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Exhibit
10.5
DANAHER
CORPORATION
2007 STOCK INCENTIVE
PLAN
STOCK OPTION
AGREEMENT
(Non-US
Employees)
Unless otherwise defined
herein, the terms defined in the Danaher Corporation 2007 Stock
Incentive Plan (the “Plan”) shall have the same defined
meanings in this Stock Option Agreement (the “Option
Agreement”).
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NOTICE OF STOCK OPTION GRANT |
Name:
Address:
The undersigned Optionee has
been granted an Option to purchase Common Stock of the Company,
subject to the terms and conditions of the Plan and this Option
Agreement, as follows:
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| Date of
Grant |
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| Exercise
Price per Share |
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$
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| Total Number
of Shares Granted |
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| Total
Exercise Price |
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$
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| Type of
Option |
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U.S.
Nonstatutory Stock Option |
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| Expiration
Date |
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Tenth
anniversary of Date of Grant |
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| Vesting
Schedule |
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| Time-Based
Vesting Criteria |
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| and/or |
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| [Performance
Objective] |
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1. Grant of Option .
The Company hereby grants to the Optionee named in the Notice of
Stock Option Grant (the “Optionee”), an option (the
“Option”) to purchase the number of shares (the
“Shares”) set forth in the Notice of Stock Option
Grant, at the exercise price per Share set
forth in the Notice of Stock Option
Grant (the “Exercise Price”), and subject to the terms
and conditions of the Plan, which are incorporated herein by
reference. In the event of a conflict between the terms and
conditions of the Plan and this Option Agreement, the terms and
conditions of the Plan shall prevail.
2. Vesting
.
(a) Vesting Schedule .
Except as may otherwise be set forth in this Option Agreement or in
the Plan, Options awarded to an Optionee shall not vest until the
Optionee (i) satisfies the performance-based vesting criteria
(“Performance Objective”), if any, applicable to such
Options and (ii) continues to be actively employed with
the Company or an Eligible Subsidiary for the periods required to
satisfy the time-based vesting criteria (“Time-Based Vesting
Criteria”) applicable to such Options. The Performance
Objective and Time-Based Vesting Criteria applicable to an Option
are collectively referred to as “Vesting Conditions,”
and the earliest date upon which all Vesting Conditions are
satisfied is referred to as the “Vesting Date.” The
Vesting Conditions for an Option received by an Optionee shall be
established by the Compensation Committee (the
“Committee”) (or by one or more members of Company
management, if such power has been delegated in accordance with the
Plan and applicable law) and reflected in the account maintained
for the Optionee by an external third party administrator of the
Option awards. Further, during any approved leave of absence, to
the extent permitted by local law, the Committee shall have
discretion to provide that the vesting of the Options shall be
frozen as of the first day of the leave and shall not resume until
and unless the Optionee returns to active employment prior to the
Expiration Date of the Options.
(b) Performance
Objective . The Committee shall determine whether the
Performance Objective applicable to an Option has been met, and
such determination shall be final and conclusive. Until the
Committee has made such a determination, the Performance Objective
may not be considered to have been satisfied. Notwithstanding any
determination by the Committee that the Performance Objective has
been attained with respect to particular Options, such Options
shall not be considered to have vested unless and until the
Optionee has satisfied the Time-Based Vesting Criteria applicable
to such Options.
(c) Age 65 .
Notwithstanding the foregoing, the Time-Based Vesting Criteria
applicable to all Options held by an Optionee shall be deemed 100%
satisfied upon the Optionee’s attainment of age 65; provided
that such Options shall remain subject to any applicable
Performance Objective that remains unsatisfied as of such
date.
3. Exercise of Option
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(a) Right to Exercise
. This Option shall be exercisable during its term in accordance
with the Vesting Schedule set out in the Notice of Stock Option
Grant and with the applicable provisions of the Plan and this
Option Agreement.
(b) Method and Time of
Exercise . This Option shall be exercisable by any method made
available from time to time by the external third party
administrator of the Option awards. An exercise may be made with
respect to whole Shares only, and not for a fraction of a
Share.
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Shares shall not be issued
under the Plan unless the issuance and delivery of such Shares
comply with (or are exempt from) all applicable requirements of
law, including (without limitation) the Securities Act, the rules
and regulations promulgated thereunder, state securities laws and
regulations, and the regulations of any stock exchange or other
securities market on which the Company’s securities may then
be traded. The Committee may require the Optionee to take any
reasonable action in order to comply with any such rules or
regulations. Assuming such compliance, for income tax purposes the
Shares shall be considered transferred to the Optionee on the date
the Option is exercised with respect to such Shares.
