Attached files
file | filename |
---|---|
10-Q - CMC 10-Q FILED 02-08-10 - CMC Materials, Inc. | cmc10qfiled020810.htm |
EX-31.1 - EXHIBIT 31.1 - CMC Materials, Inc. | exhibit31_1.htm |
EX-10.22 - EXHIBIT 10.22 - CMC Materials, Inc. | exhibit10_22.htm |
EX-10.57 - EXHIBIT 10.57 - CMC Materials, Inc. | exhibit10_57.htm |
EX-32.1 - EXHIBIT 32.1 - CMC Materials, Inc. | exhibit32_1.htm |
EX-31.2 - EXHIBIT 31.2 - CMC Materials, Inc. | exhibit31_2.htm |
Exhibit
10.15
Cabot Microelectronics
Corporation
2007 Employee Stock Purchase
Plan
(as Amended and Restated
January 1, 2010)
ARTICLE
I
INTRODUCTION
1.01
|
Purpose. The
purpose of the Cabot Microelectronics Corporation Employee Stock Purchase
Plan (the “Plan”) is to provide employees of Cabot Microelectronics
Corporation (the “Company”) and its Designated Subsidiary Corporations
with an opportunity to purchase Common Stock of the Company through
accumulated payroll deductions.
|
1.02
|
Rules of
Interpretation. It is the intention of the Company to
have the Plan qualify as an “employee stock purchase plan” under Section
423 of the Internal Revenue Code of 1986, as amended (the “Code”), and the
provisions of the Plan, accordingly, shall be construed so as to extend
and limit participation in a manner consistent with the requirements of
that section of the Code; provided, however, that the Committee shall have
the discretion to cause the options granted in one or more Offering
Periods under the Plan to be options to which Section 423 of the Code does
not apply.
|
ARTICLE
II
DEFINITIONS
2.01
|
“Board” shall
mean the Board of Directors of the
Company.
|
2.02
|
“Change in
Capitalization” shall mean any increase or reduction in the number
of shares of Common Stock, or any change (including, but not limited to,
in the case of a spin-off, dividend or other distribution in respect of
shares of Common Stock, a change in value) in the shares of Common Stock
or exchange of shares of Common Stock for a different number or kind of
shares, other equity interests or other property of the Company or another
entity, by reason of a reclassification, recapitalization, merger,
consolidation, reorganization, spin-off, split-up, issuance of warrants or
rights or debentures, stock dividend, stock split or reverse stock split,
cash dividend, property dividend, combination or exchange of shares,
repurchase of shares, change in corporate structure or
otherwise.
|
2.03
|
“Change in
Control” shall be as defined in Appendix
A.
|
2.04
|
“Code” shall
mean the Internal Revenue Code of 1986, as
amended.
|
2.05
|
”Common Stock”
shall mean the Common Stock of the
Company.
|
2.06
|
“Company” shall
mean Cabot Microelectronics Corporation, a Delaware
corporation.
|
2.07
|
“Compensation”
shall mean the gross cash compensation (including base salary, shift
premium, overtime earnings and cash bonuses exclusive of relocation and
sign-on bonuses) paid by the Company or a Designated Subsidiary
Corporation in accordance with the terms of employment, but excluding all
bonus payments, expense allowances and compensation paid in a form other
than cash.
|
2.08
|
“Committee”
shall mean the committee described in Article
XI.
|
2.09
|
“Designated Subsidiary
Corporation” shall mean any Subsidiary of the Company which has
been designated by the Committee from time to time in its sole discretion
as eligible to participate in the
Plan.
|
2.10
|
“Employee” shall
mean any individual who is a common law employee of the Company or a
Designated Subsidiary Corporation for tax purposes whose customary
employment with the Company is at least twenty (20) hours per week and
more than five (5) months in any calendar
year.
|
2.11
|
“Enrollment
Date” shall mean the first day of each Offering
Period.
|
2.12
|
“Exercise Date”
shall mean the last day of each Offering
Period.
