As filed with the Securities and Exchange Commission on June 7, 2017
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
MTS SYSTEMS CORPORATION
(Exact name of registrant as specified in its charter)
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Minnesota
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41-0908057
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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14000 Technology Drive, Eden Prairie, Minnesota
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55344
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(Address of principal executive offices)
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(Zip Code)
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MTS SYSTEMS CORPORATION 2017 STOCK INCENTIVE PLAN
(Full title of the plan)
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Jeffrey A. Graves
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Copy to:
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President and Chief Executive Officer
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W. Morgan Burns
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MTS Systems Corporation
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Nicole J. Leimer
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14000 Technology Drive
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Faegre Baker Daniels LLP
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Eden Prairie, Minnesota 55344
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2200 Wells Fargo Center
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(Name and address of agent for service)
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90 South Seventh Street
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Minneapolis, Minnesota 55402
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(612) 766 -7000
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(952) 937-4000
(Telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
x
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Accelerated filer
o
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Non-accelerated filer
o
(do not check if a smaller reporting company)
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Smaller reporting company
o
Emerging growth company
o
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
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CALCULATION OF REGISTRATION FEE
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TITLE OF
SECURITIES
TO BE REGISTERED
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AMOUNT
TO BE REGISTERED
(1)
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PROPOSED
MAXIMUM
OFFERING PRICE
PER
SHARE
(2)
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PROPOSED
MAXIMUM
AGGREGATE
OFFERING PRICE
(2)
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AMOUNT OF
REGISTRATION FEE
(2)
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Common Stock,
par value $0.25 per share
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1,500,000 shares
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$51.90
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$77,850,000.00
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$9,022.815
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(1)
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This Registration Statement shall also cover any additional shares of Common Stock which become issuable with respect to the shares of Common Stock registered hereunder for issuance under the MTS Systems Corporation 2017 Stock Incentive Plan (the “2017 Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the Registrant’s receipt of consideration which results in an increase in the number of the outstanding shares of Registrant’s Common Stock.
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(2)
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Pursuant to Rules 457(c) and 457(h)(1), the per share price is estimated, solely for the purpose of determining the registration fee, based upon the average of the high and low prices for such common stock on May 31, 2017 as reported by the NASDAQ Global Select Market.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document(s) containing the information specified in Part I will be sent or given to employees as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents are not being filed with the Securities and Exchange Commission (the “Commission”) either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. Such documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II hereof, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by the Registrant with the Commission and are incorporated by reference herein:
(a)
The Registrant’s Annual Report on Form 10-K for the year ended October 1, 2016, filed with the Commission on April 10, 2017.
(b)
The Registrant’s Quarterly Reports on Form 10-Q for the quarter ended December 31, 2016 and April 1, 2017, filed with the Commission on April 10, 2017 and May 8, 2017, respectively.
The Registrant’s Current Reports on Form 8-K filed on December 9, 2016, January 5, 2017, January 6, 2017, January 13, 2017, January 17, 2017 (only with respect to Item 8.01), January 24, 2017, February 22, 2017, April 10, 2017 (only with respect to Item 8.01), April 18, 2017 and April 24, 2017.
All other reports filed by the Registrant with the Commission pursuant to Section 13(a) or 15(d) of the Securities Exchange Act (the “Exchange Act”), since October 1, 2016 (other than information deemed to have been “furnished” rather than “filed” in accordance with the Commission’s rules).
(c)
The description of the Registrant’s capital stock under the heading “Comparison of Rights of Holders of MTS Common Stock and Holders of DSPT Common Stock-Description of MTS Common Stock” contained in the Registrant’s Registration Statement filed on Form S-4 (File No. 333-77277), filed with the Commission on April 28, 1999, including any amendment or report filed to update such description.
All documents hereafter filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all the securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated herein by reference and to be a part hereof from their respective dates of filing (such documents, and the documents listed above, being hereinafter referred to as “Incorporated Documents”); provided, however, that the documents enumerated above or subsequently filed by the Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act in each year during which the offering made by this Registration Statement is in effect prior to the filing with the Commission of the Registrant’s Annual Report on Form 10-K covering such year shall not be Incorporated Documents or be incorporated by reference in this Registration Statement or be a part hereof from and after the filing of such Annual Report on Form 10-K.
Any statement contained in a document incorporated or deemed to be incorporated by reference in this Registration Statement shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement or in any other subsequently filed document that also is or is deemed to be incorporated by reference in this Registration Statement modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Section 302A.521, subd. 2, of the Minnesota Business Corporation Act (the “MBCA”) provides that a corporation shall indemnify any person made or threatened to be made a party to a proceeding by reason of acts or omissions performed in his or her official capacity as an officer, director, employee or agent of the corporation against judgments, penalties, fines, including without limitation, excise taxes assessed against such person with respect to an employee benefit plan, settlements, and reasonable expenses, including attorneys’ fees and disbursements, incurred by the person in connection with the proceeding, if, with respect to the acts or omissions of the person complained of in the proceeding, the person:
(a) has not been indemnified by another organization or employee benefit plan for the same expenses with respect to the same acts or omissions;
(b) acted in good faith;
(c) received no improper personal benefit and Section 302A.255 of the MBCA (regarding conflicts of interest), if applicable, has been satisfied;
(d) in the case of a criminal proceeding, had no reasonable cause to believe the conduct was unlawful; and
(e) in the case of acts or omissions by persons in their official capacity for the corporation, reasonably believed that the conduct was in the best interests of the corporation, or in the case of acts or omissions by persons in their capacity for other organizations, reasonably believed that the conduct was not opposed to the best interests of the corporation.
In addition, Section 302A.521, subd. 3, of the MBCA requires payment or reimbursement by the corporation, upon written request, of reasonable expenses (including attorneys’ fees) incurred by a person in advance of the final disposition of a proceeding, (a) upon receipt by the corporation of a written affirmation by the person of a good faith belief that the requirements for indemnification set forth above have been met as well as a written undertaking by the person to repay all amounts so paid or reimbursed by the corporation, if it is ultimately determined that the criteria for indemnification have not been satisfied, and (b) after a determination that the facts then known to those making the determination would not preclude indemnification under this section.
As permitted by Section 302A.251 of the MBCA, Article X of the Registrant’s Amended and Restated Articles of Incorporation provide that a director of the Registrant shall not be personally liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director except for liability (1) for any breach of the director’s duty of loyalty to the Registrant or its stockholders; (2) for acts or omissions not in good faith or that involve intentional misconduct or a knowing violation of law; (3) for paying a dividend or approving a stock repurchase in violation of Section 302A.559 of the MBCA or for violating the securities registration or anti-fraud provisions of Section 80A.23 of the MBCA ; (4) for any transaction from which the director derived any improper personal benefit; or (5) for any act or omission occurring prior to the date when the provision becomes effective.
Article X of the Registrant’s Amended and Restated Articles of Incorporation provide that the provision of Article X shall not be deemed to limit or preclude indemnification of a director by the Registrant for any liability of a director which has not been eliminated by the provisions of Article X.
The Registrant’s Amended and Restated Articles of Incorporation and Amended and Restated Bylaws further provide that if the MBCA is amended to authorize the further elimination or limitation of the liability of directors, then the liability of a director of the Registrant shall be eliminated or limited to the fullest extent permitted by the amended MBCA.
The Registrant maintains directors’ and officers’ liability insurance for the benefit of its directors and officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following are filed as exhibits to this Registration Statement on Form S-8:
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Exhibit
Number
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Description
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4.1
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Restated and Amended Articles of Incorporation (incorporated by reference to Exhibit 3.a of the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 29, 2012).
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4.2
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Amended and Restated Bylaws (incorporated by reference to Exhibit 3.b of the Registrant’s Current Report on Form 8-K filed November 28, 2011).
