Exhibit 10.1

 

PERFORMANCE HEALTH HOLDINGS CORP.

2012 EQUITY INCENTIVE PLAN

 

(FORMERLY PHW HOLDINGS, INC. 2012 EQUITY INCENTIVE PLAN)

 

1.                                      DEFINED TERMS

 

Exhibit A, which is incorporated by reference, defines the terms used in the Plan and sets forth certain operational rules related to those terms.

 

2.                                      PURPOSE

 

The Plan has been established to advance the interests of the Company by providing for the grant to Participants of Stock-based and other incentive Awards.

 

3.                                      ADMINISTRATION

 

The Administrator has discretionary authority, subject only to the express provisions of the Plan, to interpret the Plan; determine eligibility for and grant Awards; determine, modify or waive the terms and conditions of any Award; prescribe forms, rules and procedures; and otherwise do all things necessary to carry out the purposes of the Plan.  Determinations of the Administrator made under the Plan will be conclusive and will bind all parties.

 

4.                                      LIMITS ON AWARDS UNDER THE PLAN

 

(a)                                 Number of Shares.  A maximum of 107,823 shares of Stock may be delivered in satisfaction of Awards under the Plan.  The number of shares of Stock delivered in satisfaction of Awards, for purposes of the preceding sentence, will be determined net of shares of Stock withheld by the Company in payment of the exercise price of the Award or in satisfaction of tax withholding requirements with respect to the Award and, for the avoidance of doubt, without including any shares of Stock underlying Awards that are settled in cash, that otherwise expire or become unexercisable without having been exercised, or that are forfeited to or repurchased by the Company for cash.  To the extent consistent with the requirements of Section 422, Stock issued under awards of an acquired company that are converted, replaced or adjusted in connection with the acquisition will not reduce the number of shares available for Awards under the Plan.  Notwithstanding any provision of the Plan to the contrary, immediately prior to a Covered Transaction, the Board shall grant to those Participants as the Board may determine in consultation with the Chief Executive Officer of the Company participation in a cash bonus plan with an aggregate pre-tax payout to such Participants in an amount equal to the amount that would be paid to such Participants under this Plan if Stock Options equal to the positive difference, if any, between (i) the number set forth in the first sentence of this Section 4(a) and (ii) the sum of (A) the total number of Stock Options outstanding under the Plan on the date of such Covered Transaction (which, for the avoidance of doubt, shall include any shares of Stock that have become available for reissuance pursuant to this Section 4(a)) and (B) the total number of shares of Stock that have been issued in respect of Stock Options that have been exercised prior to the date of such Covered Transaction, had been granted to such Participants immediately prior to a Covered Transaction with an exercise price equal to $10.00, which for the avoidance of doubt reflects a reduction of $90.00 per share in connection with the Company’s 2015 one-time

 











 

cash distribution, and on vesting terms identical to the vesting terms of the Stock Options granted to management on October 11, 2012.  Any payments made pursuant to such cash bonus plan shall be paid at the same times and in the same amounts as if the Participant had been granted Stock Options on the terms of the Stock Options granted to management on October 11, 2012 and the Administrator shall be entitled to make any and all adjustments necessary in respect of the payments under the cash bonus plan to comply with applicable law or to avoid the incurrence of any excise tax under Section 409A.

 

(b)                                 Type of Shares.  Stock delivered by the Company under the Plan may be authorized but unissued Stock or previously issued Stock acquired by the Company.  Fractional shares of Stock may be delivered under the Plan unless the Company has a class of shares registered on a National Securities Exchange.  All Stock issued by the Company under the Plan  will be designated Management Shares and, accordingly, holders of such Management Shares will have the rights and obligations as set forth in the Stockholders Agreement.

 

5.                                      ELIGIBILITY AND PARTICIPATION

 

The Administrator will select Participants from among those key Employees and directors of, and consultants and advisors to, the Company and its subsidiaries who, in the opinion of the Administrator, are in a position to make a significant contribution to the success of the Company and its subsidiaries.  Eligibility for Stock Options is limited to individuals described in the first sentence of this Section 5 who are providing direct services on the date of grant of the Stock Option to the Company or to a subsidiary of the Company that would be described in the first sentence of Treas. Regs. §1.409A-1(b)(5)(iii)(E).

