Exhibit
10.4


 


ICU
MEDICAL, INC.


 


2005 LONG TERM
RETENTION PLAN


 


1.             Purpose
of this Plan


 


The
purpose of the ICU Medical, Inc. 2005 Long Term Retention Plan is to
assist ICU Medical, Inc. in motivating and retaining key Employees and
Consultants by providing long term incentive compensation.


 


2.             Definitions
and Rules of Interpretation


 


2.1           Definitions.  This Plan uses the following defined terms:


 


“Adjusted Bonus
Amount” means
the Bonus Amount as adjusted in accordance with Sections 6.1 or 6.2


 


“Administrator”  means the Board or the Committee or Officer to whom
the Board or the Committee delegates authority to administer this Plan.


 


“Affiliate” means a “parent” or “subsidiary” (as
each is defined in Section 424 of the Code) of the Company and any other
entity that the Board or Committee designates as an “Affiliate” for purposes of
this Plan.


 


“Award Certificate” means a certificate in the form of Annex
A to this Plan evidencing the award of an Incentive Bonus and stating the Bonus
Amount, the Trigger Price and the date of the award.


 


“Board” means the board of directors of the
Company.


 


“Bonus Amount” means the dollar amount of an Incentive
Bonus initially determined by the Committee.


 


“Cause” means (i) a Participant’s
intentional, willful and continuous failure to substantially perform his or her
reasonable assigned duties (other than any such failure resulting from
incapacity due to physical or mental illness or any failure after the Participant
gives notice of termination for Good Reason), which failure is materially and
demonstrably injurious to the Company, and which failure is not cured within 30
days after a written demand for substantial performance is received by the Participant
from the Administrator which specifically identifies the manner in which the Administrator
believes the Participant has not substantially performed the Participant’s
duties; (ii) a Participant’s intentional and willful engagement in illegal
conduct or gross misconduct which is materially and demonstrably injurious to
the Company or is intended to result in


 

















 


substantial personal enrichment; or (iii) a
Participant’s conviction for a felony or the Participant’s plea of nolo contendere in connection with a felony indictment.  For purposes of this Definition, no act or
failure to act by a Participant shall be considered “willful” unless it is
done, or omitted to be done, in bad faith and without reasonable belief that
the Participant’s action or omission was in the best interests of the Company.


 


“CEO” means the Chief Executive Officer of the
Company.


 


“Code” means the Internal Revenue Code of 1986.


 


“Committee” means a committee composed of Directors
appointed in accordance with the Company’s charter documents and Section 4.


 


“Company” means ICU Medical, Inc., a Delaware
corporation.


 


“Consultant” means an individual who, directly or as an employee
of any entity that, provides bona fide services in a substantially full-time
basis to the Company or an Affiliate not in connection with the offer or sale
of securities in a capital-raising transaction, but who is not an
Employee.  For the purpose of this
Definition, “substantially full-time basis” shall mean no less than
seventy-five percent of the individual’s productive time (reasonable absences
during holidays, vacations and illness excepted).  A Participant shall not cease to be a
Consultant due to transfers of services between locations of the Company, or
between the Company and an Affiliate.


 


“Director” means a member of the board of directors
of the Company.


 


“Employee” means a regular employee of the Company
or an Affiliate, including an officer, who is treated as an employee in the
personnel records of the Company or an Affiliate, but not individuals who are
classified by the Company or an Affiliate as: (i) leased from or otherwise
employed by a third party, (ii) independent contractors, or (iii) intermittent
or temporary workers.  A Participant
shall not cease to be an Employee due to transfers between locations of the
Company, or between the Company and an Affiliate.


 


“Exchange Act” means the Securities Exchange Act of
1934.


 


“Good Reason” shall have the definition that such term
is expressly given in a then-effective written agreement between the
Participant and the Company or an Affiliate, or in the absence of such
then-effective written agreement and definition, shall be based on, in the
determination of the Administrator, the conditions set forth in Treasury
Regulation Section 1.409A-1(n)(2)(ii).


 


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“Incentive Bonus” means a cash payment made pursuant to
this Plan to a Participant in an amount and at a time determined in accordance
with the terms of this Plan.


 


“Participant” means an Employee or Consultant to whom an Incentive Bonus has been
awarded.


 


“Payment Date” means the date
on which an Incentive Bonus becomes payable as provided in Section 7.1.


 


“Plan” means this 2005 Long Term Retention Plan
of ICU Medical, Inc.