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4.3
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Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-3 (No. 333-211901) filed June 7, 2016).
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5.1
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Opinion of Faegre Baker Daniels LLP, counsel for the Registrant (filed herewith).
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23.1
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Consent of KPMG LLP, independent registered public accounting firm (filed herewith).
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23.2
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Consent of Faegre Baker Daniels LLP (included in Exhibit 5.1).
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24.1
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Powers of Attorney (filed herewith).
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99.1
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MTS Systems Corporation 2017 Stock Incentive Plan (incorporated by reference to Annex A to the Registrant’s Definitive Proxy Statement on Schedule 14A filed April 25, 2017).
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99.2
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Form of Restricted Stock Unit Agreement – Employee (filed herewith).
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99.3
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Form of Non-Qualified Stock Option Agreement – Employee (filed herewith).
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99.4
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Form of Performance Restricted Stock Unit Agreement – Employee (filed herewith).
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99.5
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Form of Restricted Stock Unit Agreement – Non-employee Director (filed herewith).
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the “Securities Act”);
(ii) to reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of the securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement;
(iii) to include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
Provided
,
however
, that:
(A) paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the Registration Statement is on Form S-8, and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement; and
(B) paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not apply if the Registration Statement is on Form S-1, Form S-3, Form SF-3 or Form F-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement, or, as to a Registration Statement on Form S-3, Form SF-3, or Form F-3, is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof;
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof; and
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Eden Prairie, State of Minnesota on June 7, 2017.
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MTS SYSTEMS CORPORATION
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By:
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/s/ JEFFREY A. GRAVES
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Jeffrey A. Graves
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President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
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SIGNATURE
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TITLE
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DATE
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/s/ JEFFREY A. GRAVES
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President and Chief Executive Officer and Director (Principal Executive Officer)
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June 7, 2017
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Jeffrey A. Graves
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/s/ BRIAN T. ROSS
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Senior Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
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June 7, 2017
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Brian T. Ross
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*
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Director and Non-Executive Chair of the Board
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June 7, 2017
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David J. Anderson
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*
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Director
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June 7, 2017
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David D. Johnson
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*
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Director
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June 7, 2017
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Randy J. Martinez
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*
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Director
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June 7, 2017
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Michael V. Schrock
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*
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Director
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June 7, 2017
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Gail P. Steinel
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*
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Director
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June 7, 2017
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Maximiliane C. Straub
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*
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Director
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June 7, 2017
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Chun Hung (Kenneth) Yu
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*By:
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/s/ JEFFREY A. GRAVES
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June 7, 2017
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Jeffrey A. Graves
Attorney-in-Fact
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EXHIBIT INDEX
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Exhibit
Number
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Description
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4.1
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Restated and Amended Articles of Incorporation (incorporated by reference to Exhibit 3.a of the Registrant’s Annual Report on Form 10-K for the fiscal year ended September 29, 2012).
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4.2
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Amended and Restated Bylaws (incorporated by reference to Exhibit 3.b of the Registrant’s Current Report on Form 8-K filed November 28, 2011).
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4.3
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Form of Common Stock Certificate (incorporated by reference to Exhibit 4.1 to the Registrant’s Registration Statement on Form S-3 (No. 333-211901) filed June 7, 2016).
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5.1
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Opinion of Faegre Baker Daniels LLP, counsel for the Registrant (filed herewith).
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23.1
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Consent of KPMG LLP, independent registered public accounting firm (filed herewith).
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23.2
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Consent of Faegre Baker Daniels LLP (included in Exhibit 5.1).
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24.1
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Powers of Attorney (filed herewith).
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99.1
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MTS Systems Corporation 2017 Stock Incentive Plan (incorporated by reference to Annex A to the Registrant’s Definitive Proxy Statement on Schedule 14A filed April 25, 2017).
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99.2
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Form of Restricted Stock Unit Agreement – Employee (filed herewith).
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99.3
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Form of Non-Qualified Stock Option Agreement – Employee (filed herewith).
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99.4
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Form of Performance Restricted Stock Unit Agreement – Employee (filed herewith).
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99.5
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Form of Restricted Stock Unit Agreement – Non-employee Director (filed herewith).
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Exhibit 5.1
Faegre Baker Daniels LLP
2200 Wells Fargo Center
90 South Seventh Street
Minneapolis, Minnesota 55402
Telephone (612) 766-7000
Facsimile (612) 766-1600
June 7, 2017
Board of Directors
MTS Systems Corporation
14000 Technology Drive
Eden Prairie, Minnesota 55344
Ladies and Gentlemen:
We have acted as counsel to MTS Systems Corporation, a Minnesota corporation (the “Company”), in connection with the Registration Statement on Form S-8 (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”), relating to the registration of up to 1,500,000 additional shares of Common Stock, par value $.25 per share (the “Shares”), of the Company, to be issued by the Company pursuant to the MTS Systems Corporation 2017 Stock Incentive Plan (the “Plan”).
We have examined the Registration Statement, the Plan and the originals, or duplicates or certified or conformed copies, of such corporate and other records, agreements, instruments and documents, and have reviewed such matters of law, as we have deemed relevant hereto. As to questions of fact material to this opinion, we have relied upon certificates, statements or representations of public officials and of officers and other representatives of the Company.
In rendering the opinions set forth below, we have assumed: (i) the legal capacity of all natural persons; (ii) the genuineness of all signatures; (iii) the authenticity of all documents submitted to us as originals; (iv) the conformity to original documents of all documents submitted to us as certified, conformed, photostatic or facsimile copies; (v) the authenticity of the originals of such latter documents; (vi) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments, certificates and records we have reviewed; and (vii) the absence of any undisclosed modifications to the agreements and instruments reviewed by us.
Based upon the foregoing, and subject to the qualifications, assumptions and limitations stated herein, it is our opinion that all necessary corporate action on the part of the Company has been taken to authorize the issuance and sale of the Shares and that, when (a) issued and sold as contemplated in the Registration Statement and in accordance with the Plan and the terms of the applicable awards granted under the Plan, and (b) where applicable, the consideration for the Shares specified in the Plan and the terms of any awards granted under the Plan has been received by the Company, the Shares will be validly issued, fully paid and nonassessable under the current laws of the State of Minnesota.
We are admitted to the practice of law in the State of Minnesota and the foregoing opinions are limited to the laws of that state.
This opinion is limited to the specific issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein.
We consent to the filing of this opinion as an exhibit to the Registration Statement.
In giving this consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
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Very truly yours,
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FAEGRE BAKER DANIELS LLP
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By:
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/s/ Nicole J. Leimer
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Nicole J. Leimer
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Partner
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Exhibit 24.1
MTS SYSTEMS CORPORATION
Power of Attorney of Director
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of MTS Systems Corporation, a Minnesota corporation, does hereby constitute and appoint Jeffrey A. Graves and Brian T. Ross, and each or either one of them, the undersigned’s true and lawful attorneys-in-fact, with power of substitution, for the undersigned and in the undersigned’s name, place and stead, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements, on Form S-8 or other applicable form, and all amendments thereto, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C., in connection with the registration under the Securities Act of 1933, as amended, of common stock
of said Company to be issued pursuant to the MTS Systems Corporation 2017 Stock Incentive Plan
and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned’s hand this 6
th
day of June, 2017.
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/s/ David J. Anderson
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David J. Anderson
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MTS SYSTEMS CORPORATION
Power of Attorney of Director
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of MTS Systems Corporation, a Minnesota corporation, does hereby constitute and appoint Jeffrey A. Graves and Brian T. Ross, and each or either one of them, the undersigned’s true and lawful attorneys-in-fact, with power of substitution, for the undersigned and in the undersigned’s name, place and stead, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements, on Form S-8 or other applicable form, and all amendments thereto, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C., in connection with the registration under the Securities Act of 1933, as amended, of common stock
of said Company to be issued pursuant to the MTS Systems Corporation 2017 Stock Incentive Plan
and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned’s hand this 6
th
day of June, 2017.