 

6.                                      RULES APPLICABLE TO AWARDS

 

(a)                                 All Awards.

 

(1)                                 Award Provisions.  The Administrator will determine the terms of all Awards, subject to the limitations provided herein.  By accepting (or, under such rules as the Administrator may prescribe, being deemed to have accepted) an Award, the Participant shall be deemed to have agreed to the terms of the Award and the Plan.  Notwithstanding any provision of this Plan to the contrary, awards of an acquired company that are converted, replaced or adjusted in connection with the acquisition may contain terms and conditions that are inconsistent with the terms and conditions specified herein, as determined by the Administrator.

 

(2)                                 Term of Plan.  No Awards may be made after September 30, 2022, but previously granted Awards may continue beyond that date in accordance with their terms.

 

(3)                                 Transferability.  Except as the Administrator otherwise expressly provides in accordance with the second sentence of this Section 6(a)(3), no Award may be transferred other than by will or by the laws of descent and distribution and, except as the Administrator otherwise expressly provides in accordance with the second sentence of this Section 6(a)(3), Awards requiring exercise may be exercised only by the Participant or, following death of the Participant, by the Participant’s estate pursuant to Section 6(a)(4)(C). The Administrator may permit Awards to be transferred by gift, subject to the terms of the

 

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Stockholders Agreement, to the extent applicable, and such other limitations as the Administrator may impose.

 

(4)                                 Vesting, etc.  The Administrator may determine the time or times at which an Award will vest or become exercisable and the terms on which an Award requiring exercise will remain exercisable.  Without limiting the foregoing, the Administrator may at any time accelerate the vesting or exercisability of an Award, regardless of any adverse or potentially adverse tax or other consequences resulting from such acceleration.  Unless the Administrator expressly provides otherwise, however, the following rules will apply if a Participant’s Employment ceases:

 

(A)                               Immediately upon the cessation of the Participant’s Employment, each Award requiring exercise that is then held by the Participant or by the Participant’s permitted transferees, if any, will cease to be exercisable and will terminate, except to the extent otherwise provided in (B), (C), (D) or (E) below, and all other Awards that are then held by the Participant or by the Participant’s permitted transferees, if any, to the extent not already vested will be forfeited.

 

(B)                               Subject to (C), (D), (E) and (F) below, all Stock Options and SARs held by the Participant or the Participant’s permitted transferees, if any, immediately prior to the cessation of the Participant’s Employment, to the extent then exercisable, will remain exercisable for the lesser of (i) a period of thirty (30) days or (ii) the period ending on the latest date on which such Stock Option or SAR could have been exercised without regard to this Section 6(a)(4), and will thereupon immediately terminate.

 

(C)                               All Stock Options and SARs held by a Participant or the Participant’s permitted transferees, if any, immediately prior to the Participant’s death, to the extent then exercisable, will remain exercisable for the lesser of (i) the one (1) year period ending with the first anniversary of the Participant’s death, or (ii) the period ending on the latest date on which such Stock Option or SAR could have been exercised without regard to this Section 6(a)(4), and will thereupon immediately terminate.

 

(D)                               All Stock Options and SARs held by a Participant or the Participant’s permitted transferees, if any, immediately prior to termination of Employment by reason of the Participant’s disability, to the extent then exercisable, will remain exercisable for the lesser of (i) the three month (3) period immediately following the termination of the Participant’s Employment as a result of such disability, or (ii) the period ending on the latest date on which such Stock Option or SAR could have been exercised without regard to this Section 6(a)(4), and will thereupon immediately terminate.

 

(E)                                All Stock Options and SARs held by a Participant or the Participant’s permitted transferees, if any, immediately prior to termination of the Participant’s Employment by the Company other than for Cause to the extent then exercisable, will remain exercisable for the lesser of (i) a period of ninety (90) days, or (ii) the period ending on the latest date on which such Stock Option or SAR could have been

 

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exercised without regard to this Section 6(a)(4), and will thereupon immediately terminate.

 

(F)                                 All Stock Options and SARs (whether or not vested) held by a Participant or the Participant’s permitted transferees, if any, immediately prior to the cessation of the Participant’s Employment will immediately terminate upon such cessation if the Administrator in its sole discretion determines that such cessation of Employment has resulted for reasons which cast such discredit on the Participant as to justify immediate termination of the Award/in connection with an act or failure to act constituting Cause or such Participant’s Employment could have been terminated for Cause (without regard to the lapsing of any required notice or cure periods in connection therewith) at the time such Participant terminated Employment.

