Exhibit 10.6
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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I.
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NOTICE OF
STOCK OPTION GRANT
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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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___________________________________________
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Exercise Price per Share
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$__________________________________________
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Total Number of Shares Granted
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___________________________________________
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Total Exercise Price
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$__________________________________________
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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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___________________________________________
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and/or
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[Performance Objective]
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___________________________________________
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1. Grant of Option . The
Company hereby grants to 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 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 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
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 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
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.
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(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.
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 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 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 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
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. 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
Optionee:
(a) cash, delivered to the external
third party administrator of the Option awards in any methodology
permitted by such third party administrator; or
(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 Optionee (i) shall provide written
instructions to a licensed broker acceptable to the Company and
acting as agent for 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.
5. Termination of Employment
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(a) General . In the event
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 Optionee as of the date of termination. In the event
Optionee’s employment with the Company or an Eligible
Subsidiary terminates for any reason (other than death, Disability,
Retirement or Gross Misconduct), Optionee shall have a period of
three (3) months, commencing with the date Optionee is no
longer actively employed, to exercise the vested portion of any
outstanding Options.
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(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
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
Optionee’s employment with the Company or an Eligible
Subsidiary terminates by reason of Optionee’s Disability, all
unvested Options shall be automatically forfeited by Optionee as of
the date of termination and Optionee shall have until the first
anniversary of Optionee’s termination of employment for
Disability to exercise the vested portion of any outstanding
Options.
(d) Normal Retirement . In
the event 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 Optionee’s Normal Retirement
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 Optionee’s Normal Retirement (or
if earlier, up until the Expiration Date of the Options)). In the
event 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 Optionee’s Normal Retirement, 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 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, 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 Optionee’s Retirement.
(f) Gross Misconduct . If
Optionee’s employment with the Company or an Eligible
Subsidiary is terminated for Gross Misconduct, 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 Optionee’s Options
remain outstanding under the terms of the Plan or this Option
Agreement after termination of Optionee’s employment with the
Company or an Eligible Subsidiary, such Options shall nevertheless
expire as of the date Optionee violates any covenant not to compete
or other post-employment covenant that exists between 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, 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 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 Optionee’s rights hereunder can be made only in an
express written contract signed by the Company and 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 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
Optionee (the “Employer”) take 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”), Optionee acknowledges that the
ultimate liability for all Tax Related Items associated with the
Option is and remains 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 Optionee’s liability for Tax Related
Items. Further, if Optionee has relocated to a different
jurisdiction between the date of grant and the date of any taxable
event, Optionee acknowledges that the Company and/or the Employer
(or former employer, as applicable) may be required to withhold or
account for Tax-Related Items in more than one
jurisdiction.
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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 Tax-Related Items. In this regard, 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 Optionee by one
or a combination of the following: (i) require Optionee to pay
Tax-Related Items in cash with a cashier’s check or certified
check; (ii) withholding cash from Optionee’s wages or
other compensation payable to Optionee by the Company and/or the
Employer; (iii) withholding from the proceeds of a
broker-dealer sale and remittance procedure as described in
Section 4(b) above; or (iv) withholding in Shares
otherwise issuable to Optionee, provided that the Company withholds
only the amount of Shares necessary to satisfy the minimum
statutory withholding amount or such other amount as may be
necessary to avoid adverse accounting treatment 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 Optionee’s participation
in the Plan or 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
Optionee if 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 sole discretion, to
unilaterally amend or modify the Plan and/or this Option Agreement
to ensure that all Options granted to Optionees 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 Options shall be exempt from or comply with Section 409A
and makes no undertaking to preclude Section 409A from
applying to the Plan or any Options granted thereunder.
9. Rights as Shareholder .
Until all requirements for exercise of the Option pursuant to the
terms of this Option Agreement and the Plan have been satisfied,
Optionee shall not be deemed to be a shareholder or to have any of
the rights of a shareholder with respect to any Shares.
10. No Employment Contract .
Nothing in the Plan or this Option Agreement constitutes an
employment contract between the Company and Optionee and this
Option Agreement shall not confer upon Optionee any right to
continuation of employment with the Company or any of its
Subsidiaries, nor shall this Option Agreement interfere in any way
with the Company’s or any of its Subsidiaries’ right to
terminate Optionee’s employment or at any time, with or
without cause (subject to any employment agreement an Optionee may
otherwise have with the Company or a Subsidiary thereof and/or
applicable law).
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11. Board Authority . The
Board and/or the Committee shall have the power to interpret this
Option Agreement and to adopt such rules for the administration,
interpretation and application of the Option Agreement as are
consistent therewith and to interpret or revoke any such rules
(including, but not limited to, the determination of whether any
Options have vested). All interpretations and determinations made
by the Board and/or the Committee in good faith shall be final and
binding upon Optionee, the Company and all other interested persons
and such determinations of the Board and/or the Committee do not
have to be uniform nor do they have to consider whether Optionees
are similarly situated. No member of the Board and/or the Committee
shall be personally liable for any action, determination or
interpretation made in good faith with respect to this Option
Agreement.
12. Headings . The captions
used in this Option Agreement and the Plan are inserted for
convenience and shall not be deemed to be a part of the Option for
construction and interpretation.
13. Electronic Delivery
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(a) If Optionee executes this Option
Agreement electronically, for the avoidance of doubt Optionee
acknowledges and agrees that his or her execution of this Option
Agreement electronically (through an on-line system established and
maintained by the Company or another third party designated by the
Company, or otherwise) shall have the same binding legal effect as
would execution of this Option Agreement in paper form. Optionee
acknowledges that upon request of the Company he or she shall also
provide an executed, paper form of this Option
Agreement.
(b) If Optionee executes this Option
Agreement in paper form, for the avoidance of doubt the parties
acknowledge and agree that it is their intent that any agreement
previously or subsequently entered into between the parties that is
executed electronically shall have the same binding legal effect as
if such agreement were executed in paper form.
(c) If Optionee executes this Option
Agreement multiple times (for example, if Optionee first executes
this Option Agreement in electronic form and subsequently executes
the Option Agreement in paper form), Optionee acknowledges and
agrees that (i) no matter how many versions of this Option
Agreement are executed and in whatever medium, this Option
Agreement only evidences a single Option relating to the number of
Shares set forth in the Notice of Stock Option Grant and
(ii) this Option Agreement shall be effective as of the
earliest execution of this Option Agreement by the parties, whether
in paper form or electronically, and the subsequent execution of
this Option Agreement in the same or a different medium shall in no
way impair the binding legal effect of this Option Agreement as of
the time of original execution.
(d) The Company may, in its sole
discretion, decide to deliver by electronic means any documents
related to the Option, to participation in the Plan, or to future
awards granted under the Plan, or otherwise required to be
delivered to Optionee pursuant to the Plan or under applicable law,
including but not limited to, the Plan, the Option Agreement, the
Plan prospectus and any reports of the Company generally provided
to shareholders. Such means of electronic delivery may include, but
do not necessarily include, the delivery of a link to
the
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Company’s intranet or the
internet site of a third party involved in administering the Plan,
the delivery of documents via electronic mail
(“e-mail”) or such other means of electronic delivery
specified by the Company. By executing this Option Agreement,
Optionee hereby consents to receive such documents by electronic
delivery. At Optionee’s written request to the Secretary of
the Company, the Company shall provide a paper copy of any document
at no cost to Optionee.
14. Data Privacy .
Optionee hereby explicitly and unambiguously consents to the
collection, use and transfer, in electronic or other form, of
h