AMENDED AND RESTATED
KEY PERSONNEL INCENTIVE PROGRAM
The SurgiVision, Inc. Amended and Restated Key Personnel Incentive Program (the Program) provides eligible key personnel of the Company (as defined herein) with the opportunity to receive incentive bonus payments (Incentive Payments) upon providing a number of years of service to the Company or upon consummation of a Triggering Event (as defined herein) in accordance with the terms and conditions set forth herein.
The purpose of the Program is to provide designated key employees and consultants with financial rewards in the event of a Triggering Event in order to incentivize such personnel to increase the value of the Company, to secure their continued commitment and dedication to the Company, and to strengthen the mutuality of interests between the key personnel and the stockholders of the Company.
Whenever used herein, the following words and phrases shall have the meanings set forth below:
AAA shall have the meaning as set forth in Section 6.5 herein.
Affiliate of a Person shall mean any other Person that controls, is controlled by, or is under common control with, such Person.
Aggregate Incentive Award shall mean an aggregate positive amount, if any, equal to the Applicable Percentage of the Surplus Amount; provided, however, that in no event shall the Aggregate Incentive Award exceed the Maximum Program Amount.
Applicable Percentage shall mean six percent (6%).
Board shall mean the Board of Directors of the Company.
Bonus Pool has the meaning set forth in Section 3.2 herein.
Cause shall mean, as applicable to each Participant, (a) such Participants commission of an act of fraud, embezzlement, theft or other criminal act against the Company constituting a felony; (b) such Participants willful or wanton disregard of the rules or policies of the Company which results in a material loss, damage or injury to the Company; (c) the repeated failure of a Participant to perform duties consistent with his or her position or to follow or comply with the reasonable directives of the Board or the Participants superior(s) after having been given notice thereof; (d) the material breach of any provision contained in a written non-competition, confidentiality or non-disclosure agreement between the Company and the Participant; or (e) any
other event that allows the Company or its subsidiaries to terminate the employment or consultancy of the Participant for Cause pursuant to a written employment agreement or consulting agreement.
Committee shall mean the Compensation Committee of the Board or such other committee of directors appointed by the Board to administer the Program; provided, however, that to the extent the Board has not appointed any such committee, all references in the Program to the Committee shall be deemed to be references to the Board.
Common Shares shall mean the shares of the Companys common stock on a fully diluted basis (i.e., giving effect to the issuance of all shares issuable upon exercise of options and conversions of convertible securities, etc.) on the date of the consummation of a Triggering Event. For purposes of any determination, the number of Common Shares shall be determined in good faith by the Committee, which determination shall be final and binding on all Persons.
Company shall mean SurgiVision, Inc., a Delaware corporation, including its successor in interest by merger, consolidation or otherwise.
Disability shall mean a Participant (a) is determined to be unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to last for a continuous period of not less than twelve (12) months, or (b) is, 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 twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan sponsored by the Company.
Dispute shall have the meaning as set forth in Section 6.5 herein.
Future Payments Provision shall mean any provision relating to a Sale Transaction that provides for (a) the payment of proceeds of, or from, such Sale Transaction in one or more installments after the consummation of the Sale Transaction, (b) the deposit of any proceeds of, or from, such Sale Transaction into an escrow account (whether such escrow account is established by the Company or any Purchaser), or (c) any earnout, contingent payment, deferred payment or post-closing adjustment payment pursuant to which any proceeds of, or from, such Sale Transaction will be paid in one or more installments after the consummation of such Sale Transaction.
Hurdle Amount shall mean Fifty Million Dollars ($50,000,000).
Incentive Award Agreements shall mean those certain letter agreements, or any of them, from time to time entered into between the Company and Participants pursuant to the Program, as described in Section 3.4 below, as the same may be amended or modified.
Incentive Payments shall have the meaning as set forth in the Introduction herein.
Individual Share shall have the meaning set forth in Section 3.3(b) herein. The sum of the Individual Shares for all Participants, in the aggregate, may be less than, but shall not exceed, one hundred percent (100%).
