corporation | |
| 00000 Xxxxxxxxxx Xxxx. | ||
| Xxxxxx, XX 00000 | ||
| Attn: Corporate Secretary | ||
To the Grantee:
|
The address then maintained with respect to the Grantee in the Company’s records. |
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13. Governing Law. The validity, construction and effect of this Agreement shall be
determined in accordance with the laws of the State of Delaware without giving effect to conflicts
of laws principles.
14. Successors in Interest. This Agreement shall inure to the benefit of and be
binding upon any successor to the Company. This Agreement shall inure to the benefit of the
Grantee’s legal representatives. All obligations imposed upon the Grantee and all rights granted
to the Company under this Agreement shall be binding upon the Grantee’s heirs, executors,
administrators and successors.
15. Resolution of Disputes. Any dispute or disagreement which may arise under, or as
a result of, or in any way related to, the interpretation, construction or application of this
Agreement shall be determined by the Committee. Any determination made hereunder shall be final,
binding and conclusive on the Grantee and the Company for all purposes.
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IN WITNESS WHEREOF, the parties have caused this Restricted Share Unit Award Agreement to be
duly executed effective as of the day and year first above written.
| LUMINEX CORPORATION |
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| By: | ||||
| GRANTEE: |
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| Please Print | ||||
| GRANTEE: |
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| Signature | ||||
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