Form S-8
As
filed
with the Securities and Exchange Commission on August 8, 2006
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)
|
New
York
(State
or Other Jurisdiction of Incorporation or Organization)
|
16-0977505
(IRS
Employer
Identification
Number)
|
525
French Road
Utica,
New York 13502-5994
(Address
of Principal Executive Offices)
CONMED
Corporation 2006 Stock Incentive Plan
(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)
CALCULATION
OF REGISTRATION FEE
Title
of Securities
to
be Registered
|
Amount
to
be
Registered(1)
|
Proposed
Maximum
Offering
Price
Per
Share(2)
|
Proposed
Maximum
Aggregate
Offering
Price
|
Amount
of
Registration
Fee
|
Common
Stock, par value $.01 per share, issued under CONMED Corporation
2006
Stock Incentive Plan
|
1,000,000
|
$
19.64
|
$
19,640,000
|
$
2,102
|
(1) 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 CONMED Corporation 2006 Stock Incentive
Plan.
(2) Calculated
solely for the purpose of determining the registration fee pursuant to Rule
457
based upon the average of the high and low prices reported on the Nasdaq Stock
Market on August 3, 2006, $19.64 per share.
PART
I
INFORMATION
REQUIRED IN THE SECTION 10(A) PROSPECTUS
EXPLANATORY
NOTE
As
permitted by Rule 428 under the Securities Act of 1933, as amended (the
“Securities Act”), this registration statement omits the information specified
in Part I of Form S-8. The documents containing the information specified in
Part I will be delivered to the participants in the plans covered by this
registration statement as required by Rule 428(b). Such documents are not being
filed with the Securities and Exchange Commission (the “Commission”) as part of
this registration statement or as prospectuses or prospectus supplements
pursuant to Rule 424 of the Securities Act.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation
of Documents By Reference
The
following documents filed by CONMED Corporation (the “Company”), pursuant to the
Securities Exchange Act of 1934 (the “Exchange Act”) (File No. 0-16093), are
hereby incorporated by reference in this Registration Statement:
(a) The
annual report on Form 10-K for the fiscal year ended December 31, 2005;
(b) The
quarterly reports on Form 10-Q for the fiscal quarters ended March 31, 2006 and
June 30, 2006;
(c) The
current report on Form 8-K filed April 19, 2006; and
(d) The
description of the Company’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 Company 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
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.
Item
4. Description
of Securities
Not
applicable.
Item
5. Interests
of Named Experts and Counsel
The
validity of the Common Stock registered hereby, shares of which are issuable
by
the Registrant pursuant to the CONMED Corporation 2006 Stock Incentive Plan,
is
being passed on by Daniel S. Jonas, Vice President-Legal Affairs and General
Counsel of the Company, who as an executive officer of the Registrant is a
beneficiary under the CONMED Corporation 2006 Stock Incentive Plan.
Item
6. Indemnification
of Directors and Officers
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.
As
contemplated by BCL Section 721, the Registrant’s By-laws, as amended on
December 26, 1990, 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.
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.”
Item
7. Exemption
from Registration Claimed
Not
applicable.
Item
8. Exhibits
Exhibit
No.
|
Description
|
|
|
4.1
|
Amended
and Restated By-Laws, as adopted by the Board of Directors on December
26,
1990 - incorporated herein by reference to the exhibit in the Company’s
Current Report on Form 8-K, dated March 7, 1991 (File No.
0-16093).
|
|
|
4.2
|
Composite
Version of the Restated Certificate of Incorporation - incorporated
herein
by reference to Exhibit 4.2 in the Company’s Registration Statement on
Form S-8, dated May 21, 1999 (File No. 333-78987).
|
|
|
4.3
|
CONMED
Corporation 2006 Stock Incentive Plan.
|
|
|
5
|
Opinion
of Daniel S. Jonas, Vice President-Legal Affairs & General Counsel of
CONMED Corporation, with respect to the securities being registered
hereunder.
|
|
|
23.1
|
Consent
of Daniel S. Jonas (included in the opinion filed as Exhibit 5
hereto).
|
|
|
23.2
|
Consent
of PricewaterhouseCoopers LLP.
|
|
|
24
|
Power
of Attorney (included on the signature page of the Registration
Statement).
|
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 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 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.
(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
and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than insurance and 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 Act and will be governed by the final
adjudication of such issue.