Involuntary Termination shall mean the termination of a Participants employment or consultancy by the Company other than for Cause.
Maximum Incentive Payment shall mean the positive amount calculated by multiplying the Maximum Program Amount by a Participants Individual Share.
Maximum Program Amount shall mean Three Million Dollars ($3,000,000).
Net Proceeds shall mean the portion of the aggregate cash and non-cash consideration paid or payable in connection with the consummation of a Sale Transaction that is distributed, or otherwise available for distribution, to holders of Common Shares. The fair market value of any securities issued, and any other non-cash consideration and any future payments or consideration to be paid or delivered, in connection with a Sale Transaction will be valued in good faith by the Committee, which determination shall be final and binding on all Persons.
Participant shall mean an individual who (a) is an employee or bona fide consultant of the Company or any of its subsidiaries, (b) is designated by the Committee for an award under the Program, and (c) enters into an Incentive Award Agreement with the Company. The Participants shall be identified on Exhibit A attached hereto, which may be amended from time to time by the Committee to reflect the addition/removal of Participants pursuant to the Program.
Person shall mean an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.
Post-Closing Adjustment Provision shall mean any provision relating to a Sale Transaction that potentially requires the Company and/or its stockholders to reimburse or repay any portion of the proceeds from such Sale Transaction or any other amount to the Purchaser, or to indemnify the Purchaser in any respect.
Program shall have the meaning set forth in the introduction herein.
Purchaser shall mean any Person(s) that acquire(s) the Company pursuant to a Sale Transaction.
Rules shall have the meaning as set forth in Section 6.5 herein.
Sale Transaction shall mean the following: (a) the Company is merged, consolidated or reorganized into or with another corporation or other Person, or securities of the Company are exchanged for securities of another corporation or other Person, and immediately after such merger, consolidation, reorganization or exchange less than a majority of the combined voting power of the then-outstanding securities of such corporation or other Person immediately after such transaction are held, directly or indirectly, in the aggregate by the holders of securities entitled to vote generally in the election of directors of the Company immediately prior to such transaction, or (b) the Company, in any transaction or series of related transactions, sells a substantial portion of its assets to any other corporation or other Person and less than a majority of the combined voting power of the then-outstanding securities of such corporation or other
Person immediately after such sale or sales are held, directly or indirectly, in the aggregate by the holders of securities entitled to vote generally in the election of directors of the Company immediately prior to such sale. For purposes of this definition, a sale of a substantial portion of the Companys assets shall mean the Companys sale of assets having a total gross fair market value equal to or more than 40% of the total gross fair market value of all of the Companys assets immediately prior to such sale.
Service Payment shall have the meaning as set forth in Section 3.1 herein.
Special Individual Payment shall mean any payment (whether in cash or in kind) made, or agreed to be made, to any Participant in connection with the consummation of a Sale Transaction that is (a) reasonably characterized as being compensation primarily for a non-compete or similar agreement with, or for the benefit of, the Purchaser, or (b) a consulting or similar fee that is not reasonably commensurate with the services actually to be performed by the Participant. Notwithstanding the foregoing to the contrary, Special Individual Payments shall not include reasonable salary, bonus, stock options or equity compensation, fringe benefit payments or other compensation payable to a Participant following consummation of a Sale Transaction for services actually to be rendered or performed.
Special Payment Reduction shall have the meaning as set forth in Section 3.3(b) herein.
Surplus Amount shall mean the aggregate positive amount, if any, by which the Net Proceeds from a Triggering Event exceed the Hurdle Amount.
Triggering Event shall mean a Sale Transaction that is consummated during the term of the Program.
Unallocated Portion shall have the meaning as set forth in Section 3.3(b) herein.
Withheld Amount shall have the meaning as set forth in Section 3.5(c)(ii) herein.
