EXHIBIT 10.48
THIRD AMENDMENT
TO THE
WATERS CORPORATION 2003 EQUITY INCENTIVE PLAN
WHEREAS, Waters Corporation (the "Corporation") has established and
maintains an equity incentive plan for the benefit of certain employees,
consultants and directors of the Corporation entitled the Waters Corporation
2003 Equity Incentive Plan (the "Plan"); and
WHEREAS, the Corporation desires to amend the Plan;
NOW THEREFORE, in accordance with the power of amendment contained in
Section 13 of the Plan, the Plan is hereby amended, effective as of December 13,
2006, as follows:
1. Section 2.1 of the Plan ("Accelerate, Accelerated and Acceleration")
is hereby amended to read in its entirety as follows:
"2.1. Accelerate, Accelerated, and Acceleration, when used
with respect to an Option or Stock Appreciation Right, means that as
of the time of reference the Option or Stock Appreciation Right will
become exercisable with respect to some or all of the shares of
Common Stock for which it was not then otherwise exercisable by its
terms, and, when used with respect to Restricted Stock or Restricted
Stock Units, means that the Risk of Forfeiture otherwise applicable
to the Stock shall expire with respect to some or all of the shares
of Restricted Stock or Units then still otherwise subject to the
Risk of Forfeiture."
2. Section 2.4 of the Plan ("Award") is hereby amended to read in its
entirety as follows:
"2.4. Award means any grant or sale pursuant to the Plan of
Options, Restricted Stock, Stock Appreciation Rights, Restricted
Stock Units or Stock Grants."
3. Section 2 of the Plan ("Definitions") is hereby amended by
renumbering Sections 2.21 through 2.26 as Sections 2.22 and 2.27,
respectively, and by adding a new Section 2.21 immediately following
Section 2.20 to read in its entirety as follows:
"2.21. Restricted Stock Units means rights to receive shares
of Stock at the close of a Restriction Period, subject to a Risk of
Forfeiture."
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4. Section 2.22 of the Plan ("Restriction Period"), as renumbered in
accordance with paragraph 3 above, is hereby amended to read in its
entirety as follows:
"2.22. Restriction Period means the period of time,
established by the Committee in connection with an Award of
Restricted Stock or Restricted Stock Units, during which the shares
of Restricted Stock or Units are subject to a Risk of Forfeiture
described in the applicable Award Agreement."
5. Section 2.23 of the Plan ("Risk of Forfeiture"), as renumbered in
accordance with paragraph 3 above, is hereby amended to read in its
entirety as follows:
"2.23. Risk of Forfeiture means a limitation on the right of
the Participant to retain Restricted Stock or Restricted Stock
Units, including a right in the Company to reacquire the Shares at
less than their then Market Value, arising because of the occurrence
or non-occurrence of specified events or conditions."
6. Section 7 of the Plan ("Specific Terms of Awards") is hereby amended
by renumbering Sections 7.4 and 7.5 as Sections 7.5 and 7.6,
respectively, and by adding a new Section 7.4 immediately following
Section 7.3 to read in its entirety as follows:
"7.4. Restricted Stock Units.
"(a) Character. Each Restricted Stock Unit shall entitle
the recipient to a share of Stock at a close of such Restriction
Period as the Committee may establish and subject to a Risk of
Forfeiture arising on the basis of such conditions relating to the
performance of services, Company or Affiliate performance or
otherwise as the Committee may determine and provide for in the
applicable Award Agreement. Any such Risk of Forfeiture may be
waived or terminated, or the Restriction Period shortened, at any
time by the Committee on such basis as it deems appropriate.
"(b) Form and Timing of Payment. Payment of earned
Restricted Stock Units shall be made in a single lump sum following
the close of the applicable Restriction Period. At the discretion of
the Committee, Participants may be entitled to receive payments
equivalent to any dividends declared with respect to Stock
referenced in grants of Restricted Stock Units but only following
the close of the applicable Restriction Period and then only if the
underlying Stock shall have been earned. Unless the Committee shall
provide otherwise, any such dividend equivalents shall be paid, if
at all, without interest or other earnings."
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7. Section 8.2 of the Plan ("Change in Control") is hereby amended to
read in its entirety as follows:
"8.2. Change in Control. In the event of a Change in Control
(including a Change of Control which is an Acquisition), any
Restricted Stock Award or Restricted Stock Unit still then subject
to a Risk of Forfeiture and any outstanding Option or Stock
Appreciation Right not then exercisable in full shall fully vest
whether or not the repurchase rights for Restricted Stock are
acquired by an acquiring entity and whether or not outstanding
Options or Stock Appreciation Rights are assumed by an acquiring
entity or replaced by comparable options to purchase shares of the
capital stock of a successor or acquiring entity or parent thereof
or stock appreciation rights."