 


“Price Date” as defined in Section 11.5(a).


 


“Stock Price” means the
price of equity securities of the Company determined under Section 11.5.


 


“Termination” means that the Participant has ceased to
be, with or without any cause (including Cause) or reason, an Employee or
Consultant and shall be deemed to occur on the day after the last day on which
the Participant was an Employee or Consultant. 
An event that causes an Affiliate to cease being an Affiliate shall be
treated as the “Termination” of that Affiliate’s Employees and Consultants and
shall be deemed to occur on the day after such event.


 


“Trigger Price” means the
Stock Price of the Company’s common stock established by the Committee for
purposes of determining an adjustment to the Bonus Amount of an Incentive Bonus
pursuant to Section 6.1, as adjusted from time to time pursuant to Section 9.1.


 


2.2           Rules of Interpretation.  Any reference
to a “Section,” without more, is to a Section of this Plan.  Captions and titles are used for convenience
in this Plan and shall not, by themselves, determine the meaning of this
Plan.  Except when otherwise indicated by
the context, the singular includes the plural and vice versa.  Any reference to a statute is also a
reference to the applicable rules and regulations adopted under that
statute.  Any reference to a statute, rule or
regulation, or to a section of a statute, rule or regulation, is a
reference to that statute, rule, regulation, or section as amended from time to
time, both before and after the effective date of this Plan and including any
successor provisions.


 


3.             Term
of this Plan


 


This Plan shall be effective on the date it has been
both adopted by the Board.  This Plan has
no set termination date.  However, it may
be terminated as provided in Section 10.1.


 


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4.             Administration


 


4.1           General


 


(a)           The Board shall have ultimate
responsibility for administering this Plan. 
The Board may delegate certain of its responsibilities to a Committee,
which shall consist of at least three members of the Board, and either the
Board or the Committee may delegate certain of their respective
responsibilities to an Officer designated by the Board or Committee as the “Administrator.”  Where this Plan specifies that an action is
to be taken or a determination made by the Board, only the Board may take that
action or make that determination.  Where
this Plan specifies that an action is to be taken or a determination made by
the Committee, only the Committee may take that action or make that
determination.  Where this Plan
references the “Administrator,” the action may be taken or determination made
by the Board, the Committee or the Administrator.  Moreover, all actions and determinations by
any Administrator are subject to the provisions of this Plan.


 


(b)           So long as the Company has a class of
equity securities listed on The Nasdaq Stock Market, the Committee shall
consist of Directors, each of whom is an “independent director” as defined in
the Rules of The Nasdaq Stock Market; and so long as the Company has
registered and outstanding a class of equity securities under Section 12
of the Exchange Act, the Committee shall consist of Directors, each of whom is
a “Non-Employee Director” as defined in Rule 16b-3 under Section 16(b) of
the Exchange Act and an “outside director” within the meaning of Section 162(m) of
the Code.


 


4.2           Authority to Administer this Plan.


 


(a)           Subject to the other provisions of this
Plan, the Committee shall have the authority to:


 


(i)            select the Participants who will receive Incentive
Bonuses;


 


(ii)           determine the Bonus Amount of each Incentive Bonus;


 


(iii)          determine the Trigger Price for each Incentive Bonus;
and


 


(iv)          award Incentive Bonuses.


 


(b)           Subject to the other provisions of this
Plan, the Administrator shall have the authority to:


 


(i)            issue Award Certificates to Participants;


 


(ii)           interpret this Plan and any document related to this
Plan;


 


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(iii)          correct any defect, remedy any omission, or reconcile
any inconsistency in this Plan or any document related to this Plan;


 


(iv)          adopt, amend, and revoke rules and regulations
under this Plan;


 


(v)           determine whether a transaction or event should be
treated as a Change of Control; and


 


(vi)          make all other determinations the Administrator deems
necessary or advisable for the administration of this Plan.


 


(c)           This Plan is intended to fit within the “short-term
deferral exception” to Section 409A of the Code as described in Treasury
Regulation Section 1.409A-1(b)(4), as amended. To that end, the Plan shall
be interpreted in a manner that reflects that all payments hereunder are
subject to a substantial risk of forfeiture until the first event to occur set
forth in Section 7.1.


