As filed with the Securities and Exchange Commission on February 27, 2018
Registration
No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
S-8
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
CONMED CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
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New York
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16-0977505
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(State or Other Jurisdiction of
Incorporation or Organization)
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(IRS Employer
Identification Number)
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525 French Road
Utica, New York 13502-5994
(Address of Principal Executive Offices)
Stock Option Inducement Award and Restricted Stock Unit Inducement Award
(Full Title of the Plan)
Daniel S.
Jonas, Esq.
CONMED Corporation
525 French Road
Utica,
New York 13502-5994
(315)
797-8375
(Name, Address and Telephone Number 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.
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Large accelerated filer
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☒
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Accelerated filer
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☐
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Non-accelerated filer
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☐ (Do not check if a smaller reporting company)
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Smaller reporting company
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☐
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Emerging growth company
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☐
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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. ☐
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
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Amount of
Registration Fee
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Common Stock, par value $0.01 per share, issued under
Stock Option Inducement Award.
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48,000
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$50.61
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$2,429,280
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$302.45
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Common Stock, par value $0.01 per share, issued under
Restricted Stock Unit Inducement Award.
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8,000
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$60.26
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$482,080
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$60.02
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(1)
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This Registration Statement also relates to an indeterminate number of additional shares of common stock that may be issued pursuant to anti-dilution and adjustment provisions of the Stock Option Inducement Award and
the Restricted Stock Unit Inducement Award.
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(2)
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Calculated solely for the purpose of determining the registration fee pursuant to Rule 457(h). With respect to the Stock Option Inducement Award, this calculation is based on its per share exercise price. With
respect to the Restricted Stock Unit Inducement Award, this calculation is based upon the average of the high and low prices reported on the Nasdaq Stock Market on February 23, 2018, $60.26 per share.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
EXPLANATORY NOTE
On
January 2, 2018, CONMED Corporation, a New York corporation (the “Registrant”), granted employment inducement awards to Todd W. Garner in the form of (i) options to purchase 48,000 shares of the Registrant’s common stock,
par value $0.01 per share (the “Common Stock”), at an exercise price of $50.56 per share (the “Stock Option Award”), and (ii) restricted stock units in respect of 8,000 shares of Common Stock (the “RSU Award”, and
together with the Stock Option Award, the “Inducement Awards”). The Inducement Awards were granted outside of the Registrant’s existing equity plans as “employment inducement grants” under NASDAQ Listing Rule 5635(c)(4). In
accordance with Item 8(a) of Form
S-8,
an opinion of counsel as to the validity of the shares of Common Stock to be issued under the Inducement Awards is not provided because such shares will be treasury
shares.
All information required by Part I to be contained in the prospectus relating to the Inducement Awards is omitted from this
Registration Statement in accordance with Rule 428 under the Securities Act of 1933, as amended (the “Securities Act”).
I-1
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item 3.
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Incorporation of Documents By Reference
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The following documents filed by the Registrant
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (File
No. 0-16093),
are, other than with respect to any furnished information, hereby incorporated by reference
in this Registration Statement:
(a) The annual report on Form
10-K
for the fiscal year ended
December 31, 2017;
(b) The current report on Form
8-K
filed on January 2, 2018;
and
(c) The description of the
Registrant’s Common Stock which is contained in its Registration Statement on Form
8-A,
filed on August 5, 1987 pursuant to the Exchange Act.
All documents filed by the Registrant pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange Act after the date of this
Registration Statement and prior to the filing of a post-effective amendment to this Registration Statement which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part hereof from the date of filing of such documents.
Any
statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein (or in any other
subsequently filed document which also is incorporated or deemed to be incorporated by reference herein) 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.
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Item 4.
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Description of Securities
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Not applicable.
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Item 5.
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Interests of Named Experts and Counsel
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Not applicable.
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Item 6.
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Indemnification of Directors and Officers
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Section 722 of the New York Business
Corporation Law (the “BCL”) provides that a corporation may indemnify an officer or director, in the case of third party actions, against judgments, fines, amounts paid in settlement and reasonable expenses and, in the case of derivative
actions, against amounts paid in settlement and reasonable expenses, if the director or officer “acted, in good faith, for a purpose which he reasonably believed to be in . . . the best interests of the corporation” and, in the case of
criminal actions, in addition, “had no reasonable cause to believe that his conduct was unlawful.” Statutory indemnification may not be provided in derivative actions in respect of a threatened action, or a pending action which is settled
or otherwise disposed of, or any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation, unless and only to the extent that the court in which the action was brought, or, if no action was brought, any
court of competent jurisdiction, determines upon application that, in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for such portion of the settlement and expenses as the court deems proper.
II-1
As contemplated by BCL Section 721, the Registrant’s
By-Laws,
as amended and restated on April 29, 2011, provide a broader basis for indemnification in accordance with and as permitted by BCL Article 7.
Section 6.6 of the
By-Laws
of the Registrant (referred to in the
By-Laws
as the “Corporation”) provides as follows:
“Section 6.6. Indemnification. The Corporation shall indemnify each person made or threatened to be made a party to
any action or proceeding, whether civil or criminal, by reason of the fact that such person or such person’s testator or intestate is or was a director or officer of the Corporation, or serves or served at the request of the Corporation, any
other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, penalties, amounts paid in settlement and reasonable expenses, including attorneys’ fees, incurred in
connection with such action or proceeding, or any appeal therein, provided that no such indemnification shall be made if a judgment or other final adjudication adverse to such person establishes that his or her acts were committed in bad faith or
were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated, or that he or she personally gained in fact a financial profit or other advantage to which he or she was not legally entitled, and provided
further that no such indemnification shall be required with respect to any settlement or other nonadjudicated disposition of any threatened or pending action or proceeding unless the Corporation has given its prior consent to such settlement or
other disposition.