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/s/ David D. Johnson
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David D. Johnson
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MTS SYSTEMS CORPORATION
Power of Attorney of Director
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of MTS Systems Corporation, a Minnesota corporation, does hereby constitute and appoint Jeffrey A. Graves and Brian T. Ross, and each or either one of them, the undersigned’s true and lawful attorneys-in-fact, with power of substitution, for the undersigned and in the undersigned’s name, place and stead, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements, on Form S-8 or other applicable form, and all amendments thereto, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C., in connection with the registration under the Securities Act of 1933, as amended, of common stock
of said Company to be issued pursuant to the MTS Systems Corporation 2017 Stock Incentive Plan
and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned’s hand this 6
th
day of June, 2017.
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/s/ Randy J. Martinez
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Randy J. Martinez
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MTS SYSTEMS CORPORATION
Power of Attorney of Director
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of MTS Systems Corporation, a Minnesota corporation, does hereby constitute and appoint Jeffrey A. Graves and Brian T. Ross, and each or either one of them, the undersigned’s true and lawful attorneys-in-fact, with power of substitution, for the undersigned and in the undersigned’s name, place and stead, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements, on Form S-8 or other applicable form, and all amendments thereto, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C., in connection with the registration under the Securities Act of 1933, as amended, of common stock
of said Company to be issued pursuant to the MTS Systems Corporation 2017 Stock Incentive Plan
and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned’s hand this 6
th
day of June, 2017.
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/s/ Michael V. Schrock
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Michael V. Schrock
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MTS SYSTEMS CORPORATION
Power of Attorney of Director
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of MTS Systems Corporation, a Minnesota corporation, does hereby constitute and appoint Jeffrey A. Graves and Brian T. Ross, and each or either one of them, the undersigned’s true and lawful attorneys-in-fact, with power of substitution, for the undersigned and in the undersigned’s name, place and stead, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements, on Form S-8 or other applicable form, and all amendments thereto, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C., in connection with the registration under the Securities Act of 1933, as amended, of common stock
of said Company to be issued pursuant to the MTS Systems Corporation 2017 Stock Incentive Plan
and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned’s hand this 6
th
day of June, 2017.
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/s/ Gail P. Steinel
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Gail P. Steinel
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MTS SYSTEMS CORPORATION
Power of Attorney of Director
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of MTS Systems Corporation, a Minnesota corporation, does hereby constitute and appoint Jeffrey A. Graves and Brian T. Ross, and each or either one of them, the undersigned’s true and lawful attorneys-in-fact, with power of substitution, for the undersigned and in the undersigned’s name, place and stead, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements, on Form S-8 or other applicable form, and all amendments thereto, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C., in connection with the registration under the Securities Act of 1933, as amended, of common stock
of said Company to be issued pursuant to the MTS Systems Corporation 2017 Stock Incentive Plan
and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned’s hand this 6
th
day of June, 2017.
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/s/ Maximiliane C. Straub
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Maximiliane C. Straub
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MTS SYSTEMS CORPORATION
Power of Attorney of Director
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of MTS Systems Corporation, a Minnesota corporation, does hereby constitute and appoint Jeffrey A. Graves and Brian T. Ross, and each or either one of them, the undersigned’s true and lawful attorneys-in-fact, with power of substitution, for the undersigned and in the undersigned’s name, place and stead, to sign and affix the undersigned’s name as such director and/or officer of said Company to a Registration Statement or Registration Statements, on Form S-8 or other applicable form, and all amendments thereto, to be filed by said Company with the Securities and Exchange Commission, Washington, D.C., in connection with the registration under the Securities Act of 1933, as amended, of common stock
of said Company to be issued pursuant to the MTS Systems Corporation 2017 Stock Incentive Plan
and to file the same, with all exhibits thereto and other supporting documents, with said Commission, granting unto said attorneys-in-fact, and each of them, full power and authority to do and perform any and all acts necessary or incidental to the performance and execution of the powers herein expressly granted.
IN WITNESS WHEREOF, the undersigned has hereunto set the undersigned’s hand this 6
th
day of June, 2017.
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/s/ Chun Hung (Kenneth) Yu
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Chun Hung (Kenneth) Yu
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Exhibit 99.2
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Restricted Stock Unit Agreement – Employee
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MTS SYSTEMS CORPORATION
ID: 41-0908057
14000 Technology Drive
Eden Prairie, MN 55344
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«First» «MI» «Last»
«Address»
«M_2nd_Line»
«City» «Rg» «Postal_code»
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Award Number:
Plan:
ID:
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«Number»
2017
«ID»
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Effective «Grant_date», you have been granted «Shares» Restricted Stock Units, representing the right to receive shares of MTS SYSTEMS CORPORATION (the “Company”) common stock pursuant to the Company’s 2017 Stock Incentive Plan (the “Plan”), subject to vesting of the Units as set forth below.
Units under this Grant will vest on the dates shown below, and are subject to earlier vesting as described in the Plan:
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Number of Units
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Vesting Date
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«SharesY1»
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«DateY1»
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«SharesY2»
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«DateY2»
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«SharesY2»
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«DateY3»
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By accepting this grant via this website, you and the Company agree that the Restricted Stock Units evidenced by this Restricted Stock Unit Agreement are subject to the following:
A.
This Agreement, the Units, and the Shares issuable upon the vesting of the Units are governed by all the terms, provisions and conditions set forth in the Company’s 2017 Stock Incentive Plan and by
Uniform Terms and Conditions Applicable to Employee Restricted Stock Units Grants
adopted by the Compensation Committee (the “Committee”) of the Board of Directors of the Company, which are incorporated herein.
B.
Neither the Plan nor this Agreement confers any right with respect to continuance of your services to the Company or any of its subsidiaries nor restricts your right to terminate services to the Company at any time.
C.
The Units and the shares of stock, whether or not vested, may be recouped at the discretion of the Committee if certain events occur, including termination of your services to the Company or you compete with the Company after termination of your services in violation of your agreements with the Company, or upon certain acts detrimental to the Company, as further described in the Plan.
D.
The Company may amend or terminate the Plan and this Agreement at any time, provided that no such action shall impair any rights that have accrued under this Agreement at the time of amendment or termination without your consent.
E.
This electronic document and your acceptance are the only evidence of this grant and no paper copy will be sent to you to evidence the grant and your acceptance.
YOU MUST ACCEPT THIS GRANT WITHIN 60 DAYS OF THE GRANT DATE. IF YOU DO NOT, THIS AWARD MAY BE WITHDRAWN. ONCE WITHDRAWN, THIS GRANT MAY NO LONGER BE AVAILABLE.
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«Grant_date»
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MTS SYSTEMS CORPORATION
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Date
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UNIFORM TERMS AND CONDITIONS APPLICABLE TO
EMPLOYEE RESTRICTED STOCK UNIT GRANTS UNDER
THE MTS SYSTEMS CORPORATION 2017 STOCK INCENTIVE PLAN
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Pursuant to the authority set forth in Section 5 of the MTS Systems Corporation 2017 Stock Incentive Plan (the “Plan”) the Compensation Committee (the “Committee”) of the Board of Directors adopts the following terms and conditions to apply to any and all awards of Restricted Stock Units granted under the Plan to employees (the “Participant”) in addition to the terms set forth in the Plan (Section references are to Sections of the Plan):
1.
The terms and conditions set forth below govern the issuance to the Participant of the number of units (“Units”), which represent the right to receive shares of MTS Common Stock, $.25 par value per share (the “Shares”) set forth in a separate Notice of Grant of Restricted Stock Units (the “Notice”), and the issuance of Shares upon the vesting of the Units. This document and the Notice constitute the Restricted Stock Unit Agreement.
