Exhibit 10.3
THERMO ELECTRON CORPORATION
DIRECTORS STOCK OPTION PLAN
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As amended and restated effective as of February 25, 2005
1. Purpose
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The purpose of this Directors Stock Option Plan (the "Plan") of Thermo
Electron Corporation (the "Company") is to encourage ownership in the Company by
outside directors of the Company whose services are considered essential to the
Company's growth and progress and to provide them with a further incentive to
become directors and to continue as directors of the Company. The Plan is
intended to be a nonstatutory stock option plan.
2. Administration
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The Board of Directors (the "Board"), or a Committee (the "Committee")
consisting of one or more directors of the Company appointed by the Board, shall
supervise and administer the Plan. Grants of stock options under the Plan and
the amount and nature of the options to be granted shall be automatic in
accordance with Section 5. However, all questions of interpretation of the Plan
or of any stock options granted under it shall be determined by the Board or the
Committee and such determination shall be final and binding upon all persons
having an interest in the Plan.
3. Participation in the Plan
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Directors of the Company who are not employees of the Company or any
subsidiary or parent of the Company shall be eligible to participate in the
Plan. Directors who receive grants of stock options in accordance with this Plan
are sometimes referred to herein as "Optionees."
4. Stock Subject to the Plan
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The maximum number of shares that may be issued under the Plan shall be
773,330 shares of the Company's Common Stock (the "Common Stock"), subject to
adjustment as provided in Section 9. Shares to be issued upon the exercise of
options granted under the Plan may be either authorized but unissued shares or
shares held by the Company in its treasury. If any option expires or terminates
for any reason without having been exercised in full, the unpurchased shares
subject thereto shall again be available for options thereafter to be granted.
5. Terms and Conditions
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A. Annual Stock Option Grants
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Each Director of the Company who meets the requirements of Section 3
and who is holding office immediately following the Annual Meeting of
Stockholders commencing with the Annual Meeting of Stockholders held in calendar
year 1993, shall be granted an option to
purchase shares of Common Stock at the close of business on the date of such
Annual Meeting, except that the grant of options for 2003 shall be made as of
the close of business on May 15, 2003. Prior to 2003, the annual option granted
to each eligible Director shall be exercisable to purchase 1,000 shares of
Common Stock. Commencing with the annual grant in 2003, each eligible Director
shall be granted an option to purchase 7,500 shares of Common Stock.
B. General Terms and Conditions Applicable to Grants During 2005
and Thereafter.
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1. Options granted during 2005 and thereafter shall be
exercisable to the extent they are vested. Each option shall
vest in equal annual installments on the first, second and
third anniversaries of the grant date, provided that on each
vesting date, the Optionee is a Director of the Company.
Vested options may be exercised prior to the date which is the
earliest of:
(a) seven years after the grant date, (b) three years
after the Optionee ceases to serve as a Director of the
Company (one year in the event the Optionee ceases to meet the
requirements of this Subsection by reason of his or her
death), or (c) the date of dissolution or liquidation of the
Company.
2. The exercise price at which options are granted
hereunder during 2005 and thereafter shall be the average of
the opening and closing prices on the national securities
exchange on which the Common Stock is principally traded on
the date the option is granted or, if such security is not
traded on an exchange, the average of the opening and last
reported sale price on the NASDAQ National Market List on the
date the option is granted, or the average of the opening and
closing bid prices last quoted by an established quotation
service for over-the-counter securities on the date the option
is granted, or if none of the above shall apply, the last
price paid for shares of the Common Stock by independent
investors in a private placement.
C. General Terms and Conditions Applicable to Grants After 2002.
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1. Options granted after 2002 shall be exercisable to
the extent they are vested. Each option shall vest in equal
annual installments on the first, second and third
anniversaries of the grant date, provided that on each vesting
date, the Optionee is a Director of the Company. Vested
options may be exercised prior to the date which is the
earliest of:
(a) seven years after the grant date, (b) three years
after the Optionee ceases to serve as a Director of the
Company (one year in the event the Optionee ceases to meet the
requirements of this Subsection by reason of his or her
death), or (c) the date of dissolution or liquidation of the
Company.