 

(5)                                 Competing Activity.  The Administrator may cancel, rescind, withhold or otherwise limit or restrict any Award at any time if the Participant is not in compliance with all applicable provisions of the Award agreement and the Plan, or if the Participant breaches any agreement with the Company or its Affiliates with respect to non-competition, non-solicitation or confidentiality.

 

(6)                                 Taxes.  The delivery, vesting and retention of Stock under an Award are conditioned upon full satisfaction by the Participant of all tax withholding requirements with respect to the Award.  The Administrator will prescribe such rules for the withholding of taxes as it deems necessary.  The Administrator may, but need not, hold back shares of Stock from an Award or permit a Participant to tender previously owned shares of Stock in satisfaction of tax withholding requirements (but not in excess of the minimum withholding required by law).

 

(7)                                 Dividend Equivalents, etc.  The Administrator may provide for the payment of amounts (on terms and subject to conditions established by the Administrator) in lieu of cash dividends or other cash distributions with respect to Stock subject to an Award whether or not the holder of such Award is otherwise entitled to share in the actual dividend or distribution in respect of such Award.  Any entitlement to dividend equivalents or similar entitlements shall be established and administered either consistent with an exemption from, or in compliance with, the requirements of Section 409A.  In addition, any amounts payable in respect of Restricted Stock or Restricted Stock Units may be subject to such limits or restrictions as the Administrator may impose.

 

(8)                                 Rights Limited.  Nothing in the Plan will be construed as giving any person the right to continued employment or service with the Company or its Affiliates, or any rights as a stockholder except as to shares of Stock actually issued under the Plan.  The loss of existing or potential profit in Awards will not constitute an element of damages in the event of termination of Employment for any reason, even if the termination is in violation of an obligation of the Company or any Affiliate to the Participant.

 

(9)                                 Coordination with Other Plans.  Awards under the Plan may be granted in tandem with, or in satisfaction of or substitution for, other Awards under the Plan or awards made under other compensatory plans or programs of the Company or its subsidiaries.  For example, but without limiting the generality of the foregoing, awards under other compensatory

 

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plans or programs of the Company or its subsidiaries may be settled in Stock (including, without limitation, Unrestricted Stock) if the Administrator so determines, in which case the shares delivered will be treated as awarded under the Plan (and will reduce the number of shares thereafter available under the Plan in accordance with the rules set forth in Section 4).

 

(10)                          Section 409A.  Each Award may contain such terms as the Administrator determines, and shall be construed and administered, such that the Award either (i) qualifies for an exemption from the requirements of Section 409A, or (ii) satisfies such requirements.

 

(11)                          Certain Requirements of Corporate Law.  Awards shall be granted and administered consistent with the requirements of applicable Delaware law relating to the issuance of stock and the consideration to be received therefor, and with the applicable requirements of the stock exchanges or other trading systems on which the Stock is listed or entered for trading, in each case as determined by the Administrator.

 

(12)                          Fair Market Value.  In determining the fair market value of any share of Stock under the Plan, the Administrator shall make the determination in good faith consistent with the rules of Section 422 and Section 409A to the extent applicable.

 

(13)                          Stockholders Agreement.  Unless otherwise specifically provided, all Awards issued under the Plan and all Stock issued thereunder will be subject to the Stockholders Agreement to the extent applicable.  No Award will be granted to a Participant and no Stock will be delivered to a Participant, in either case, until the Participant has executed the Stockholders Agreement.  If, notwithstanding this Section (6)(a)(13), a Participant fails to execute the Stockholders Agreement but nevertheless receives Stock Options, upon exercise of such Stock Options, such Participant shall be deemed to have executed the Stockholders Agreement as a holder of Management Shares and thereafter be subject to all of its provisions as such a holder with respect to the shares of the Company’s Stock that he or she received upon the exercise of such Stock Options.

 

(b)                                 Awards Requiring Exercise.

