Exhibit 10.81
THERMOLASE CORPORATION
EQUITY INCENTIVE PLAN
1. Purpose
The purpose of this Equity Incentive Plan (the "Plan") is to secure
for ThermoLase Corporation (the "Company") and its Stockholders the
benefits arising from capital stock ownership by employees, officers and
Directors of, and consultants to, the Company and its subsidiaries or other
persons who are expected to make significant contributions to the future
growth and success of the Company and its subsidiaries. The Plan is
intended to accomplish these goals by enabling the Company to offer such
persons equity-based interests, equity-based incentives or
performance-based stock incentives in the Company, or any combination
thereof ("Awards").
2. Administration
The Plan will be administered by the Board of Directors of the Company
(the "Board"). The Board shall have full power to interpret and administer
the Plan, to prescribe, amend and rescind rules and regulations relating to
the Plan and Awards, and full authority to select the persons to whom
Awards will be granted ("Participants"), determine the type and amount of
Awards to be granted to Participants (including any combination of Awards),
determine the terms and conditions of Awards granted under the Plan
(including terms and conditions relating to events of merger,
consolidation, dissolution and liquidation, change of control, vesting,
forfeiture, restrictions, dividends and interest, if any, on deferred
amounts), waive compliance by a participant with any obligation to be
performed by him or her under an Award, waive any term or condition of an
Award, cancel an existing Award in whole or in part with the consent of a
Participant, grant replacement Awards, accelerate the vesting or lapse of
any restrictions of any Award and adopt the form of instruments evidencing
Awards under the Plan and change such forms from time to time. Any
interpretation by the Board of the terms and provisions of the Plan or any
Award thereunder and the administration thereof, and all action taken by
the Board, shall be final, binding and conclusive on all parties and any
person claiming under or through any party. No Director shall be liable for
any action or determination made in good faith. The Board may, to the full
extent permitted by law, delegate any or all of its responsibilities under
the Plan to a committee (the "Committee") appointed by the Board and
consisting of two or more members of the Board, each of whom shall be
deemed a "disinterested person" within the meaning of Rule 16b-3 (or any
successor rule) of the Securities Exchange Act of 1934 (the "Exchange
Act").
3. Effective Date
The Plan shall be effective as of the date first approved by the Board
of Directors, subject to the approval of the Plan by the Corporation's
Stockholders. Grants of Awards under the Plan made prior to such approval
shall be effective when made (unless otherwise specified by the Board at
the time of grant), but shall be conditioned on and subject to such
approval of the Plan.
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4. Shares Subject to the Plan
Subject to adjustment as provided in Section 10.6, the total number of
shares of the common stock, $.01 par value per share, of the Company (the
"Common Stock"), reserved and available for distribution under the Plan
shall be 500,000 shares. Such shares may consist, in whole or in part, of
authorized and unissued shares or treasury shares.
If any Award of shares of Common Stock requiring exercise by the
Participant for delivery of such shares terminates without having been
exercised in full, is forfeited or is otherwise terminated without a
payment being made to the Participant in the form of Common Stock, or if
any shares of Common Stock subject to restrictions are repurchased by the
Company pursuant to the terms of any Award or are otherwise reacquired by
the Company to satisfy obligations arising by virtue of any Award, such
shares shall be available for distribution in connection with future Awards
under the Plan.
5. Eligibility
Employees, officers and Directors of, and consultants to, the Company
and its subsidiaries, or other persons who are expected to make significant
contributions to the future growth and success of the Company and its
subsidiaries shall be eligible to receive Awards under the Plan. The Board,
or other appropriate committee or person to the extent permitted pursuant
to the last sentence of Section 2, shall from time to time select from
among such eligible persons those who will receive Awards under the Plan.
6. Types of Awards
The Board may offer Awards under the Plan in any form of equity-based
interest, equity-based incentive or performance-based stock incentive in
Common Stock of the Company or any combination thereof. The type, terms and
conditions and restrictions of an Award shall be determined by the Board at
the time such Award is made to a Participant; provided however that the
maximum number of shares permitted to be granted under any Award or
combination of Awards to any Participant during any one calendar year may
not exceed 5% of the shares of Common Stock outstanding at the beginning of
such calendar year.
An Award shall be made at the time specified by the Board and shall be
subject to such conditions or restrictions as may be imposed by the Board
and shall conform to the general rules applicable under the Plan as well as
any special rules then applicable under federal tax laws or regulations or
the federal securities laws relating to the type of Award granted.
