EXHIBIT 10.23
ENDOLOGIX, INC.
2004 PERFORMANCE COMPENSATION PLAN
This 2004 PERFORMANCE COMPENSATION PLAN (the "Plan") is hereby established
by Endologix, Inc., a Delaware corporation (the "Company"), effective as of
January 5, 2004 (the "Effective Date").
ARTICLE 1
PURPOSE OF THE PLAN
1.1 PURPOSE. The Plan is hereby established by the Company for the purpose
of providing deferred compensation for certain employees who are highly
compensated employees. The deferred compensation that a Participant may receive
pursuant to the Plan will be based upon the appreciation, if any, in the value
of the Performance Units granted to the Participant that occurs from the value
placed on such Performance Units as determined by the Committee (as hereinafter
defined) at the time the Performance Units are granted and the date of a
Distribution Event (as hereinafter defined in this Plan), which will be based
upon the value of the shares of the Company's common stock determined in the
manner set forth in Section 2.9 of this Plan.
1.2 NATURE OF THE PLAN. The Plan is intended to be an unfunded plan within
the meaning of the Employee Retirement Income Security Act of 1974 ("ERISA").
Accordingly, it is intended that the Plan be exempt from the requirements of
Parts II, III and IV of Title I of ERISA pursuant to Sections 201(2), 301(3)
and 401(1) of ERISA.
ARTICLE 2
DEFINITIONS
2.1 ACCOUNT. "Account" means the bookkeeping entry for a Participant that
is established under Section 4.2 of the Plan for the purpose of maintaining the
amount of Performance Units granted to a Participant by the Company.
2.2 AWARD NOTICE. "Award Notice" shall mean a written notice from the
Company to each Participant, which shall be substantially in the form of Exhibit
C to this Plan and is entitled "Notice of Award of Performance Units", and by
which each Participant is notified of an award of Performance Units under this
Plan to him or her by the Company. Each Award Notice shall specify, among other
things, the number of Performance Units awarded, the vesting schedule applicable
to such Performance Units, any terms or conditions applicable to the vesting of
such Units or payment of Distribution Event Benefits. No award of Performance
Units under the Plan shall be effective
until an Award Notice with respect thereto, that has been completed in
accordance with rules or regulations that have been promulgated by the Committee
in its sole and absolute discretion and has been executed by the Company, is
delivered to the Participant and the Participant acknowledges, in writing or by
return to the Company of a duplicate copy of the Award Notice executed by him or
her, his or her receipt of a copy of this Plan and his or her acceptance of the
terms and conditions applicable to the Performance Units being awarded thereby
as set forth in this Plan and in the Award Notice with respect thereto.
2.3 CHANGE IN CONTROL. "Change in Control" means:
(A) A merger or consolidation approved by the Company's stockholders
in which securities possessing more than fifty percent (50%) of the total
combined voting power of the Company's outstanding securities are transferred to
a person or persons different from the persons holding those securities
immediately prior to such transaction; or
(B) The sale, transfer or other disposition of all or substantially
all of the Company's assets in complete liquidation or dissolution of the
Company approved by the Company's stockholders.
2.4 COMMITTEE. "Committee" means the committee designated to administer
the Plan in accordance with Article 7. The initial or first Committee designated
to administer the Plan is set forth in Exhibit A hereto.
2.5 DISABILITY. "Disability" means the inability of a Participant to
engage in his usual occupation by reason of a medically determinable physical or
mental impairment as determined by the Company on the basis of advice from a
physician or physicians.
2.6 DISTRIBUTION EVENT. "Distribution Event" means, with respect to a
Participant, the earliest to occur of any of the following:
(A) Any Change in Control;
(B) A Separation from Service of such Participant as a result of the
termination of such Participant's employment for any reason other than a
termination of Participant's employment by the Company for any of the reasons
constituting "Cause" which, for purposes of this Plan, shall mean any
termination of a Participant's employment for any of the reasons set forth in
Attachment A to such Participant's Award Notice, even if and notwithstanding
that such Participant is employed under an employment agreement with the Company
which defines "Cause" more narrowly or restrictively than it is defined in
Attachment A to his or her Award Notice; or
(C) The receipt of a "Notice of Exercise" (in substantially the form
attached hereto as Exhibit D) by the Company from a Participant at any time
after the expiration of eighteen (18) months from the date of the grant of the
Performance Units to such Participant (the "Eighteen Month Anniversary"),
provided that no other Distribution Event has occurred between the date of grant
and such Eighteen Month Anniversary.