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 7th
day of
August, 2006.
|
CONMED
Corporation
|
|
|
|
|
|
By:
|
/s/
Daniel S. Jonas
|
|
Name:
|
Daniel
S. Jonas, Esq.
|
|
Title:
|
Vice
President-Legal Affairs & General
Counsel
|
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
7th
day of
August, 2006.
Name
|
|
Title
|
|
|
|
/s/
EUGENE R. CORASANTI
|
|
Chairman
of the Board and Chief Executive Officer
|
Eugene
R. Corasanti
|
|
|
|
|
|
/s/
ROBERT D. SHALLISH, JR.
|
|
Vice
President - Finance and Chief Financial Officer
|
Robert
D. Shallish, Jr.
|
|
(Principal
Financial Officer)
|
|
|
|
/s/
JOSEPH J. CORASANTI
|
|
President,
Chief Operating Officer and Director
|
Joseph
J. Corasanti
|
|
|
|
|
|
/s/
LUKE A. POMILIO
|
|
Vice
President - Corporate Controller
|
Luke
A. Pomilio
|
|
(Principal
Accounting Officer)
|
|
|
|
/s/
BRUCE F. DANIELS
|
|
Director
|
Bruce
F. Daniels
|
|
|
|
|
|
/s/
JO ANN GOLDEN
|
|
Director
|
Jo
Ann Golden
|
|
|
|
|
|
/s/
STEPHEN M. MANDIA
|
|
Director
|
Stephen
M. Mandia
|
|
|
|
|
|
/s/
WILLIAM D. MATTHEWS
|
|
Director
|
William
D. Matthews
|
|
|
|
|
|
/s/
STUART J. SCHWARTZ
|
|
Director
|
Stuart
J. Schwartz
|
|
|
INDEX
TO
EXHIBITS
Exhibit
No.
|
Description
|
|
|
4.1
|
Amended
and Restated By-Laws, as adopted by the Board of Directors on December
26,
1990 - incorporated herein by reference to the exhibit in the Company’s
Current Report on Form 8-K, dated March 7, 1991 (File No.
0-16093).
|
|
|
4.2
|
Composite
Version of the Restated Certificate of Incorporation - incorporated
herein
by reference to Exhibit 4.2 in the Company’s Registration Statement on
Form S-8, dated May 21, 1999 (File No. 333-78987).
|
|
|
4.3
|
CONMED
Corporation 2006 Stock Incentive Plan.
|
|
|
5
|
Opinion
of Daniel S. Jonas, Vice President-Legal Affairs & General Counsel of
CONMED Corporation, with respect to the securities being registered
hereunder.
|
|
|
23.1
|
Consent
of Daniel S. Jonas (included in the opinion filed as Exhibit 5
hereto).
|
|
|
23.2
|
Consent
of PricewaterhouseCoopers LLP.
|
|
|
24
|
Power
of Attorney (included on the signature page of the Registration
Statement).
|
II-6
Exhibit 4.3
Exhibit
4.3
CONMED
CORPORATION
2006
STOCK INCENTIVE PLAN
ARTICLE
I
GENERAL
1.1. Purpose
The
purpose of Conmed Corporation 2006 Stock Incentive Plan is to attract, retain
and motivate officers, directors, employees, consultants and others who may
perform services for Conmed Corporation and its successors (the “Company”) and
its subsidiaries and affiliates, to compensate them for their contributions
to
the long-term growth and profits of the Company, and to encourage them to
acquire a proprietary interest in the success of the Company.
1.2. Definitions
of Certain Terms
1.2.1. “Award”
means an award made pursuant to the Plan.
1.2.2. “Award
Agreement” means the written document by which each Award is
evidenced.
1.2.3. “Board”
means the Board of Directors of the Company.
1.2.4. “Certificate”
means a stock certificate (or other appropriate document or evidence of
ownership) representing shares of Common Stock.
1.2.5. “Code”
means the Internal Revenue Code of 1986, as amended from time to time, and
the
applicable rulings and regulations thereunder.
1.2.6. “Committee”
means the Compensation Committee of the Board of Directors, or such other
committee of the Board as the Board may select from time to time to administer
the Plan pursuant to Section 1.3.
1.2.7. “Common
Stock” means common stock of the Company.
1.2.8. “Employment”
means a grantee’s performance of services for the Company or its subsidiaries or
affiliates, in any form whether as an employee, consultant or otherwise as
determined by the Committee. The terms “employ” and “employed” shall have their
correlative meanings.
1.2.9. “Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to time,
and the applicable rules and regulations thereunder.