2.
The Units will vest in accordance with the date or dates set forth in the Notice, or upon an earlier date as set forth herein or as otherwise determined by the Committee; provided that the Participant is serving as an employee, director or consultant of MTS or its subsidiaries on the date on which occurs the event giving rise to the vesting. In the event that the Participant ceases to serve as an employee, director or consultant due to death or disability during the Restriction Period, all restrictions will immediately lapse (Section 7.1(f)). If the Participant ceases to serve as an employee, director or consultant during the Restriction Period for any reason other than death or disability, all Units that are not vested shall be forfeited to MTS, without payment.
3.
Notwithstanding Paragraph 2 above, all Units that have not vested in accordance with the Notice shall immediately fully (100%) vest upon the occurrence of a Change in Control (as defined in the Plan) provided that the terms of the agreements effectuating the Change in Control do not provide for the assumption or substitution of the Units (Section 11.2).
4.
MTS shall, no later than 30 days from the date of vesting as to any Units shall make a book entry of the issuance of such Shares to the Participant on MTS’s stock records. Upon the request of the Participant, MTS shall deliver to the Participant certificated Shares representing the number of vested Shares in certificated form as requested.
5.
Until Shares are issued in settlement of the vested Units in accordance with Paragraph 4, the Participant will not be deemed for any purpose to be, or have rights as, a shareholder of MTS, or to exercise, directly or by proxy, voting rights or to receive dividends with respect to the Shares issuable prior to or concurrent with the vesting of the Units. In addition, the Participant will not be entitled to any dividend equivalents, in the form of cash, additional Units or Shares, with respect to the Units for the period prior to the settlement of the Units. From and after the date of settlement, the Participant shall have all rights and privileges of any other shareholder with respect to the Shares issued in settlement of the vested Units.
6.
MTS may make an equitable adjustment in the number of Units that have not vested in the event of any change in the capital structure of MTS, including but not limited to such changes as stock dividends or stock splits (Section 3.4). Any additional Units issued to the Participant as a result of any of the foregoing events shall continue to be subject to the terms set forth herein to the same extent as the Units giving rise to the right to receive such additional Units.
7.
Nothing in this Agreement shall modify or reduce the rights or discretions of the Committee set forth in the Plan, including but not limited to:
a.
Modifying the Award to comply with tax laws or upon dissolution or liquidation of MTS (Section 12.3);
b.
Requiring Shares to be held in escrow (Section 13.6); or
c.
Amending the terms and conditions of any Award consistent with Section 12.3.
8.
As a condition to MTS’s obligation to issue Shares in settlement of the Units, the Participant shall pay or make arrangements for the payment of any required tax withholding applicable to the vesting and issuance of the Shares in settlement of any vested Units. The Participant may elect
2
by written notice to MTS to satisfy part or all of any withholding tax requirements associated with the issuance of Shares by (a) authorizing MTS to retain from the number of Shares that would otherwise be issued to the Participant or (b) delivering to MTS from Shares already owned by the Participant that number of Shares having an aggregate Fair Market Value equal to part or all of the tax payable by the Participant under this Paragraph, and in the event Shares are withheld or delivered, the amount withheld shall not exceed the statutory minimum required federal, state FICA and other payroll taxes.
9.
The Units shall represent an unfunded promise to issue Shares in the future and Participant shall have no rights other than as a general creditor of MTS with respect to the issuance of Shares. Except as otherwise provided in Section 7.1(h), a Participant shall not sell, transfer, pledge, assign or otherwise encumber any of the Units, whether voluntarily, involuntarily or by operation of law. Any purported transfer, pledge or encumbrance of such Units shall be void and unenforceable against MTS, and no purported transferee shall acquire any right or interest with respect to the Shares as a result.
10.
If any Participant who is an employee is on: (a) a qualified military leave; (b) an MTS-approved leave of absence of less than 90 days; or (c) an MTS-approved leave of greater than 90 days and MTS is obligated by statute or written contract to re-employ the Participant at the end of the approved leave, and in any event, does not return to employment with MTS within 30 days of the end of the approved leave, the Participant will incur a termination of employment for purposes of the Plan as of the last day of the approved leave. The Vice President of Human Resources of MTS has been delegated the authority to approve all leaves of absence and to enter into such contracts to provide for re-employment for purposes of the Plan (Section 5.3).
11.
MTS shall cancel any Units, recover all or any portion of Shares issued under the Plan (or the proceeds thereof), and shall take such other action, including recovery out of other amounts paid or owing to the Participant, in an amount and under such conditions as required by law (Section 13.8).
12.
MTS may, in its sole discretion, reduce, cancel, forfeit or recoup any rights, payments or benefits paid or otherwise due to the Participant, including any Units and any Shares issued under the Plan for Cause (including termination of employment as a result), breach of any noncompetition, confidentiality, nonsolicitation, noninterference, corporate property protection or any other agreement between MTS and Participant or any other action of the Participant that the Committee deems detrimental to the business or reputation of MTS or any of its subsidiaries (Section 13.8). The Committee hereby delegates to the Chief Executive Officer the authority and discretion to exercise the rights under Section 13.8 with respect to Shares held by and Units and other payments paid or due to persons other than the executive officers of MTS.
13.
Nothing in this Agreement shall be construed as constituting a commitment, guaranty, agreement or understanding of any kind or nature that MTS or its subsidiaries will retain the services of the Participant as an employee, director or consultant, and this Agreement shall not affect in any way the right of MTS or its subsidiaries or the Participant to terminate the relationship as an employee, director or consultant at any time or for any reason in accordance with the procedures governing such termination, without any liability or claim under the Plan.
14.
The Committee shall exercise any authority and discretion in the interpretation of this Agreement in accordance with the terms of the Plan. This Agreement is intended to be exempt from the requirements of Section 409A of the Code and shall be construed and interpreted in accordance with such intent. Except as provided herein or as provided in the Plan, no payment shall be subject to further deferral except as otherwise permitted or required pursuant to regulations and other guidance issued pursuant to Section 409A of the Code. Any provision of this Agreement that would fail to satisfy the exemption for a short-term deferral for purposes of Section 409A of the Code shall be amended to so comply on a timely basis.
15.
The Participant must accept this award of Restricted Stock Units within 60 days of the grant date set forth in the Notice. Failure to accept the award by logging in to the E*Trade website and formally accepting the award may result in the withdrawal of the award. Once withdrawn, the award may no longer be available to the Participant.
3
§
Except to the extent specifically provided in this Agreement, this award shall be subject to and governed by the terms and conditions of the Plan, which shall be incorporated as though fully set forth herein. The foregoing terms and conditions shall remain in effect until further modified by action of the Committee, either in the form of a modification of these terms and conditions or by a written term or condition set forth in any individual award approved by the Committee subsequent to the date of adoption of these terms and conditions, provided that no change shall adversely affect any accrued right of the Participant without the Participant’s written consent.
4
Exhibit 99.3
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Non-Qualified Stock Option Agreement – Employee
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MTS SYSTEMS CORPORATION
ID: 41-0908057
14000 Technology Drive
Eden Prairie, MN 55344
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«First» «MI» «Last»
«Address»
«M_2nd_Line»
«City» «Rg» «Postal_code»
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Option
Number:
Plan:
ID:
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«Number»
2017
«ID»
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Effective «Option_Date», you (the “Participant”) have been granted an Option to buy «Shares» shares of MTS SYSTEMS CORPORATION (the “Company”) common stock at $«Price» per share. This Option is granted pursuant to the Company’s 2017 Stock Incentive Plan (the “Plan”) and is classified as a
Non-Qualified Stock Option
.
