Exhibit 10.33
ZOLL MEDICAL
CORPORATION
AMENDED AND
RESTATED
2006 NON-EMPLOYEE DIRECTOR STOCK
OPTION PLAN
SECTION 1. GENERAL PURPOSE OF THE
PLAN; DEFINITIONS
The name of the plan is the ZOLL
Medical Corporation Amended and Restated 2006 Non-Employee Director
Stock Option Plan (the “Plan”). The purpose of the Plan
is to promote the interests of ZOLL Medical Corporation, a
Massachusetts corporation (the “Company”), by providing
an inducement to obtain and retain the services of qualified
persons who are not employees or officers of the Company or any
Subsidiary (as defined below) to serve as members of the Board of
Directors of the Company (the “Board”). It is
anticipated that providing such persons with a direct stake in the
Company’s welfare will assure a closer identification of
their interests with those of the Company, thereby stimulating
their efforts on the Company’s behalf and strengthening their
desire to remain with the Company.
The following terms shall be defined
as set forth below:
“Act”
means the Securities Act of 1933, as
amended, and the rules and regulations thereunder.
“Administrator”
is defined in
Section 2(a).
“Change of
Control” is defined
in Section 9.
“Code”
means the Internal Revenue Code of
1986, as amended, and any successor Code, and related rules,
regulations and interpretations.
“Committee” means the Committee of the Board referred to in
Section 2.
“Corporate
Transaction” is
defined in Section 9(b)(iii).
“Effective
Date” means the
date on which the Plan was approved by stockholders as set forth in
Section 11.
“Exchange
Act” means the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder.
“Fair Market
Value” of the Stock
on any given date means the fair market value of the Stock
determined in good faith by the Administrator; provided ,
however , that if the Stock is admitted to quotation on the
National Association of Securities Dealers Automated
Quotation
System (“NASDAQ”), NASDAQ Global
Market or another national securities exchange, the determination
shall be made by reference to market quotations. If there are no
market quotations for such date, the determination shall be made by
reference to the last date preceding such date for which there are
market quotations.
“Incentive Stock
Option” means any
Stock Option designated and qualified as an “incentive stock
option” as defined in Section 422 of the
Code.
“Incumbent
Directors” is
defined in Section 9(b)(ii).
“Non-Employee
Director” means a
member of the Board who is not also an employee of the Company or
any Subsidiary.
“Non-Qualified Stock
Option” means any
Stock Option that is not an Incentive Stock Option.
“Option”
or “Stock Option”
means any option to purchase shares of Stock granted pursuant to
Section 5.
“Sale
Event” is defined
in Section 3(c).
“Sale
Price” is defined
in Section 3(c).
“Section
409A” means
Section 409A of the Code and the regulations and other
guidance promulgated thereunder.
“Stock”
means the Common Stock, par value
$0.01 per share, of the Company, subject to adjustments pursuant to
Section 3.
“Subsidiary” or
“Subsidiaries” means any corporation or other entity (other
than the Company) in which the Company has a controlling interest,
either directly or indirectly.
“Voting
Securities” is
defined in Section 9(b)(i).
SECTION 2. ADMINISTRATION OF
PLAN; ADMINISTRATOR AUTHORITY
(a) Committee . The Plan
shall be administered by either the Board or a committee of not
less than two Non-Employee Directors (in either case, the
“Administrator”).
(b) Powers of Administrator .
The Administrator shall have the power and authority to select the
Non-Employee Directors to whom Options may from time to time be
granted; to determine the time or times of grant, and the extent,
if any, of Options granted to any one or more Non-Employee
Directors; to determine the number of shares of Stock to be covered
by any Option; to at any time to adopt, alter and repeal such
rules, guidelines and practices for administration of the Plan and
for its own acts and proceedings as it shall deem advisable; to
interpret the terms and provisions of the Plan and any Stock Option
(including related written instruments); to make all determinations
it deems advisable for the administration of the Plan; to decide
all disputes arising in connection with the Plan; and to otherwise
supervise the administration of the Plan.
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All decisions and interpretations of
the Administrator shall be binding on all persons, including the
Company and Plan grantees.
(c) Indemnification . Neither
the Administrator, the Board nor the Committee, nor any member of
any of them or any delegatee thereof, shall be liable for any act,
omission, interpretation, construction or determination made in
good faith in connection with the Plan, and the members of the
Administrator, the Board and the Committee (and any delegatee
thereof) shall be entitled in all cases to indemnification and
reimbursement by the Company in respect of any claim, loss, damage
or expense (including, without limitation, reasonable
attorneys’ fees) arising or resulting therefrom to the
fullest extent permitted by law and/or under the Company’s
articles or bylaws or any directors’ and officers’
liability insurance coverage which may be in effect from time to
time and/or indemnification agreement between such individual and
the Company.