2.7 DISTRIBUTION EVENT BENEFIT. "Distribution Event Benefit" means the
amount by which (a) the Fair Market Value of the vested Performance Units held
in a Participant's Account on
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the date of the Distribution Event exceeds (b) the Base Value (as hereinafter
defined in Section 5.1) ascribed to such vested Performance Units by the
Committee at the time of their grant.
2.8 FAIR MARKET VALUE. "Fair Market Value" when used with reference to a
Performance Unit means the fair market value of a share of common stock of the
Company, as determined by the Company's Board of Directors, as follows:
(A) If shares of common stock of the Company are listed or admitted
to trading on one or more national securities exchanges, the average of the last
reported sales prices of shares of the Company's common stock or, in case no
such reported sale takes place on any such day, the average of the last reported
bid and asked prices of the shares of common stock of the Company, in either
case, on the principal national securities exchange on which such shares are
listed or admitted to trading, for the twenty (20) trading days immediately
preceding the date upon which the Fair Market Value is determined (the
"Determination Date");
(B) If such shares are not listed or admitted to trading on a
national securities exchange, but are quoted by the NASD Automated Quotation
System ("Nasdaq"), the average of the last reported sales prices of the common
stock regular way or, in case no reported sale takes place on any such day or
the last reported sales prices are not then quoted, the average of the closing
bid prices of shares of the common stock for the twenty (20) trading days
immediately preceding the Determination Date, as furnished by the National
Quotation Bureau Incorporated, or such other nationally recognized quotation
service as may be selected by the Company if such bureau is not at the time
furnishing quotations; and
(C) If the shares are not listed or admitted to trading on a
national securities exchange or quoted by Nasdaq or any other nationally
recognized quotation service, the Fair Market Value will be the fair value of
shares common stock as determined in good faith by the Company's Board of
Directors, in its sole and absolute discretion.
The Board of Directors may, from time to time, revise the foregoing
methods of determining the Fair Market Value, provided, however, that no such
revision shall adversely affect the holders of Performance Units that are then
outstanding.
2.9 PARTICIPANT. "Participant" means an individual who is an employee of
the Company and has been designated by the Company as an individual eligible to
participate in the Plan.
2.10 PERFORMANCE UNIT. "Performance Unit" means a unit used by the Plan
for the purpose of measuring a Participant's Distribution Event Benefit if such
Participant is an employee of the Company on the date that any Distribution
Event occurs. For purposes of the Plan, a Participant shall be deemed an
employee on the date of his or her Separation from Service, except that if any
such Separation from Service is due to termination of Participant's employment
by the Company for "Cause" as Cause is defined in Attachment A to such
Participant's Award Notice, then, for purposes of this Plan, the last day of
Participant's employment with the Company shall be deemed to be the day prior to
the date of such Separation from Service.
2.11 SEPARATION FROM SERVICE. "Separation from Service" means the
termination of the Participant's employment with the Company for any reason,
including his death, retirement, Disability or the termination of the
Participant's employment by the Company, for or without Cause, or by the
Participant. For purposes of this Plan, in determining whether the Company's
termination
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of a Participant's employment was made for "Cause," Cause shall be defined in
the manner set forth in Attachment A of the Award Notice and not as it is
defined in any employment agreement between the Participant and the Company, and
any termination of a Participant's employment by the Company for any of the
reasons set forth in Attachment A to his or her Award Notice shall, for purposes
of this Plan, constitute a termination of Participant's employment for Cause.
ARTICLE 3
PARTICIPATION
3.1 ELIGIBILITY. The Committee in its sole discretion may designate those
of the management or highly compensated employees, within the meaning of ERISA,
of the Company to participate in the Plan. The persons eligible to participate
in the Plan as of the Effective Date are those individuals set forth on Exhibit
B attached hereto and incorporated herein by this reference.
ARTICLE 4
GRANTS OF PERFORMANCE UNITS
4.1 GRANTING OF PERFORMANCE UNITS. The Committee in its sole discretion
shall determine the number of Performance Units to be granted to each
Participant and to determine the time or times when Performance Units will be
granted. An award of Performance Units to a Participant shall be evidenced by an
Award Notice as provided in Section 2.2 hereof.