The Corporation may advance or promptly reimburse upon request any person entitled to indemnification
hereunder for all expenses, including attorneys’ fees, reasonably incurred in defending any action or proceeding in advance of the final disposition thereof upon receipt of an undertaking by or on behalf of such person to repay such amount if
such person is ultimately found not to be entitled to indemnification or, where indemnification is granted, to the extent the expenses so advanced or reimbursed exceed the amount to which such person is entitled, provided, however, that such person
shall cooperate in good faith with any request by the Corporation that common counsel be utilized by the parties to an action or proceeding who are similarly situated unless to do so would be inappropriate due to actual or potential differing
interests between or among such parties.
Anything in these
by-laws
to the
contrary notwithstanding, no elimination of this
by-law,
and no amendment of this
by-law
adversely affecting the right of any person to indemnification or advancement of
expenses hereunder shall be effective until the 60th day following notice to such person of such action, and no elimination of or amendment to this
by-law
shall deprive any person of his or her rights
hereunder arising out of alleged or actual occurrences, acts or failures to act prior to such 60th day.
The Corporation
shall not, except by elimination or amendment of this
by-law
in a manner consistent with the preceding paragraph, take any corporate action or enter into any agreement which prohibits, or otherwise limits the
rights of any person to, indemnification in accordance with the provisions of this
by-law.
The indemnification of any person provided by this
by-law
shall continue after
such person has ceased to be a director, officer or employee of the Corporation and shall inure to the benefit of such person’s heirs, executors, administrators and legal representatives.
The Corporation is authorized to enter into agreements with any of its directors, officers or employees extending rights to
indemnification and advancement of expenses to such person to the fullest extent permitted by applicable law as it currently exists, but the failure to enter into any such agreement, shall not affect or limit the rights of such person pursuant to
this
by-law,
it being expressly recognized hereby that all directors, officers and employees of the Corporation, by serving as such after the adoption hereof, are acting in reliance hereon and that the
Corporation is estopped to contend otherwise.
In case any provision in this
by-law
shall be determined at any time to be unenforceable in any respect, the other provisions shall not in any way be affected or impaired thereby, and the affected provision shall be given the fullest
possible enforcement in the circumstances, it being the intention of the Corporation to afford indemnification and advancement of expenses to its directors, officers and employees, acting in such capacities or in the other capacities mentioned
herein, to the fullest extent permitted by law.
II-2
For purposes of this
by-law,
the
Corporation shall be deemed to have requested a person to serve an employee benefit plan where the performance by such person of his or her duties to the Corporation also imposes duties on, or otherwise involves services by, such person to the plan
or participants or beneficiaries of the plan, and excise taxes assessed on a person with respect to an employee benefit plan pursuant to applicable law shall be considered indemnifiable expenses. For purposes of this
by-law,
the term “Corporation” shall include any legal successor to the Corporation, including any corporation which acquires all or substantially all of the assets of the Corporation in one or more
transactions.”
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Item 7.
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Exemption from Registration Claimed
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Not applicable.
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Exhibit
No.
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Description
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4.1
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Amended and Restated
By-Laws
— incorporated by reference to Exhibit 3.1 of the Registrant’s Quarterly Report on Form
10-Q
for the quarter
ended March 31, 2011.
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4.2
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1999 Amendment to Certificate of Incorporation and Restated Certificate of Incorporation of CONMED Corporation — incorporated by reference to Exhibit 3.2 of the Registrant’s Annual Report on Form
10-K
for the year ended December 31, 1999.
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4.3
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January 2, 2018 Stock Option Inducement Award.
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4.4
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January 2, 2018 Restricted Stock Unit Inducement Award.
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4.5
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Amended and Restated 2015 Long-Term Incentive Plan — incorporated by reference to Exhibit 4.3 of the Registrant’s Registration on Form
S-8
on October 23, 2015.
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23.1
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Consent of PricewaterhouseCoopers LLP.
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24
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Powers of Attorney (included on the signature page of the Registration Statement).
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(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 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;
(2) That, for the purpose of determining any liability under the Securities Act of 1933, 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; and
(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 of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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.
II-3
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 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 of 1933 and will be governed by the final adjudication of such issue.
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INDEX TO EXHIBITS
II-5
SIGNATURES OF CONMED CORPORATION
Pursuant to the requirements of the Securities Act of 1933, 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 Utica, State of New York
on this 27th day of February, 2018.
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CONMED Corporation
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By:
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/s/ Daniel S. Jonas
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Name:
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Daniel S. Jonas, Esq.
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Title:
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Executive Vice President — Legal Affairs & General Counsel
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KNOW ALL MEN BY THESE PRESENTS that each individual whose signature appears below constitutes and
appoints Daniel S. Jonas his true and lawful
attorney-in-fact
and agent with full power of substitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission,
granting unto said
attorney-in-fact
and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact
and agent or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of
1933, this Registration Statement has been signed by the following persons in the indicated capacities on this 27th day of February, 2018.
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Name
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Title
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/s/ Mark E. Tryniski
Mark E. Tryniski
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Chairman of the Board of Directors
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/s/ Curt R. Hartman
Curt R. Hartman
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President, Chief Executive Officer and Director
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/s/ Todd W. Garner
Todd W. Garner
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Executive Vice President — Finance and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer)
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/s/ Terence M. Bergé
Terence M. Bergé
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Vice President — Corporate Controller
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/s/ David Bronson
David Bronson
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Director
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/s/ Brian Concannon
Brian Concannon
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Director
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/s/ Charles M. Farkas
Charles M. Farkas
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Director
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II-6
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/s/ Martha Goldberg Aronson
Martha Goldberg Aronson
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Director
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/s/ Jo Ann Golden
Jo Ann Golden
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Director
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/s/ Dirk M. Kuyper
Dirk M. Kuyper
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Director
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/s/ Jerome J. Lande
Jerome J. Lande
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Director
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/s/ John L. Workman
John L. Workman
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Director
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II-7
Exhibit 4.3
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January 2, 2018 Stock Option
Inducement Award
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AWARD TERMS
CONMED Corporation hereby states the terms and conditions (the “Award Terms”) of the Stock Options for the recipient (“Employee”)
identified in the grant dated January 2, 2018 (the “Grant Date”) as designated by the Compensation Committee of the Board of Directors (the “Committee”). To receive the Stock Options, Employee must accept and agree to these
Award Terms. Capitalized terms not defined herein shall have the meanings ascribed to them in CONMED’s Amended and Restated 2015 Long-Term Incentive Plan (the “Plan”).