Without limiting the foregoing, Awards may take the following forms
and shall be subject to the following rules and conditions:
6.1 Options
An option is an Award that entitles the holder on exercise thereof to
purchase Common Stock at a specified exercise price. Options granted under
the Plan may be either incentive stock options ("incentive stock options")
that meet the requirements of Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"), or options that are not intended to meet the
requirements of Section 422 ("non-statutory options").
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6.1.1 Option Price. The price at which Common Stock may be purchased
upon exercise of an option shall be determined by the Board, provided
however, the exercise price shall not be less than the par value per share
of Common Stock.
6.1.2 Option Grants. The granting of an option shall take place at
the time specified by the Board. Options shall be evidenced by option
agreements. Such agreements shall conform to the requirements of the Plan,
and may contain such other provisions (including but not limited to vesting
and forfeiture provisions, acceleration, change of control, protection in
the event of merger, consolidations, dissolutions and liquidations) as the
Board shall deem advisable. Option agreements shall expressly state whether
an option grant is intended to qualify as an incentive stock option or
non-statutory option.
6.1.3 Option Period. An option will become exercisable at such time or
times (which may be immediately or in such installments as the Board shall
determine) and on such terms and conditions as the Board shall specify.
The option agreements shall specify the terms and conditions applicable in
the event of an option holder's termination of employment during the
option's term.
Any exercise of an option must be in writing, signed by the proper
person and delivered or mailed to the Company, accompanied by (1) any
additional documents required by the Board and (2) payment in full in
accordance with Section 6.1.4 for the number of shares for which the option
is exercised.
6.1.4 Payment of Exercise Price. Stock purchased on exercise of an
option shall be paid for as follows: (1) in cash or by check (subject to
such guidelines as the Company may establish for this purpose), bank draft
or money order payable to the order of the Company or (2) if so permitted
by the instrument evidencing the option (or in the case of a non-statutory
option, by the Board at or after grant of the option), (i) through the
delivery of shares of Common Stock that have been outstanding for at least
six months (unless the Board expressly approves a shorter period) and that
have a fair market value (determined in accordance with procedures
prescribed by the Board) equal to the exercise price, (ii) by delivery of a
promissory note of the option holder to the Company, payable on such terms
as are specified by the Board, (iii) by delivery of an unconditional and
irrevocable undertaking by a broker to deliver promptly to the Company
sufficient funds to pay the exercise price, or (iv) by any combination of
the permissible forms of payment.
6.1.5 Buyout Provision. The Board may at any time offer to buy out
for a payment in cash, shares of Common Stock, deferred stock or restricted
stock, an option previously granted, based on such terms and conditions as
the Board shall establish and communicate to the option holder at the time
that such offer is made.
6.1.6 Special Rules for Incentive Stock Options. Each provision of
the Plan and each option agreement evidencing an incentive stock option
shall be construed so that each incentive stock option shall be an
incentive stock option as defined in Section 422A of the Code or any
statutory provision that may replace such Section, and any provisions
thereof that cannot be so construed shall be disregarded. Instruments
evidencing incentive stock options must contain such provisions as are
required under applicable provisions of the Code. Incentive stock options
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may be granted only to employees of the Company and its subsidiaries. The
exercise price of an incentive stock option shall not be less than 100%
(110% in the case of an incentive stock option granted to a more than ten
percent Stockholder of the Company) of the fair market value of the Common
Stock on the date of grant, as determined by the Board. An incentive stock
option may not be granted after the tenth anniversary of the date on which
the Plan was adopted by the Board and the latest date on which an incentive
stock option may be exercised shall be the tenth anniversary (fifth
anniversary, in the case of any incentive stock option granted to a more
than ten percent Stockholder of the Company) of the date of grant, as
determined by the Board.
6.2 Restricted and Unrestricted Stock
An Award of restricted stock entitles the recipient thereof to acquire
shares of Common Stock upon payment of the purchase price subject to
restrictions specified in the instrument evidencing the Award.
6.2.1 Restricted Stock Awards. Awards of restricted stock shall be
evidenced by restricted stock agreements. Such agreements shall conform to
the requirements of the Plan, and may contain such other provisions
(including restriction and forfeiture provisions, change of control,
protection in the event of mergers, consolidations, dissolutions and
liquidations) as the Board shall deem advisable.
6.2.2 Restrictions. Until the restrictions specified in a restricted
stock agreement shall lapse, restricted stock may not be sold, assigned,
transferred, pledged or otherwise encumbered or disposed of, and upon
certain conditions specified in the restricted stock agreement, must be
resold to the Company for the price, if any, specified in such agreement.