Shares under this Option will become fully vested and exercisable on the following dates, subject to earlier vesting and exercise as described in the Plan:
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Shares
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Date Shares Vest and are
First Exercisable
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«SharesY1»
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«DateY1»
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«SharesY2»
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«DateY2»
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«SharesY2»
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«DateY3»
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By accepting this grant via this website, you and the Company agree that the option evidenced by this Option Agreement is subject to the following:
A.
This Option is governed by all the terms, provisions and conditions set forth in the Company’s 2017 Stock Incentive Plan, as amended, and by
Uniform Terms and Conditions Applicable to Option Grants
adopted by the Compensation Committee (the “Committee”) of the Board of Directors of the Company, which are incorporated herein.
B.
This option shall expire on «ExpireDate», but may expire earlier in the event your services with the Company are terminated or a change in control of the Company occurs, as further described in the Plan.
C.
Neither the Plan nor this Agreement confers any right with respect to continuance of your services to the Company or any of its subsidiaries nor restricts your right to terminate services to the Company at any time.
D.
The shares of stock received as a result of the exercise of this Option may be recouped at the discretion of the Committee if certain events occur, including termination of your services to the Company or you compete with the Company after termination of your services in violation of your agreements with the Company, or upon certain acts detrimental to the Company, as further described in the Plan.
E.
The Committee may amend or terminate the Plan and this Option at any time, provided that no such action shall impair any rights that have accrued at the time of amendment or termination without your consent.
F.
This electronic document and your acceptance are the only evidence of this grant and no paper copy will be sent to you to evidence the grant and your acceptance.
YOU MUST ACCEPT THIS GRANT WITHIN 60 DAYS OF THE GRANT DATE. IF YOU DO NOT, THIS AWARD MAY BE WITHDRAWN. ONCE WITHDRAWN, THIS GRANT MAY NO LONGER BE AVAILABLE.
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«Option_Date»
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MTS SYSTEMS CORPORATION
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Date
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UNIFORM TERMS AND CONDITIONS APPLICABLE TO
EMPLOYEE NON-QUALIFIED STOCK OPTION GRANTS UNDER
THE MTS SYSTEMS CORPORATION 2017 STOCK INCENTIVE PLAN
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Pursuant to the authority set forth in Section 5 of the MTS Systems Corporation 2017 Stock Incentive Plan (the “Plan”), the Compensation Committee (the “Committee”) of the Board of Directors hereby establishes the following uniform terms and conditions that apply to any and all Options granted under the Plan to employees (the “Participant”), in addition to the terms set forth in the Plan (Section references are to Sections of the Plan):
Terms Applicable to Options
1.
All unexercised Options shall expire immediately following the seventh anniversary of the date of grant of the Option, subject to earlier expiration as set forth in the Plan, including for Cause, a Qualifying Event, a Change in Control, or the dissolution or liquidation of MTS. (Section 7.2). If the Qualifying Event is termination of employment, the Option shall expire at 5 pm CST on the 90th day after the date of termination (180th day after the date of termination as a result of death, disability, or retirement).
2.
The Option shall be exercisable as to one-third of the total number of Shares from and after the first anniversary of the date of grant; an additional one-third of the total number of Shares from and after the second anniversary of the date of grant, and the remainder of Shares from and after the third anniversary of the date of grant of the Option, subject to the earlier exercise of the Option under the terms the Plan or at the discretion of the Committee. (Section 7.1(e)). In the event of the death or Disability of the Participant while in the employ of the Company, the Option shall immediately be exercisable in full (Section 7.1(f)), subject to the expiration conditions as provided in Paragraph 1.
3.
The Option may not be sold, transferred, pledged, assigned or otherwise alienated, except upon the death of the Participant by will or the laws of descent and distribution. (Section 7.1(h)).
4.
Any Option of a Participant who is on: (a) a qualified military leave; (b) an MTS-approved leave of absence of less than 90 days; or (c) an MTS-approved leave of greater than 90 days and MTS is obligated by statute or written contract to re-employ the Participant at the end of the approved leave, shall not expire and if an Incentive Stock Option (ISO), shall continue to constitute an ISO during the leave period. If the Participant does not return to employment with MTS within 30 days of the end of the military or an MTS-approved leave, the Participant will incur a termination of employment as of the last day of the approved leave period, and the Option will expire at 5 pm CST on the 90th day after the date of termination of employment. If a Participant is on an MTS-approved leave of absence of more than 90 days but whose re-employment with MTS is not provided by statute or contract, the Option will not expire during the period of leave but if an ISO, shall constitute a Non-qualified Stock Option (NQSO) from and after 180 days following the commencement of the leave of absence. In that case, if the Participant does not return to employment with MTS prior to the end of the approved leave period, the Option will expire at 5 pm CST on the last day of the approved leave period. (Section 13.4) The Vice President of Human Resources of MTS has been delegated the authority to approve all leaves of absence and to enter into such contracts to provide for re-employment for purposes of the Plan. (Section 5.3).
5.
MTS may make an equitable adjustment in the number of Shares with respect to any outstanding Option for which the exercise period has not lapsed in the event of any change in the capital structure of MTS, including but not limited to such changes as stock dividends or stock splits. (Section 3.4) Any additional Shares issued to the Participant as a result of any of the foregoing events shall continue to be subject to the terms set forth herein to the same extent as the Shares giving rise to the right to receive such additional Shares.
6.
Nothing in this Agreement shall modify or reduce the rights or discretions of the Committee set forth in the Plan, including but not limited to:
a.
Cashing out or requiring the exercise of Options upon a Change in Control (Section 11.3);
b.
Modifying Options to comply with tax laws or upon dissolution or liquidation of MTS (Section 12.3);
c.
Requiring Shares to be held in escrow (Section 13.6); or
2
d.
Amending the terms and conditions of any Option consistent with Section 12.3.
7.
MTS shall recover all or any portion of the Options, any Shares issued under the Plan (or the proceeds thereof), and shall take such other action, including recovery out of other amounts paid or owing to the Participant, in an amount and under such conditions as required by law. (Section 13.8)
8.
MTS may, in its sole discretion, reduce, cancel, forfeit or recoup any rights, payments or benefits paid or otherwise due to the Participant, including any Shares issued under any Option or the Plan for Cause (including termination of employment as a result), breach of any noncompetition, confidentiality, nonsolicitation, noninterference, corporate property protection or any other agreement between MTS and Participant or any other action of the Participant that the Committee deems detrimental to the business or reputation of MTS or any of its subsidiaries. (Section 13.8) The Committee hereby delegates to the Chief Executive Officer the authority and discretion to exercise the rights under Section 13.8 with respect to Shares held by and other payments paid or due to persons other than the executive officers of MTS. If MTS intends for the Option to be accounted for as equity, MTS shall delay the exercise of the rights under Section 13.8 for the period as may be required to preserve such accounting treatment.
9.
Nothing in this Agreement shall be construed as constituting a commitment, guaranty, agreement or understanding of any kind or nature that MTS or its subsidiaries will retain the services of the Participant as an employee, director or consultant, and this Agreement shall not affect in any way the right of MTS or its subsidiaries or the Participant to terminate the relationship as an employee, director or consultant at any time or for any reason in accordance with the procedures governing such termination, without any liability or claim under the Plan.
Conditions of Exercise of Option
10.
In payment of the exercise price of an Option in a form other than cash, the Participant may: (a) deliver or attest to the ownership of unrestricted Shares (including Shares issuable under this Option) having a Fair Market Value equal to the exercise price; (b) authorizing MTS to retain from the number of Shares that would otherwise be deliverable to the Participant that number of Shares having a Fair Market Value equal to the exercise price; (c) deliver with the exercise notice, irrevocable instructions to a broker to promptly deliver to MTS the amount of sale or loan proceeds to pay the exercise price, except in the event, in the opinion of counsel to MTS, such right constitutes a direct or indirect loan in violation of federal securities laws. (Section 7.2(f)).
11.