Grant of Stock Option
A stock option provides the right
to purchase shares of the Company’s Common Stock at the Fair Market Value of a share of the Company’s Common Stock on the Grant Date.
Stock
Options granted to Employee under these Award Terms are intended to be treated as nonstatutory stock options.
Status of Stock Options as Inducement
Award
The Stock Options are granted outside of the terms of the Plan, and the shares reserved thereunder, as an “employment inducement
grant” within the meaning of Nasdaq Listing Rule 5635(c)(4). Subject to these Award Terms, the Stock Options will be subject to the terms and conditions of the Plan and be governed as if they had been granted under the Plan, and will be
registered with the SEC by the Company prior to any vesting of any of the Stock Options.
Vesting and Restrictions on Exercise
These Stock Options shall vest according to the following schedule:
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Date
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Vested
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Unvested
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Grant Date
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0
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%
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100
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%
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Year 1
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20
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%
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80
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%
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Year 2
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40
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%
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60
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%
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Year 3
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60
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%
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40
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%
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Year 4
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80
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%
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20
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%
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Year 5
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100
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%
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0
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%
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Except as to accelerated vesting for death, disability, and as otherwise required as specified below, the Stock Options shall
become exercisable on the vesting date or dates specified, provided that the Employee has remained employed by the Company through such date. The Stock Options may not be exercised after, and shall expire on, the tenth anniversary of the date
hereof.
Additional Restrictions on Exercise, Confidentiality of Refusal to Permit Exercise of Stock Option.
An Employee’s ability to exercise the Stock Options granted herein shall be subject to the additional restrictions set forth below.
An Employee’s right to exercise the Stock Options granted herein shall be subject to the Company’s policies on securities laws matters, which
generally prohibit any employee from trading in Company stock when he or she is in possession of material, non-public information, as for example, concerning Company revenues, earnings, or acquisitions. An Employee who has access to such information
is required to contact the Office of the General Counsel to pre-clear any trade in Company stock, including the exercise of Stock Options.
In addition to
the foregoing certain other employees who have been notified in writing by the General Counsel that they are Affiliates with the meaning of SEC regulations are required to pre-clear all of their trades in Company stock,
and are subject to standard blackout periods (currently, from two weeks prior to the end of a quarter until earnings are announced) during which transactions in the Company’s Common Stock
are prohibited, subject to a written plan exception or defense, which policies the Company may, in its sole discretion, adopt or amend from time to time; and (ii) the possibility that the Company may, without warning or explanation, temporarily
decline to permit Stock Options be exercised. If the Company is requested to permit the exercise of Stock Options and refuses to permit such exercises, the Company will notify the requesting party when the Company’s refusal to permit the
exercise of Stock Options shall have ended.
If due to the nature of the Employee’s access to material non-public information, or if the Employee has
been notified by the General Counsel that he or she is required to pre-clear trades as indicated above, in order to exercise the Stock Options granted herein, the Employee must pre-clear any trades with the Company’s General Counsel with at
least three (3) business days’ prior written notice of the intent to exercise the Stock Options granted. The Company may in its sole discretion waive the notice period.
In the event that the Company should refuse to permit Stock Options to be exercised, Employee must maintain such refusal in confidence and shall not disclose
to any third person that the Company has refused to permit the requested exercise of Stock Options. Employee must not to trade or otherwise make use of the fact that the Company has refused to permit the exercise of Stock Options.
Termination of Employment; Vesting
Upon the termination
of the Employee’s employment with the Company and its subsidiaries for any reason other than a termination (i) due to death, or (ii) due to disability, then the Stock Option, to the extent exercisable as of the date of such
termination and subject to the non-compete and other restrictions set forth below, may be exercised at any time within 30 days after the earlier of: the date of such termination but in no event after the expiration date of the Stock Option. Stock
Options shall not vest after the date of termination of employment. Notwithstanding the foregoing, for those employees who reside in jurisdictions in which statutory or other law require an employer to provide notice of termination of employment,
Stock Options that have not vested as of the date of the notice of termination of employment provided by the Company’s subsidiary or affiliate shall not vest during any notice period, given that the purpose of equity compensation is to create
an incentive for key employees to create shareholder value, which purpose is no longer served by an employee who has been provided notice that his or her employment is being terminated.
In the event that employment with the Company is terminated as a result of the Employee’s death or disability, all unvested Stock Options will
immediately become fully vested and may be exercised for a period of 30 days following the termination of employment by the Employee or as provided for by the laws of descent and distribution, as the case may be. Upon the termination of the
Employee’s employment with the Company and its subsidiaries for any reason other than a termination (i) due to death, or (ii) due to disability, any unvested Stock Options shall cease vesting.