|
2.13
|
“Fair Market
Value” shall mean, as of any date, the value of a share of Common
Stock determined as follows:
|
2.13.1
|
If
the Common Stock is listed on any established stock exchange or a national
market system, including without limitation the Nasdaq National Market or
The Nasdaq SmallCap Market of The Nasdaq Stock Market, its Fair Market
Value shall be the closing sales price for a share of Common Stock (or the
closing bid, if no sales were reported) as quoted on such exchange or
system on the date of such determination, as reported in The Wall Street Journal
or such other source as the Committee deems reliable,
or
|
2.13.2
|
If
the Common Stock is regularly quoted by a recognized securities dealer but
selling prices are not reported, its Fair Market Value shall be the mean
of the closing bid and asked prices for a share of the Common Stock on the
date of such determination, as reported in The Wall Street Journal
or such other source as the Committee deems reliable,
or
|
2.13.3
|
In
the absence of an established market for the Common Stock, the Fair Market
Value of a share thereof shall be determined in good faith by the
Committee.
|
2.14
|
“Offering
Period” shall mean a period of approximately six (6) months
commencing on the first Trading Day on or after January 1st
and terminating on the last Trading Day in the period ending the following
June 30th,
or commencing on the first Trading Day on or after July 1st
and terminating on the last Trading Day in the period ending the following
December 31st,
provided, however, that the first Offering Period under the Plan shall
commence on the first date on which quotations are available for the
Common Stock on any established stock exchange or a national market system
and shall end on a Trading Day selected by the Committee consistent with
Section 423 of the Code. The duration of Offering Periods may
be changed pursuant to Sections 13.05 and
13.06.
|
2.15
|
“Plan
Representative” shall mean any person designated from time to time
by the Committee to receive certain notices and take certain other
administrative actions relating to participation in the
Plan.
|
2.16
|
“Plan” shall
mean the Cabot Microelectronics Corporation Employee Stock Purchase
Plan.
|
2.17
|
"Prior Plan"
shall mean the Cabot Microelectronics Corporation Employee Stock Purchase
Plan, effective March 24, 2000.
|
2.18
|
“Purchase Price”
shall mean an amount set by the Committee, but not less than the lesser of
85% of the Fair Market Value of a share of Common Stock on the Enrollment
Date or on the Exercise Date, whichever is lower; provided, however, that
the Purchase Price may be adjusted by the Board pursuant to Section
13.06.
|
2.19
|
“Subsidiary”
shall mean a corporation, domestic or foreign, of which not less than 50%
of the voting shares are held by the Company or a Subsidiary, whether or
not such corporation now exists or is hereafter organized or acquired by
the Company or a Subsidiary.
|
2.20
|
“Trading Day”
shall mean a day on which national stock exchanges and the Nasdaq System
are open for trading.
|
|
ARTICLE
III
|
|
ELIGIBILITY
AND PARTICIPATION
|
3.01
|
Eligibility. Each
Employee on an Enrollment Date of an Offering Period shall be eligible to
participate in such Offering Period. Persons who are not
Employees shall not be eligible to participate in such Offering
Period. Employees of Cabot Corporation and its subsidiaries,
other than the Company and its Designated Subsidiary Corporations, are not
eligible to participate in the
Plan.
|
3.02
|
Restrictions on
Participation. Notwithstanding any provision of the Plan
to the contrary, no Employee shall be granted an option to purchase shares
of Common Stock under the Plan:
|
3.02.1
|
If,
immediately after the grant, such Employee would own stock and/or hold
outstanding options to purchase stock possessing 5% or more of the total
combined voting power or value of all classes of stock of the Company (for
purposes of this paragraph, the rules of Section 424(d) of the Code shall
apply in determining stock ownership of any Employee);
or
|
3.02.2
|
If
such Employee’s rights to purchase stock under all employee stock purchase
plans of the Company accrue at a rate which exceeds $25,000 of Fair Market
Value of the stock (determined at the time such option is granted) for
each calendar year in which such option is outstanding at any
time.