The restrictions shall lapse at such time or times, and on such conditions,
as the Board may specify. The Board may at any time accelerate the time at
which the restrictions on all or any part of the shares shall lapse.
6.2.3 Rights as a Stockholder. A Participant who acquires shares of
restricted stock will have all of the rights of a Stockholder with respect
to such shares including the right to receive dividends and to vote such
shares. Unless the Board otherwise determines, certificates evidencing
shares of restricted stock will remain in the possession of the Company
until such shares are free of all restrictions under the Plan.
6.2.4 Purchase Price. The purchase price of shares of restricted
stock shall be determined by the Board, in its sole discretion, but such
price may not be less than the par value of such shares.
6.2.5 Other Awards Settled With Restricted Stock. The Board may
provide that any or all the Common Stock delivered pursuant to an Award
will be restricted stock.
6.2.6 Unrestricted Stock. The Board may, in its sole discretion, sell
to any Participant shares of Common Stock free of restrictions under the
Plan for a price determined by the Board, but which may not be less than
the par value per share of the Common Stock.
6.3 Deferred Stock
6.3.1 Deferred Stock Award. A deferred stock Award entitles the
recipient to receive shares of deferred stock which is Common Stock to be
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delivered in the future. Delivery of the Common Stock will take place at
such time or times, and on such conditions, as the Board may specify. The
Board may at any time accelerate the time at which delivery of all or any
part of the Common Stock will take place.
6.3.2 Other Awards Settled with Deferred Stock. The Board may, at the
time any Award described in this Section 6 is granted, provide that, at the
time Common Stock would otherwise be delivered pursuant to the Award, the
Participant will instead receive an instrument evidencing the right to
future delivery of deferred stock.
6.4 Performance Awards
6.4.1 Performance Awards. A performance Award entitles the recipient
to receive, without payment, an Amount, in cash or Common Stock or a
combination thereof (such form to be determined by the Board), following
the attainment of performance goals. Performance goals may be related to
personal performance, corporate performance, departmental performance or
any other category of performance deemed by the Board to be important to
the success of the Company. The Board will determine the performance goals,
the period or periods during which performance is to be measured and all
other terms and conditions applicable to the Award.
6.4.2 Other Awards Subject to Performance Conditions. The Board may,
at the time any Award described in this Section 6 is granted, impose the
condition (in addition to any conditions specified or authorized in this
Section 6 of the Plan) that performance goals be met prior to the
Participant's realization of any payment or benefit under the Award.
7. Purchase Price and Payment
Except as otherwise provided in the Plan, the purchase price of Common
Stock to be acquired pursuant to an Award shall be the price determined by
the Board, provided that such price shall not be less than the par value of
the Common Stock. Except as otherwise provided in the Plan, the Board may
determine the method of payment of the exercise price or purchase price of
an Award granted under the Plan and the form of payment. The Board may
determine that all or any part of the purchase price of Common Stock
pursuant to an Award has been satisfied by past services rendered by the
Participant. The Board may agree at any time, upon request of the
Participant, to defer the date on which any payment under an Award will be
made.
8. Loans and Supplemental Grants
The Company may make a loan to a Participant, either on or after the
grant to the Participant of any Award, in connection with the purchase of
Common Stock under the Award or with the payment of any obligation incurred
or recognized as a result of the Award. The Board will have full authority
to decide whether the loan is to be secured or unsecured or with or without
recourse against the borrower, the terms on which the loan is to be repaid
and the conditions, if any, under which it may be forgiven.
In connection with any Award, the Board may at the time such Award is
made or at a later date, provide for and make a cash payment to the
participant not to exceed an amount equal to (a) the amount of any federal,
state and local income tax or ordinary income for which the Participant
will be liable with respect to the Award, plus (b) an additional amount on
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a grossed-up basis necessary to make him or her whole after tax,
discharging all the participant's income tax liabilities arising from all
payments under the Plan.
9. Change in Control
9.1 Impact of Event
In the event of a "Change in Control" as defined in Section 9.2, the
following provisions shall apply, unless the agreement evidencing the Award
otherwise provides:
(a) Any stock options or other stock-based Awards awarded under the
Plan that were not previously exercisable and vested shall become
fully exercisable and vested.
(b) Awards of restricted stock and other stock-based Awards subject to
restrictions and to the extent not fully vested, shall become fully
vested and all such restrictions shall lapse so that shares issued
pursuant to such Awards shall be free of restrictions.