Unless the Committee determines otherwise, in the event of a Change in Control (as hereinafter defined), in which Awards are not assumed, substituted or
otherwise continued, all Stock Options awarded herein shall vest and be payable immediately without the need for further action. In the event of a Change in Control in which Awards are assumed, substituted or otherwise continued, if Employee’s
employment is terminated by the Company or any successor entity thereto without Cause or if the Employee resigns for Good Reason, in each case, within two (2) years after a Change in Control, each Stock Option that is not exercisable in full
shall be deemed fully vested. Notwithstanding the terms of the Plan to the contrary, a “Change in Control” shall mean the occurrence of any one of the following events: (i) any “person” (as such term is defined in
Section 3(a)(9) of the Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 50% or more of the combined voting power of the Company’s then outstanding securities eligible to vote for the election of the Board of Directors (the “Company Voting Securities”);
provided
,
however
,
that the event described in this paragraph (i) shall not be deemed to be a Change in Control by virtue of any of the following acquisitions: (A) by the Company or any of its subsidiaries, (B) by any employee benefit plan sponsored or
maintained by the Company or any of its subsidiaries, (C) by any underwriter temporarily holding securities pursuant to an offering of such securities, or (D) pursuant to a Non-Control Transaction (as defined in clause (ii) below),
(ii) the consummation of a merger, consolidation, share exchange or similar form of corporate reorganization of the Company (or any such type of transaction involving the Company or any of
its subsidiaries that requires the approval of the Company’s shareholders, whether for the transaction or the issuance of securities in the transaction or otherwise) (a “Business Combination”), unless immediately following such
Business Combination: (a) more than 60% of the total voting power of the corporation resulting from such Business Combination (including, without limitation, any corporation which directly or indirectly has beneficial ownership of 100% of the
Company Voting Securities) eligible to elect directors of such corporation is represented by shares that were Company Voting Securities immediately prior to such Business Combination (either by remaining outstanding or being converted), and such
voting power is in substantially the same proportion as the voting power of such Company Voting Securities immediately prior to the Business Combination, (b) no person (other than any holding company resulting from such Business Combination,
any employee benefit plan sponsored or maintained by the Company (or the corporation resulting from such Business Combination)) immediately following the consummation of the Business Combination becomes the beneficial owner, directly or indirectly,
of 50% or more of the total voting power of the outstanding voting securities eligible to elect directors of the corporation resulting from such Business Combination, and (c) at least a majority of the members of the board of directors of the
corporation resulting from such Business Combination were members of the Board of Directors at the time of the approval of the execution of the initial agreement providing for such Business Combination (any Business Combination which satisfies the
conditions in clauses (a), (b) and (c) is referred to hereunder as a “Non-Control Transaction”); or (iii) the shareholders of the Company approve a plan of complete liquidation or dissolution of the Company or the sale of
all or substantially all of its assets. Notwithstanding the foregoing, a Change in Control of the Company shall not be deemed to occur solely because any person acquires beneficial ownership of more than 50% of the Company Voting Securities as a
result of the acquisition of Company Voting Securities by the Company which reduces the number of Company Voting Securities outstanding;
provided
, that if after such acquisition by the Company such person becomes the beneficial owner of
additional Company Voting Securities that increases the percentage of outstanding Company Voting Securities beneficially owned by such person, a Change in Control of the Company shall then occur. “Cause” shall mean (a) the willful and
continued failure by an Employee to substantially perform his or her duties with the Company (other than any such failure resulting from his incapacity due to physical or mental illness), or (b) the willful engaging by the Employee in conduct
which is demonstrably and materially injurious to the Company or its affiliates. “Good Reason” shall mean with respect to any other Employee, the occurrence of any of the following in the absence of the Employee’s written consent:
(i) any material and adverse change in the Employee’s position or authority with the Company as in effect immediately before a Change in Control, other than an isolated and insubstantial action not taken in bad faith and which is remedied
by the Company within 30 days after receipt of notice thereof given by the Employee; (ii) the transfer of the Employee’s primary work site to a new primary work site that is more than 50 miles from the Employee’s primary work site in
effect immediately before a Change in Control; or (iii) a diminution of the Employee’s base salary in effect immediately before a Change in Control by more than 10%, unless such diminution applies to all similarly situated employees,
provided that (x) if the Employee does not deliver to the Company a written notice of termination within 60 days after the Employee has knowledge that an event constituting Good Reason has occurred, the event will no longer constitute Good
Reason and (y) the Employee must give the Company 30 days to cure the event constituting Good Reason.
Non-Compete and Non-Solicit Restrictions
a)
Non-Competition
. During Employee’s employment with the Company and for the period of one (1) year immediately
following the last date of such employment with the Company or its subsidiaries (the “Restricted Period”), Employee will:
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i)
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not anywhere in the same geography (country, region or state) in which Employee had responsibility for the Company or its affiliates during the three years prior to the termination of Employee’s employment with the
Company or its subsidiaries, and in which the Company or its affiliates operate, directly or indirectly (whether as principal, agent, independent contractor, employee or otherwise), own, manage, organize, operate, join, control or otherwise carry
on, participate in the ownership, management, organization, operation or control of, or be engaged in or concerned with, any business or activity competitive with the Company’s, or its affiliates’, businesses or activities relating to
which Employee either worked or had access to information concerning such business unit (a “Competing Business”), provided that Employee will not be prohibited from owning less than 5% of any publicly traded corporation, whether or not
such corporation is in competition with the Company or its affiliates;
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ii)
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inform any person who, or entity which, seeks to engage your services that Employee is bound by this Section and the other terms of this Non-Compete; and
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iii)
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not (x) solicit by mail, by telephone, by personal meeting, or by any other means, either directly or indirectly, any customer or any individual or entity specifically identified as a prospective customer of the
Company or its affiliates to transact any Competing Business or to reduce or refrain from doing any business with the Company or its affiliates, or (y) interfere with or damage (or attempt to interfere with or damage) any relationship between the
Company or its affiliates and any such customer or prospective customer (for purposes of clarity, the termination of your employment with the Company or its affiliates will not by itself be treated as a violation of this clause (y)).
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This Section will apply after Employee’s employment with the Company terminates for any reason.
b)
Non-Solicitation
. During the Restricted Period, Employee will not solicit, aid or induce (directly or indirectly, on Employee’s own behalf or on
behalf of any individual or entity other than the Company) any then current employee, representative or agent of the Company or any of its affiliates to leave such employment or retention or to accept employment with or render services to or with
any other person, firm, corporation or other entity unaffiliated with the Company or hire or retain any such employee, representative or agent, or take any action to assist or aid any other person, firm, corporation or other entity in identifying,
hiring or soliciting any such employee, representative or agent.