 

(1)                                 Time And Manner Of Exercise.  Unless the Administrator expressly provides otherwise, an Award requiring exercise by the holder will not be deemed to have been exercised until the Administrator receives a notice of exercise (in form acceptable to the Administrator), which may be an electronic notice, signed (including electronic signature in form acceptable to the Administrator) by the appropriate person and accompanied by any payment required under the Award.  If the Award is exercised by any person other than the Participant, the Administrator may require satisfactory evidence that the person exercising the Award has the right to do so.

 

(2)                                 Exercise Price.  The exercise price (or the base value from which appreciation is to be measured) of each Award requiring exercise will be 100% of the fair market value of the Stock subject to the Award, determined as of the date of grant, or such higher amount as the Administrator may determine in connection with the grant.  Awards, once granted, may be repriced only in accordance with the applicable requirements of this Plan, including Section 9.

 

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(3)                                 Payment Of Exercise Price.  Where the exercise of an Award is to be accompanied by payment, payment of the exercise price shall be by cash or check acceptable to the Administrator, or, if so permitted by the Administrator and if legally permissible, (i) through the delivery of unrestricted shares of Stock that have a fair market value equal to the exercise price, subject to such minimum holding period requirements, if any, as the Administrator may prescribe, (ii) at such time, if any, as the Stock is publicly traded, through a broker-assisted exercise program acceptable to the Administrator, (iii) by other means acceptable to the Administrator, or (iv) by any combination of the foregoing permissible forms of payment.  No Award requiring exercise or portion thereof may be exercised unless, at the time of exercise, the fair market value of the shares of Stock subject to such Award or portion thereof exceeds the exercise price for the Award or such portion.  The delivery of shares in payment of the exercise price under clause (i) of the preceding sentence may be accomplished either by actual delivery or by constructive delivery through attestation of ownership, subject to such rules as the Administrator may prescribe.

 

(4)                                 Maximum Term.  Awards requiring exercise will have a maximum term not to exceed ten (10) years from the date of grant.

 

7.                                      EFFECT OF CERTAIN TRANSACTIONS

 

(a)                                 MERGERS, ETC.

 

Except as otherwise provided at the time of grant, in the event of a Covered Transaction, the following rules shall apply:

 

(1)                                 Subject to paragraph (2) below, all outstanding Awards will cease to be exercisable (after any payment or other consideration deemed equitable by the Board for the termination of any vested portion of any Award is made) as of the effective time of the Covered Transaction, provided that the Board may in its sole discretion at or prior to the effective time of the Covered Transaction, (i) make any outstanding Options exercisable in part or in full, (ii) remove any performance or other conditions or restrictions on any Awards, and/or (iii) in the event of a Covered Transaction under the terms of which holders of the Stock of the Company will receive upon consummation thereof a payment (whether cash, non-cash or a combination of the foregoing) for each such share surrendered in the Covered Transaction, make or provide for a payment (whether cash, non-cash or a combination of the foregoing) to the Participant equal to the difference between (A) the fair market value of the Stock (such value to be determined by the Board in its reasonable discretion taking into account such factors as it deems appropriate including without limitation the consideration, if any, paid in such Covered Transaction) times the number of shares of Stock subject to outstanding Awards (to the extent then exercisable at prices not in excess of the fair market value) and (B) the aggregate exercise price of all such outstanding Awards, in exchange for the termination of such Award by action of the Board which may be reflected in a resolution or in a Stock Option certificate or similar instrument or agreement; or

 

(2)                                 With respect to an outstanding Award held by a Participant, the Board may at or prior to the effective time of the Covered Transaction, in its sole discretion and in lieu of the action described in paragraph 1 above, arrange to have such surviving or acquiring entity

 

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or affiliate assume or continue any Award held by such Participant outstanding hereunder or grant a replacement Award which, in the judgment of the Board, is substantially equivalent to any Award being replaced.

 

(3)                                 The Administrator may require that any amounts delivered, exchanged or otherwise paid in respect of such Stock in connection with the Covered Transaction be placed in escrow or otherwise made subject to such restrictions as the Administrator deems appropriate to carry out the intent of the Plan.

 

(b)                                 Changes in and Distributions With Respect to Stock.

 

(1)                                 Basic Adjustment Provisions.  In the event of a stock dividend, stock split or combination of shares (including a reverse stock split), recapitalization or other change in the Company’s capital structure that constitutes an equity restructuring within the meaning of SFAS No. 123(R), the Administrator shall make appropriate adjustments to the maximum number of shares specified in Section 4(a) that may be delivered under the Plan and shall also make appropriate adjustments to the number and kind of shares of stock or securities subject to Awards then outstanding or subsequently granted, any exercise prices relating to Awards and any other provision of Awards affected by such change.