(c) Acknowledgment of
Potential Securities Law Restrictions . Unless a registration
statement under the Securities Act covers the Shares issued upon
exercise of an Option, the Committee may require that the Optionee
agree in writing to acquire such Shares for investment and not for
public resale or distribution, unless and until the Shares subject
to the Award are registered under the Securities Act. The Committee
may also require the Optionee to acknowledge that he or she shall
not sell or transfer such Shares except in compliance with all
applicable laws, and may apply such other restrictions as it deems
appropriate. The Optionee also acknowledges that the U.S. federal
securities laws prohibit trading in the stock of the Company by
persons who are in possession of material, non-public information,
and also acknowledges and understands the other restrictions set
forth in the Company’s Insider Trading Policy.
4. Method of Payment .
Payment of the aggregate Exercise Price shall be by any of the
following, or a combination thereof, at the election of the
Optionee:
(a) cash, delivered to the
external third party administrator of the Option awards in any
methodology permitted by such third party administrator;
(b) to the extent permitted
by applicable law, payment under a cashless exercise program
approved by the Company or through a broker-dealer sale and
remittance procedure pursuant to which the Optionee (i) shall
provide written instructions to a licensed broker acceptable to the
Company and acting as agent for the Optionee to effect the
immediate sale of some or all of the purchased Shares and to remit
to the Company, out of the sale proceeds available on the
settlement date, sufficient funds to cover the aggregate Exercise
Price payable for the purchased Shares and (ii) shall provide
written direction to the Company to deliver the purchased Shares
directly to such brokerage firm in order to complete the sale
transaction; or
(c) to the extent permitted
by applicable law, surrender of other Shares which have been owned
by the Optionee for more than six (6) months on the date of
surrender, and have a Fair Market Value on the date of surrender
equal to the aggregate Exercise Price of the exercised
Shares.
5. Termination of
Employment .
(a) General . In the
event the Optionee’s active employment with the Company or an
Eligible Subsidiary terminates for any reason (other than death or
Retirement), all unvested Options shall be automatically forfeited
by the Optionee as of the date of termination. In the event the
Optionee’s employment with the Company or an Eligible
Subsidiary terminates for any reason
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(other than death,
Disability, Retirement or Gross Misconduct), the Optionee shall
have a period of three (3) months, commencing with the date
the Optionee is no longer actively employed, to exercise the vested
portion of any outstanding Options.
(b) Death . Upon
Optionee’s death, all unexpired options shall become fully
exercisable and may be exercised for a period of twelve
(12) months thereafter by the personal representative of the
Optionee’s estate or any other person to whom the Option is
transferred under a will or under the applicable laws of descent
and distribution.
(c) Disability . In
the event the Optionee’s employment with the Company or an
Eligible Subsidiary terminates by reason of the Optionee’s
Disability, all unvested Options shall be automatically forfeited
by the Optionee as of the date of termination and the Optionee
shall have until the first anniversary of the Optionee’s
termination of employment for Disability to exercise the vested
portion of any outstanding Options.
(d) Normal Retirement
. In the event the Optionee voluntarily terminates his or her
employment with the Company or an Eligible Subsidiary at or after
reaching age 65, and as of the date of the Optionee’s Normal
Retirement the Optionee holds Options that remain subject to any
Performance Objective, the Options shall remain outstanding for up
to the fifth anniversary of such date (or if earlier, up to the
Expiration Date of the Option) to determine whether such conditions
become satisfied (and if the Committee determines that the
Performance Objectives are satisfied within such period, the
Options shall remain outstanding and may be exercised up until the
fifth anniversary of the date of the Optionee’s Normal
Retirement (or if earlier, up until the Expiration Date of the
Options)). In the event the Optionee voluntarily terminates his or
her employment with the Company or an Eligible Subsidiary at or
after reaching age 65, and as of the date of the Optionee’s
Normal Retirement, the Optionee holds Options that are not subject
to any unsatisfied Performance Objective, the Options shall remain
outstanding and may be exercised up until the fifth anniversary of
such date (or if earlier, up until the Expiration Date of the
Option).
(e) Early Retirement .
In the event the Optionee voluntarily terminates his or her
employment with the Company or an Eligible Subsidiary prior to age
65 and the Committee determines that the cessation of
Optionee’s employment constitutes Early Retirement, the
Optionee’s unvested Options shall remain outstanding and
shall continue to vest (as to both the Performance Objective and
Time-Based Vesting Criteria, as applicable) for a period of five
(5) years following the date of the Optionee’s
Retirement.
(f) Gross Misconduct .
If the Optionee’s employment with the Company or an Eligible
Subsidiary is terminated for Gross Misconduct, the Optionee’s
unexercised Options shall terminate immediately as of the time of
termination, without consideration.