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c)
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Non-Disparagement
. Employee agrees not to make negative comments or otherwise disparage the Company or any of its affiliates, officers, directors, employees, shareholders, agents or products, in any manner likely
to be harmful to them or its business, business reputation or personal reputation.
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d)
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Cumulative Remedies
. If Employee commits a breach of, or threaten to breach any of the provisions of this Section, in addition to the Company’s rights to terminate any and all of its obligations hereunder,
the Company will have the right to seek an injunction or order of specific enforcement, without necessity of posting a bond or providing independent evidence of irreparable injury, by any court having jurisdiction, it being acknowledged and agreed
that any such breach or threatened breach will cause irreparable injury to the Company, and that money damages will not provide an adequate remedy to the Company. Notwithstanding any other provisions herein, any Stock Options granted by the Company
will terminate, and cease to be exercisable, upon Employee’s acceptance of employment with, rendering of services to, or establishment of any organization engaged in competition with the Company in violation of this Non-Compete and Non-Solicit
Restriction. If Employee has violated the provisions of this Non-Compete and Non-Solicit Restriction either during employment with the Company or within one year following the termination of employment with the Company, the Company shall be entitled
to recover the full, pre-tax value of any Stock Options that were exercised in violation of this provision. Employee and the Company recognize that the laws and public policies of various jurisdictions may differ as to the validity and
enforceability of agreements similar to those contained in this Section. It is the intention of Employee and the Company that the provisions of this Section will be enforced to the fullest extent permissible under the laws and public policies of
each jurisdiction in which such enforcement is sought.
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e)
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Tolling
. In the event of any violation of the provisions of this Section, Employee acknowledges and agrees that the post-termination restrictions contained in this Section will be extended by a period of time
equal to the period of such violation, it being the intention that the running of the applicable post-termination restriction period will be tolled during any period of such violation.
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f)
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S
urvivability
. The obligations contained in this Section will survive the termination of Employee’s employment with the Company and will be fully enforceable thereafter.
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g)
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Cumulative Non-Compete and Non-Solicit
. The Non-Compete and Non-Solicit Restrictions and other obligations set forth in these Award Terms supplement, and are in addition to, any other, pre-existing non-compete
and non-solicit restrictions contained in Employee’s employment agreements, which remain in full force and effect and are not amended or replaced in any way by the terms of these Award Terms.
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Trade Secrets: Protection of Confidentiality And Notice Under Defense of Trade Secrets Act
Employee acknowledges that employment with the Company will bring Employee into close contact with many confidential affairs of the Company and its affiliates,
including without limitation information about costs, profits, customers, markets, sales, products, key personnel, policies, operational methods, trade secrets and other business affairs and methods and other information not readily available to the
public, and plans for further development (“Confidential Information”). Accordingly, Employee covenants and agrees that Employee will deliver promptly upon termination of employment, or at any other time the Company may request, all
Confidential Information in the form of memoranda, notes, records, reports and any other documents or media (and all copies thereof) relating to the Company’s business which you may then possess or have under Employee’s control. In
addition, for as long as such information remains sensitive and confidential in nature, and is not made public (other than as a result of your action or inaction, direct or indirect), Employee will hold in strictest confidence all matters of the
Company or any of its affiliates that are not otherwise in the public domain and will not, directly or indirectly, disclose or otherwise communicate them to anyone outside of the Company, download or otherwise transfer or transmit them without
authorization or in violation of Company’s policies, or use them for Employee’s personal uses or otherwise, either during or after the period of your employment with the Company or its affiliates.
Notwithstanding the foregoing, Employee shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a
trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. An Employee shall not be held criminally or civilly liable
under any Federal or State trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An Employee who files a lawsuit for retaliation
by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the Employee and use the trade secret information in the court proceeding, if the Employee files any document containing the trade secret
under seal; and does not disclose the trade secret, except pursuant to court order.
Exercise
Subject to the Employee’s compliance with the Company’s policies on securities laws as noted above, the Stock Options may be exercised through the
brokerage Company through which the Company works and with which Employee has been instructed to open an account. Exercise of the Stock Option is conditioned on the Employee’s (i) payment of the amount of the federal, state and local
taxes, if any, required to be withheld and paid the Company as a result of such exercise by check or by the Company retaining the number of shares of Common Stock the fair market value of which is equal to the minimum amount required to be withheld;
and (ii) payment in full of the exercise price of each share as to which a Stock Option is exercised. Payment of the exercise price may be made (1) in cash, (2) by tender of shares of Company common stock owned by the employee as of
the date of exercise (subject to such guidelines as the Compensation Committee may establish), (3) in other consideration as the Compensation Committee deems appropriate, (4) by a combination of cash, shares of common stock and such other
consideration or (5) by withholding a portion of the common stock acquired upon the exercise of a part of a Stock Option.
Authority
The Committee shall have final authority to interpret and construe these Award Terms and to make all determinations thereunder, and its decisions shall be
final, binding and conclusive upon all persons, including the Employee and the Employee’s legal representative.
Amendment
These Award Terms may not be amended in any manner, except by an instrument in writing signed by the parties hereto.
Transferability
The Stock Option is not assignable or
transferable, and no right or interest of the Employee shall be subject to any lien, obligation or liability of the Employee, except by will or the laws of descent and distribution. Notwithstanding the immediately preceding sentence, the Committee
may, subject to the terms and conditions it may specify, permit the Employee to transfer the Stock Option to one or more of his immediate family members (i.e., his spouse and issue, including adopted and step children) or to trusts established in
whole or in part for the benefit of the Employee and/or one or more of such immediate family members as described in the Plan. During the lifetime of the Employee, the nonstatutory Stock Option shall be exercisable only by the Employee or by the
immediate family member or trust to whom such Stock Option has been transferred pursuant to the immediately preceding sentence.