The Program shall be administered by the Committee. The Committee shall have the authority to award and grant Incentive Payments, pursuant to the terms of the Program, to employees and bona fide consultants of the Company determined by the Committee to be eligible to participate in the Program. In particular, the Committee shall have the authority, consistent with the terms of the Program: (a) to select the employees and consultants of the Company and its subsidiaries to whom Incentive Payments may be granted from time to time; provided, however, that the Committee shall not grant Incentive Payments to any member of the Committee without the prior approval of the Board; (b) to determine whether a Triggering Event has occurred; (c) to calculate and determine the amount of the Net Proceeds; (d) to determine the amount of Incentive Payments to be granted to Participants; provided however, that the amount of any Incentive Payment shall comply with the limitations set forth in Section 280G of the Internal Revenue Code; (v) to calculate and determine the amount of any Special Individual Payments; (vi) to interpret the terms and provisions of the Program and any award issued under the Program (and any agreements relating thereto); and (vii) to supervise the administration of the Program as described herein or otherwise. Subject to the foregoing, all decisions made by
the Committee pursuant to the provisions of the Program shall be made in the Committees sole discretion and in good faith and shall be final and binding on all Persons.
3. INCENTIVE PAYMENT AMOUNTS
3.1 Payments Upon Completion of Service Requirements. Each Incentive Award Agreement may provide for all or a portion of the Participants Incentive Payment to be paid upon the completion of specified services as an employee or consultant of the Company (a Service Payment).
3.2 Participant Bonus Pool. In the event the Company consummates a Triggering Event, the Company shall allocate the Aggregate Incentive Award to a bonus pool for the Participants (the Bonus Pool).
3.3 Participants Share of Bonus Pool.
Eligibility for Bonus. A Participant shall be eligible to receive payment of his or her Incentive Payment with respect to a Triggering Event as provided in this Section 3.3 if, and only if, the Triggering Event is consummated while the Participant is serving as an employee or consultant of the Company or one of its subsidiaries.
Individual Share. Each Participants Incentive Payment with respect to a Triggering Event shall be specified in the Participants Incentive Award Agreement as a percentage (the Individual Share) of either (i) the Bonus Pool or (ii) the Maximum Program Amount. In either case, the Participants Incentive Payment with respect to a Triggering Event shall be reduced, on a dollar-for-dollar basis, by the amount of Service Payments previously paid to the Participant, if any, so that in no event shall the aggregate amount of all payments of all kinds to Participant exceed his Maximum Incentive Payment. If the aggregate Service Payments already paid to the Participant equal or exceed the amount of the Incentive Payment otherwise payable to the Participant with respect to the Triggering Event (before reduction as described in this Section), then such Incentive Payment shall be zero. Any portion of the Bonus Pool not awarded to Participants pursuant to Incentive Award Agreements as of the date of a Triggering Event (the Unallocated Portion) shall be retained by the Company, and no Participant shall have any right to or claim against such Unallocated Portion. Notwithstanding the foregoing to the contrary, in the event any Participant receives any Special Individual Payment, such Participants Incentive Payment from the Bonus Pool shall be reduced, on a dollar-for-dollar basis, by the corresponding amount of any such Special Individual Payment (the Special Payment Reduction).
3.4 Incentive Award Agreements. Awards made pursuant to the Program, and any Incentive Payments made pursuant to such awards, shall be made in accordance with, and subject to the terms and conditions of, individual Incentive Award Agreements entered into between the Company and each Participant. Each Incentive Award Agreement must be satisfactory to the
Committee in both form and substance.
3.5 Payment of Incentive Payments.
In-Kind Payment. Notwithstanding any provision herein to the contrary, if the Company and/or holders of Common Shares receive (or are to receive) non-cash consideration in connection with a Triggering Event, then the Company may, without obligation, fund the Bonus Pool with cash consideration and non-cash consideration in the same proportion that the Company and/or holders of Common Shares receive (or are to receive) such consideration in connection with the Triggering Event. The fair market value of any securities or other non-cash consideration will be valued in good faith by the Committee, which determination shall be final and binding on all Persons.
