Exhibit 10(o)
BECTON, DICKINSON AND
COMPANY
2004 EMPLOYEE AND DIRECTOR
EQUITY-BASED
COMPENSATION PLAN
As Amended and Restated as of
November 25, 2008
Section 1.
Purpose.
The purpose of the Becton, Dickinson
and Company 2004 Employee and Director Equity-Based Compensation
Plan is to provide an incentive to employees of the Company and its
subsidiaries to achieve long-range goals, to aid in attracting and
retaining employees and directors of outstanding ability and to
closely align their interests with those of
shareholders.
Section 2. Definition
.
As used in the Plan, the following
terms shall have the meanings set forth below:
(a)
“Affiliate” shall mean (i) any entity that,
directly or indirectly, is controlled by the Company and (ii) any
entity in which the Company has a significant equity interest, in
either case as determined by the Committee.
(b)
“Award” shall mean any Option, Stock
Appreciation Right, award of Restricted Stock, Restricted Stock
Unit, Performance Unit or Other Stock-Based Award granted under the
Plan.
(c)
“Award Agreement” shall mean any written
agreement, contract or other instrument or document evidencing any
Award granted under the Plan, which may, but need not, be executed
or acknowledged by a Participant.
(d)
“Board”
shall mean the board of directors
of the Company.
(e)
“Cause” shall mean (i) the willful and continued
failure of a Participant to perform substantially the
Participant’s duties with the Company or any Affiliate (other
than any such failure resulting from incapacity due to physical or
mental illness), or (ii) the willful engaging by the Participant in
illegal conduct or gross misconduct that is materially and
demonstrably injurious to the Company. No act, or failure to act,
on the part of the Participant shall be considered
“willful” unless it is done, or omitted to be done, by
the Participant in bad faith or without the reasonable belief that
the Participant’s action or omission was in the best interest
of the Company.
(f)
“Change in Control”
means
(i) the acquisition by any
individual, entity or group (within the meaning of Section 13(d)(3)
or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act” )) (a “Person”) of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 25% or more of either (A) the
then-outstanding shares of common stock of the Company (the
“Outstanding Company Common Stock” ) or (B) the
combined voting power of the then-outstanding voting securities of
the Company entitled to vote generally in the election of directors
(the “Outstanding Company Voting Securities” );
provided, however, that, for purposes of this Section 2(f),
the following acquisitions shall not constitute a Change in
Control: (i) any acquisition directly from the Company; (ii) any
acquisition by the Company, or (iii) any acquisition by any
employee
benefit plan (or related trust)
sponsored or maintained by the Company or any affiliated company,
(iv) any acquisition by any corporation pursuant to a transaction
that complies with Section 2(f)(iii)(A), Section 2(f)(iii)(B) and
Section 2(f)(iii)(C), or (v) any acquisition that the Board
determines, in good faith, was inadvertent, if the acquiring Person
divests as promptly as practicable a sufficient amount of the
Outstanding Company Common Stock and/or the Outstanding Company
Voting Securities, as applicable, to reverse such acquisition of
25% or more thereof;
(ii) individuals who, as of the day
after the effective time of this Plan, constitute the Board (the
“Incumbent Board” ) cease for any reason to
constitute at least a majority of the Board; provided, however,
that any individual becoming a director subsequent to such time
whose election, or nomination for election as a director by the
Company’s shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall
be considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs 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 consent by or on behalf of a Person
other than the Board;
(iii) consummation of a
reorganization, merger, consolidation or sale or other disposition
of all or subsequently all of the assets of the Company (a
“Business Combination” ), in each case, unless,
following such Business Combination, (A) all or substantially all
of the individuals and entities that were the beneficial owners of
the Outstanding Company Common Stock and the Outstanding Company
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 voting securities entitled to vote
generally in the election of directors, as the case may be, of the
corporation resulting from such Business Combination (including,
without limitation, a corporation that, as a result of such
transaction, owns the Company or all or substantially all of the
Company’s assets either directly or through one or more
subsidiaries) in substantially the same proportions as their
ownership immediately prior to such Business Combination of the
Outstanding Company Common Stock and the Outstanding Company Voting
Securities, as the case may be, (B) no Person (excluding any
corporation resulting from such Business Combination or any
employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially
owns, directly or indirectly, 25% or more of, respectively, the
then-outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting
power of the then-outstanding voting securities of such
corporation, except to the extent that such ownership existed prior
to the Business Combination, and (C) at least a majority of the
members of the board of directors of the corporation resulting from
such Business Combination were members of the Incumbent Board at
the time of the execution of the initial agreement or of the action
of the Board providing for such Business Combination; or
(iv) approval by the shareholders of
the Company of a complete liquidation or dissolution of the
Company.
(g)
“Code” shall mean the Internal Revenue Code of
1986, as amended from time to time.
(h)
“Committee” shall mean the Compensation and
Benefits Committee of the Board or such other committee as may be
designated by the Board.