As a condition to MTS’s obligation to issue Shares upon exercise of the Option, the Participant shall pay or make arrangements for the payment of any required tax withholding applicable to the vesting of the Units and issuance of the Shares in settlement therefore. A Participant may elect by written notice to MTS to satisfy part or all of the withholding tax requirements associated with the award by: (a) authorizing MTS to retain from the number of Shares that would otherwise be deliverable to the Participant, except to the extent such retention would violate applicable securities laws; or (b) delivering to MTS from Shares already owned by the Participant that number of Shares having an aggregate Fair Market Value equal to part or all of the tax payable by the Participant under this Section, and in the event Shares are withheld or delivered, the amount withheld shall not exceed the statutory minimum required federal, state, FICA and other payroll taxes. (Section 9.6).
12.
Shares shall be issued only if and to the extent such issuance is in compliance with all applicable securities laws or is otherwise exempt from such laws. The Participant may be required to sign a document satisfactory to MTS that, among other things, the Participant is purchasing the Shares for investment purposes and not with a view to sell or distribute the Shares except in compliance with applicable securities laws. (Section 8.2)
Terms Applicable to Shares
13.
The Participant shall immediately notify the Human Resources department of MTS in the event the Participant sells or otherwise disposes of any Shares issued pursuant to an ISO on or before the later of: (a) the date two years after the date of grant of the Option or (b) the date one year after the exercise of such Option. The Participant shall cooperate with MTS to enable MTS to properly report such disposition for tax purposes, and agrees to include any compensation
3
income as a result of the disposition in the Participant’s income for federal tax purposes. (Section 9.7)
14.
Any “affiliate” (as defined in Rule 144 under the Securities Exchange Act) shall exercise and shall resell any Shares acquired upon exercise of the Option only in accordance with the applicable requirements of the MTS Insider Trading Policy, as amended from time to time, and any other requirements under applicable securities laws. (Section 8.1).
Acceptance of Option Grant
15.
The Participant must accept this Option award within 60 days of the grant date set forth in the Option Agreement. Failure to accept the award by logging in to the E*Trade website and formally accepting the award may result in the withdrawal of the award. Once withdrawn, the award may no longer be available to the Participant.
§
Except to the extent specifically provided in this Agreement, this Option shall be subject to and governed by the terms and conditions of the Plan, which shall be incorporated as though fully set forth herein. The foregoing terms and conditions shall remain in effect until further modified by action of the Committee, either in the form of a modification of these terms and conditions or by a written term or condition set forth in any individual award approved by the Committee subsequent to the date of adoption of these terms and conditions, provided that no change shall adversely affect any accrued right of the Participant without the Participant’s written consent.
4
Exhibit 99.4
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Performance Restricted Stock Unit Agreement – Employee
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MTS SYSTEMS CORPORATION
ID: 41-0908057
14000 Technology Drive
Eden Prairie, MN 55344
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«First» «MI» «Last»
«Address»
«M_2nd_Line»
«City» «Rg» «Postal_code»
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Award Number:
Plan:
ID:
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«Number»
2017
«ID»
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Effective «Grant_date», you have been granted «TargetShares» Target Shares of Performance Restricted Stock Units representing the right to receive shares of MTS SYSTEMS CORPORATION (the “Company”) stock pursuant to the Company’s 2017 Stock Incentive Plan (the “Plan”). Under this Grant, you will earn a percentage of the Target Shares (rounded to the nearest whole share) only at the time and upon achievement of the Performance Goal (“Goal”) of the specified Performance Measure (“Measure”), determined by Goal achievement at, below or above Target as set forth below.
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PERFORMANCE PERIOD:
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<<Performance Period Start>> – <<Performance Period End>>
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PERFORMANCE MEASURE:
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Average Annual Return on Invested Capital (“ROIC”)
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TARGET SHARES:
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<<TargetUnits>>
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PAYOUT DATE:
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<<PayoutDate>>
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PERFORMANCE GOAL
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PERCENTAGE OF UNITS
EARNED
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NUMBER OF UNITS
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THRESHOLD:
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«ThreshPerf%»
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50%
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«ThreshShares»
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TARGET:
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«TargetPerf%»
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100%
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«TargetShares»
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MAXIMUM:
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= or > than «MaxPerf%»
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200%
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«MaxShares»
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The percentage of Units earned will be interpolated from 50% to 100% of the Target Units for performance between Threshold and Target and will be interpolated from 100% to 200% for performance between Target and Maximum.
You must remain actively employed by the Company as of the Payout Date to vest in the Shares earned. On or shortly after the Payout Date, the Company will issue that number of unrestricted whole Shares based upon achievement of the Performance Goal set forth above; provided, that, if you are a Named Executive Officer, the vesting and issuance of such Shares will also be subject to compliance with requirements for Performance Based Awards under the Plan, including the certification of the achievement of the Performance Goals by the Compensation Committee.
By accepting this grant via this website, you and the Company agree that the Performance Restricted Stock Units evidenced by this Agreement are subject to the following:
A.
This Agreement, the Units, and the Shares issuable upon the vesting of the Units are governed by all the terms, provisions and conditions set forth in the Company’s 2017 Stock Incentive Plan and by Uniform Terms and Conditions Applicable to Performance Restricted Stock Unit Agreements (Employee) adopted by the Board of Directors of the Company, which are incorporated herein.
B.
Neither the Plan nor this Agreement confers any right with respect to continuance of your services to the Company or any of its subsidiaries nor restricts your right to terminate services to the Company at any time.
C.
Vesting of the Units shall occur earlier than set forth above in accordance with the conditions set forth in the Uniform Terms and Conditions Applicable to Performance Restricted Stock Unit Agreements (Employee).
D.
The Company may amend or terminate the Plan and this Agreement at any time, provided that no such action shall impair any rights that have accrued at the time of amendment or termination without your consent.
YOU MUST ACCEPT THIS GRANT WITHIN 60 DAYS OF THE GRANT DATE. IF YOU DO NOT, THIS AWARD MAY BE WITHDRAWN. ONCE WITHDRAWN, THIS GRANT MAY NO LONGER BE AVAILABLE.
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«Grant_date»
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MTS SYSTEMS CORPORATION
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Date
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UNIFORM TERMS AND CONDITIONS APPLICABLE TO
EMPLOYEE PERFORMANCE RESTRICTED STOCK UNIT AGREEMENTS UNDER
THE MTS SYSTEMS CORPORATION 2017 STOCK INCENTIVE PLAN
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Pursuant to the authority set forth in Section 5 of the MTS Systems Corporation 2017 Stock Incentive Plan (the “Plan”) the Compensation Committee (the “Committee”) of the Board of Directors adopts the following terms and conditions to apply to any and all awards of Performance Restricted Stock Units granted under the Plan to employees (the “Participant”) in addition to the terms set forth in the Plan (Section references are to Sections of the Plan):
1.
The terms and conditions set forth below govern the issuance to the Participant of the number of units (“Units”), which represent the right to receive shares of MTS Common Stock, $.25 par value per share (the “Shares”) in accordance with the terms of a Performance Restricted Stock Unit Agreement (“Agreement”), and the issuance of Shares upon the vesting of the Units. The Uniform Terms and Conditions set forth herein are incorporated and made a part of the Agreement and capitalized words used herein not otherwise defined in the Plan shall be as defined in the Agreement.
2.
The Units will be earned and vest in accordance with the date or dates set forth in the Agreement, or upon an earlier date as set forth herein or as otherwise determined by the Committee; provided that the Participant is serving as an employee, director or consultant of MTS or its subsidiaries on the date on which occurs the event giving rise to the vesting. In the event that the Participant ceases to serve as an employee, director or consultant due to death or disability during the Performance Period, all restrictions on the Target Shares will immediately lapse (Section 7.1(f)). If the Participant ceases to serve as an employee, director or consultant during the Performance Period for any reason other than death or disability, all Units that are not vested shall be forfeited to MTS, without payment.