 

(2)                                 Certain Other Adjustments.  The Administrator may also make adjustments of the type described in Section 7(b)(1) above to take into account distributions to stockholders other than those provided for in Sections 7(a) and 7(b)(1), or any other event, if the Administrator determines that adjustments are appropriate to avoid distortion in the operation of the Plan and to preserve the value of Awards made hereunder, having due regard for the requirements of Section 409A, where applicable.

 

(3)                                 Continuing Application of Plan Terms.  References in the Plan to shares of Stock will be construed to include any stock or securities resulting from an adjustment pursuant to this Section 7.

 

8.                                      LEGAL CONDITIONS ON DELIVERY OF STOCK

 

The Company will not be obligated to deliver any shares of Stock pursuant to the Plan or remove any restriction from shares of Stock previously delivered under the Plan until:  (i) the Company is satisfied that all legal matters in connection with the issuance and delivery of such shares have been addressed and resolved; (ii) if the outstanding Stock is at the time of delivery listed on any stock exchange or national market system, the shares to be delivered have been listed or authorized to be listed on such exchange or system upon official notice of issuance; and (iii) all conditions of the Award have been satisfied or waived.  If the sale of Stock has not been registered under the Securities Act, the Company may require, as a condition to exercise of the Award, such representations or agreements as counsel for the Company may consider appropriate to avoid violation of the Securities Act or any applicable state or foreign securities laws.  The Company may require that certificates evidencing Stock issued under the Plan bear an appropriate legend reflecting any restriction on transfer applicable to such Stock, and the Company may hold the certificates pending lapse of the applicable restrictions.

 

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9.                                      AMENDMENT AND TERMINATION

 

The Administrator may at any time or times amend the Plan or any outstanding Award for any purpose which may at the time be permitted by law, and may at any time terminate the Plan as to any future grants of Awards; provided, that except as otherwise expressly provided in the Plan the Administrator may not, without the Participant’s consent, alter the terms of an Award so as to affect materially and adversely the Participant’s rights under the Award, unless the Administrator expressly reserved the right to do so at the time the Award was granted.  Notwithstanding the foregoing, the Administrator cannot amend the penultimate sentence of Section 4(a) without the prior written approval of the Chief Executive Officer of the Company.  Any amendments to the Plan will be conditioned upon stockholder approval only to the extent, if any, such approval is required by law (including the Code), as determined by the Administrator.

 

10.                               OTHER COMPENSATION ARRANGEMENTS

 

The existence of the Plan or the grant of any Award will not in any way affect the Company’s right to Award a person bonuses or other compensation in addition to Awards under the Plan.

 

11.                               MISCELLANEOUS

 

(a)                                 Waiver of Jury Trial.  By accepting an Award under the Plan, each Participant waives any right to a trial by jury in any action, proceeding or counterclaim concerning any rights under the Plan and any Award, or under any amendment, waiver, consent, instrument, document or other agreement delivered or which in the future may be delivered in connection therewith, and agrees that any such action, proceedings or counterclaim shall be tried before a court and not before a jury.  By accepting an Award under the Plan, each Participant certifies that no officer, representative, or attorney of the Company has represented, expressly or otherwise, that the Company would not, in the event of any action, proceeding or counterclaim, seek to enforce the foregoing waivers.

 

(b)                                 Limitation of Liability.  Notwithstanding anything to the contrary in the Plan, neither the Company, nor any Affiliate, nor the Administrator, nor any person acting on behalf of the Company, any Affiliate, or the Administrator, will be liable to any Participant or to the estate or beneficiary of any Participant or to any other holder of an Award by reason of any acceleration of income, or any additional tax (including any interest and penalties), asserted by reason of the failure of an Award to satisfy the requirements of Section 422 or Section 409A or by reason of Section 4999 of the Code, or otherwise asserted with respect to the Award; provided, that nothing in this Section 11(b) will limit the ability of the Administrator or the Company, in its discretion, to provide by separate express written agreement with a Participant for a gross-up payment or other payment in connection with any such acceleration of income or additional tax.