 


4.3           Scope of Discretion.  Subject to the last sentence of this Section 4.3,
on all matters for which this Plan confers the authority, right or power on the
Board, the Committee or other Administrator to make decisions, that body may
make those decisions in its sole and absolute discretion.  Moreover, but again subject to the last
sentence of this Section 4.3, in making those decisions the Board, Committee
or other Administrator need not treat all persons eligible to receive Incentive
Bonuses or all Participants the same way. 
However, the discretion of the Board, Committee or other Administrator
is subject to the specific provisions and specific limitations of this Plan, as
well as all rights conferred on specific Participants pursuant to this Plan.


 


5.             Persons
Eligible to Receive Incentive Bonuses; Awards


 


5.1           Eligible Persons.  Incentive Bonuses may be
granted to, and only to, Employees and Consultants determined by the Committee
after advice from and consultation with the CEO to be key members of management
of the Company or key advisors to management of the Company entrusted with
responsibilities that the Committee deems vital to the future success and
growth of the Company.


 


5.2           Awards.  The Committee shall determine, after advice
from and consultation with the CEO, the Bonus Amount of each Incentive Bonus to
be awarded to each Participant selected as provided in Section 5.1;
provided, however, that the Committee shall determine the Bonus Amount of each
Incentive Bonus awarded to the CEO without advice from or consultation with the
CEO.


 


5.3           Trigger Price.  The Committee shall determine the Trigger
Price of each Incentive Bonus at the time that the Incentive Bonus is awarded.


 


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5.4           Award Certificates.  The Administrator shall issue an Award
Certificate to each Participant for each Incentive Bonus.  The Award Certificate, together with this
Plan shall constitute a binding agreement between the Company and the
Participant in accordance with the terms of the Award Certificate and this
Plan.  If there is any conflict between
the terms of an Award Certificate and the terms of this Plan, the terms of this
Plan shall prevail and control.


 


5.5           No Entitlement.  Neither the fact that an Employee or
Consultant has been selected to receive an Incentive Bonus nor the fact that an
Employee or Consultant has previously received one or more Incentive Bonuses
shall entitle the Employee or Consultant to continued employment or engagement
or to any additional award of an Incentive Bonus, and none of the Company, the
Board, the Committee, the Administrator or any Officer shall have any
obligation to award or cause to be awarded an Incentive Bonus to any Employee
or Consultant.


 


6.             Adjustment of Bonus Amounts


 


6.1           Trigger Price Adjustment.  If, at any time between the award of an
Incentive Bonus and its Payment Date, the Stock Price of the Company’s Common
Stock equals or exceeds the Trigger Price of such Incentive Bonus then in
effect for 10 consecutive trading days, the Bonus Amount of such Incentive
Bonus shall be adjusted, and the Adjusted Bonus Amount shall be 150% of the
original Bonus Amount, unless the Bonus Amount is adjusted based on market
capitalization pursuant to Section 6.2 at any time on or before the Payment Date of such
Incentive Bonus, in which case no adjustment shall be made to the
Bonus Amount pursuant to this Section 6.1.


 


6.2           Market Capitalization Adjustment.  If, at any time between the award of an
Incentive Bonus and its Payment Date, the aggregate Stock Price of all of the
Company’s equity securities that are listed or traded on an established stock
exchange or quotation system or quoted by a recognized securities dealer equals
or exceeds $1 billion for 10 consecutive trading days, the Bonus Amount of such
Incentive Bonus shall be adjusted, and the Adjusted Bonus Amount of such
Incentive Bonus shall be 200% of such original Bonus Amount.


 


7.             Payment of Incentive Bonuses


 


7.1           Payment Date.  The Payment Date of each Incentive Bonus will
be the first to occur of:


 


(a)           the sixth anniversary of the
award of the Incentive Bonus or such other date as the Board may designate,
subject to section 7.2(b); or


 


(b)           the day that George A. Lopez
ceases to be the CEO for any reason.


 


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Notwithstanding the
foregoing, with respect to Incentive Bonuses awarded to George A. Lopez, Section 7.1(b) shall
only be applicable to the extent that George A. Lopez is
involuntarily terminated or replaced as the CEO, each without Cause.