8. The Plan is hereby amended by adding at the end thereof a new
Attachment B ("Subplan for Stock Grants in France") in the form
attached hereto as Exhibit 1.
IN WITNESS WHEREOF, the Corporation has caused this amendment to be signed
on its behalf by its duly authorized representative this 13th day of December,
2006.
WATERS CORPORATION
By: /s/ Elizabeth B. Rae
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Its: Vice President, Corporate Human Resources
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Exhibit 1
ATTACHMENT B
SUBPLAN FOR RESTRICTED STOCK UNITS IN FRANCE
This subplan will apply to Participants in the 2003 Equity Incentive Plan (the
"2003 Plan") who are or may become subject to French taxation (i.e., income tax
and/or social security tax) as a result of Restricted Stock Units awarded under
the 2003 Plan.
Section 7.6 of the 2003 Plan authorizes the Committee to modify the terms of any
Award under the Plan granted to a Participant who is, at the time of grant or
during the term of the Award, resident or primarily employed outside of the
United States in any manner deemed by the Committee to be necessary or
appropriate in order that the Award shall conform to laws, regulations, and
customs of the country in which the Participant is then resident or primarily
employed. This subplan has been established to qualify the Restricted Stock
Units for the favorable French tax and social security treatment.
The terms of the 2003 Plan, as modified by this subplan for France, constitute
the "2003 French Restricted Stock Units Plan", so as to comply with the
provisions of Articles L. 225-197-1 to L. 225-197-3 of the French Commercial
Code and French employment law. This subplan shall be interpreted and operated
with that intention.
This subplan should be read in conjunction with the 2003 Plan and is subject to
the terms and conditions of the 2003 Plan except to the extent that the terms
and conditions of the 2003 Plan differ from or conflict with the terms set out
in this subplan, in which event, the terms set out in this subplan shall
prevail.
Under the 2003 French Restricted Stock Units Plan, Participants will be awarded
only Restricted Stock Units, as defined below Section 1.1.
An award of Restricted Stock Units shall be subject to the terms of the 2003
French Restricted Stock Units Plan if the Award Agreement evidencing such award
refers to the 2003 French Restricted Stock Units Plan.
The terms of this subplan are the terms set out in the rules of the 2003 Plan,
modified as follows.
1. DEFINITIONS
Capitalized terms used herein and not defined in this Section 1. shall have the
meanings ascribed to such terms in the 2003 Plan.
1.1. RESTRICTED STOCK UNIT
The term "Restricted Stock Unit" shall mean an unsecured and conditional right
to receive, free of charge, at the Vesting Date, one share of Stock of the
Company for each Restricted Stock Unit
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awarded, provided the Presence Condition described section 9, and any other
condition which may be set forth in the applicable Award Agreement, is satisfied
on the Vesting Date.
1.2. VESTING DATE
The term "Vesting Date" shall mean the date on which the Presence Condition, and
any other condition which may be set forth in the applicable Award Agreement,
must be satisfied. This date is also the date on which, provided that the
condition(s) is (are) satisfied, the Company Stock underlying the Restricted
Stock Unit shall be delivered to the Participant.
1.3. EMPLOYEE
The term "Employee" shall mean a current salaried employee, as defined by
French labor law.
1.4. Corporate Officer
The term "Corporate Officer" shall mean a corporate officer ("mandataire
social") as defined in Article L. 225-197-1, II of the French Commercial Code.
2. PARTICIPANT
Only an Employee, as defined Section 1.3., and/or a Corporate Officer, as
defined Section 1.4., of the Company, or an Affiliate having a capital link as
defined in Article L. 225-197-1, II of the French Commercial Code(1), shall be
awarded Restricted Stock Units pursuant to this subplan.
Notwithstanding any other provision of the 2003 Plan, Restricted Stock Units
awarded under the 2003 Plan to any Employee or Corporate Officer who is holding
Stocks representing 10% or more of Waters Corporation's capital at the date of
the award or who may hold Stocks representing 10% or more of Waters
Corporation's capital due to the award of Restricted Stock Units shall not be
deemed to have been awarded pursuant to this subplan.
3. NUMBER OF SHARES OF STOCK GRANTED
Notwithstanding any other provision of the 2003 Plan, the total number of shares
of Stock granted under the 2003 French Restricted Stock Units Plan may not
exceed 10% of the Company's Stock.
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(1) - At least 10% of the employer's company capital must be held, directly or
indirectly, by the issuing company.