3.
Notwithstanding Paragraph 2 above, all Units that have not vested in accordance with the Agreement shall immediately fully (100%) vest upon the occurrence of a Change in Control (as defined in the Plan) provided that the terms of the agreements effectuating the Change in Control do not provide for the assumption or substitution of the Units (Section 11.2).
4.
MTS shall, no later than the Payout Date, make a book entry of the issuance of such Shares to the Participant on MTS’s stock records. Upon the request of the Participant, MTS shall deliver to the Participant certificated Shares representing the number of vested Shares in certificated form as requested.
5.
Until the Payout Date, the Participant will not be deemed for any purpose to be, or have rights as, a shareholder of MTS, or to exercise, directly or by proxy, voting rights or to receive dividends with respect to the Shares. In addition, the Participant will not be entitled to any dividend equivalents, in the form of cash, additional Units or Shares, with respect to the Units for the period prior to the Payout Date. From and after the Payout Date, the Participant shall have all rights and privileges of any other shareholder with respect to the Shares issued in settlement of the vested Units.
6.
MTS may make an equitable adjustment in the number of Units that have not been earned and vested in the event of any change in the capital structure of MTS, including but not limited to such changes as stock dividends or stock splits (Section 3.4). Any additional Units issued to the Participant as a result of any of the foregoing events shall continue to be subject to the terms set forth herein to the same extent as the Units giving rise to the right to receive such additional Units.
7.
Nothing in this Agreement shall modify or reduce the rights or discretions of the Committee set forth in the Plan, including but not limited to:
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a.
Modifying the Award to comply with tax laws or upon dissolution or liquidation of MTS (Section 12.3);
b.
Requiring Shares to be held in escrow (Section 13.6); or
c.
Amending the terms and conditions of any Award consistent with Section 12.3.
8.
As a condition to MTS’s obligation to issue Shares on the Payout Date, the Participant shall pay or make arrangements for the payment of any required tax withholding applicable to the issuance of the Shares. The Participant may elect by written notice to MTS to satisfy part or all of any withholding tax requirements associated with the issuance of Shares by (a) authorizing MTS to retain from the number of Shares that would otherwise be issued to the Participant or (b) delivering to MTS from Shares already owned by the Participant that number of Shares having an aggregate Fair Market Value equal to part or all of the tax payable by the Participant under this Paragraph, and in the event Shares are withheld or delivered, the amount withheld shall not exceed the statutory minimum required federal, state FICA and other payroll taxes.
9.
The Units shall represent an unfunded promise to issue Shares in the future and Participant shall have no rights other than as a general creditor of MTS with respect to the issuance of Shares. Except as otherwise provided in Section 7.1(h), a Participant shall not sell, transfer, pledge, assign or otherwise encumber any of the Units, whether voluntarily, involuntarily or by operation of law. Any purported transfer, pledge or encumbrance of such Units shall be void and unenforceable against MTS, and no purported transferee shall acquire any right or interest with respect to the Shares as a result.
10.
If any Participant who is an employee is on: (a) a qualified military leave; (b) an MTS-approved leave of absence of less than 90 days; or (c) an MTS-approved leave of greater than 90 days and MTS is obligated by statute or written contract to re-employ the Participant at the end of the approved leave, and in any event, does not return to employment with MTS within 30 days of the end of the approved leave, the Participant will incur a termination of employment for purposes of the Plan as of the last day of the approved leave. The Vice President of Human Resources of MTS has been delegated the authority to approve all leaves of absence and to enter into such contracts to provide for re-employment for purposes of the Plan (Section 5.3).
11.
MTS shall cancel any Units, recover all or any portion of Shares issued under the Plan (or the proceeds thereof), and shall take such other action, including recovery out of other amounts paid or owing to the Participant, in an amount and under such conditions as required by law (Section 13.8).
12.
MTS may, in its sole discretion, reduce, cancel, forfeit or recoup any rights, payments or benefits paid or otherwise due to the Participant, including any Units and any Shares issued under the Plan for Cause (including termination of employment as a result), breach of any noncompetition, confidentiality, nonsolicitation, noninterference, corporate property protection or any other agreement between MTS and Participant or any other action of the Participant that the Committee deems detrimental to the business or reputation of MTS or any of its subsidiaries (Section 13.8). The Committee hereby delegates to the Chief Executive Officer the authority and discretion to exercise the rights under Section 13.8 with respect to Shares held by and Units and other payments paid or due to persons other than the executive officers of MTS.
13.
Nothing in this Agreement shall be construed as constituting a commitment, guaranty, agreement or understanding of any kind or nature that MTS or its subsidiaries will retain the services of the Participant as an employee, director or consultant, and this Agreement shall not affect in any way the right of MTS or its subsidiaries or the Participant to terminate the relationship as an employee, director or consultant at any time or for any reason in accordance with the procedures governing such termination, without any liability or claim under the Plan.
14.
The Committee shall exercise any authority and discretion in the interpretation of this Agreement in accordance with the terms of the Plan. This Agreement is intended to be exempt from the
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requirements of Section 409A of the Code and shall be construed and interpreted in accordance with such intent. Except as provided herein or as provided in the Plan, no payment shall be subject to further deferral except as otherwise permitted or required pursuant to regulations and other guidance issued pursuant to Section 409A of the Code. Any provision of this Agreement that would fail to satisfy the exemption for a short-term deferral for purposes of Section 409A of the Code shall be amended to so comply on a timely basis.
15.
The Participant must accept this award of Performance Restricted Stock Units within 60 days of the grant date set forth in the Agreement. Failure to accept the award by logging in to the E*Trade website and formally accepting the award may result in the withdrawal of the award. Once withdrawn, the award may no longer be available to the Participant.
§
Except to the extent specifically provided in this Agreement, this award shall be subject to and governed by the terms and conditions of the Plan, which shall be incorporated as though fully set forth herein. The foregoing terms and conditions shall remain in effect until further modified by action of the Committee, either in the form of a modification of these terms and conditions or by a written term or condition set forth in any individual award approved by the Committee subsequent to the date of adoption of these terms and conditions, provided that no change shall adversely affect any accrued right of the Participant without the Participant’s written consent.
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Exhibit 99.5
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Restricted Stock Unit Agreement – Non-employee Director
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MTS SYSTEMS CORPORATION
ID: 41-0908057
14000 Technology Drive
Eden Prairie, MN 55344
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«First» «MI» «Last»
«Address»
«M_2nd_Line»
«City» «Rg» «Postal_code»
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Award Number:
Plan:
ID:
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«Number»
2017
«ID»
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As a Non-employee Director of MTS SYSTEMS CORPORATION (the Company), you have been granted Restricted Stock Units (“Units”) of the common stock of the Company pursuant to Section 7.8 of the Company’s 2017 Stock Incentive Plan (the “Plan”), subject to restrictions on your right to transfer the Units as provided in the Plan and the
Uniform Terms and Conditions Applicable to Non-employee Director Restricted Stock Unit Grants
, adopted by the Board of Directors, which are incorporated herein.
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Date of Grant of Restricted Stock Units:
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[DATE]
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Number of Restricted Stock Units:
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[NUMBER]
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The value of a Unit, based on the value of the common stock of the Company on the date of grant:
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[SHARE PRICE]
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By accepting this grant via this website, you and the Company agree that the Units evidenced by this Restricted Stock Unit Agreement are subject to the following:
A. This Agreement and the Shares issuable hereunder are governed by all the terms, provisions and conditions set forth in the Company’s 2017 Stock Incentive Plan and by
Uniform Terms and Conditions Applicable to Non-employee Director Restricted Stock Unit Grants
, including the right to dividend equivalents on such Units and the right to elect to defer receipt of the Shares upon vesting under the terms of the Company’s Executive Deferred Compensation Plan (2005 Restatement), as amended.