 

12.                               ESTABLISHMENT OF SUB-PLANS

 

The Board may from time to time establish one or more sub-plans under the Plan for purposes of satisfying applicable blue sky, securities or tax laws of various jurisdictions.  The Board will establish such sub-plans by adopting supplements to the Plan setting forth (i) such

 

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limitations on the Administrator’s discretion under the Plan as the Board deems necessary or desirable and (ii) such additional terms and conditions not otherwise inconsistent with the Plan as the Board deems necessary or desirable.  All supplements adopted by the Board will be deemed to be part of the Plan, but each supplement will apply only to Participants within the affected jurisdiction and the Company will not be required to provide copies of any supplement to Participants in any jurisdiction that is not affected.

 

13.                               GOVERNING LAW

 

Except as otherwise provided by the express terms of an Award agreement or under a sub-plan described in Section 12, the provisions of the Plan and of Awards under the Plan and all claims or disputes arising out of our based upon the Plan or any Award under the Plan or relating to the subject matter hereof or thereof will be governed by and construed in accordance with the domestic substantive laws of the State of Delaware without giving effect to any choice or conflict of laws provision or rule that would cause the application of the domestic substantive laws of any other jurisdiction.

 

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EXHIBIT A

 

Definition of Terms

 

The following terms, when used in the Plan, will have the meanings and be subject to the provisions set forth below:

 

“Administrator”:  The Board, except that the Board may delegate its authority under the Plan to a committee of the Board (or one or more members of the Board), in which case references herein to the Board will refer to such committee (or members of the Board).  The Board may delegate (i) to one or more of its members such of its duties, powers and responsibilities as it may determine; (ii) to one or more officers of the Company the power to grant rights or options to the extent permitted by Section 157(c) of the Delaware General Corporation Law; and (iii) to such Employees or other persons as it determines such ministerial tasks as it deems appropriate.  In the event of any delegation described in the preceding sentence, the term “Administrator” will include the person or persons so delegated to the extent of such delegation.

 

“Affiliate”:  Any corporation or other entity that would be treated as an “Affiliate” of the Company under the terms of the Stockholders Agreement or that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the Company.

 

“Award”:  Any or a combination of the following:

 

(i)                                     Stock Options.

 

(ii)                                  SARs.

 

(iii)                               Restricted Stock

 

(iv)                              Unrestricted Stock.

 

(v)                                 Stock Units, including Restricted Stock Units.

 

(vi)                              Performance Awards.

 

(vii)                           Awards (other than Awards described in (i) through (vi) above) that are convertible into or otherwise based on Stock.

 

“Board”:  The Board of Directors of the Company.

 

“Cause”:  Cause has the meaning set forth in the Stockholders Agreement, or if such Stockholders Agreement has been terminated, its replacement, or if there is no such Stockholders Agreement then in effect, as such term is defined by the Administrator.  Notwithstanding the foregoing, if a Participant is party to an employment, severance-benefit, change in control or similar agreement with the Company or any subsidiary of the Company that contains a definition

 

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of “Cause” (or a correlative term), such definition will apply (in the case of such Manager) in lieu of the definition above.

 

“Code”:  The U.S.  Internal Revenue Code of 1986 as from time to time amended and in effect, or any successor statute as from time to time in effect.

 

“Company”:  Performance Health Holdings Corp. (formerly known as PHW Holdings, Inc.), a Delaware corporation.

 

“Covered Transaction”:  Any transaction or series of related transactions that results in (a) any change in the ownership of the capital stock of the Company, whether by purchase, exchange, tender offer, merger, consolidation, recapitalization or otherwise, if, immediately after giving effect thereto, any Person (or group of Persons acting in concert) other than the Investors and their Affiliates will have the direct or indirect power to elect a majority of the members of the Board; (b) any change in the ownership of the capital stock of the Company if, immediately after giving effect thereto, the Investors and their Affiliates own less than 50% of the outstanding shares of common stock (including Stock) of the Company, provided that any sale of shares of common stock of the Company (including Stock) by the Investors or their Affiliates upon or following an IPO in the open market or pursuant to Rule 144 of the Securities Act, either alone or taken together, will not result in the occurrence of a Covered Transaction; or (c) the sale or transfer of all or substantially all the Company’s and its subsidiaries’ assets and following such sale or transfer, there is a liquidation of the Company.