|
3.03
|
Commencement of
Participation. An Employee may become a participant by
completing an authorization for payroll deductions on the form provided by
the Company and filing the completed form with the Plan Representative on
or before the filing date set therefor by the Committee, which date shall
be prior to the next Enrollment Date. Payroll deductions for a
participant shall commence on the next following Enrollment Date after the
Employee’s authorization for payroll deductions becomes effective and
shall continue until termination of the Plan, the participant’s earlier
termination of participation in the Plan, or the participant’s change in
payroll deductions pursuant to Section 5.03. Each participant
in the Plan shall be deemed to continue participation until termination of
the Plan or such participant’s earlier termination of participation in the
Plan pursuant to Article VIII
below.
|
|
ARTICLE
IV
|
|
STOCK
SUBJECT TO THE PLAN AND OFFERINGS
|
4.01
|
Stock Subject to the
Plan. Subject to the provisions of Section 13.03 of the
Plan, the Board shall reserve for issuance under the Plan an amount equal
to the sum of (i) five hundred thousand (500,000) shares of the Company’s
Common Stock, and (ii) the number of shares of the Company’s Common Stock
previously reserved for issuance under the Prior Plan but not issued
before the adoption of this Plan, which shares shall be authorized but
unissued shares of Common Stock, treasury shares, or shares of Common
Stock purchased by the Company or the Plan on an established stock
exchange or a national market
system.
|
4.02
|
Offerings. The
Plan will be implemented by two annual offerings of the Company’s Common
Stock each calendar year. Each offering will be outstanding
during the applicable Offering
Period.
|
|
ARTICLE
V
|
|
PAYROLL
DEDUCTIONS
|
5.01
|
Amount of
Deduction. The form described in Section 3.03 will
permit a participant to elect payroll deductions of any whole percentage
from one percent (1%) through ten percent (10%), or any whole dollar
amount that equates to from one percent (1%) through ten percent (10%), of
such participant’s Compensation for each pay period during an Offering
Period.
|
5.02
|
Participant’s
Account. All payroll deductions made for a participant
shall be credited to an account established for such participant under the
Plan. A participant may not make any separate cash payment into
such account.
|
5.03
|
Changes in Payroll
Deductions. A participant may reduce or increase future
payroll deductions (within the limits described in Section 5.01) by filing
with the Plan Representative a form provided by the Company for such
purpose. The effective date of any increase or reduction in
future payroll deductions will be the next following payroll period
succeeding processing of the change
form.
|
|
ARTICLE
VI
|
|
GRANTING
OF OPTION
|
6.01
|
Number of Option
Shares. On an Enrollment Date each participant shall be
deemed to have been granted an option to purchase a number of shares of
Common Stock determined by dividing the participant’s accumulated payroll
deductions on the Exercise Date by the lower of (i) 85% of the Fair Market
Value of a share of Common Stock on the Enrollment Date or (ii) 85% of the
Fair Market Value of a share of Common Stock on the Exercise Date;
subject, however, to any applicable limitations contained in this
Plan. In addition, the maximum number of shares a participant
may purchase with respect to any Offering Period is that number of shares
determined by dividing $12,500 by the Fair Market Value of a share of
Common Stock on the Enrollment Date; provided, however, the maximum number
of shares a participant may purchase with respect to the first Offering
Period is that number of shares determined by dividing $25,000 by the Fair
Market Value of a share of Common Stock on the Enrollment
Date.
|
|
ARTICLE
VII
|
|
EXERCISE
OF OPTION
|
7.01
|
Automatic
Exercise. Subject to the next following sentence, each
Plan participant’s option for the purchase of stock with payroll
deductions made during any Offering Period will be exercised automatically
on the applicable Exercise Date for the purchase of the number of full and
deemed fractional shares of Common Stock that the accumulated payroll
deductions in the participant’s account at the time will purchase at the
Purchase Price (but not in excess of the maximum number of shares
determined pursuant to Section 6.01). The Committee shall have
the discretion to reduce the number of shares of Common Stock to be
purchased by participants with respect to an Offering Period and to
allocate such reduced number of shares of Common Stock among participants
in such Offering Period, so long as such reduction and allocation is done
in a manner consistent with Section 423 of the Code. Any
payroll deductions not applied to the purchase of shares of Common Stock
by reason of the limitations of or reduction pursuant to this Section 7.01
shall be promptly refunded to participants after the Exercise Date of the
Offering Period to which such reduction
applies.