 


7.2           Payment.  The Bonus Amount or Adjusted Bonus Amount, as
the case may be, of each Incentive Bonus shall be paid to the Participant to
whom it was awarded not more than 10 days after the Payment Date, subject to
Sections 7.3 (Withholdings) and 8.2 (Leave of Absence) and to the following
conditions:


 


(a)           The Participant was
continuously employed Company or engaged as an Employee or a Consultant by the Company
or an Affiliate from the date of the award of the Incentive Bonus to the
Payment date; and


 


(b)           Payment of such Incentive
Bonus has been approved:


 


(i)            in the case of an Incentive Bonus to a Participant
other than the CEO, by the CEO in his or her sole discretion, provided that if
the Payment Date has occurred as a result of George A. Lopez ceasing to be the
CEO as provided in Section 7.1(b), no such approval by a successor CEO
shall be required; or


 


(ii)           in the case of an Incentive Bonus to the CEO, by the
Committee in its sole discretion, provided that if the Payment Date has
occurred as a result of George A. Lopez being involuntarily terminated or
replaced as the CEO without Cause, with the result that he ceases to be the CEO
as provided in Section 7.1(b), then no such approval by the Committee
shall be required for payment of an Incentive Bonus awarded before such Payment
Date.


 


In
exercising his or her discretion to approve payment of Incentive Bonuses as
provided in clause (i) above, the CEO shall not be required to treat all
Participants or all Incentive Bonuses in the same way.


 


7.3           Withholdings.  All payments to Participants of Incentive
Bonuses that become payable under this Section 7 will be net of all
required federal, state and local income taxes and other required withholdings,
including without limitation any tax imposed on a Participant and required to
be withheld by Code Section 4999.


 


8.             Employment
Relationship


 


8.1           Termination. 
Nothing in this Plan or in any Incentive Bonus Certificate, and no
Incentive Bonus or the fact that an Incentive Bonus will not be payable if a
Termination occurs before the Payment Date, shall interfere with or limit the
right of the Company or any Affiliate to terminate the employment of any
Participant at any time, whether with or without cause (including Cause) or
reason, and with or without the payment of severance or any other compensation
or payment.


 


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8.2           Leave of Absence. 
A personal, military service or medical leave approved by the
Administrator with employment guaranteed upon return shall not constitute a
Termination, and an Incentive Bonus as to which a Payment Date has occurred
during such approved leave of absence will be payable pursuant to the timing
and conditions set forth in Section 7.2.


 


8.3           Consultant Relationship. 
Nothing in this Plan or in any Incentive Bonus Certificate, and no
Incentive Bonus, shall be deemed to create an employment relationship between
the Company and Consultant or any right to continued engagement of the
Consultant by the Company.


 


9.             Certain
Transactions and Events


 


9.1           Changes in Capital Structure.  In the event
of any stock split, reverse stock split, recapitalization, combination or
reclassification of stock, stock dividend, spin-off or similar change to the
capital structure of the Company (not including a Change of Control), the
Administrator shall make whatever adjustment it concludes is appropriate to the
Trigger Price of each Incentive Bonus as to which the Payment Date had not
occurred at or before the date of such event. 
The specific adjustment shall be determined by the Administrator in its
sole and absolute discretion.


 


9.2           Dissolution.  If the Company adopts a plan of dissolution,
the Board may, in its sole and absolute discretion, cause Incentive Bonuses to
be paid on completion of the dissolution. 
The Board need not adopt the same rules for each Incentive Bonus or
each Participant.


 


10.           Amendment
or Termination of this Plan


 


10.1         Amendment and Termination.  The Board may
at any time amend, suspend or terminate this Plan.


 


10.2         Effect.  No amendment, suspension or termination of
this Plan, and no modification of any Incentive Bonus even in the absence of an
amendment, suspension or termination of this Plan, shall impair any existing
contractual rights of any Participant unless the affected Participant consents
to the amendment, suspension, termination or modification.  Termination of this Plan shall not affect the
Administrator’s ability to exercise the powers granted to it under this Plan
with respect to Incentive Bonuses awarded before the termination.


 


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11.           Miscellaneous


 


11.1         No Assignment.  A Participant may not assign, hypothecate or
transfer any Incentive Bonus, Award Certificate, interests in or rights
thereunder, or any interests in or rights under this Plan, and any attempt to
do so shall be null and void and shall result in the immediate forfeiture of
any right to payment of the Incentive Bonus.


 


11.2         Nonexclusivity of this Plan.  This Plan
shall not limit the power of the Company or any Affiliate to adopt other
incentive arrangements including, for example, the grant or issuance of stock
options, stock or other equity-based rights under other plans or independently
of any plan.