(g) Violation of
Post-Employment Covenant . To the extent that any of the
Optionee’s Options remain outstanding under the terms of the
Plan or this Option Agreement after termination of the
Optionee’s employment with the Company or an Eligible
Subsidiary, such Options shall nevertheless expire as of the date
the Optionee violates any covenant not to compete or other
post-employment covenant that exists between the Optionee on the
one hand and the Company or any Subsidiary of the Company, on the
other hand.
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(h) Substantial Corporate
Change . Upon a Substantial Corporate Change, the
Optionee’s outstanding Options shall terminate unless
provision is made for the assumption or substitution of such
Options as provided in Section 16(b) of the Plan.
6. Non-Transferability of
Option; Term of Option .
(a) This Option may not be
transferred in any manner otherwise than by will or by the laws of
descent or distribution and may be exercised during the lifetime of
Optionee only by Optionee. The terms of the Plan and this Option
Agreement shall be binding upon the executors, administrators,
heirs and permitted successors and assigns of the
Optionee.
(b) This Option may be
exercised only prior to the Expiration Date set out in the Notice
of Stock Option Grant, and may be exercised during such term only
in accordance with the Plan and the terms of this Option
Agreement.
7. Amendment of Option or
Plan . The Plan and this Option Agreement constitute the entire
understanding of the parties with respect to the subject matter
hereof and supersede in their entirety all prior undertakings and
agreements of the Company and Optionee with respect to the subject
matter hereof. Optionee expressly warrants that he or she is not
accepting this Option Agreement in reliance on any promises,
representations, or inducements other than those contained herein.
The Company’s Board may amend, modify or terminate the Plan
or any Option in any respect at any time; provided, however, that
modifications to this Option Agreement or the Plan that adversely
affect the Optionee’s rights hereunder can be made only in an
express written contract signed by the Company and the Optionee.
Notwithstanding anything to the contrary in the Plan or this Option
Agreement, the Company reserves the right to revise this Option
Agreement and Optionee’s rights under outstanding Options as
it deems necessary or advisable, in its sole discretion and without
the consent of the Optionee, (1) upon a Substantial Corporate
Change, (2) as required by law, or (3) to comply with
Section 409A of the Code (“Section 409A”) or to
otherwise avoid imposition of any additional tax or income
recognition under Section 409A in connection to this award of
Options.
8. Tax Obligations
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(a) Withholding Taxes
. Regardless of any action the Company or any Subsidiary employing
the Optionee (the “Employer”) takes with respect to any
or all federal, state, local or foreign income tax, social
insurance, payroll tax, payment on account or other tax related
items (“Tax Related Items”), the Optionee acknowledges
that the ultimate liability for all Tax Related Items associated
with the Option is and remains the Optionee’s responsibility
and that the Company and/or the Employer (i) make no
representations or undertakings regarding the treatment of any Tax
Related Items in connection with any aspect of the Option,
including, but not limited to, the grant, vesting or exercise of
the Option, the subsequent sale of Shares acquired pursuant to such
exercise and the receipt of any dividends; and (ii) do not
commit to structure the terms of the grant or any aspect of the
Option to reduce or eliminate the Optionee’s liability for
Tax Related Items.
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Prior to the relevant taxable
event, Optionee shall pay or make adequate arrangements
satisfactory to the Company and/or the Employer (in its sole
discretion) to satisfy all withholding and payment on account
obligations for Tax Related Items of the Company and/or the
Employer. In this regard, the Optionee authorizes the Company
and/or the Employer, in its sole discretion and to the extent
permitted under local law, to satisfy the obligations with regard
to all Tax Related Items legally payable by the Optionee by one or
a combination of the following: (i) require the Optionee to
pay Tax-Related Items in cash with a cashier’s check or
certified check; (ii) withholding cash from the
Optionee’s wages or other compensation payable to the
Optionee by the Company and/or the Employer; (iii) accepting
from the Optionee the delivery of unencumbered Shares;
(iv) withholding from the proceeds of a broker-dealer sale and
remittance procedure as described in Section 4(b) above; or
(v) withholding in Shares otherwise issuable to the Optionee,
provided that the Company withholds only the amount of Shares
necessary to satisfy the minimum statutory withholding amount using
the Fair Market Value of the Shares on the date of the relevant
taxable event. Optionee shall pay to the Company or the Employer
any amount of Tax Related Items that the Company or the Employer
may be required to withhold as a result of the Optionee’s
participation in the Plan or the Optionee’s purchase of
Shares that are not satisfied by any of the means previously
described. The Company may refuse to honor the exercise and refuse
to deliver the Shares to the Optionee if the Optionee fails to
comply with Optionee’s obligations in connection with the Tax
Related Items as described in this Section.
(b) Code
Section 409A . Payments made pursuant to this Plan and the
Option Agreement are intended to qualify for an exemption from or
comply with Section 409A. Notwithstanding any provision in the
Option Agreement, the Company reserves the right, to the extent the
Company deems necessary or advisable in its sol
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