B. All restrictions shall lapse on the date of the next regular annual shareholder meeting following the date of grant, if you continue to serve as a director of the Company through such annual meeting. A pro-rata portion of the Units shall vest if you cease to be a director of the Company prior to the date that the restrictions would otherwise lapse.
C. All restrictions shall lapse upon or immediately prior to the occurrence of a Change in Control to the extent set forth in the Uniform Terms and Conditions Applicable to Non-employee Director Restricted Stock Unit Grants.
D. Any Units you elect to defer under the Deferred Compensation Plan shall be subject to the terms and conditions of the Plan and the Deferred Compensation Plan after the date of deferral.
E. The Company may amend or terminate the Plan and this Agreement at any time, provided that no such action shall impair any rights that have accrued at the time of amendment or termination without your consent.
YOU MUST ACCEPT THIS GRANT WITHIN 60 DAYS OF THE GRANT DATE. IF YOU DO NOT, THIS AWARD MAY BE WITHDRAWN. ONCE WITHDRAWN, THIS GRANT MAY NO LONGER BE AVAILABLE.
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«Grant_date»
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MTS SYSTEMS CORPORATION
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Date
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UNIFORM TERMS AND CONDITIONS APPLICABLE TO
NON-EMPLOYEE DIRECTOR RESTRICTED STOCK UNIT GRANTS UNDER
THE MTS SYSTEMS CORPORATION 2017 STOCK INCENTIVE PLAN
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Pursuant to the authority set forth in Section 7.8 of the MTS Systems Corporation 2017 Stock Incentive Plan (the “Plan”), the Compensation Committee (the “Committee”) of the Board of Directors (the “Board”) adopts the following terms and conditions to apply to any and all awards of Restricted Stock Units granted under the Plan to Non-employee Directors (the “Participant”) in addition to the terms set forth in the Plan (Section references are to Sections of the Plan):
1.
The terms and conditions set forth below govern the issuance to the Participant of the number of units (“Units”), which represent the right to receive shares of MTS Common Stock, $.25 par value per share (the “Shares”) set forth in a separate Notice of Grant of Restricted Stock Units (the “Notice”), and, subject to the election as provided in Paragraph 6, the issuance of Shares upon the vesting of the Units. This document and the Notice constitute the Restricted Stock Unit Agreement.
2.
The Units will vest on the date of the next regular annual shareholder meeting following the date of grant, if the Participant continues to serve as a director of MTS through such annual meeting (known as the “Restriction Period”). In the event that the Participant ceases to be a director due to death or disability during the Restriction Period, all restrictions will immediately lapse (Section 7.1(f)). In the event that the Participant ceases to be a director for reasons other than death or disability during the Restriction Period, a pro-rata portion of the Units shall vest, based on the number of calendar days since the date of grant over 365 days, rounded to the nearest whole Unit; all Units that are not vested as previously described shall be forfeited to MTS without payment therefore.
3.
Notwithstanding Paragraph 2 above, all Units that have not vested in accordance with the Notice shall immediately fully (100%) vest upon the occurrence of a Change in Control (as defined in the Plan) provided that the terms of the agreements effectuating the Change in Control do not provide for the assumption or substitution of the Units (Section 11.2).
4.
Prior to the vesting of the Units described in Paragraphs 2 and 3 above, MTS shall pay the Participant a cash amount (the “Dividend Equivalent”) equal to the amount of any dividend or similar distribution in cash paid to holders of with respect to one Share of MTS Common Stock, times the number of Units set forth in the Notice. Such Dividend Equivalent shall be paid as soon as practicable after the date of payment of the amount to the stockholders of MTS.
5.
Unless the Participant make an election as provided in Paragraph 6, no later than 30 days from the date of vesting as to any Units, MTS shall make a book entry of the issuance of such Shares to the Participant on MTS’s stock records in settlement of the Participant’s rights to Units under this Agreement. Upon the request of the Participant, MTS shall deliver to the Participant certificated Shares representing the number of vested Shares in certificated form as requested.
6.
The Participant may, in accordance with the provisions under the MTS Systems Corporation Executive Deferred Compensation Plan (2005 Restatement), as amended (the “Deferred Compensation Plan”), elect to defer part or all of the Units granted under the Notice (rounded to the nearest whole Unit), and if such an election is made, issuance of Shares for such Units shall be deferred as of the date such Units otherwise vest as provided above. From and after the date of deferral, the issuance of Shares shall be governed solely by the terms of the Plan and the Deferred Compensation Plan, and the terms of this Agreement shall cease and be of no further force and effect. Except as provided in this Paragraph 6 or under the terms of the Deferred Compensation Plan, no payment or issuance of Shares shall be subject to deferral.
7.
Until Shares are issued in settlement of the vested Units in accordance with Paragraph 5 or under the terms of the Deferred Compensation Plan, the Participant will not be deemed for any purpose to be, or have rights as, a shareholder of MTS, or to exercise, directly or by proxy, voting rights with respect to the Shares issuable prior to or concurrent with the vesting of the Units. From and
2
after the date of settlement, the Participant shall have all rights and privileges of any other shareholder with respect to the Shares issued in settlement of the vested Units.
8.
MTS may make an equitable adjustment in the number of Units that have not vested in the event of any change in the capital structure of MTS, including but not limited to such changes as stock dividends or stock splits (Section 3.4). Any additional Units issued to the Participant as a result of any of the foregoing events shall continue to be subject to the terms set forth herein to the same extent as the Units giving rise to the right to receive such additional Units.
9.
Nothing in this Agreement shall modify or reduce the rights or discretions of the Committee set forth in the Plan, including but not limited to amending the terms and conditions of any Award consistent with Section 12.3.
10.
Prior to the issuance or the deferral of Units as set forth above, the Units shall represent an unfunded promise to issue Shares in the future and Participant shall have no rights other than as a general creditor of MTS with respect to the issuance of Shares. Except as otherwise provided in Section 7.1(h), a Participant shall not sell, transfer, pledge, assign or otherwise encumber any of the Units, whether voluntarily, involuntarily or by operation of law. Any purported transfer, pledge or encumbrance of such Units shall be void and unenforceable against MTS, and no purported transferee shall acquire any right or interest with respect to the Shares as a result.
11.
Nothing in this Agreement shall be construed as constituting a commitment, guaranty, agreement or understanding of any kind or nature that MTS or its shareholders will retain the services of the Participant as a Non-employee Director, and this Agreement shall not affect in any way the right of MTS or its shareholders, or the Participant to end the services as a Non-employee Director at any time or for any reason in accordance with the procedures governing such termination, without any liability except as set forth in this Agreement.
12.
The Committee shall exercise any authority and discretion in the interpretation of this Agreement in accordance with the terms of the Plan. Prior to the deferral of any Units as provided in Paragraph 6, this Agreement is intended to be exempt from the requirements of Section 409A of the Code and shall be construed and interpreted in accordance with such intent. Any provision of this Agreement that would fail to satisfy the exemption for a short-term deferral for purposes of Section 409A of the Code shall be amended to so comply on a timely basis.
13.
The Participant must accept this award of Restricted Stock Units within 60 days of the grant date set forth in the Notice. Failure to accept the award by logging in to the E*Trade website and formally accepting the award may result in the withdrawal of the award. Once withdrawn, the award may no longer be available to the Participant.
§
Except to the extent specifically provided in this Agreement, this award shall be subject to and governed by the terms and conditions of the Plan, which shall be incorporated as though fully set forth herein. The foregoing terms and conditions shall remain in effect until further modified by action of the Committee, either in the form of a modification of these terms and conditions or by a written term or condition set forth in any individual award approved by the Committee subsequent to the date of adoption of these terms and conditions, provided that no change shall adversely affect any accrued right of the Participant without the Participant’s written consent.
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