2. The exercise price at which options are granted
hereunder after 2002 shall be the average of the closing
prices reported by the national securities exchange
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on which the Common Stock is principally traded for the five
trading days immediately preceding and including the date the
option is granted or, if such security is not traded on an
exchange, the average last reported sale price for the five-
day period on the NASDAQ National Market List, or the average
of the closing bid prices for the five-day period last quoted
by an established quotation service for over-the-counter
securities, or if none of the above shall apply, the last
price paid for shares of the Common Stock by independent
investors in a private placement.
D. General Terms and Conditions Applicable to Grants in 2002.
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1. Options granted in 2002 shall be immediately
exercisable at any time from and after the grant date and
prior to the date which is the earliest of:
(a) seven years after the grant date, (b) three years
after the Optionee ceases to serve as a Director of the
Company, (one year in the event the Optionee ceases to meet
the requirements of this Subsection by reason of his or her
death), or (c) the date of dissolution or liquidation of the
Company.
2. The exercise price at which options are granted
hereunder in 2002 shall be the average of the closing prices
reported by the national securities exchange on which the
Common Stock is principally traded for the five trading days
immediately preceding and including the date the option is
granted or, if such security is not traded on an exchange, the
average last reported sale price for the five-day period on
the NASDAQ National Market List, or the average of the closing
bid prices for the five-day period last quoted by an
established quotation service for over-the-counter securities,
or if none of the above shall apply, the last price paid for
shares of the Common Stock by independent investors in a
private placement.
E. General Terms and Conditions Applicable to Grants Prior to
2002.
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1. Options granted prior to 2002 shall be immediately
exercisable at any time from and after the grant date and
prior to the date which is the earliest of:
(a) three years after the grant date, (b) two years
after the Optionee ceases to serve as a Director of the
Company (one year in the event the Optionee ceases to meet the
requirements of this Subsection by reason of his or her
death), or (c) the date of dissolution or liquidation of the
Company.
2. The exercise price at which options are granted
hereunder prior to 2002 shall be the average of the closing
prices reported by the national securities exchange on which
the Common Stock is principally traded for the five trading
days immediately preceding and including the date the option
is granted or, if such security is not traded on an exchange,
the average last reported sale price for the five-day period
on the NASDAQ National Market List, or the average of the
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closing bid prices for the five-day period last quoted by an
established quotation service for over-the-counter securities,
or if none of the above shall apply, the last price paid for
shares of the Common Stock by independent investors in a
private placement.
6. Exercise of Options
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A. Exercise/Consideration
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An option may be exercised in accordance with the instructions
described in "The Guide for Employees of Thermo Electron Stock Option Plans" and
any supplement thereto as they may be amended from time to time (the "Guide").
Upon exercise of the option in accordance with the aforementioned instructions,
the Company shall deliver or cause to be delivered to the Optionee the number of
shares then being purchased, registered in the name of the Optionee or other
person exercising the option. If any law or applicable regulation of the
Securities and Exchange Commission or other body having jurisdiction in the
premises shall require the Company or the Director to take any action in
connection with shares being purchased upon exercise of the option, exercise of
the option and delivery of the certificate or certificates for such shares shall
be postponed until completion of the necessary action, which shall be taken at
the Company's expense.
B. Tax Withholding
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No later than the date on which part or all of the value of any shares
received upon the exercise of an option first becomes includible in an
Optionee's gross income for income tax purposes, the Optionee shall satisfy his
or her obligations to pay any federal, state or local taxes required to be
withheld with respect to such income in accordance with the provisions of the
Guide. Notwithstanding the foregoing, no election to use shares for the payment
of withholding taxes shall be effective unless made in compliance with any
applicable requirements of Rule 16b-3.
7. Transferability
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Except as may be authorized by the Board or the Committee, in its sole
discretion, no option may be transferred other than by will or the laws of
descent and distribution, and during an Optionee's lifetime an option may be
exercised only by him or her (or in the event of incapacity, the person or
persons properly appointed to act on his or her behalf). The Board or the
Committee may, in its discretion, determine the extent to which options granted
to an Optionee shall be transferable.
8. Limitation of Rights to Continue as a Director
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Neither the Plan, nor the quantity of shares subject to options granted
under the Plan, nor any other action taken pursuant to the Plan, shall
constitute or be evidence of any agreement or understanding, express or implied,
that the Company will retain a Director for any period of time, or at any
particular rate of compensation.