4.2 PARTICIPANT ACCOUNTS. The Committee shall establish and maintain in
its books and records a separate, unfunded Account for the purpose of recording
the value of each Participant's Performance Units under the Plan. The Account
shall be a bookkeeping entry and shall not entitle any Participant to any asset
or assets of the Company.
4.3 BENEFITS UNFUNDED. The benefits under this Plan shall not be funded,
but shall constitute an unsecured liability payable, when due, by the Company
out of its general assets. Each Participant is required to rely solely upon the
Company's unsecured promise to pay the benefits. In the event of a bankruptcy or
insolvency of the Company, each Participant will be only a general creditor of
the Company with respect to his benefits under the Plan.
ARTICLE 5
VALUATION OF PERFORMANCE UNITS
5.1 VALUE UPON GRANT. Within thirty days of the grant of any Performance
Unit or Units to any Participant, the Committee shall provide such Participant
with a notice setting forth the value that the Committee, in its sole and
absolute discretion, has ascribed, as of the date of grant, to each such
Performance Unit. Such value per Unit (the "Base Value") may be less than, equal
to or greater than, the Fair Market Value of a share of common stock of the
Company as of the date of grant, which shall be determined in the manner set
forth in Section 2.8 hereof (as the same may be
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amended from time-to-time by the Committee as provided therein). The Committee
shall maintain adequate records of its determinations with respect to the Base
Value of each Performance Unit granted under this Plan.
5.2 VALUE UPON PAYMENT OF ACCOUNT. In the event a Distribution Event
occurs with respect to a Participant, the Committee shall provide the
Participant with a notice setting forth the Fair Market Value of each of his or
her vested Performance Units as of the date of the Distribution Event and the
amount of the Distribution Event Benefit that will become payable to the
Participant.
ARTICLE 6
VESTING; TERMINATION OF PERFORMANCE UNITS; PAYMENT OF BENEFITS
6.1 VESTING AND TERMINATION OF PERFORMANCE UNITS. A Participant's
Performance Units shall vest in accordance with the vesting schedule set forth
in his or her Award Notice. If, as to a Participant, there is a Separation from
Service prior to a Distribution Event for any reason whatsoever, and whether for
or without Cause, then, all Performance Units that had not become vested on or
before the day prior to the date of the Separation from Service shall
automatically terminate and no Distribution Event Benefit or other benefit shall
be or become payable in respect thereof. If, as to a Participant, there occurs a
Separation from Service due to a termination of Participant's employment by the
Company for Cause, as "Cause" is defined in Attachment A to such Participant's
Award Notice, then, notwithstanding any provision of this Plan to the contrary,
such Participant's vested Performance Units, in addition to the Performance
Units that are unvested, shall automatically terminate upon such Separation from
Service and such Participant shall not be entitled to any Distribution Event
Benefit or other benefit under this Plan.
6.2 DISTRIBUTION OF BENEFITS. Following the occurrence of a Distribution
Event applicable to any Participant, and provided that the Participant was an
employee of the Company on the date of the occurrence of such Distribution
Event, the Participant shall become entitled to receive the Distribution Event
Benefit that is payable in respect of his or her vested Performance Units, net
of any amounts required to be withheld as provided in Section 6.5 hereof
("Withholdings"), as follows:
(A) If the Distribution Event is a Change of Control, the
Distribution Event Benefit, net of Withholdings, shall be payable by the Company
within ninety (90) days after the consummation of such Change of Control;
(B) If the Distribution Event is Participant's Separation from
Service for any reason other than a termination of Participant's employment by
the Company for Cause, the Distribution Event Benefit, net of Withholdings,
shall be payable by the Company within ninety (90) days after the Participant's
Separation from Service; and
(C) If the Distribution Event is the receipt of a Notice of Exercise
by the Company from a Participant at any time after the expiration of eighteen
(18) months from the date of the grant of the Performance Units to such
Participant (the Eighteen Month Anniversary), and provided that no other
Distribution Event has occurred between the date of grant and such Eighteen
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Month Anniversary, the Distribution Event Benefit, net of Withholdings, shall be
payable by the Company within ninety (90) days after the Company's receipt of
the Notice of Exercise.