|
7.02
|
Withdrawal of
Account. No participant in the Plan shall be entitled to
withdraw any amount from the accumulated payroll deductions in his or her
account; provided, however, that a participant’s accumulated payroll
deductions shall be refunded to the participant as and to the extent
specified in Section 8.01 below upon termination of such participant’s
participation in the Plan.
|
7.03
|
Fractional
Shares. Fractional shares of Common Stock will not be
delivered under Section 7.5 of the Plan. Any deemed fractional
share of Common Stock purchased by a Participant pursuant to Section 7.01
hereof will be combined with any deemed fractional shares purchased by the
Participant in subsequent Offering Periods and whole shares of Common
Stock then issued therefor. The Fair Market Value of all deemed
fractional shares shall be paid in
cash.
|
7.04
|
Exercise of
Options. During a participant’s lifetime, options held
by such participant shall be exercisable only by such
participant.
|
7.05
|
Delivery of
Stock. As promptly as practicable after each Exercise
Date, the Company will deliver to each participant the shares of Common
Stock purchased upon exercise of such participant’s option. The
Company may deliver such shares in certificated or book entry form, at the
Company’s sole election.
|
|
ARTICLE
VIII
|
|
WITHDRAWAL
|
8.01
|
In
General. A participant may stop participating in the
Plan at any time by giving written notice to the Plan
Representative. Upon processing of any such written notice, no
further payroll deductions will be made from the participant’s
Compensation during such Offering Period or thereafter, unless and until
such participant elects to resume participation in the Plan by providing
written notice to the Plan Representative pursuant to Section 3.03
above. Such participant’s payroll deductions accumulated prior
to processing of such notice shall be applied toward purchasing full and
deemed fractional shares of Common Stock in the then-current Offering
Period as provided in Section 7.01 above unless the participant requests
in writing to have the accumulated payroll deductions and cash in lieu of
deemed fractional shares returned to him or
her.
|
8.02
|
Effect on Subsequent
Participation. A participant’s withdrawal from any
Offering Period will not have any effect upon such participant’s
eligibility to participate in any succeeding Offering Period or in any
similar plan which may hereafter be adopted by the Company and for which
such participant is otherwise
eligible.
|
8.03
|
Termination of
Employment. Upon termination of a participant’s
employment with the Company or any Designated Subsidiary Corporation (as
the case may be) for any reason, including retirement but excluding death,
the participant’s payroll deductions accumulated prior to such
termination, if any, shall be applied toward purchasing full and deemed
fractional shares of Common Stock in the then-current Offering Period so
long as the Exercise Date with respect to such Offering Period occurs on
or within three months following such termination; provided, however, that
(1) the participant may request in writing to have the accumulated payroll
deductions and cash in lieu of deemed fractional shares returned to him or
her, and (2) upon termination of a participant’s employment with the
Company or any Designated Subsidiary Corporation (as the case may be) as a
result of the participant’s death, the participant’s payroll deductions
accumulated prior to such termination and cash in lieu of deemed
fractional shares shall be paid to his or her
estate.
|
ARTICLE
IX
INTEREST
9.01
|
Payment of
Interest. No interest will be paid or allowed on any
money paid into the Plan or credited to the account of or distributed to
any participant.
|
ARTICLE
X
STOCK
10.01
|
Participant’s Interest
in Option Stock. No participant will have any interest
in shares of Common Stock covered by any option held by such participant
until such option has been exercised as provided in Section 7.01
above.