(c) Deferral limitations and conditions that relate solely to the
passage of time, continued employment or affiliation, will be waived
and removed as to deferred stock Awards and performance Awards.
Performance of other conditions (other than conditions relating solely
to the passage of time, continued employment or affiliation) will
continue to apply unless otherwise provided in the agreement
evidencing the Awards or in any other agreement between the
Participant and the Company or unless otherwise agreed by the Board.
9.2 Definition of "Change in Control"
"Change in Control" means any one of the following events: (i) when,
any Person is or becomes the beneficial owner (as defined in Section 13(d)
of the Exchange Act and the Rules and Regulations thereunder), together
with all Affiliates and Associates (as such terms are used in Rule 12b-2 of
the General Rules and Regulations of the Exchange Act) of such Person,
directly or indirectly, of 50% or more of the outstanding Common Stock of
the Company or its parent corporation, ThermoTrex Corporation
("ThermoTrex"), or the beneficial owner of 25% or more of the outstanding
common stock of Thermo Electron Corporation ("Thermo Electron"), without
the prior approval of the Prior Directors of the applicable issuer, (ii)
the failure of the Prior Directors to constitute a majority of the Board of
Directors of the Company, ThermoTrex or Thermo Electron, as the case may
be, at any time within two years following any Electoral Event, or (iii)
any other event that the Prior Directors shall determine constitutes an
effective change in the control of the Company, ThermoTrex or Thermo
Electron. As used in the preceding sentence, the following capitalized
terms shall have the respective meanings set forth below:
(a) "Person" shall include any natural person, any entity, any
"affiliate" of any such natural person or entity as such term is
defined in Rule 405 under the Securities Act of 1933 and any "group"
(within the meaning of such term in Rule 13d-5 under the Exchange
Act);
(b) "Prior Directors" shall mean the persons sitting on the Company's,
ThermoTrex' or Thermo Electron's Board of Directors, as the case may
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be, immediately prior to any Electoral Event (or, if there has been no
Electoral Event, those persons sitting on the applicable Board of
Directors on the date of this Agreement) and any future director of
the Company, ThermoTrex or Thermo Electron who has been nominated or
elected by a majority of the Prior Directors who are then members of
the Board of Directors of the Company, ThermoTrex or Thermo Electron,
as the case may be; and
(c) "Electoral Event" shall mean any contested election of Directors,
or any tender or exchange offer for the Company's, ThermoTrex' or
Thermo Electron's Common Stock, not approved by the Prior Directors,
by any Person other than the Company, ThermoTrex, Thermo Electron or a
majority-owned subsidiary of Thermo Electron.
10. General Provisions
10.1 Documentation of Awards
Awards will be evidenced by written instruments, which may differ
among Participants, prescribed by the Board from time to time. Such
instruments may be in the form of agreements to be executed by both the
Participant and the Company or certificates, letters or similar instruments
which need not be executed by the participant but acceptance of which will
evidence agreement to the terms thereof. Such instruments shall conform to
the requirements of the Plan and may contain such other provisions
(including provisions relating to events of merger, consolidation,
dissolution and liquidations, change of control and restrictions affecting
either the agreement or the Common Stock issued thereunder), as the Board
deems advisable.
10.2 Rights as a Stockholder
Except as specifically provided by the Plan or the instrument
evidencing the Award, the receipt of an Award will not give a Participant
rights as a Stockholder with respect to any shares covered by an Award
until the date of issue of a stock certificate to the participant for such
shares.
10.3 Conditions on Delivery of Stock
The Company will not be obligated to deliver any shares of Common
Stock pursuant to the Plan or to remove any restriction from shares
previously delivered under the Plan (a) until all conditions of the Award
have been satisfied or removed, (b) until, in the opinion of the Company's
counsel, all applicable federal and state laws and regulations have been
complied with, (c) if the outstanding Common Stock is at the time listed on
any stock exchange, until the shares have been listed or authorized to be
listed on such exchange upon official notice of issuance, and (d) until all
other legal matters in connection with the issuance and delivery of such
shares have been approved by the Company's counsel. If the sale of Common
Stock has not been registered under the Securities Act of 1933, as amended,
the Company may require, as a condition to exercise of the Award, such
representations or agreements as counsel for the Company may consider
appropriate to avoid violation of such act and may require that the
certificates evidencing such Common Stock bear an appropriate legend
restricting transfer.