No Future Payments Provision or Post-Closing Adjustment Provision. In the event a Triggering Event does not include any Future Payments Provision or Post-Closing Adjustment Provision, then, subject to Section 3.3(b) herein, the Company shall pay (in cash and/or non-cash consideration as described above) each eligible Participant the amount of such Participants Incentive Payment within thirty (30) days following the closing of such Triggering Event and the distribution of the proceeds thereof.
Future Payments Provision and/or Post-Closing Adjustment Provision. In the event the Triggering Event transaction includes any Future Payments Provision and/or Post-Closing Adjustment Provision, then, subject to Section 3.3(b) herein, the Company shall pay the Incentive Payments according to the terms of this Section 3.5(c).
In the event the Triggering Event transaction includes a Future Payments Provision, the Company shall pay (in cash and/or non-cash consideration as described above) each eligible Participant, within thirty (30) days following the closing of such Triggering Event and the distribution of the proceeds thereof, the portion of such Participants Incentive Payment equal to the product obtained by multiplying (A) such Participants Individual Share, by (B) the Aggregate Incentive Award, by (C) the percentage of the total Net Proceeds paid, distributed or delivered to the Company and/or holders of the Common Shares, as applicable, on or about the closing date of the Triggering Event. Thereafter, within thirty (30) days after any additional portion of the Net Proceeds is paid, distributed or delivered to the Company and/or holders of the Common Shares, as applicable, the Company shall pay to such Participant the portion(s) of such Participants remaining Incentive Payment in an amount equal to the product obtained by multiplying (A) such Participants Individual Share, by (B) the Aggregate Incentive Award, by (C) the percentage that such additional portion of the Net Proceeds bears to the total Net Proceeds.
In the event the Triggering Event transaction includes a Post-Closing Adjustment Provision, within thirty (30) days following the closing of such Triggering Event, the Company shall pay (in cash and/or non-cash consideration as described above) each eligible Participant the amount of such Participants Incentive Payment, less an amount that shall take into account the potential adjustment that is the subject of the Post-Closing Adjustment Provision (the Withheld Amount), which amount shall be determined in good faith by the Committee. As soon as practicable after the amount of such adjustment, if any, is known with certainty (as determined by the Committee), the Company shall pay each Participant the Participants prorated portion of the Withheld Amount, less the amount actually reimbursed or paid pursuant to the Post-Closing Adjustment Provision.
Notwithstanding the foregoing, no payment shall be made under this Section 3.5(c) if the Participants Incentive Award Agreement has been terminated under Section 4.1, Section 4.2 or Section 4.3 herein before the date of such payment or if a payment would otherwise be due after March 15 of the year following any termination of the Participants employment or consultancy.
4. TERMINATION OF EMPLOYMENT OR CONSULTANCY; LOSS OF ELIGIBILITY
4.1 Termination for Cause and Voluntary Termination. A Participants Incentive Award Agreement shall immediately and automatically terminate in the event (a) such Participants employment or consultancy is terminated by the Company (or any of its subsidiaries) for Cause, or (b) such Participant voluntarily terminates his or her employment or consultancy or voluntarily reduces the level of his or her employment or consultancy such that Participant is no longer rendering substantial services within the meaning of Treasury Regulation §1.409A-1(d)(1). Upon termination of the Incentive Award Agreement, such Participant shall no longer be eligible to receive any Incentive Payment. For purposes of this Section 4.1, a Participants employment or consultancy shall not be deemed to have been voluntarily terminated by the Participant simply because of a change in the capacity in which the Participant renders services (i.e., a change from employee to consultant, and vice versa), provided the Participant continues to render substantial services within the meaning of Treasury Regulation §1.409A-1(d)(1).
4.2 Involuntary Termination. In the event a Participants employment or consultancy is terminated due to an Involuntary Termination, the Company shall pay to Participant any remaining Service Payments (as set forth in the Participants Incentive Award Agreement) on the earlier of (a) the specified due date thereof or (b) March 15 of the year following the calendar year in which such Involuntary Termination occurred, whereupon such Participants Incentive Award Agreement shall terminate. For purposes of this Section 4.2, a Participants employment or consultancy shall not be deemed to have been terminated due to an Involuntary Termination because of a change in the capacity in which the Participant renders services (i.e., a change from employee to consultant, and vice versa).