 

“Employee”:  Any person who is employed by the Company or by a subsidiary of the Company.

 

“Employment”:  A Participant’s employment or other service relationship with the Company and its subsidiaries.  Employment will be deemed to continue, unless the Administrator expressly provides otherwise, so long as the Participant is employed by, or otherwise is providing services in a capacity described in Section 5 to the Company or one of its subsidiaries.  If a Participant’s employment or other service relationship is with a subsidiary and that entity ceases to be a subsidiary of the Company, the Participant’s Employment will be deemed to have terminated when the entity ceases to be a subsidiary of the Company unless the Participant transfers Employment to the Company or one of its remaining subsidiaries.  Notwithstanding the foregoing, in construing the provisions of any Award relating to the payment of “nonqualified deferred compensation” (subject to Section 409A) upon a termination or cessation of Employment, references to termination or cessation of employment, separation from service, retirement or similar or correlative terms shall be construed to require a “separation from service” (as that term is defined in Section 1.409A-l(h) of the Treasury Regulations) from the Company and from all other corporations and trades or businesses, if any, that would be treated as a single “service recipient” with the Company under Section 1.409A-1(h)(3) of the Treasury Regulations.  The Company may, but need not, elect in writing, subject to the applicable limitations under Section 409A, any of the special elective rules prescribed in Section 1.409A-l(h) of the Treasury Regulations for purposes of determining whether a “separation from service” has occurred.  Any such written election shall be deemed a part of the Plan.

 

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“Initial Public Offering” or “IPO” shall mean the first completion of a sale of shares of common stock (including Stock) of the Company pursuant to a registration statement which has become effective under the Securities Act of 1933, as amended (excluding registration statements on Form S-4, S-8 or similar limited purpose forms), in which the shares of common stock (including Stock) of the Company shall be listed and traded on a national exchange.

 

“Investors” has the meaning set forth in the Stockholders Agreement.

 

“Management Shares”:  has the meaning of “Shares” as such term is defined in the Stockholders Agreement.

 

“National Securities Exchange”:  A securities exchange that has registered with the U.S.  Securities and Exchange Commission under Section 6 of the Securities Exchange Act of 1934.

 

“Participant”:  A person who is granted an Award under the Plan.

 

“Performance Award”:  An Award subject to specified criteria, other than the mere continuation of Employment or the mere passage of time, the satisfaction of which is a condition for the grant, exercisability, vesting or full enjoyment of the Award.

 

“Plan”:  The Performance Health Holdings Corp.  2012 Equity Incentive Plan, which was originally effective as of October 11, 2012 and which has been amended and restated effective as of [DATE, 2015] and as from time to time amended and in effect.

 

“Person” shall mean any individual, partnership, corporation, association, limited liability company, trust, joint venture, unincorporated organization or entity, or any government, governmental department or agency or political subdivision thereof.

 

“Restricted Stock”:  Stock subject to restrictions requiring that it be redelivered or offered for sale to the Company if specified conditions are not satisfied.

 

“Restricted Stock Unit”:  A Stock Unit that is, or as to which the delivery of Stock or cash in lieu of Stock is, subject to the satisfaction of specified performance or other vesting conditions.

 

“SAR”:  A right entitling the holder upon exercise to receive an amount (payable in cash or in shares of Stock of equivalent value) equal to the excess of the fair market value of the shares of Stock subject to the right over the base value from which appreciation under the SAR is to be measured.

 

“Section 409A”:  Section 409A of the Code.

 

“Section 422”:  Section 422 of the Code.

 

“Securities Act”:  Securities Act of 1933, as amended.

 

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“Stock”:  Non-Voting Common Stock of the Company, par value $0.001 per share; provided, that upon and following an IPO, “Stock” shall mean voting Common Stock of the Company.

 

“Stock Option”:  An option entitling the holder to acquire shares of Stock upon payment of the exercise price, where such option is not an “incentive stock option” within the meaning of Section 422.

 

“Stock Unit”:  An unfunded and unsecured promise, denominated in shares of Stock, to deliver Stock or cash measured by the value of Stock in the future.

 

“Stockholders Agreement”:  the Stockholders Agreement dated as of October 11, 2012, among the Company and certain stockholders and Participants, as amended or modified from time to time.

 

“Unrestricted Stock”:  Stock not subject to any restrictions under the terms of the Award.

 

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