|
10.02
|
Registration of
Stock. Shares of Common Stock purchased by a participant
under the Plan will be recorded in the name of the participant, or, if the
participant so directs by written notice to the Plan Representative prior
to the applicable Exercise Date, in the names of the participant and the
participant’s spouse as joint tenants with rights of survivorship or as
tenants by the entireties, to the extent permitted by applicable
law.
|
10.03
|
Restrictions on
Exercise. The Board may, in its discretion, require as
conditions to the exercise of any option that the shares of Common Stock
reserved for issuance upon the exercise of such option shall have been
duly listed, upon official notice of issuance, upon a stock exchange or
market, and that either:
|
|
10.03.1
|
a
registration statement under the Securities Act of 1933, as amended, with
respect to said shares shall be effective,
or
|
10.03.2
|
the
participant shall have represented at the time of purchase, in form and
substance satisfactory to the Company, that it is his or her intention to
purchase the shares for investment and not for resale or
distribution.
|
|
ARTICLE
XI
|
|
ADMINISTRATION
|
11.01
|
Appointment of
Committee. The Plan shall be administered by the Board
or a Committee of members of the Board appointed by the
Board. The Board or its Committee shall have full and exclusive
discretionary authority to construe, interpret and apply the terms of the
Plan, to determine eligibility and to adjudicate all disputed claims filed
under the Plan. Every finding, decision and determination made
by the Board or its Committee shall, to the full extent permitted by law,
be final and binding upon all
parties.
|
11.02
|
Authority of
Committee. Subject to the express provisions of the
Plan, the Committee shall have plenary authority in its discretion to
interpret and construe any and all provisions of the Plan, to adopt rules
and regulations for administering the Plan, and to make all other
determinations deemed necessary or advisable for administering the
Plan. The Committee’s determination of the foregoing matters
shall be conclusive. Except as otherwise prohibited by
applicable law, the Committee may delegate some or all of its authority
specified herein to the Plan
Representative.
|
11.03
|
Rules Governing the
Administration of the Committee. The Board may from time
to time appoint members of the Committee in substitution for or in
addition to members previously appointed and may fill vacancies, however
caused, in the Committee. The Committee may select one of its
members as its chairman, shall hold its meetings at such times and places
as it shall deem advisable, and may hold telephonic
meetings. All determinations of the Committee shall be made by
a majority of its members. A decision or determination reduced
to writing and signed by a majority of the members of the Committee shall
be as fully effective as if it had been made by a majority vote at a
meeting duly called and held. The Committee may appoint a
secretary and shall make such rules and regulations for the conduct of its
business as it shall deem
advisable.
|
11.04
|
Rules and Procedures
Applicable to Offering Periods. The Committee shall have
the authority and discretion to adopt rules and procedures applicable to
one or more Offering Periods under the Plan. Any such rules and
procedures shall be established by the Committee and communicated to
participants in advance of any Offering Period to which they
apply. Such rules and procedures may, in the discretion of the
Committee, cause the options granted under any such Offering Period to be
options to which Section 423 of the Code does not
apply.
|
|
ARTICLE
XII
|
|
FOREIGN
JURISDICTIONS
|
Notwithstanding any other provision in
this Plan, the Committee may adopt rules or procedures relating to the operation
and administration of the Plan to accommodate the specific requirements of local
laws and procedures. Without limiting the generality of the foregoing
sentence, the Committee is specifically authorized to adopt rules and procedures
regarding handling of payroll deductions, payment of interest, conversion of
local currency, payroll tax, withholding procedures and handling of stock
certificates which vary in accordance with the requirements of such local law
and procedures. To the extent that any such rules or procedures are
adopted with respect to options granted in an Offering Period to which Section
423 of the Code is intended to apply, the Committee shall cause such rules and
procedures to be consistent with Section 423 of the Code.