Notwithstanding the foregoing, payment of any Distribution Event Benefit
by the Company may be deferred or delayed for good cause. As used herein "good
cause" shall mean any legitimate reason for such delay such as limitations upon
available cash to the Company, limitations imposed upon the Company under any
loan or credit or other agreement with an unrelated third party, other than a
Person that is participating or is a party to a Change of Control of the Company
or any other good faith reasonable cause for such delay, as determined in good
faith by the Committee. Payment of the Distribution Event Benefit shall be in
the form of cash.
6.3 PAYMENT OF BENEFITS. All payments under the Plan shall be delivered in
person or mailed to the last address of a Participant. Each Participant shall be
responsible for furnishing the Company with the Participant's correct current
address.
6.4 CLAIMS PROCEDURE. In the event a Participant's claim for benefit is
denied (in whole or in part), the denial and the appeal of the decision shall be
handled in accordance with the provisions of Department of Labor Regulation
2560.503-1.
6.5 WITHHOLDING. The Company shall make provision for the reporting and
withholding of any federal, state or local taxes that may be required to be
withheld with respect to the payment of any amounts under this Article. Any
amounts so withheld shall be paid to the appropriate taxing authorities.
ARTICLE 7
PLAN ADMINISTRATION
7.1 PLAN ADMINISTRATION.
(A) Authority to control and manage the operation and administration
of the Plan shall be vested in the Committee, which shall be the Named Fiduciary
of the Plan (within the meaning of Section 402(a) of ERISA). The Committee shall
have all powers necessary to supervise the administration of the Plan and
control its operations.
(B) In addition to any powers and authority conferred on the
Committee elsewhere in the Plan or by law, the Committee shall have the
following powers and authority:
(I) To designate agents to carry out responsibilities relating
to the Plan;
(II) To administer, interpret, construe and apply this Plan
and to answer all questions which may arise or which may be raised under this
Plan by a Participant, his beneficiary or any other person whatsoever;
(III) To establish rules and procedures from time to time for
the conduct of its business and for the administration and effectuation of its
responsibilities under the Plan; and
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(IV) To perform or cause to be performed such further acts as
it may deem to be necessary, appropriate, or convenient for the operation of the
Plan.
(C) Any action taken in good faith by the Committee in the exercise
of authority conferred upon it by this Plan shall be conclusive and binding upon
a Participant and his beneficiaries. All discretionary powers conferred upon the
Committee shall be absolute.
7.2 COMPOSITION OF COMMITTEE. The Committee shall be composed of the two
(2) individuals holding the titles of the Executive Chairman of the Board and
the Chief Executive Officer of the Company. Should the title of Executive
Chairman of the Board and Chief Executive Officer ever be held by the same
individual, the Board of Directors shall, in its sole and absolute discretion,
appoint a second individual to serve on the Committee, or the Board of Directors
may designate itself and function as the Committee.
7.3 MULTIPLE FIDUCIARY CAPACITIES. Any person or group of persons may
serve in more than one fiduciary capacity with respect to the Plan.
7.4 INDEMNIFICATION. No employee of the Company, member of the Committee
nor member of the Board of Directors for the Company shall be subject to any
liability with respect to his duties under the Plan unless the person acts
fraudulently or in bad faith. To the extent permitted by law, the Company shall
indemnify each member of the Committee and the Board of Directors, and any other
employee of the Company who performs any duties under or with respect to the
Plan who was or is a party, or is threatened to be made a party, to any
threatened, pending or completed proceeding, whether civil, criminal,
administrative, or investigative, by reason of the person's conduct in the
performance of any duties under or with respect to the Plan.
7.5 PLAN ADMINISTRATOR. Notwithstanding anything in this Plan to the
contrary, the "Plan Administrator" (within the meaning of Section 3(16)(A) of
ERISA) shall be the Company.
ARTICLE 8
MISCELLANEOUS MATTERS
8.1 AMENDMENT AND TERMINATION. The Company reserves the right to amend,
modify, or terminate the Plan at any time, but any such amendment, modification
or termination shall not adversely affect any Performance Units, or the rights
of Participants with respect thereto, which had been awarded prior thereto.