- the employer's company must directly or indirectly hold at least 10% of
the issuing company's capital.
- at least 50% of the employer's company capital must be held, directly or
indirectly, by a company which holds at least 50% of the issuing
company's capital. -
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4. MINIMUM PERIOD DURING WHICH THE SHARES OF STOCK CAN NOT BE DELIVERED
Notwithstanding any other provision of the 2003 Plan, the Restricted Stock Units
shall not vest and the shares of Stock underlying the Restricted Stock Units
shall not be delivered to Participants before the end of a minimum two-year
period as from the date of award of the Restricted Stock Units, except in the
event of death as described below in Section 7, or as otherwise provided by the
French commercial code as exception to this vesting period.
5. RESTRICTION ON THE ACCELERATED VESTING
Notwithstanding any other provision of the 2003 Plan and pursuant to the minimum
vesting period described Section 4, the vesting can not be accelerated before
the second anniversary of the date of grant of the Restricted Stock Units,
except in the event of death as described below in Section 7. or as otherwise
provided by the French commercial code as exception to this vesting period.
6. NON TRANSFERABILITY OF THE AWARD
Notwithstanding any other provision of the 2003 Plan, the Restricted Stock Units
can not be transferred or otherwise disposed of, except in the event mentioned
Section 7.
7. TRANSFER TO HEIRS
Notwithstanding any other provision of the 2003 Plan, in the event of death of a
Participant, his/her heirs are entitled to request that the number of shares of
Stock corresponding to the unvested Restricted Stock Units at the date of death
be delivered, provided such request is made within six months as from the date
of death.
8. RELEASE OF WHOLE NUMBER OF SHARES OF STOCK
Notwithstanding any other provision of the 2003 Plan, only whole number of
Restricted Stock Units shall vest and only whole number of shares of Stock shall
be delivered to Participants.
9. PRESENCE CONDITION
9.1 Provided that Restricted Stock Units have been awarded to Employee,
Restricted Stock Units shall vest subject to the continued employment of the
Participant at the Vesting Date, except in the event of death as described above
Section 76, or as otherwise provided by the French commercial code.
9.2 Provided that Restricted Stock Units have been awarded to a Corporate
Officer in his capacity of Corporate Officer, Restricted Stock Units shall vest
subject to the continued Corporate Officer status of the Participant at the
Vesting Date, except in the event of death as described above Section 7, or as
otherwise provided by the French commercial code.
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10. DEFINITIVE DELIVERY
Notwithstanding any other provision of the 2003 Plan, once the shares of Stock
are delivered, they are delivered definitively and can not be cancelled or
rescinded and the Participant can not be obliged to return the shares of Stock.
11. MINIMUM TWO YEAR HOLDING PERIOD
Notwithstanding any other provisions of the 2003 Plan, once delivered, the
shares of Stock underlying the Restricted Stock Units must be compulsorily held
by the Participant during a minimum period of two years beginning on the date of
their delivery, except if otherwise provided by the French commercial code.
12. CLOSED PERIODS DURING WHICH THE SHARES OF STOCK CAN NOT BE SOLD
Notwithstanding any other provision of the 2003 Plan, once delivered, shares of
Stock shall not be sold within the periods as set forth in Article L. 225-197-1,
I of the French Commercial Code(2).
13. NON ADJUSTABILITY OF THE AWARD
Notwithstanding any other provision of the 2003 Plan, the number of Restricted
Stock Units awarded as well as the number of shares of Stock delivered can not
be modified, except if provided by French law.
14. CHANGES TO THE 2003 PLAN
The Committee or the Board may not change the 2003 Plan in any way that affects
this subplan, the Restricted Stock Units awarded or shares of Stock delivered
under this subplan, if the change is inconsistent with French law and, in
particular, French legislation regarding the granting of free shares of Stock,
as defined in Articles L. 225-197-1 to L. 225-197-3 of the French Commercial
Code and French labor law.
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(2) These periods are currently the following:
(i) The period of ten Stock Exchange trading sessions preceding and following
the date on which the consolidated financial statements, or failing that, the
annual accounts, are published;
(ii) The period between the date on which the corporate management of Waters
Corporation becomes aware of information, which, if published, might have a
significant effect on the price of the company's shares, and the latest date of
the ten Stock Exchange trading sessions following the date on which this
information is published.
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15. SEVERABILITY
The terms and conditions provided in the 2003 French Restricted Stock Units Plan
are severable and if any one or more provisions are determined to be illegal or
otherwise unenforceable under French law, in whole or in part, the remaining
provisions shall nevertheless be binding and enforceable.