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If an Award is exercised by the participant's legal representative,
the Company will be under no obligation to deliver Common Stock pursuant to
such exercise until the Company is satisfied as to the authority of such
representative.
10.4 Tax Withholding
The Company will withhold from any cash payment made pursuant to an
Award an amount sufficient to satisfy all federal, state and local
withholding tax requirements (the "withholding requirements").
In the case of an Award pursuant to which Common Stock may be
delivered, the Board will have the right to require that the participant or
other appropriate person remit to the Company an amount sufficient to
satisfy the withholding requirements, or make other arrangements
satisfactory to the Board with regard to such requirements, prior to the
delivery of any Common Stock. If and to the extent that such withholding is
required, the Board may permit the participant or such other person to
elect at such time and in such manner as the Board provides to have the
Company hold back from the shares to be delivered, or to deliver to the
Company, Common Stock having a value calculated to satisfy the withholding
requirement.
10.5 Nontransferability of Awards
Except as otherwise specifically provided by the Board in the case of
participants who are not reporting persons under Section 16 of the Exchange
Act, no Award (other than an Award in the form of an outright transfer of
cash or Common Stock not subject to any restrictions) may be transferred
other than by the laws of descent and distribution, except pursuant to the
terms of a qualified domestic relations order as defined in the Code, and
during a Participant's lifetime an Award requiring exercise 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).
10.6 Adjustments in the Event of Certain Transactions
(a) In the event of a stock dividend, stock split or combination of
shares, recapitalization or other change in the Company's capitalization,
or other distribution with respect to common Stockholders other than normal
cash dividends, the Board 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 Awards then outstanding or subsequently
granted, any exercise prices relating to Awards and any other provisions of
Awards affected by such change.
(b) The Board may also make appropriate adjustments to take into
account material changes in law or in accounting practices or principles,
mergers, consolidations, acquisitions, dispositions, repurchases or similar
corporate transactions, or any other event, if it is determined by the
Board that adjustments are appropriate to avoid distortion in the operation
of the Plan, but no such adjustments other than those required by law may
adversely affect the rights of any Participant (without the Participant's
consent) under any Award previously granted.
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10.7 Employment Rights
Neither the adoption of the Plan nor the grant of Awards will confer
upon any person any right to continued employment with the Company or any
subsidiary or interfere in any way with the right of the Company or
subsidiary to terminate any employment relationship at any time or to
increase or decrease the compensation of such person. Except as
specifically provided by the Board in any particular case, the loss of
existing or potential profit in Awards granted under the Plan will not
constitute an element of damages in the event of termination of an
employment relationship even if the termination is in violation of an
obligation of the Company to the employee.
Whether an authorized leave of absence, or absence in military or
government service, shall constitute termination of employment shall be
determined by the Board at the time. For purposes of this Plan, transfer of
employment between the Company and its subsidiaries shall not be deemed
termination of employment.
10.8 Other Employee Benefits
The value of an Award granted to a Participant who is an employee, and
the amount of any compensation deemed to be received by an employee as a
result of any exercise or purchase of Common Stock pursuant to an Award or
sale of shares received under the Plan, will not constitute "earnings" or
"compensation" with respect to which any other employee benefits of such
employee are determined, including without limitation benefits under any
pension, stock ownership, stock purchase, life insurance, medical, health,
disability or salary continuation plan.
10.9 Legal Holidays
If any day on or before which action under the Plan must be taken
falls on a Saturday, Sunday or legal holiday, such action may be taken on
the next succeeding day not a Saturday, Sunday or legal holiday.
10.10 Foreign Nationals
Without amending the Plan, Awards may be granted to persons who are
foreign nationals or employed outside the United States or both, on such
terms and conditions different from those specified in the Plan, as may, in
the judgment of the Board, be necessary or desirable to further the purpose
of the Plan.
11. Termination and Amendment
The Plan shall remain in full force and effect until terminated by the
Board. Subject to the last sentence of this Section 11, the Board may at
any time or times amend the Plan or any outstanding Award for any purpose
that may at the time be permitted by law, or may at any time terminate the
Plan as to any further grants of Awards. No amendment, unless approved by
the Stockholders, shall be effective if it would cause the Plan to fail to
satisfy the requirements of the federal tax law or regulation relating to
incentive stock options or the requirements of Rule 16b-3 (or any successor
rule) of the Exchange Act. No amendment of the Plan or any agreement
evidencing Awards under the Plan may adversely affect the rights of any
participant under any Award previously granted without such participant's
consent.