8.2 ADJUSTMENTS UPON CHANGES IN CAPITAL STRUCTURE. In the event that the
outstanding shares of common stock of the Company are hereafter increased or
decreased or changed into or exchanged for a different number or kind of shares
or other securities of the Company by reason of a recapitalization, stock split,
combination of shares, reclassification, stock dividend or other change in the
capital structure of the Company, then appropriate adjustments shall be made by
the Administrator to the number of shares and the price per share subject to the
unexercised portion of outstanding Award Notices in order to preserve, as nearly
as practical, but not to increase, the benefits to Participants under the Plan.
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8.3 BENEFITS NOT ALIENABLE. Benefits under the Plan may not be assigned or
alienated, whether voluntarily or involuntarily.
8.4 NO ENLARGEMENT OF EMPLOYEE RIGHTS. This Plan is strictly a voluntary
undertaking on the part of the Company and shall not be deemed to constitute a
contract between the Company and a Participant or to be consideration for, or an
inducement to, or a condition of, the employment of any Participant. Nothing
contained in the Plan shall be deemed to give the right to a Participant to be
retained in the employ of the Company or to interfere with the right of the
Company to discharge a Participant at any time.
8.5 ARBITRATION. Any controversy, dispute or claim arising out of or in
connection with or relating to this Plan will, after satisfying the requirements
of Section 6.5, be submitted by the parties to arbitration by the American
Arbitration Association in Orange County, California, in accordance with the
commercial rules then in effect for that Association. Each party shall choose
one arbitrator within thirty days of receipt of notice of the intent to
arbitrate. Within sixty days of receipt of the notice of intent to arbitrate,
the two arbitrators shall choose a neutral third arbitrator who shall act as
chairman. The award rendered by the arbitrators shall include costs of
arbitration, reasonable attorneys' fees and reasonable costs for expert and
other witnesses, and judgment upon such award may be entered in any court having
jurisdiction thereof.
8.6 NONTRANSFERABILITY. Performance Units granted under the Plan and all
privileges pertaining thereto, may not be transferred, assigned, pledged or
hypothecated in any manner, by operation of law or otherwise, other than by will
or by the laws of descent and distribution, and shall not be subject to
execution, attachment or similar process.
8.7 NO VOTING OR DIVIDEND RIGHTS. No Participant shall be entitled to any
rights of a stockholder of the Company, including, but not limited to, voting
rights, rights to receive any dividends or to have his Account credited or
increased as a result of any dividends or other distribution with respect to the
Company's common stock.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed and become effective as of the day of , 20 .
ENDOLOGIX, INC.
By:
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Its:
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EXHIBIT A
DESIGNATION OF INITIAL COMMITTEE
Franklin Brown Executive Chairman of the Board of Directors
Paul McCormick President & Chief Executive Officer
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EXHIBIT B
INITIAL PARTICIPANTS
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EXHIBIT C
NOTICE OF AWARD OF PERFORMANCE UNITS
<Insert Date> Performance Unit Award No._____
ENDOLOGIX, INC.
NOTICE OF AWARD OF PERFORMANCE UNITS
To: <Insert Name of Participant>
Endologix, Inc. (the "Company") hereby awards to _____________________
(the "Participant"), as of _________________________________ (the "Grant Date"),
___________________ Performance Units pursuant and subject to the terms and
conditions of Endologix, Inc. 2004 Performance Compensation Plan (the "Plan"), a
copy of which is attached. Terms in this Notice of Award that have initial
capital letters and that are not defined herein, unless the context indicates
otherwise, shall have the meanings set forth in the Plan.
As of __________________________ , the value of each Performance Unit
granted to _________, as hereinabove provided, has been determined to be $
_______________ , which constitutes the Base Value of each such Performance Unit
(as defined in Section 5.1 of the Plan). For purposes of this award, the Base
Value has been determined by multiplying the fair market value of one share of
the Company's common stock on the Grant Date by fifty percent (50%).
Your Performance Units shall vest as follows: One third (1/3) of the
Performance Units shall become Vested Performance Units on the first anniversary
of the Grant Date, and thereafter, the balance of the Performance Units shall
become Vested Performance Units in a series of eight (8) successive equal
quarterly installments for each full three-month period of your employment by
the Company, such that 100% of the Performance Units shall become Vested
Performance Units on the third (3rd) anniversary of the Grant Date.