1.2.10. “Fair
Market Value” means, with respect to a share of Common Stock on any day, the
closing price of the Common Stock on the principal securities exchange on which
the shares of Common Stock are then traded, or, if not traded, the price set
by
the Committee.
1.2.11. “Plan”
means the Conmed Corporation 2006 Stock Incentive Plan, as described herein
and
as hereafter amended from time to time.
1.3. Administration
1.3.1. Subject
to Section 1.3.4, the Plan shall be administered by the Committee. To the extent
required for transactions under the Plan to qualify for the exemptions available
under Rule 16b-3 promulgated
under
the
Exchange Act, all actions relating to Awards to persons subject to Section
16 of
the Exchange Act may be taken by the Board or a committee or subcommittee of
the
Board composed of three (3) or more members, each of whom is a “non-employee
director” within the meaning of Exchange Act Rule 16b-3. To the extent required
for compensation realized from Awards under the Plan to be deductible by the
Company pursuant to Section 162(m) of the Code, such Awards may be granted
by a
committee or subcommittee of the Board composed of three (3) or more members,
each of whom is an “outside director” within the meaning of Code Section
162(m).
1.3.2. The
Committee shall have complete control over the administration of the Plan and
shall have the authority in its sole discretion to (a) exercise all of the
powers granted to it under the Plan, (b) construe, interpret and implement
the
Plan and all Award Agreements, (c) prescribe, amend and rescind rules and
regulations relating to the Plan, including rules governing its own operations,
(d) make all determinations necessary or advisable in administering the Plan,
(e) correct any defect, supply any omission and reconcile any inconsistency
in the Plan, (f) amend the Plan to reflect changes in applicable law, (g)
grant Awards and determine who shall receive Awards, (h) amend any outstanding
Award Agreement to accelerate the time or times at which the Award becomes
vested, unrestricted or may be exercised, or to waive or amend any goals,
restrictions or conditions set forth in such Award Agreement, or reflect a
change in the grantee’s circumstances (e.g.,
a
change to part-time employment status), and (i) determine whether, to what
extent and under what circumstances and method or methods (1) Awards may be
(A)
settled in cash, shares of Common Stock, other securities, other Awards or
other
property, (B) exercised or (C) canceled, forfeited or suspended (including,
without limitation, canceling underwater options without any payment to the
grantee), (2) shares of Common Stock, other securities, other Awards or other
property and other amounts payable with respect to an Award may be deferred
either automatically or at the election of the grantee thereof or of the
Committee and (3) Awards may be settled by the Company, any of its
subsidiaries or affiliates or any of its or their designees;
provided, however, that, except in connection with a stock split, dividend,
recapitalization, merger, consolidation, spinoff, combination or other exchange
of shares affecting all holders of Common Stock, the Committee shall not be
permitted to reprice (as defined under rules of any national exchange upon
which
the Company’s shares of Common Stock may be listed) options or stock
appreciation rights without the consent of the Company's
shareholders.
1.3.3. Actions
of the Committee may be taken by the vote of a majority of its members present
at a meeting (which may be held telephonically). Any action may be taken by
a
written instrument signed by a majority of the Committee members, and action
so
taken shall be fully as effective as if it had been taken by a vote at a
meeting. The determination of the Committee on all matters relating to the
Plan
or any Award Agreement shall be final, binding and conclusive. The Committee
may
allocate among its members and delegate to any person who is not a member of
the
Committee any of its administrative responsibilities.
1.3.4. Notwithstanding
anything to the contrary contained herein, the Board may, in its sole
discretion, at any time and from time to time, grant Awards or administer the
Plan. The Board shall have all of the authority and responsibility granted
to
the Committee herein.
1.3.5. No
Liability
No
member
of the Board or the Committee or any employee of the Company or its subsidiaries
or affiliates (each such person, a “Covered Person”) shall have any liability to
any person (including any grantee) for any action taken or omitted to be taken
or any determination made in good faith with respect to the Plan or any Award.