(i)
“Company” shall mean Becton, Dickinson and
Company.
(j)
“Disability” shall mean a Participant’s
total disability as defined below and determined in a manner
consistent with Code Section 409A and the regulations
thereunder:
The Participant is unable to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment that can be expected to
result in death or can be expected to last for a continuous period
of not less than 12 months.
A Participant will be deemed to have
suffered a Disability if determined to be totally disabled by the
Social Security Administration. In addition, the Participant will
be deemed to have suffered a Disability if determined to be
disabled in accordance with a disability insurance program
maintained by the Company, provided that the definition of
disability applied under such disability insurance program complies
with the requirements of Code Section 409A and the regulations
thereunder.
(k)
“Earnings Per Share” shall mean earnings per
share calculated in accordance with U.S. Generally Accepted
Accounting Principles.
(l)
“Executive Group” shall mean every person who is
expected by the Committee to be both (i) a “covered
employee” as defined in Section 162(m) of the Code as of the
end of the taxable year in which payment of the Award may be
deducted by the Company, and (ii) the recipient of compensation of
more than $1,000,000 for that taxable year.
(m)
“Fair Market Value” shall mean, with respect to
any property (including, without limitation, any Shares or other
securities) the fair market value of such property determined by
such methods or procedures as shall be established from time to
time by the Committee.
(n)
“Incentive Stock Option” shall mean an option
representing the right to purchase Shares from the Company, granted
under and in accordance with the terms of Section 6, that meets the
requirements of Section 422 of the Code, or any successor provision
thereto.
(o)
“Market Share” shall mean the percent of sales
of the total available market in an industry, product line or
product attained by the Company or one of its business units during
a time period.
(p)
“Net Income” shall mean net income calculated in
accordance with U.S. Generally Accepted Accounting
Principles.
(q)
“Net Revenue Per Employee” in a period shall
mean net revenue divided by the average number of employees of the
Company, with average defined as the sum of the number of employees
at the beginning and ending of the period divided by
two.
(r)
“Non-Qualified Stock Option” shall mean an
option representing the right to purchase Shares from the Company,
granted under and in accordance with the terms of Section 6, that
is not an Incentive Stock Option.
(s)
“Option” shall mean an Incentive Stock Option or a
Non-Qualified Stock Option.
(t)
“Other Stock-Based Award”
shall mean any right granted under
Section 9.
(u)
“Participant”
shall mean an individual granted an
Award under the Plan.
(v)
“Performance
Unit” shall mean
any right granted under Section 8.
(w)
“Restricted
Stock” shall mean
any Share granted under Section 7.
(x)
“Restricted Stock Unit” shall mean a contractual
right granted under Section 7 that is denominated in Shares. Each
Unit represents a right to receive the value of one Share (or a
percentage of such value, which percentage may be higher than 100%)
upon the terms and conditions set forth in the Plan and the
applicable Award Agreement. Awards of Restricted Stock Units may
include, without limitation, the right to receive dividend
equivalents.
(y)
“Retirement” shall mean a Separation from
Service after attainment of retirement as specified in the
applicable terms of an Award.
(z)
“Return On Common Equity” for a period shall
mean net income less preferred stock dividends divided by total
shareholders’ equity, less amounts, if any, attributable to
preferred stock.
(aa)
“Return on Invested Capital” for a period shall
mean earnings before interest, taxes, depreciation and amortization
divided by the difference of total assets less non-interest bearing
current liabilities.
(bb)
“Return On Net Assets” for a period shall mean
net income less preferred stock dividends divided by the difference
of average total assets less average non-debt liabilities, with
average defined as the sum of assets or liabilities at the
beginning and ending of the period divided by two.
(cc)
“Revenue Growth” shall mean the percentage
change in revenue (as defined in Statement of Financial Accounting
Concepts No. 6, published by the Financial Accounting Standards
Board) from one period to another.
(dd)
“Plan” shall mean this Becton, Dickinson and
Company 2004 Employee and Director Equity-Based Compensation
Plan.
(ee)
“Separation from Service” shall mean a
termination of employment or other separation from service from the
Company, as described in Code Section 409A and the regulations
thereunder, including, but not limited to a termination by reason
of Retirement or involuntary termination without Cause, but
excluding any such termination where there is a simultaneous
re-employment by the Company.
(ff)
“Shares”
shall mean shares of the common
stock of the Company, $1.00 par value.
(gg)
“Specified Employee” shall mean a Participant
who is deemed to be a specified employee in accordance with
procedures adopted by the Company that reflect the requirements of
Code Section 409A(2)(B)(i) and the guidance thereunder.
(hh)
“Stock Appreciation Right ” shall mean a right
to receive a payment, in cash and/or Shares, as determined by the
Committee, equal in value to the excess of the Fair Market Value of
a Share at the time the Stock Appreciation Right is exercised over
the exercise price of the Stock Appreciation Right.
