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Exhibit
10.7
DANAHER
CORPORATION
2007 STOCK INCENTIVE
PLAN
RESTRICTED STOCK UNIT
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 Restricted Stock Unit Agreement (the
“Agreement”).
Name:
Address:
The undersigned Participant
has been granted an Award of Restricted Stock Units, subject to the
terms and conditions of the Plan and this Agreement, as
follows:
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| Grant
Number |
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| Date of
Grant |
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| Number of
Restricted Stock Units |
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| Expiration
Date |
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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 RSUs . The
Company hereby grants to the Participant named in the Notice of
Grant (the “Participant”), an Award of Restricted Stock
Units (“RSUs”) subject to all of the terms and
conditions in this Agreement and the Plan, which is incorporated
herein by reference. In the event of a conflict between the terms
and conditions of the Plan and this Agreement, the terms and
conditions of the Plan shall prevail.
2. Vesting
.
(a) Vesting Schedule .
Except as may otherwise be set forth in this Agreement or in the
Plan, RSUs awarded to a Participant shall not vest until the
Participant (i) satisfies the performance-based vesting
criteria (“Performance Objective”), if any, applicable
to such RSUs 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 RSUs. The Performance
Objective and Time-Based Vesting Criteria applicable to RSUs 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 RSU received by a Participant 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 Participant by an external third party administrator of the
RSU awards. Further, during any approved leave of absence, the
Committee shall have discretion to provide that the vesting of the
RSUs shall be frozen as of the first day of the leave and shall not
resume until and unless the Participant returns to active
employment prior to the Expiration Date of the RSUs.
(b) Performance
Objective . The Committee shall determine whether the
Performance Objective applicable to an RSU 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 RSUs, such RSUs shall not
be considered to have vested unless and until the Participant has
satisfied the Time-Based Vesting Criteria applicable to such
RSUs.
(c) Age 65 .
Notwithstanding the foregoing, the Time-Based Vesting Criteria
applicable to all RSUs held by a Participant shall be deemed 100%
satisfied upon the Participant’s attainment of age 65;
provided that such RSUs shall remain subject to any applicable
Performance Objective that remains unsatisfied as of such
date.
(d) Fractional RSU
Vesting . In the event the Participant is vested in a
fractional portion of an RSU (a “Fractional Portion”),
such Fractional Portion will not be converted into a share of
Common Stock (“Share”) or issued to the
Participant. Instead, the Fractional Portion will remain
unconverted until the final Vesting Date for the RSUs; provided,
however , if the Participant vests in a subsequent
Fractional Portion prior to the final Vesting Date for the
RSUs and such Fractional Portion taken together with a previous
Fractional Portion accrued by the Participant under this Award
would equal or exceed a whole Share, then such Fractional
Portions will be converted into one Share; provided, further
, that following such conversion, any remaining Fractional Portion
will remain unconverted. Upon the final Vesting Date, the
Company will not issue fractional Shares of Common Stock, but the
Committee may, in its discretion, direct the Company to make a cash
payment in lieu of fractional Shares.
3. Form and Timing of
Payment . Each RSU represents the right to receive one Share of
Common Stock of the Company on the date it vests. Unless and until
the RSUs have vested in the manner set forth in Sections 2 and 4,
Participant shall have no right to payment of any such
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RSUs. Prior to actual payment
of any vested RSUs, such RSUs will represent an unsecured
obligation of the Company, payable (if at all) only from the
general assets of the Company. Subject to the other terms of the
Plan and this Agreement, any RSUs that vest in accordance with
Sections 2 and 4 will be paid to the Participant in whole Shares,
on, or as soon as practicable after, the Vesting Date, but in any
event, within the period ending on the later to occur of the date
that is 2 1 / 2 months from the end of (i) the
Participant’s tax year that includes the applicable Vesting
Date, or (ii) the Company’s tax year that includes the
applicable Vesting Date (which payment is intended to comply with
the “short-term deferral” exemption from the
application of Section 409A (“Section 409A”) of
the Internal Revenue Code of 1986, as amended (the
“Code”)).
4. Termination of
Employment .
(a) General . In the
event the Participant’s active employment with the Company or
an Eligible Subsidiary terminates for any reason (other than death
or Retirement), all unvested RSUs shall be automatically forfeited
by the Participant as of the date of termination.
(b) Death . Upon
Participant’s death, a pro rata amount of the outstanding
RSUs scheduled to vest on a particular Vesting Date shall become
vested based on the number of complete twelve-month periods between
the Date of Grant and the date of the Participant’s death
divided by the total number of twelve-month periods between the
Date of Grant and the applicable Vesting Date. Notwithstanding
anything in the Plan or this Agreement to the contrary, for
purposes of this Section, any partial twelve-month period between
the Date of Grant and the date of death shall be considered a
complete twelve-month period and any Fractional Portion that
results from applying the pro rata methodology shall be rounded up
to a whole Share.
(c) Normal Retirement
. In the event the Participant 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 Participant’s
Normal Retirement the Participant holds RSUs that remain subject to
any Performance Objective, the RSUs shall remain outstanding for up
to the fifth anniversary of such date (or if earlier, up to the
Expiration Date (if any) of the RSUs) to determine whether such
conditions become satisfied (and if the Committee determines that
the Performance Objectives are satisfied within such period, the
RSUs shall become fully vested).
(d) Early Retirement .