Each Covered Person shall be indemnified and held harmless by the Company
against and from (a) any loss, cost, liability or expense (including attorneys’
fees) that may be imposed upon or incurred by such Covered Person in connection
with or resulting from any action, suit or proceeding to which such Covered
Person may be a party or in which such Covered Person may be involved by reason
of any action taken or omitted to be taken under the Plan or any Award Agreement
and (b) any and all amounts paid by such Covered Person, with the Company’s
approval, in settlement thereof, or paid by such Covered Person in satisfaction
of any judgment in
any
such
action, suit or proceeding against such Covered Person, provided
that the
Company shall have the right, at its own expense, to assume and defend any
such
action, suit or proceeding and, once the Company gives notice of its intent
to
assume the defense, the Company shall have sole control over such defense with
counsel of the Company’s choice. The foregoing right of indemnification shall
not be available to a Covered Person to the extent that a court of competent
jurisdiction in a final judgment or other final adjudication, in either case
not
subject to further appeal, determines that the acts or omissions of such Covered
Person giving rise to the indemnification claim resulted from such Covered
Person’s bad faith, fraud or willful criminal act or omission. The foregoing
right of indemnification shall not be exclusive of any other rights of
indemnification to which Covered Persons may be entitled under the Company’s
Certificate of Incorporation or Bylaws, as a matter of law, or otherwise, or
any
other power that the Company may have to indemnify such persons or hold them
harmless.
1.4. Persons
Eligible for Awards
Awards
under the Plan may be made to such officers, directors, employees, consultants
and other individuals who may perform services for the Company and its
subsidiaries and affiliates, as the Committee may select.
1.5. Types
of Awards Under Plan
Awards
may be made under the Plan in the form of (a) options, (b) stock
appreciation rights, (c) dividend equivalent rights, (d) restricted stock,
(e)
restricted stock units and (f) other equity-based or equity-related Awards
which the Committee determines to be consistent with the purpose of the Plan
and
the interests of the Company.
1.6. Shares
Available for Awards
1.6.1. Total
shares available.
Subject
to adjustment pursuant to Section 1.6.2, the total number of shares of Common
Stock which may be delivered pursuant to Awards granted under the Plan shall
not
exceed the sum of 1,000,000 shares that will be available for grants and awards
under the Plan. If any Award is forfeited or otherwise terminates or is canceled
without the delivery of shares of Common Stock or shares of Common Stock are
surrendered or withheld from any Award to satisfy a grantee’s income tax or
other withholding obligations, then the shares covered by such forfeited,
terminated or canceled Award or which are equal to the number of shares
surrendered or withheld shall again become available to be delivered pursuant
to
Awards granted or to be granted under this Plan. Notwithstanding the foregoing,
but subject to adjustment pursuant to Section 1.6.2, no more than 1,000,000
shares of Common Stock shall be delivered pursuant to the exercise of incentive
stock options. The maximum number of shares of Common Stock with respect to
which options and stock appreciation rights may be granted to an individual
grantee in any calendar year is 200,000 shares of Common Stock, subject to
adjustment pursuant to Section 1.6.2. The maximum number of shares of Common
Stock with respect to which restricted stock, restricted stock units or
performance shares that are intended to qualify as performance-based
compensation under Section 162(m) of the Code may be granted to an individual
grantee in any calendar year is 200,000 shares of Common Stock, subject to
adjustment pursuant to Section 1.6.2. Any shares of Common Stock (a) delivered
by the Company, (b) with respect to which Awards are made by the Company and
(c)
with respect to which the Company becomes obligated to make Awards, in each
case
through the assumption of, or in substitution for, outstanding awards previously
granted by an acquired entity, shall not be counted against the shares of Common
Stock available for Awards under this Plan. Shares of Common Stock which may
be
delivered pursuant to Awards may be authorized but unissued Common Stock or
authorized and issued Common Stock held in the Company’s treasury or otherwise
acquired for the purposes of the Plan.
1.6.2. Adjustments.
The
Committee shall have the authority (but not the obligation) to adjust the number
of shares of Common Stock authorized pursuant to Section 1.6.1 and to adjust
(including, without limitation, by payment of cash) the terms of any outstanding
Awards (including, without
limitation,
the number of shares of Common Stock covered by each outstanding Award, the
type
of property to which the Award relates and the exercise or strike price of
any
Award), in such manner as it deems appropriate to prevent the enlargement or
dilution of rights, or otherwise deems it appropriate, for any increase or
decrease in the number of issued shares of Common Stock (or issuance of shares
of stock other than shares of Common Stock) resulting from a recapitalization,
stock split, reverse stock split, stock dividend, spinoff, splitup, combination
or reclassification or exchange of the shares of Common Stock, merger,
consolidation, rights offering, separation, reorganization or any other change
in corporate structure or event the Committee determines in its sole discretion
affects the capitalization of the Company, including any extraordinary dividend
or distribution. After any adjustment made pursuant to this Section 1.6.2,
the
number of shares of Common Stock subject to each outstanding Award shall be
rounded up or down to the nearest whole number, as determined by the
Committee.