(ii)
“Substitute Awards” shall mean Awards granted in
assumption of, or in substitution for, outstanding awards
previously granted by a company acquired by the Company or with
which the Company combines.
(jj)
“Total Shareholder Return” shall mean the sum of
the appreciation in the Company’s stock price and dividends
paid on the common stock of the Company over a given period of
time.
Section 3.
Eligibility.
(a) Any individual who is employed
by (including any officer), or who serves as a member of the board
of directors of, the Company or any Affiliate shall be eligible to
be selected to receive an Award under the Plan.
(b) An individual who has agreed to
accept employment by the Company or an Affiliate shall be deemed to
be eligible for Awards hereunder as of the date of such
agreement.
(c) Holders of options and other
types of Awards granted by a company acquired by the Company or
with which the Company combines are eligible for grant of
Substitute Awards hereunder.
Section 4.
Administration.
(a) The Plan shall be administered
by the Committee. The Committee shall be appointed by the Board and
shall consist of not less than three directors, each of whom shall
be independent, within the meaning of and to the extent required by
applicable rulings and interpretations of the New York Stock
Exchange and the Securities and Exchange Commission, and each of
whom shall be a “Non-Employee Director” , as
defined from time to time for purposes of Section 16 of the
Securities Exchange Act of 1934 and the rules promulgated
thereunder. The Board may designate one or more directors as
alternate members of the Committee who may replace any absent or
disqualified member at any meeting of the Committee. The Committee
may issue rules and regulations for administration of the Plan. It
shall meet at such times and places as it may determine. A majority
of the members of the Committee shall constitute a
quorum.
(b) Subject to the terms of the Plan
and applicable law, the Committee shall have full power and
authority to: (i) designate Participants; (ii) determine the type
or types of Awards (including Substitute Awards) to be granted to
each Participant under the Plan; (iii) determine the number of
Shares to be covered by (or with respect to which payments, rights,
or other matters are to be calculated in connection with) Awards;
(iv) determine the terms and conditions of any Award; (v) determine
whether, to what extent, and under what circumstances Awards may be
settled or exercised in cash, Shares, other securities, other
Awards, or other property, or canceled, forfeited or suspended, and
the method or methods by which Awards may be settled, exercised,
canceled, forfeited or suspended; (vi) determine whether, to what
extent, and under what circumstances cash, Shares, other
securities, other Awards, other property, and other amounts payable
with respect to an Award under the Plan shall be deferred either
automatically or at the election of the holder thereof or of the
Committee; (vii) interpret and administer the Plan and any
instrument or agreement relating to, or Award made under, the Plan;
(viii) establish, amend, suspend or waive such rules and
regulations and appoint such agents as it shall deem appropriate
for the proper administration of the Plan; (ix) determine whether
and to what extent Awards should comply or continue to comply with
any requirement of statute or regulation; and (x) make any other
determination and take any other action that the Committee deems
necessary or desirable for the administration of the Plan.
Notwithstanding the foregoing, the Plan will be interpreted
and
administered by the Committee in a
manner that is consistent with the requirements of Code Section
409A to allow for tax deferral thereunder, and the Committee shall
take no action hereunder that would result in a violation of Code
Section 409A.
(c) All decisions of the Committee
shall be final, conclusive and binding upon all parties, including
the Company, the stockholders and the Participants.
Section 5. Shares Available For
Awards.
(a) The number of Shares available
for issuance under the Plan is 18,000,000 shares, subject to
adjustment as provided below. Notwithstanding the foregoing and
subject to adjustment as provided in Section 5(e), (i) no
Participant may receive Options and Stock Appreciation Rights under
the Plan in any calendar year that relate to more than 250,000
Shares, (ii) the maximum number of Shares with respect to which
unrestricted Awards (either as to vesting, performance or
otherwise) may be made to employees under the Plan is 450,000
Shares, and (iii) the maximum number of Shares that may be issued
with respect to any Awards granted on or after February 3, 2008,
other than Awards of Options or Stock Appreciation Rights, shall be
2,000,000.
(b) If, after the effective date of
the Plan, any Shares covered by an Award other than a Substitute
Award, or to which such an Award relates, are forfeited, or if such
an Award otherwise terminates without the delivery of Shares or of
other consideration, then the Shares covered by such Award, or to
which such Award relates, to the extent of any such forfeiture or
termination, shall again be, or shall become, available for
issuance under the Plan, except as otherwise provided in Section
5(f).
(c) In the event that any Option or
other Award granted hereunder (other than a Substitute Award) is
exercised through the delivery of Shares, or in the event that
withholding tax liabilities arising from such Option or Award are
satisfied by the withholding of Shares by the Company, the number
of Shares available for Awards under the Plan shall be increased by
the number of Shares so surrendered or withheld. Notwithstanding
the foregoing, this Section 5(c) will not apply to any such
surrender or withholding of Shares occurring on or after November
21, 2006.
(d) Any Shares delivered pursuant to
an Award may consist, in whole or in part, of authorized and
u