Notwithstanding the foregoing, in the event of a Change in Control of the
Company (as defined in Section 2.3 of the Plan), your unvested Performance Units
shall accelerate automatically and vest in full effective as of immediately
prior to the consummation of the Change in Control.
You will be eligible to receive payment with respect to your vested
Performance Units upon the occurrence of a Distribution Event, as defined in
Section 2.6 of the Plan.
Unvested Performance Units will terminate automatically on a Separation
from Service for any reason whatsoever. "Separation from Service" is defined in
Section 2.11 of the Plan. Vested Performance Units also shall terminate
automatically if your employment is terminated by the Company due to one of the
events constituting "Cause" as such term is defined in Attachment A to this
Notice of Award, even if you are employed under an employment agreement with the
Company
C-1
and such termination does not constitute a termination for "Cause" as
defined in such employment agreement.
You may exercise your right to receive payment with respect to any or all
vested Performance Units after the eighteen (18) month anniversary of the Grant
Date by delivering a "Notice of Exercise" (in substantially the form as Exhibit
D attached hereto) to the Company at its principal executive offices. However,
in no event shall you be entitled to receive payment with respect to any
Performance Units which have not vested in accordance with this Award Notice.
The award of Performance Units described in this Notice and the right to
receive payment of any Distribution Event Benefit in respect of such Performance
Units under the Plan is subject to all of the terms and conditions of the Plan
and those set forth in this Notice of Award.
The grant of Performance Units described herein will not be effective
unless you acknowledge your receipt of this Notice and of a copy of the Plan and
your acceptance of the terms and conditions of the Plan and those set forth in
this Notice that are applicable to the Performance Units being awarded to you,
as evidenced hereby, by signing and then returning to the Company, to the
attention of the Chief Executive Officer, a duplicate copy of this Notice of
Award.
ENDOLOGIX, INC.
Date: , 200 By:
-------- -- - ----------------------------------------
Paul McCormick , Chief Executive Officer
The undersigned acknowledges that he or she has received and read a copy
of the Plan and the terms and conditions set forth in this Notice of Award and
accepts the award of Performance Units set forth herein and agrees to the terms
and conditions of the Plan and those set forth in this Notice of Award and in
the Attachment hereto.
Date: , 200
-------- -- - ----------------------------------------
Name of Participant:
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Please Print
C-2
ATTACHMENT A TO EXHIBIT C
CAUSE. "Cause" means, with respect to a Participant's employment with the
Company, the termination by the Company of Participant's employment for any of
the following reasons:
(A) The continued, unreasonable refusal or omission by the
Participant to perform any material duties required of him by the Company if
such duties are consistent with duties customary for the position held with the
Company;
(B) Any material act or omission by the Participant involving
malfeasance or gross negligence in the performance of Participant's duties to,
or material deviation from any of the policies or directives of, the Company;
(C) Conduct on the part of Participant which constitutes the breach
of any statutory or common law duty of loyalty to the Company; or
(D) Any illegal act by Participant which materially and adversely
affects the business of the Company or any felony committed by Participant, as
evidenced by conviction thereof.
CA-1
EXHIBIT D
NOTICE OF EXERCISE OF PERFORMANCE UNITS
Name of Participant:
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Endologix, Inc.
13900 Alton Parkway, Suite 122
Irvine, California 92618
Gentlemen:
I hereby exercise my right to receive payment for my vested Performance
Units pursuant to the Notice of Award of Performance Units dated ,
200 , ("Notice of Award") awarded to me under the Endologix, Inc (the
"Company") 2004 Performance Compensation Plan. The number of Performance Units
that I wish to exercise at this time is .
In connection with the exercise of my Performance Units, I understand that
following the receipt of this Notice of Exercise by the Company, the number of
Performance Units indicated above will no longer be available for exercise under
the Notice of Award. I also understand that pursuant to section 6.5 of the Plan,
the Company shall withhold any federal, state or local taxes that are required
to be withheld in connection with payment by the Company with respect to the
Performance Units. Finally, I acknowledge that the Company has ninety (90) days
from its receipt of this Notice of Exercise to deliver payment with respect to
the number of Performance Units indicated above, and that payment may be delayed
for "good cause" pursuant to Section 6.2 of the Plan.
Dated:
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(Signature of Participant)
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(Print Name of Participant)
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