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9. Adjustments in the Event of Certain Transactions
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(a) In the event of a stock dividend, stock split or combination
of shares, or other distribution with respect to holders of Common Stock other
than normal cash dividends, the Board or the Committee will make (i) appropriate
adjustments to the maximum number of shares that may be delivered under the Plan
under Section 4 above, and (ii) appropriate adjustments to the number and kind
of shares of stock or securities subject to options then outstanding or
subsequently granted, any exercise prices relating to options and any other
provisions of options affected by such change.
(b) In the event of any recapitalization, merger or consolidation
involving the Company, any transaction in which the Company becomes a subsidiary
of another entity, any sale or other disposition of all or a substantial portion
of the assets of the Company or any similar transaction, as determined by the
Board, the Board in its discretion may make appropriate adjustments to
outstanding options, including, without limitation: (i) accelerate the
exercisability of the option, or (ii) adjust the terms of the option (whether or
not in a manner that complies with the requirements of Section 424(a) of the
Internal Revenue Code of 1986, as amended (the "Code")), or (iii) if there is a
survivor or acquiror entity, provide for the assumption of the option by such
survivor or acquiror or an affiliate thereof or for the grant of one or more
replacement options by such survivor or acquiror or an affiliate thereof, in
each case on such terms (which may, but need not, comply with the requirements
of Section 424(a) of the Code) as the Board may determine, or (iv) terminate the
option (provided, that if the Board terminates the option, it shall, in
connection therewith, either (A) accelerate the exercisability of the option
prior to such termination, or (B) provide for a payment to the holder of the
option of cash or other property or a combination of cash or other property in
an amount reasonably determined by the Board to approximate the value of the
option assuming an exercise immediately prior to the transaction, or (C) if
there is a survivor or acquiror entity, provide for the grant of one or more
replacement options pursuant to clause (iii) above), or (v) provide for none of,
or any combination of, the foregoing.
(c) No fraction of a share or fractional shares shall be
purchasable or deliverable pursuant to this Section 9.
10. Limitation of Rights in Option Stock
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The Optionee shall have no rights as a stockholder in respect of shares
as to which his or her options shall not have been exercised, certificates
issued and delivered and payment as herein provided made in full, and shall have
no rights with respect to such shares not expressly conferred by this Plan or
the written agreement evidencing options granted hereunder.
11. Stock Reserved
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The Company shall at all times during the term of the options reserve
and keep available such number of shares of the Common Stock as will be
sufficient to permit the exercise in full of all options granted under this Plan
and shall pay all other fees and expenses necessarily incurred by the Company in
connection therewith.
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12. Securities Laws Restrictions
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A. Investment Representations.
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The Company may require any person to whom an option is granted, as a
condition of exercising such option, to give written assurances in substance and
form satisfactory to the Company to the effect that such person is acquiring the
Common Stock subject to the option for his or her own account for investment and
not with any present intention of selling or otherwise distributing the same,
and to such other effects as the Company deems necessary or appropriate in order
to comply with federal and applicable state securities laws.
B. Compliance with Securities Laws.
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Each option shall be subject to the requirement that if, at any time,
counsel to the Company shall determine that the listing, registration or
qualification of the shares subject to such option upon any securities exchange
or under any state or federal law, or the consent or approval of any
governmental or regulatory body, or that the disclosure of non-public
information or the satisfaction of any other condition is necessary as a
condition of, or in connection with, the issuance or purchase of shares
thereunder, such option may not be exercised, in whole or in part, unless such
listing, registration, qualification, consent or approval, or satisfaction of
such condition shall have been effected or obtained on conditions acceptable to
the Board or the Committee. Nothing herein shall be deemed to require the
Company to apply for or to obtain such listing, registration or qualification,
or to satisfy such condition.
13. Change in Control
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A. Impact of Event
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In the event of a "Change in Control" as defined in Section 13(B), the
following provisions shall apply. If a Change in Control occurs while any
options are outstanding, then, effective upon the Change in Control, each
outstanding option under the Plan that was not previously vested shall become
immediately exercisable in full.