No Rights of
Employment
These Award Terms shall not be construed as giving the Employee any right to continue in the employ of the Company or any subsidiary or
limit in any way the rights of the Company, or any subsidiary, to terminate employment of the Employee at any time.
Entire Agreement
The Plan is incorporated herein by reference. These Award Terms, the Plan and such other documents as may be executed in connection with the exercise of this
Stock Option constitute the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersede all prior understandings and agreements with respect to such subject matter.
Governing Law
These Award Terms shall be governed by,
and construed in accordance with, the laws of the State of New York without giving effect to any choice or conflict of laws provisions hereof. The federal or state courts in Oneida County, New York (including the United States District Court
for the Northern District of New York, if and to the extent that it shall have subject matter jurisdiction over any claims) shall have exclusive jurisdiction (and shall be the exclusive forum) in the event of any claim or dispute that the Employee
may raise or assert in disputes arising under or relating to these or any other Stock Options or Equity Compensation, or arising under or relating to the terms of your employment with and services rendered by the Employee to the Company.
Successors
These Award Terms shall be binding upon the
Company and the Employee and their respective legal representatives, heirs, beneficiaries, successors and assigns and upon all other persons claiming under or through any of them.
Exhibit 4.4
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January 2, 2018 Restricted Stock
Unit Inducement Award
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AWARD TERMS
CONMED Corporation hereby states the terms and conditions (the “Award Terms”) of the Restricted Stock Units (“RSUs”) for the recipient
(“Employee”) identified in the January 2, 2018 grant (the “Grant Date”) as designated by the Compensation Committee of the Board of Directors (the “Committee”). To receive the RSUs, Employee must accept and agree
to these Award Terms. Capitalized terms not defined herein shall have the meanings ascribed to them in CONMED’s Amended and Restated 2015 Long-Term Incentive Plan (the “Plan”).
Grant of Restricted Stock Unit
RSUs constitute an
unfunded and unsecured promise of the Company to deliver (or cause to be delivered) to the Employee, subject to the terms and conditions of these Award Terms, a share of the Company’s Common Stock, or, at the option of the Company cash equal to
the Fair Market Value thereof, on the Vesting Date (as defined below). Until such delivery, the Employee has only the rights of a general unsecured creditor, and no rights as a shareholder, of the Company.
Status of Restricted Stock Units as Inducement Award
The
RSUs are granted outside of the terms of the Plan, and the shares reserved thereunder, as an “employment inducement grant” within the meaning of Nasdaq Listing Rule 5635(c)(4). Subject to these Award Terms, the RSUs will be subject to the
terms and conditions of the Plan and be governed as if they had been granted under the Plan, and will be registered with the SEC by the Company prior to any vesting of any of the RSUs.
Vesting and Delivery
These RSUs shall vest according to
the following schedule (in each case, the “Vesting Date”):
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Date
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Vested
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Unvested
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Grant Date
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0
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%
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100
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%
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Year 1 Anniversary
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25
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%
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75
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%
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Year 2 Anniversary
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50
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%
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50
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%
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Year 3 Anniversary
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75
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%
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25
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%
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Year 4 Anniversary
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100
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%
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0
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%
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Except as to accelerated vesting for death, disability, and as otherwise required as specified below, the RSUs shall vest on
the Vesting Dates specified, provided that the Employee has remained employed by the Company through such date.
Termination of Employment; Vesting
Upon the termination of the Employee’s employment with the Company and its subsidiaries for any reason other than a termination (i) due
to death, or (ii) due to disability, then the Employee’s rights in respect of any RSUs that are not vested shall immediately terminate and such unvested RSUs shall cease to be outstanding and no shares of the Company’s Common Stock or
cash or dividend equivalent payments will be delivered in respect of such unvested RSUs. RSUs shall not vest after the date of termination of employment. Notwithstanding the foregoing, for those employees who reside in jurisdictions in which
statutory or other law require an employer to provide notice of termination of employment, RSUs that have not vested as of the date of the notice of termination of employment provided by the Company’s subsidiary or affiliate shall not vest
during any notice period, given that the purpose of equity compensation is to create an incentive for key employees to create shareholder value, which purpose is no longer served by an employee who has been provided notice that his or her employment
is being terminated.
In the event that employment with the Company is terminated as a result of the Employee’s death or
disability, all unvested RSUs will immediately become fully vested and be payable immediately without the need for further action to the Employee or as provided for by the laws of descent and distribution, as the case may be.
Unless the Committee determines otherwise, in the event of a Change in Control (as hereinafter defined), in which Awards are not assumed, substituted or
otherwise continued, all RSUs awarded herein shall vest and be payable immediately without the need for further action. In the event of a Change in Control in which Awards are assumed, substituted or otherwise continued, if Employee’s
employment is terminated by the Company or any successor entity thereto without Cause or if the Employee resigns for Good Reason, in each case, within two (2) years after a Change in Control, each Stock Option that is not exercisable in full
shall be deemed fully vested. Notwithstanding the terms of the Plan to the contrary, a “Change in Control” shall mean the occurrence of any one of the following events: (i) any “person” (as such term is defined in
Section 3(a)(9) of the Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act) is or becomes a “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 50% or more of the combined voting power of the Company’s then outstanding securities eligible to vote for the election of the Board of Directors (the “Company Voting Securities”);
provided
,
however
,
that the event described in this paragraph (i) shall not be deemed to be a Change in Control by virtue of any of the following acquisitions: (A) by the Company or any of its subsidiaries, (B) by any employee benefit plan sponsored or
maintained by the Company or any of its subsidiaries, (C) by any underwriter temporarily holding securities pursuant to an offering of such securities, or (D) pursuant to a Non-Control Transaction (as defined in clause (ii) below),
(ii) the consummation of a merger, consolidation, share exchange or similar form of corporate reorganization of the Company (or any such type of transaction involving the Company or any of its subsidiaries that requires the approval of the
Company’s shareholders, whether for the transaction or the issuance of securities in the transaction or otherwise) (a “Business Combination”), unless immediately following such Business Combination: (a) more than 60% of the total
voting power of the corporation resulting from such Business Combination (including, without limitation, any corporation which directly or indirectly has beneficial ownership of 100% of the Company Voting Securities) eligible to elect directors of
such corporation is represented by shares that were Company Voting Securities immediately prior to such Business Combination (either by remaining outstanding or being converted), and such voting power is in substantially the same proportion as the
voting power of such Company Voting Securities immediately prior to the Business Combination, (b) no person (other than any holding company resulting from such Business Combination, any employee benefit plan sponsored or maintained by the
Company (or the corporation resulting from such Business Combination)) immediately following the consummation of the Business Combination becomes the beneficial owner, directly or indirectly, of 50% or more of the total voting power of the
outstanding voting securities eligible to elect directors of the corporation resulting from such Business Combination, and (c) at least a majority of the members of the board of directors of the corporation resulting from such Business
Combination were members of the Board of Directors at the time of the approval of the execution of the initial agreement providing for such Business Combination (any Business Combination which satisfies the conditions in clauses (a), (b) and
(c) is referred to hereunder as a “Non-Control Transaction”); or (iii) the shareholders of the Company approve a plan of complete liquidation or dissolution of the Company or the sale of all or substantially all of its assets.