ARTICLE
XIII
MISCELLANEOUS
13.01
|
Transferability. Neither
payroll deductions credited to any participant’s account nor any option or
other rights with regard to the exercise of an option to receive Common
Stock under the Plan may be assigned, transferred, pledged, or otherwise
disposed of in any way by the participant other than by will or the laws
of descent and distribution. Any such attempted assignment,
transfer, pledge or other disposition shall be without effect except that
the Company may, in its discretion, treat such act as an election to
withdraw from participation in the Plan in accordance with Section
8.01.
|
13.02
|
Use of
Funds. All payroll deductions received or held by the
Company under the Plan may be used by the Company for any corporate
purpose. The Company shall not segregate such payroll
deductions.
|
13.03
|
Adjustment Upon
Changes in Capitalization; Change in
Control.
|
13.03.1
|
Changes in
Capitalization. Subject to any required action by the
stockholders of the Company, the Reserves, the maximum number of shares
each participant may purchase per Offering Period (pursuant to Section
6.01), as well as the Purchase Price and the number of shares of Common
Stock covered by each option under the Plan which has not yet been
exercised shall be proportionately adjusted for any Change in
Capitalization. Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and
conclusive. Except as expressly provided herein, no issuance by
the Company of shares of stock of any class shall affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Purchase Price of shares of Common Stock subject to an
option.
|
13.03.2
|
Change in
Control. In the event of a Change in Control, the
Offering Period during which the Change in Control would otherwise occur
shall be accelerated and shall end on the last payroll date immediately
preceding the Change in Control.
|
13.04
|
Amendment or
Termination. The Board shall have complete power and authority to
terminate or amend the Plan; provided, however, that the Board shall not,
without the approval of the shareholders of the Company, alter (i) the
aggregate number of shares of Common Stock which may be issued under the
Plan (except pursuant to Section 13.03 above), or (ii) the class of
Employees eligible to receive options under the Plan, other than to
designate Subsidiaries as Designated Subsidiary Corporations; and provided
further, however, that, subject to Section 13.05 no termination,
modification, or amendment of the Plan may, without the consent of an
Employee then having an option under the Plan to purchase shares of Common
Stock, adversely affect the rights of such Employee under such
option. In addition, and notwithstanding anything contained in
this Plan to the contrary, to the extent necessary under Section 423 of
the Internal Revenue Code (or any successor rule or provision or any
applicable law or regulation), the Company shall obtain stockholder
approval in such a manner and to such a degree as so
required.
|
13.05
|
The
Committee shall be entitled to change the Offering Periods, limit the
frequency and/or number of changes in the amount withheld during an
Offering Period, establish the exchange ratio applicable to amounts
withheld in a currency other than U.S. dollars, permit payroll withholding
in excess of the amount designated by a participant in order to adjust for
delays or mistakes in the Company’s processing of properly completed
withholding elections, establish reasonable waiting and adjustment periods
and/or accounting and crediting procedures to ensure that amounts applied
toward the purchase of Common Stock for each participant properly
correspond with amounts withheld from the participant’s Compensation, and
establish such other limitations or procedures as the Board (or its
committee) determines in its sole discretion advisable which are
consistent with the Plan, in each case so long as any such action is
consistent with Section 423 of the Code. None of the foregoing
actions shall be considered to have adversely affected any right of any
participant.
|
13.06
|
In
the event that the Committee determines that the ongoing operation of the
Plan may result in unfavorable financial accounting consequences, the
Committee may, in its discretion and, to the extent necessary or
desirable, modify or amend the Plan to reduce or eliminate such accounting
consequence including, but not limited
to:
|
13.06.1
|
changing
the Purchase Price for any Offering Period including an Offering Period
underway at the time of the change in Purchase
Price;
|
13.06.2
|
shortening
any Offering Period so that the Offering Period ends on a new Exercise
Date, including an Offering Period underway at the time of such action;
and
|
13.06.3
|
allocating
shares of Common Stock to participants pursuant to Section 7.01
hereof.
|
None of
the foregoing actions shall be considered to have adversely affected any right
of any participant.