B. Definition of "Change in Control"
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"Change in Control" means an event or occurrence set forth in any one
or more of subsections (a) through (d) below (including an event or occurrence
that constitutes a Change in Control under one of such subsections but is
specifically exempted from another such subsection):
(a) the acquisition by an 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 of any capital stock of the Company if, after such
acquisition, such Person beneficially owns (within the meaning of Rule 13d-3
promulgated under the Exchange Act) 40% or more of either (i) the
then-outstanding Common Stock (the "Outstanding TMO Common Stock") or (ii) the
combined
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voting power of the then-outstanding securities of the Company entitled to vote
generally in the election of Directors (the "Outstanding TMO Voting
Securities"); provided, however, that for purposes of this subsection (a), the
following acquisitions shall not constitute a Change in Control: (i) any
acquisition by the Company, (ii) any acquisition by any employee benefit plan
(or related trust) sponsored or maintained by the Company or any corporation
controlled by the Company, or (iii) any acquisition by any corporation pursuant
to a transaction which complies with clauses (i) and (ii) of subsection (c) of
this definition; or
(b) such time as the Continuing Directors (as defined below) do
not constitute a majority of the Board (or, if applicable, the Board of
Directors of a successor corporation to the Company), where the term "Continuing
Director" means at any date a member of the Board (i) who was a member of the
Board as of May 14, 2003 or (ii) who was nominated or elected subsequent to such
date by at least a majority of the Directors who were Continuing Directors at
the time of such nomination or election or whose election to the Board was
recommended or endorsed by at least a majority of the Directors who were
Continuing Directors at the time of such nomination or election; provided,
however, that there shall be excluded from this clause (ii) any individual whose
initial assumption of office occurred as a result of an actual or threatened
election contest with respect to the election or removal of Directors or other
actual or threatened solicitation of proxies or consents, by or on behalf of a
person other than the Board; or
(c) the consummation of a merger, consolidation, reorganization,
recapitalization or statutory share exchange involving the Company or a sale or
other disposition of all or substantially all of the assets of the Company in
one or a series of transactions (a "Business Combination"), unless, immediately
following such Business Combination, each of the following two conditions is
satisfied: (i) all or substantially all of the individuals and entities who were
the beneficial owners of the Outstanding TMO Common Stock and Outstanding TMO
Voting Securities immediately prior to such Business Combination beneficially
own, directly or indirectly, more than 60% of the then-outstanding shares of
Common Stock and the combined voting power of the then-outstanding securities
entitled to vote generally in the election of Directors, respectively, of the
resulting or acquiring corporation in such Business Combination (which shall
include, without limitation, a corporation which as a result of such transaction
owns the Company or substantially all of the Company's assets either directly or
through one or more subsidiaries) (such resulting or acquiring corporation is
referred to herein as the "Acquiring Corporation") in substantially the same
proportions as their ownership, immediately prior to such Business Combination,
of the Outstanding TMO Common Stock and Outstanding TMO Voting Securities,
respectively; and (ii) no Person (excluding the Acquiring Corporation or any
employee benefit plan (or related trust) maintained or sponsored by the Company
or by the Acquiring Corporation) beneficially owns, directly or indirectly, 40%
or more of the then outstanding shares of common stock of the Acquiring
Corporation, or of the combined voting power of the then-outstanding securities
of such corporation entitled to vote generally in the election of directors; or
(d) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
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14. Amendment of the Plan
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The provisions of Sections 3 and 5 of the Plan shall not be amended
more than once every six months, other than to comport with changes in the Code,
the Employee Retirement Income Security Act of 1974, or the rules thereunder.
Subject to the foregoing, the Board or the Committee may at any time, and from
time to time, modify or amend the Plan in any respect, except that if at any
time the approval of the Stockholders of the Company is required as to such
modification or amendment under Rule 16b-3, the Board or the Committee may not
effect such modification or amendment without such approval.
The termination or any modification or amendment of the Plan shall not,
without the consent of an Optionee, affect his or her rights under an option
previously granted to him or her. With the consent of the Optionees affected,
the Board or the Committee may amend outstanding options in a manner not
inconsistent with the Plan. The Board or the Committee shall have the right to
amend or modify the terms and provisions of the Plan and of any outstanding
option to the extent necessary to ensure the qualification of the Plan under
Rule 16b-3.
15. Effective Date of the Plan
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The Plan was approved by the Board on March 29, 1993 and approved by
the Stockholders on May 25, 1993.
16. Notice
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Any written notice to the Company required by any of the provisions of
the Plan shall be addressed to the Secretary of the Company and shall become
effective when it is received.
17. Governing Law
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The Plan and all determinations made and actions taken pursuant hereto
shall be governed by the laws of the State of Delaware.
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