Notwithstanding the foregoing, a Change in Control of the Company shall not be deemed to occur solely because any person acquires beneficial ownership of more than 50% of the Company Voting Securities as a result of the acquisition of Company Voting
Securities by the Company which reduces the number of Company Voting Securities outstanding;
provided
, that if after such acquisition by the Company such person becomes the beneficial owner of additional Company Voting Securities that
increases the percentage of outstanding Company Voting Securities beneficially owned by such person, a Change in Control of the Company shall then occur. “Cause” shall mean (a) the willful and continued failure by an Employee to
substantially perform his or her duties with the Company (other than any such failure resulting from his incapacity due to physical or mental illness), or (b) the willful engaging by the Employee in conduct which is demonstrably and materially
injurious to the Company or its affiliates. “Good Reason” shall mean with respect to any other Employee, the occurrence of any of the following in the absence of the Employee’s written consent: (i) any material and adverse change
in the Employee’s position or authority with the Company as in effect immediately before a Change in Control, other than an isolated and insubstantial action not taken in bad faith and which is remedied by the Company within 30 days after
receipt of notice thereof given by the Employee; (ii) the transfer of the Employee’s primary work site to a new primary work site that is more than 50 miles from the Employee’s primary work site in effect immediately before a Change
in Control; or (iii) a diminution of the Employee’s base salary in effect immediately before a Change in Control by more than 10%, unless such diminution applies to all similarly situated employees, provided that (x) if the Employee
does not deliver to the Company a written notice of termination within 60 days after the Employee has knowledge that an event constituting Good Reason has occurred, the event will no longer constitute Good Reason and (y) the Employee must give
the Company 30 days to cure the event constituting Good Reason.
Non-Compete and Non-Solicit Restrictions
a)
Non-Competition
. During Employee’s employment with the Company and for the period of one (1) year immediately following the
last date of such employment with the Company or its subsidiaries (the “Restricted Period”), Employee will:
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i)
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not anywhere in the same geography (country, region or state) in which Employee had responsibility for the Company or its affiliates during the three years prior to the termination of Employee’s employment with the
Company or its subsidiaries, and in which the Company or its affiliates operate, directly or indirectly (whether as principal, agent, independent contractor, employee or otherwise), own, manage, organize, operate, join, control or otherwise carry
on, participate in the ownership, management, organization, operation or control of, or be engaged in or concerned with, any business or activity competitive with the Company’s, or its affiliates’, businesses or activities relating to
which Employee either worked or had access to information concerning such business unit (a “Competing Business”), provided that Employee will not be prohibited from owning less than 5% of any publicly traded corporation, whether or not
such corporation is in competition with the Company or its affiliates;
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ii)
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inform any person who, or entity which, seeks to engage your services that Employee is bound by this Section and the other terms of this Non-Compete; and
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iii)
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not (x) solicit by mail, by telephone, by personal meeting, or by any other means, either directly or indirectly, any customer or any individual or entity specifically identified as a prospective customer of the
Company or its affiliates to transact any Competing Business or to reduce or refrain from doing any business with the Company or its affiliates, or (y) interfere with or damage (or attempt to interfere with or damage) any relationship between
the Company or its affiliates and any such customer or prospective customer (for purposes of clarity, the termination of your employment with the Company or its affiliates will not by itself be treated as a violation of this clause (y)).
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This Section will apply after Employee’s employment with the Company terminates for any reason.
b)
Non-Solicitation
. During the Restricted Period, Employee will not solicit, aid or induce (directly or indirectly, on Employee’s own behalf or on
behalf of any individual or entity other than the Company) any then current employee, representative or agent of the Company or any of its affiliates to leave such employment or retention or to accept employment with or render services to or with
any other person, firm, corporation or other entity unaffiliated with the Company or hire or retain any such employee, representative or agent, or take any action to assist or aid any other person, firm, corporation or other entity in identifying,
hiring or soliciting any such employee, representative or agent.
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c)
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Non-Disparagement
. Employee agrees not to make negative comments or otherwise disparage the Company or any of its affiliates, officers, directors, employees, shareholders, agents or products, in any manner likely
to be harmful to them or its business, business reputation or personal reputation.