SECTION 3. STOCK ISSUABLE UNDER
THE PLAN; MERGERS; SUBSTITUTION
(a) Stock Issuable . The
maximum number of shares of Stock reserved and available for
issuance under the Plan shall be 122,500, subject to adjustment as
provided in Section 3(b). For purposes of this limitation, the
shares of Stock underlying any Options granted hereunder or any
options granted under the Company’s Non-Employee
Director’s Stock Option Plan, originally adopted in 1996 (the
“1996 Plan”), which are forfeited, canceled, reacquired
by the Company, satisfied without the issuance of Stock or
otherwise terminated (other than by exercise) shall be added back
to the shares of Stock available for issuance under the Plan. The
shares available for issuance under the Plan may be authorized but
unissued shares of Stock or shares of Stock reacquired by the
Company and held in its treasury.
(b) Changes in Stock .
Subject to Section 3(c) hereof, if, as a result of any
reorganization, recapitalization, reclassification, stock dividend,
stock split, reverse stock split or other similar change in the
Company’s capital stock, the outstanding shares of Stock are
increased or decreased or are exchanged for a different number or
kind of shares or other securities of the Company, or additional
shares or new or different shares or other securities of the
Company or other non-cash assets are distributed with respect to
such shares of Stock or other securities, or, if, as a result of
any merger or consolidation, sale of all or substantially all of
the assets of the Company, the outstanding shares of Stock are
converted into or exchanged for a different number or kind of
securities of the Company or any successor entity (or a parent or
subsidiary thereof), the Administrator shall make an appropriate or
proportionate adjustment in (i) the maximum number of shares
reserved for issuance under the Plan, (ii) the number of Stock
Options automatically granted to Non-Employee Directors,
(iii) the number and kind of shares or other securities
subject to any then outstanding Stock Options under the Plan, and
(iv) the price for each share subject to any then outstanding
Stock Options under the Plan, without changing the aggregate
exercise price (i.e., the exercise price multiplied by the number
of Stock Options) as to which such Stock Options remain
exercisable. The adjustment by the Administrator shall be final,
binding and conclusive. No fractional shares of Stock shall be
issued under the Plan resulting from any such adjustment, but the
Administrator in its discretion may make a cash payment in lieu of
fractional shares.
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The Administrator may also adjust
the number of shares subject to outstanding Options and the
exercise price and the terms of outstanding Options to take into
consideration material changes in accounting practices or
principles, extraordinary dividends, acquisitions or dispositions
of stock or property or any other event if it is determined by the
Administrator that such adjustment is appropriate to avoid
distortion in the operation of the Plan; provided that no such
adjustment shall be made, without the consent of the grantee, if it
would constitute a modification, extension or renewal of the Option
within the meaning of Section 424(h) of the Code.
(c) Mergers and Other
Transactions . In the case of and subject to the consummation
of (i) the dissolution or liquidation of the Company,
(ii) the sale of all or substantially all of the assets of the
Company on a consolidated basis to an unrelated person or entity,
(iii) a merger, reorganization or consolidation in which the
outstanding shares of Stock are converted into or exchanged for a
different kind of securities of the successor entity and the
holders of the Company’s outstanding voting power immediately
prior to such transaction do not own a majority of the outstanding
voting power of the successor entity immediately upon completion of
such transaction, or (iv) the sale of all of the Stock of the
Company to an unrelated person or entity (in each case, a
“Sale Event”), all Options that are not exercisable
immediately prior to the effective time of the Sale Event shall
become fully exercisable as of the effective time of the Sale
Event. Upon the effective time of the Sale Event, the Plan and all
outstanding Options granted hereunder shall terminate, unless
provision is made in connection with the Sale Event in the sole
discretion of the parties thereto for the assumption or
continuation of Options theretofore granted by the successor
entity, or the substitution of such Options with new Options of the
successor entity or parent thereof, with appropriate adjustment as
to the number and kind of shares and the per share exercise prices,
as such parties shall agree (after taking into account any
acceleration hereunder). In the event of such termination, each
grantee shall be permitted, within a specified period of time prior
to the consummation of the Sale Event as determined by the
Administrator, to exercise all outstanding Options held by such
grantee, including those that will become exercisable upon the
consummation of the Sale Event; provided , however ,
that the exercise of Options not exercisable prior to the Sale
Event shall be subject to the consummation of the Sale
Event.
Notwithstanding anything to the
contrary in this Section 3(c), in the event of a Sale Event
pursuant to which holders of the Stock of the Company will receive
upon consummation thereof a cash payment for each share surrendered
in the Sale Event, the Company shall have the right, but not the
obligation, to make or provide for a cash payment to the grantees
holding Options in exchange for the cancellation thereof, in an
amount equal to the difference between (A) the value as
determined by the Administrator of the consideration payable per
share of Stock pursuant to the Sale Event (the “Sale
Price”) times the number of shares of Stock subject to
outstanding Options (to the extent then exercisable at prices not
in excess of the Sale