4.3 Death or Disability. In the event a Participants employment or consultancy is terminated due to death or Disability, the Company shall pay to the Participant any remaining Service Payments (as set forth in the Participants Incentive Award Agreement) on the earlier of (a) the specified due date thereof or (b) March 15 of the year following the calendar year in which such death or Disability occurred, whereupon such Participants Incentive Award Agreement shall terminate.
At any time prior to the consummation of a Triggering Event, the Committee may amend or alter (a) this Program and/or (b) any or all individual Incentive Award Agreements issued under this Program. Notwithstanding the foregoing, no amendment or alteration of this Program or any individual Incentive Award Agreement shall impair any Participants rights under any Incentive Award Agreement theretofore issued under this Program, without the prior consent of such Participant(s).
6.1 Taxes. Incentive Payments (including, without limitation, any portion thereof that may be paid as Service Payments) are subject to applicable federal, state and local withholding taxes. The Company shall withhold from Incentive Payments payable under the Program all income, employment and payroll taxes which, by applicable federal, state or local law, the Company is required to withhold.
6.2 Employment or Consultancy Status Not Conferred. The adoption of this Program or the receipt of an Incentive Award under this Program shall not confer upon any employee or consultant of the Company or its subsidiaries any right to continued employment or consultancy with the Company or its subsidiaries, as the case may be, nor shall it interfere in any way with the right of Company or its subsidiaries to terminate the employment or consultancy of any of its employees or consultants at any time.
6.3 Governing Law. The Program and all awards made and actions taken thereunder shall be governed by and construed in accordance with the laws of the State of Delaware.
6.4 Successors. In the event of any merger, consolidation or other similar event involving the Company, the provisions of the Program shall be binding upon the surviving or resulting entity of such transaction.
6.5 Arbitration. Any controversy, claim or dispute arising out of, in connection with or relating to this Program or any Incentive Award Agreement (Dispute), which cannot otherwise be resolved through good faith negotiations between the parties, may be submitted by either the Company or the relevant Participant(s) to binding arbitration in accordance with the then prevailing Commercial Arbitration Rules of the American Arbitration Association (the AAA), except as such rules conflict with the provisions of this Section, in which case the provisions of this Section shall control. The Dispute shall be submitted to binding arbitration before three (3) arbitrators in Memphis, Tennessee under the AAAs Commercial Arbitration Rules (the Rules) as modified or supplemented hereby. Within ten (10) days after commencement of any arbitration proceeding, as provided herein, the Company shall choose an
arbitrator, and the relevant Particpant(s) shall choose an arbitrator. Thereafter, a third neutral arbitrator shall be selected by the two (2) arbitrators chosen by the parties. If the arbitrators chosen by the parties cannot agree upon the neutral arbitrator within ten (10) business days after their appointment, then, in any such event, the neutral arbitrator shall be selected, pursuant to the Rules. The costs of the arbitration, including the fees and expenses of the arbitrators, shall be shared equally by the parties, but each party shall be responsible for its own costs, including attorneys and witness fees, incurred by that party in the arbitration proceedings. In rendering an award, the parties agree that the arbitrators shall not have any power or authority to modify any provisions of the Program or any Incentive Award Agreement, and in no event shall the arbitrator have the power or authority to make awards that provide for damages expressly excluded or limited by the same. The arbitration award shall be in writing and shall specify the factual or legal basis for the award. A judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Nothing in this Section shall be construed to prevent any party from instituting legal proceedings to seek a temporary restraining order or other temporary or preliminary injunctive relief to prevent immediate and irreparable harm to such party, and for which monetary damages would be inadequate, pending final resolution of a Dispute pursuant to this Section. Except as necessary in court proceedings to enforce this arbitration provision or an award rendered hereunder or to obtain interim relief, and except as reasonably necessary to comply with any applicable law, rule, regulation of any governmental authority or securities exchange, neither party may, nor may the arbitrator, disclose the existence, content or results of any arbitration hereunder without the prior written consent of both parties. The Federal Arbitration Act, 9 U.S.C. Sections 1 through 14, except as modified hereby, shall govern the interpretation and enforcement of this Section. THE PARTIES ACKNOWLEDGE AND AGREE THAT IN AGREEING TO SUBMIT ALL DISPUTES TO BINDING ARBITRATION, THEY ARE IRREVOCABLY WAIVING ANY AND ALL RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY CLAIM RELATING TO THIS AGREEMENT.