In the event the Participant 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
Participant’s employment constitutes Early Retirement,
(i) the Time-Based Vesting Criteria applicable to any portion
of any RSUs scheduled to vest during the five (5) year period
following the date of the Participant’s Retirement shall be
deemed 100% satisfied; (ii) any portion of such RSUs subject
to Time-Based Vesting Criteria not scheduled to vest until after
the fifth anniversary of the Participant’s Retirement shall
be immediately forfeited without consideration; and (iii) if
the Participant holds RSUs described in (i) above that remain
subject to any Performance Objective, the RSUs shall remain
outstanding for up to the fifth anniversary of such date (or if
earlier, up to the Expiration Date (if any) of the RSUs) to
determine whether such conditions become satisfied (and if the
Committee determines that the Performance Objectives are satisfied
within such period, the RSUs shall become fully vested).
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(e) Gross Misconduct .
If the Participant’s employment with the Company or an
Eligible Subsidiary is terminated for Gross Misconduct, the
Participant’s unvested RSUs shall be forfeited immediately as
of the time of termination without consideration.
(f) Violation of
Post-Employment Covenant . To the extent that any of the
Participant’s RSUs remain outstanding under the terms of the
Plan or this Agreement after termination of the Participant’s
employment with the Company or an Eligible Subsidiary, such RSUs
shall nevertheless expire as of the date the Participant violates
any covenant not to compete or other post-employment covenant that
exists between the Participant on the one hand and the Company or
any Subsidiary of the Company, on the other hand.
(g) Substantial Corporate
Change . Upon a Substantial Corporate Change, the
Participant’s outstanding RSUs shall terminate unless
provision is made for the assumption or substitution of such RSUs
as provided in Section 16(b) of the Plan.
5. Non-Transferability of
RSUs . Unless the Committee determines otherwise in advance in
writing, RSUs may not be transferred in any manner otherwise than
by will or by the laws of descent or distribution. The terms of the
Plan and this Agreement shall be binding upon the executors,
administrators, heirs and permitted successors and assigns of the
Participant.
6. Amendment of RSUs or
Plan . The Plan and this 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 Participant with respect to the
subject matter hereof. Participant expressly warrants that he or
she is not accepting this 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 RSUs in any respect at any time; provided, however, that
modifications to this Agreement or the Plan that adversely affect
the Participant’s rights hereunder can be made only in an
express written contract signed by the Company and the Participant.
Notwithstanding anything to the contrary in the Plan or this
Agreement, the Company reserves the right to revise this Agreement
and Participant’s rights under outstanding RSUs as it deems
necessary or advisable, in its sole discretion and without the
consent of the Participant, (1) upon a Substantial Corporate
Change, (2) as required by law, or (3) to comply with
Section 409A or to otherwise avoid imposition of any
additional tax or income recognition under Section 409A in
connection to this award of RSUs.
7. Tax Obligations
.
(a) Withholding Taxes
. Regardless of any action the Company or any Subsidiary employing
the Participant (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 Participant
acknowledges that the ultimate liability for all Tax Related Items
associated with the RSUs is and remains the Participant’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 RSUs, including, but not limited to, the grant or vesting of
the RSUs, the delivery of the Shares, the subsequent sale
of
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Shares acquired at vesting
and the receipt of any dividends or dividend equivalents; and
(ii) do not commit to structure the terms of the grant or any
aspect of the RSUs to reduce or eliminate the Participant’s
liability for Tax Related Items.
Prior to the relevant taxable
event, Participant 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 Participant authorizes the Company
and/or the Employer, in its sole discretion, to satisfy the
obligations with regard to all Tax Related Items legally payable by
the Participant by one or a combination of the following:
(i) require the Participant to pay Tax-Related Items in cash
with a cashier’s check or certified check;
(ii) withholding cash from the Participant’s wages or
other compensation payable to the Participant by the Company and/or
the Employer; (iii) arranging for the sale of Shares otherwise
issuable to the Participant upon vesting of the RSUs (on
Participant’s behalf and at Participant’s direction
pursuant to this authorization); (iv) withholding from the
proceeds of the sale of Shares acquired upon vesting of the RSUs;
or (v) withholding in Shares otherwise issuable to the
Participant, 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. Participant 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
Participant’s participation in the Plan that are not
satisfied by any of the means previously described. The Company may
refuse to deliver the Shares to the Participant if the Participant
fails to comply with Participant’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
Agreement are intended to qualify for an exemption from or comply
with Section 409A. Notwithstanding any provision in the
Agreement, the Company reserves the right, to the extent the
Company deems necessary or advisable in its sole discretion, to
unilaterally amend or modify the Plan and/or this Agreement to
ensure that all RSUs granted to Participants who are United States
taxpayers are made in such a manner that either qualifies for
exemption from or complies with Section 409A; provided,
however, that the Company makes no representations that the Plan or
the RSUs shall be exempt from or comply with Section 409A and
makes no undertaking to preclude Section 409A from applying to
the Plan or any RSUs granted thereunder.
8. Rights as
Shareholder . Until all requirements for vesting of the RSUs
pursuant to the terms of this Agreement and the Plan have been
satisfied, the Participant shall not be deemed to be a shareholder
or to have any of the rights of a shareholder with respect to any
Shares.
9. Additional Conditions
to Issuance of Shares . 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 Participant to take any reasonable action
in order to comply with any such rules or regulations.
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Furthermore, unless a
registration statement under the Securities Act covers the Shares
issued upon vesting of an RSU, the Committee may require that the
Participant agree in writing to acquire such S
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