 


11.3         Unfunded Plan.  This Plan shall be
unfunded.  Although bookkeeping accounts
may be established with respect to Incentive Bonuses, any such accounts will be
used merely as a convenience.  The
Company shall not be required to segregate any assets on account of this Plan
or the award or payment of Incentive Bonuses. 
The Company and the Administrator shall not be deemed to be a trustee of
cash to be awarded under this Plan.  Any
obligations of the Company to any Participant shall be based solely upon
contracts entered into under this Plan, such as Award Certificates.  No such obligation shall be deemed to be
secured by any pledge or other encumbrance on any assets of the Company.  Neither the Company nor the Administrator
shall be required to give any security or bond for the performance of any such
obligation.


 


11.4         Governing Law.  This Plan and all determinations made and
actions taken under this Plan shall be governed by the substantive laws, but
not the choice of law rules, of the State of Delaware.


 


11.5         Determination of Stock Price.  Stock Price
shall be determined as follows:


 


(a)           Listed Stock. 
If the equity securities of the Company are traded or quoted on any
established stock exchange or quotation system, the Stock Price shall be the
mean between the highest and lowest sales prices for the Shares as quoted on
that stock exchange or system for the date the Stock Price is to be determined
(the “Price Date”) as reported in The  Wall Street Journal
or a similar publication.  If no sales
are reported as having occurred on the Price Date, the Stock Price shall be
that mean closing sales price for the last preceding trading day on which sales
of equity securities of the Company are reported as having occurred.  If no sales are reported as having occurred
during the ten trading days before the Price Date, the Stock Price shall be the
mean between the highest and lowest closing bids for equity securities of the
Company on the Price Date.  If equity securities
of the Company are listed on multiple exchanges or systems, the Stock Price
shall be based on sales or bids on the primary exchange or system on which
equity securities of the Company are traded or quoted.


 


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(b)           Securities Quoted by Securities
Dealer.  If equity securities of the Company are
regularly quoted by a recognized securities dealer but selling prices are not
reported on any established stock exchange or quoted on an established
quotation system, the Stock Price shall be the mean between the high bid and
low asked prices on the Price Date.  If
no prices are quoted for the Price Date, the Stock Price shall be the mean
between the high bid and low asked prices on the last preceding trading day on
which any bid and asked prices were quoted.


 


(c)           No Established Market. 
If equity securities of the Company are not traded on any established
stock exchange or quoted on an established quotation system and are not quoted
by a recognized securities dealer, no Stock Price shall be deemed to exist.


 


11.6         Electronic Communications.  Any Award Certificate, or other document
required or permitted by this Plan may be delivered in writing or, to the
extent determined by the Administrator, electronically.  Signatures may also be electronic if permitted
by the Administrator.


 


Adopted by the Board on: January 29, 2005


 


Effective date of this Plan: January 29, 2005


 


As amended October 19, 2007


 


As further amended and restated on November 24,
2009


 


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Annex A


 


ICU MEDICAL, INC.


 


AWARD CERTIFICATE


 


UNDER


 


2005 LONG TERM RETENTION PLAN


 


To:  [EMPLOYEE NAME]


 


ICU Medical, Inc. has awarded you an Incentive Bonus under its
2005 Long Term Retention Plan as follows:


 


Bonus Amount: 
$00.00


 


Trigger Price: 
$00.00 per share of ICU Medical, Inc. common stock


 


Date of Award: 
[DATE]


 


Payment Date (if paid and subject to Section 7 of the Plan): [DATE]


 


Capitalized terms defined in the 2005 Long Term Retention Plan and used
in this Award Certificate have the meanings ascribed to them in the Plan.  This Award Certificate is subject to and
governed by the terms of the Plan, and if there is any conflict between the
terms of this Award Certificate and the terms of the Plan, the terms of the
Plan shall prevail and control.


 


	
  Executed
  this      day of       ,
  20XX

  ICU
  Medical, Inc.

  	
   

  	
  Agreed
  and accepted this        day of 

                      ,
  20XX  

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Scott
  E. Lamb

  Chief
  Financial Officer

  	
   

  	
  [EMPLOYEE]

  
				



 


Notice to Third Parties


 


The
Participant may not assign, hypothecate or transfer any Incentive Bonus, Award
Certificate, interests in or rights thereunder, or any interests in or rights
under the Plan, and any attempt to do so shall be null and void and shall
result in the immediate forfeiture of any right to payment of the Incentive
Bonus.  Payment of Incentive Bonuses is
discretionary and not assured under the terms of the Plan.