6.6 No Trust. The amounts to be paid in respect of the Program shall not constitute or be treated as a trust of any kind. The Company shall not be required to fund or otherwise segregate assets to be used for the payment of Incentive Payments under the Program. The Company shall make such payments only out of its general assets, and, therefore, the Companys obligation to make such payments shall be subject to any claims of its other creditors having priority as to its assets. The Participants rights under the Program are solely those of general unsecured creditors of the Company and are subject to forfeiture under the terms hereof and under the Participants Incentive Award Agreement. If the Company designates any assets to pay its liabilities hereunder, such assets shall at all times remain the property of the Company, and the Participants shall not have any property interest in such assets.
6.7 Interpretation. The Committee acting in good faith, shall have discretion to interpret the Program and the Incentive Award Agreements. The Committees interpretation and actions hereunder, if made in the exercise of good faith discretion and not in an arbitrary and capricious manner, shall be conclusive and binding upon all Persons for all purposes. Neither the Company nor any of its directors, officers or employees (including members of the Committee) shall be liable to the Participants or any other Person for any action taken in connection with the interpretation of the Program or the Incentive Award Agreement.
6.8 No Right of Equity Ownership. Neither the Program nor any Incentive Award Agreement grants to any Participant any right or privilege of equity ownership in the Company.
6.9 Section 409A Compliance. The provisions of this Program are intended to cause the Program to conform with the requirements of a plan providing only for short-term deferrals as provided in Treasury Regulation §1.409A-1(b)(4), as amended from time to time or to any successor provision, and the provisions of this Program shall be construed in accordance with that intention. If any provision of this Program shall be inconsistent or in conflict with any applicable requirements for a short-term deferral plan, then such requirement shall be deemed to override and supersede the inconsistent or conflicting provision, and any required provision of a short-term deferral plan that is omitted from this Program shall be incorporated herein by reference and shall apply retroactively, if necessary, and be deemed to be a part of this Program to the same extent as though expressly set forth herein. To the extent permissible under Treasury Regulation §1.409A-1(b)(4)(ii), the payments may be delayed within the discretion of the Committee on the following grounds: (a) it is administratively impracticable to make the payment by the regular payment date due to unforeseeable reasons; (b) the payment would jeopardize the Companys ability to continue as a going concern; (c) the payment is reasonably anticipated not to be deductible under Section 162(m) of the Internal Revenue Code due to circumstances that a reasonable person would not have anticipated; or (d) such other grounds as may be from time to time permissible under the foregoing regulation; provided, however, any delayed payment shall be made within the period required under the foregoing regulation.
7. EFFECTIVENESS OF PROGRAM, PROGRAM TERMINATION
This Program shall become effective on September 14, 2006, and shall expire and terminate upon the earlier to occur of (a) December 31, 2015, or (b) the consummation of a Triggering Event; provided, however, that upon any such termination, the terms of the Program (and any Incentive Award Agreements) shall survive to the extent, but only to the extent, necessary for the Company to satisfy its obligations to eligible Participants hereunder that result from such Triggering Event or any unpaid Service Payments.
The following individuals are Participants under the Amended and Restated SurgiVision, Inc. Key Personnel Incentive Program, whose Individual Shares are set forth opposite their names:
As of May 15, 2007
|Participant Name||Individual Share|
|Paul A. Bottomley||33.33%|
As of June 2, 2010, a portion of the above unallocated Individual Share has been allocated as follows:
|Participant Name||Individual Share|
|Paul A. Bottomley||23.33%|