13.07
|
Notices. All
notices or other communications by a participant to the Company under or
in connection with the Plan shall be deemed to have been duly given when
received in the form specified by the Company by the Plan
Representative.
|
13.08
|
Conditions Upon
Issuance of Shares. Shares shall not be issued with
respect to an option unless the exercise of such option and the issuance
and delivery of such shares pursuant thereto shall comply with all
applicable provisions of law, domestic or foreign, including, without
limitation, the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, the rules and regulations promulgated
thereunder, and the requirements of any stock exchange upon which the
shares may then be listed, and shall be further subject to the approval of
counsel for the Company with respect to such compliance. As a
condition to the exercise of an option, the Company may require the person
exercising such option to represent and warrant at the time of any such
exercise that the shares are being purchased only for investment and
without any present intention to sell or distribute such shares if, in the
opinion of counsel for the Company, such a representation is required by
any of the aforementioned applicable provisions of
law.
|
13.09
|
Effective
Date. The Plan shall become effective as of its adoption
by the Board, subject to approval by the holders of a majority of the
shares of Common Stock, and shall continue in effect until the shares of
Common Stock reserved for issuance under the Plan have been depleted,
unless sooner terminated under Section 13.04 hereof. If the
Plan is not so approved, the Plan shall not become
effective.
|
13.10
|
No Employment
Rights. The Plan does not, directly or indirectly,
create in any person any right with respect to employment or continuation
of employment by the Company or any Subsidiary, and it shall not be deemed
to interfere in any way with the Company’s or any Subsidiary’s right to
terminate, or otherwise modify, any Employee’s employment at any
time.
|
13.11
|
Effect of
Plan. The provisions of the Plan shall, in accordance
with its terms, be binding upon, and inure to the benefit of, all
successors of each Employee participating in the Plan, including, without
limitation, such Employee’s estate and the executors, administrators or
trustees thereof, heirs and legatees, and any receiver, trustee in
bankruptcy or representative of creditors of such
Employee.
|
13.12
|
Governing
Law. The law of the State of Delaware will govern all
matters relating to this Plan except to the extent superseded by the
federal laws of the United States.
|
APPENDIX
A
A "Change
in Control" shall be deemed to have occurred if, following the "Distribution"
(as defined in the Master Separation Agreement, dated March 27, 2000, to which
the Company and Cabot Corporation are parties):
(a) any
"person" as such term is used in Sections 13(d) and 14(d) of the 1934 Act (other
than (i) the Company, (ii) any subsidiary of the Company,
(iii) any trustee or other fiduciary holding securities under an employee
benefit plan of the Company or of any subsidiary of the Company, or
(iv) any company owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock of the
Company), is or becomes the "beneficial owner" (as defined in Section 13(d) of
the 1934 Act), together with all Affiliates and Associates (as such terms are
used in Rule 12b-2 of the General Rules and Regulations under the 1934 Act) of
such person, directly or indirectly, of securities of the Company representing
30% or more of the combined voting power of the Company's then outstanding
securities; or
(b) the
stockholders of the Company approve a merger or consolidation of the Company
with any other company, other than (i) a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity), in combination
with the ownership of any trustee or other fiduciary holding securities under an
employee benefit plan of the Company or any subsidiary of the Company, at least
60% of the combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or consolidation or
(ii) a merger or consolidation effected to implement a recapitalization of
the Company (or similar transaction) after which no "person" (with the method of
determining "beneficial ownership" used in clause (a) of this definition)
owns more than 30% of the combined voting power of the securities of the Company
or the surviving entity of such merger or consolidation; or
(c) during
any period of two consecutive years (not including any period prior to the
execution of the Plan), individuals who at the beginning of such period
constitute the Board, and any new director (other than a director designated by
a person who has conducted or threatened a proxy contest, or has entered into an
agreement with the Company to effect a transaction described in clause (a),
(b) or (d) of this definition) whose election by the Board or
nomination for election by the Company's stockholders was approved by a vote of
at least two-thirds (2/3) of the directors then still in office who either were
directors at the beginning of the period or whose election or nomination for
election was previously so approved cease for any reason to constitute at least
a majority thereof; or
(d) the
stockholders of the Company approve a plan of complete liquidation of the
Company or an agreement for the sale or disposition by the Company of all or
substantially all of the Company's assets.