Exhibit 10.1


 


SECOND AMENDMENT TO THE


MERIT MEDICAL SYSTEMS, INC.


2006 LONG-TERM INCENTIVE PLAN


 


THIS SECOND AMENDMENT TO THE
MERIT MEDICAL SYSTEMS, INC. 2006 LONG-TERM INCENTIVE PLAN (this “Amendment”) is
made and adopted effective May 31, 2009 by Merit Medical Systems, Inc.,
contingent upon approval of this Amendment by the shareholders of the Company
not later than May 31, 2009.


 


WHEREAS, Merit Medical
Systems, Inc. (the “Company”) maintains the Merit Medical Systems, Inc.
2006 Long-Term Incentive Plan (the “Plan”) for the benefit of its employees and
the employees of its participating subsidiaries, which Plan the Company
previously amended in 2007; and


 


WHEREAS, it is necessary and
desirable to amend the Plan to increase the number of shares of Company common
stock (“Shares”) authorized for grant under the Plan from 1,500,000 Shares to
3,000,000 Shares and modify the Plan’s definition of “Change in Control” in
certain respects; and


 


WHEREAS, the Company, acting
through its Board of Directors (the “Board”), has reserved the right to amend
the Plan at any time and from time to time, subject to shareholder approval in
the case of certain material modifications;


 


NOW, THEREFORE, contingent
upon approval of this Amendment by the shareholders of the Company not later
than May 31, 2009, the Plan is amended as follows effective May 31,
2009:


 


1.  The first sentence of Section 3.1(a) of
the Plan, setting forth the number of Shares authorized for grant under the
Plan, is amended to read as follows:


 


“(a)                            Subject to adjustment as provided in Section 12.2,
a total of 3,000,000 Shares are authorized for grant under the Plan.”


 


2.  The second sentence of Section 5.7 of
the Plan, relating to the maximum number of Shares with respect to which
incentive stock options may be granted under the Plan is amended to read as
follows:


 


“Solely for purposes of
determining whether Shares are available for the grant of “incentive stock
options” under the Plan, subject to adjustment under Section 12.2, the
maximum aggregate number of Shares with respect to which “incentive stock
options” may be issued under the Plan shall be 3,000,000 Shares.”


 


3.  Paragraph (b) of Section 11.3
of the Plan, relating to the definition of a “Change in Control,” is amended to
read as follows:


 


“(b)                           any “person” (as such term is defined in the
Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of
the Exchange Act) is or becomes a “beneficial owner” (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the Company representing
30% or more of the combined voting power of the Company’s then outstanding
securities eligible to vote for the election of the Board (the “Company Voting
Securities”); provided, however,



 





















 


that the event described in
this paragraph (b) shall not be deemed to be a Change in Control by
virtue of any of the following acquisitions:  (i) by the Company
or any subsidiary, (ii) by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any subsidiary, (iii) by any
underwriter temporarily holding securities pursuant to an offering of such
securities, (iv) pursuant to a Non-Qualifying Transaction, as defined in
paragraph (c) below, or (v) by any person of Voting Securities from
the Company, if a majority of the Incumbent Board approves in advance the
acquisition of beneficial ownership of 30% or more of Company Voting Securities
by such person;”


 


4.  Paragraph (c) of Section 11.3
of the Plan, also relating to the definition of a “Change in Control,” is
amended to read as follows:


 


“(c)                            the consummation of a merger, consolidation,
statutory share exchange or similar form of corporate transaction involving the
Company or any of its subsidiaries that requires the approval of the Company’s
stockholders, whether for such transaction or the issuance of securities in the
transaction (a “Business  Combination”), unless immediately following such
Business Combination:  (i) more than
70% of the total voting power of (A) the corporation resulting from such
Business Combination (the “Surviving  Corporation”), or (B) if applicable, the ultimate
parent corporation that directly or indirectly has beneficial ownership of 100%
of the voting securities eligible to elect directors of the Surviving
Corporation (the “Parent  Corporation”), is represented by Company Voting
Securities that were outstanding immediately prior to such Business Combination
(or, if applicable, is represented by shares into which such Company Voting
Securities were converted pursuant to such Business Combination), and such voting
power among the holders thereof is in substantially the same proportion as the
voting power of such Company Voting Securities among the holders thereof
immediately prior to the Business Combination; (ii) no person (other than
any employee benefit plan (or related trust) sponsored or maintained by the
Surviving Corporation or the Parent Corporation), is or becomes the beneficial
owner, directly or indirectly, of 30% or more of the total voting power of the
outstanding voting securities eligible to elect directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving Corporation);
and (iii) at least a majority of the members of the board of directors of
the Parent Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) following the consummation of the Business Combination were
Incumbent Directors at the time of the Board’s approval of the execution of the
initial agreement providing for such Business Combination (any Business
Combination which satisfies all of the criteria specified in (i), (ii) and
(iii) above shall be deemed to be a “Non-Qualifying  Transaction”);”


 


5.  Paragraph (e) of Section 11.3
of the Plan, allowing the Board to determine in its discretion that additional
events not otherwise described in the Section 11.3 of the Plan constitute
a “Change in Control,” is hereby deleted.


 


6.  The final sentence of Section 11.3
of the Plan, defining a “Change in Control,” is amended to read as follows:


 


“Notwithstanding
the foregoing, a Change in Control shall not be deemed to occur solely because
any person acquires beneficial ownership of more than 30% 


 

















 


of
the Company Voting Securities as a result of the acquisition of Company Voting
Securities by the Company which reduces the number of Company Voting Securities
outstanding; provided, that if after such acquisition by the
Company such person becomes the beneficial owner of additional Company Voting
Securities that increases the percentage of outstanding Company Voting
Securities beneficially owned by such person, a Change in Control of the
Company shall then occur.”


 


7. 
Notwithstanding the foregoing, if the shareholders of the Company fail
to approve this Amendment by May 31, 2009, this Amendment shall be null
and void.  Except as provided above, the terms
of the Plan are hereby ratified and confirmed in all respects.


 


IN WITNESS WHEREOF, the
Company has caused this Amendment to be executed by its duly authorized officer
effective as of May 31, 2009, contingent upon approval of this Amendment
by the shareholders of the Company not later than May 31, 2009.


 


	
   

  	
  MERIT MEDICAL SYSTEMS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kent W. Stanger

  
	
   

  	
  Name:

  	
  Kent W. Stanger

  
	
   

  	
  Title:

  	
  Chief Financial Officer,
  Secretary and Treasurer