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d)
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Cumulative Remedies
. If Employee commits a breach of, or threaten to breach any of the provisions of this
Section, in addition to the Company’s rights to terminate any and all of its obligations hereunder, the Company will have the right to seek an injunction or order of specific enforcement, without necessity of posting a bond or providing
independent evidence of irreparable injury, by any court having jurisdiction, it being acknowledged and agreed that any such breach or threatened breach will cause irreparable injury to the Company, and that money damages will not provide an
adequate remedy to the Company. Notwithstanding any other provisions herein, any RSUs granted by the Company will terminate, and cease to be exercisable, upon Employee’s acceptance of employment with, rendering of services to, or establishment
of any organization engaged in competition with the Company in violation of this Non-Compete and Non-Solicit Restriction. If Employee has violated the provisions of this Non-Compete and Non-Solicit Restriction either during employment with the
Company or within one year following the termination of employment with the Company, the Company shall be entitled to recover the full, pre-tax value of any RSUs that were exercised in violation of this provision.
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Employee and the Company recognize that the laws and public policies of various jurisdictions may differ as to the validity and enforceability of agreements similar to those contained in this
Section. It is the intention of Employee and the Company that the provisions of this Section will be enforced to the fullest extent permissible under the laws and public policies of each jurisdiction in which such enforcement is sought.
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e)
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Tolling
. In the event of any violation of the provisions of this Section, Employee acknowledges and agrees that the post-termination restrictions contained in this Section will be extended by a period of time
equal to the period of such violation, it being the intention that the running of the applicable post-termination restriction period will be tolled during any period of such violation.
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f)
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Survivability
. The obligations contained in this Section will survive the termination of Employee’s employment with the Company and will be fully enforceable thereafter.
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g)
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Cumulative Non-Compete and Non-Solicit
. The Non-Compete and Non-Solicit Restrictions and other obligations set forth in these Award Terms supplement, and are in addition to, any other, pre-existing non-compete
and non-solicit restrictions contained in Employee’s employment agreements, which remain in full force and effect and are not amended or replaced in any way by the terms of these Award Terms.
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Trade Secrets: Protection of Confidentiality And Notice Under Defense of Trade Secrets Act
Employee acknowledges that employment with the Company will bring Employee into close contact with many confidential affairs of the Company and its affiliates,
including without limitation information about costs, profits, customers, markets, sales, products, key personnel, policies, operational methods, trade secrets and other business affairs and methods and other information not readily available to the
public, and plans for further development (“Confidential Information”). Accordingly, Employee covenants and agrees that Employee will deliver promptly upon termination of employment, or at any other time the Company may request, all
Confidential Information in the form of memoranda, notes, records, reports and any other documents or media (and all copies thereof) relating to the Company’s business which you may then possess or have under Employee’s control. In
addition, for as long as such information remains sensitive and confidential in nature, and is not made public (other than as a result of your action or inaction, direct or indirect), Employee will hold in strictest confidence all matters of the
Company or any of its affiliates that are not otherwise in the public domain and will not, directly or indirectly, disclose or otherwise communicate them to anyone outside of the Company, download or otherwise transfer or transmit them without
authorization or in violation of Company’s policies, or use them for Employee’s personal uses or otherwise, either during or after the period of your employment with the Company or its affiliates.
Notwithstanding the foregoing, Employee shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a
trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. An Employee shall not be held criminally or civilly liable
under any Federal or State trade secret law for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An Employee who files a lawsuit for retaliation
by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the Employee and use the trade secret information in the court proceeding, if the Employee files any document containing the trade secret
under seal; and does not disclose the trade secret, except pursuant to court order.
No Dividend Equivalents
With respect to each RSU, if, prior to the Vesting Date, there occurs a distribution of any regular cash dividend paid by the Company in respect of the Common
Stock the record date for which occurs on or after the Grant Date (as specified in Schedule I), the Employee shall not be entitled to receive on the Vesting Date an amount in cash or stock equal to such regular dividend payment as would have
been made in respect of the shares of the Company’s Common Stock underlying the RSU not yet delivered.
Withholding
The vesting and payment of the RSUs is conditioned on the Employee’s payment of the amount of the federal, state and local taxes, if any, required to be
withheld and paid by the Company as a result of such vesting and payment by check or, with the approval of the Committee, by the Company’s retaining the number of shares of Common Stock, the fair market value of which is equal to the minimum
amount required to be withheld, or, at the option of the Company, cash.
Authority
The Committee shall have final authority to interpret and construe these Award Terms and to make all determinations thereunder, and its decisions shall be
final, binding and conclusive upon all persons, including the Employee and the Employee’s legal representative.
Amendment
These Award Terms may not be amended in any manner, except by an instrument in writing signed by the parties hereto.
Transferability
The RSUs are not assignable or
transferable, and no right or interest of the Employee shall be subject to any lien, obligation or liability of the Employee, except by will or the laws of descent and distribution. Notwithstanding the immediately preceding sentence, the Committee
may, subject to the terms and conditions it may specify, permit the Employee to transfer the RSUs to one or more of his immediate family members (i.e., his spouse and issue, including adopted and step children) or to trusts established in whole or
in part for the benefit of the Employee and/or one or more of such immediate family members as described in the Plan.
No Rights of Employment
These Award Terms shall not be construed as giving the Employee any right to continue in the employ of the Company or any subsidiary or limit in any way the
rights of the Company, or any subsidiary, to terminate employment of the Employee at any time.
Entire Agreement
The Plan is incorporated herein by reference. These Award Terms, the Plan and such other documents as may be executed in connection with the exercise of this
Stock Option constitute the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersede all prior understandings and agreements with respect to such subject matter.
Governing Law
These Award Terms shall be governed by,
and construed in accordance with, the laws of the State of New York without giving effect to any choice or conflict of laws provisions hereof. The federal or state courts in Oneida County, New York (including the United States District Court
for the Northern District of New York, if and to the extent that it shall have subject matter jurisdiction over any claims) shall have exclusive jurisdiction (and shall be the exclusive forum) in the event of any claim or dispute that the Employee
may raise or assert in disputes arising under or relating to these or any other RSUs or Equity Compensation, or arising under or relating to the terms of your employment with and services rendered by the Employee to the Company.
Successors
These Award Terms shall be binding upon the
Company and the Employee and their respective legal representatives, heirs, beneficiaries, successors and assigns and upon all other persons claiming under or through any of them.