1.6.3. Except
as
provided in this Section 1.6 or under the terms of any applicable Award
Agreement, there shall be no limit on the number or the value of shares of
Common Stock that may be subject to Awards to any individual under the
Plan.
1.6.4. There
shall be no limit on the amount of cash, securities (other than shares of Common
Stock as provided in Section 1.6.1, as adjusted by 1.6.2) or other property
that
may be delivered pursuant to any Award.
ARTICLE
II
AWARDS
UNDER THE PLAN
2.1. Agreements
Evidencing Awards
Each
Award granted under the Plan shall be evidenced by an Award Agreement which
shall contain such provisions and conditions as the Committee deems appropriate.
The Committee may grant Awards in tandem with or in substitution for any other
Award or Awards granted under this Plan or any award granted under any other
plan of the Company. By accepting an Award pursuant to the Plan, a grantee
thereby agrees that the Award shall be subject to all of the terms and
provisions of the Plan and the applicable Award Agreement.
2.2. No
Rights as a Shareholder
No
grantee of an Award (or other person having rights pursuant to an Award) shall
have any of the rights of a shareholder of the Company with respect to shares
of
Common Stock subject to an Award until the delivery of such shares. Except
as
otherwise provided in Section 1.6.2, no adjustments shall be made for dividends
or distributions (whether ordinary or extraordinary, and whether in cash, Common
Stock, other securities or other property) on, or other events relating to,
shares of Common Stock subject to an Award for which the record date is prior
to
the date such shares are delivered.
2.3. Grant
of Options and Stock Appreciation Rights
The
Committee may grant (a) options to purchase shares of Common Stock from the
Company and (b) stock appreciation rights, in such amounts and subject to such
terms and conditions as the Committee may determine.
2.4. Exercise
of Options and Stock Appreciation Rights
2.4.1. Any
acceptance by the Committee of an optionee’s written notice of exercise of an
option shall be conditioned upon payment for the shares being purchased. Such
payment may be made in cash or by such other method as the Committee may from
time to time prescribe.
2.4.2. After
receiving payment from the optionee of the full option exercise price, or after
receiving notice from the grantee of the exercise of a stock appreciation right
for which payment will be made by the Company partly or entirely in shares
of
Common Stock, the Company shall, subject to the provisions of the Plan or any
Award Agreement, deliver the shares of Common Stock.
2.5. Grant
of Restricted Stock
The
Committee may grant or offer for sale restricted shares of Common Stock in
such
amounts and subject to such terms and conditions as the Committee shall
determine. Upon the delivery of such shares, the grantee shall have the rights
of a shareholder with respect to the restricted stock, subject to any
restrictions and conditions as the Committee may include in the applicable
Award
Agreement. In the event that a Certificate is issued in respect of restricted
shares of Common Stock, such Certificate may be registered in the name of the
grantee but shall be held by the Company or its designated agent until the
time
the restrictions lapse.
2.6. Grant
of Restricted Stock Units
The
Committee may grant Awards of restricted stock units in such amounts and subject
to such terms and conditions as the Committee shall determine. A grantee of
a
restricted stock unit will have only the rights of a general unsecured creditor
of the Company until delivery of shares of Common Stock, cash or other
securities or property is made as specified in the applicable Award Agreement.
On the delivery date, the grantee of each restricted stock unit not previously
forfeited shall receive one share of Common Stock, or cash, securities or other
property equal in value to a share of Common Stock or a combination thereof,
as
specified by the Committee.
2.7. Other
Stock-Based Awards
The
Committee may grant other types of equity-based or equity-related Awards
(including the grant or offer for sale of unrestricted shares of Common Stock
and performance shares) in such amounts and subject to such terms and
conditions, as the Committee shall determine. Such Awards may entail the
transfer of actual shares of Common Stock to Plan participants, or payment
in
cash or otherwise of amounts based on the value of shares of Common
Stock.
2.8. Grant
of Dividend Equivalent Rights
The
Committee may include in the Award Agreement with respect to any Award a
dividend equivalent right entitling the grantee to receive amounts equal to
all
or any portion of the dividends that would be paid on the shares of Common
Stock
covered by such Award if such shares had been delivered pursuant to such Award.
The grantee of a dividend equivalent right will have only the rights of a
general unsecured creditor of the Company until payment of such amounts is
made
as specified in the applicable Award Agreement. In the event such a provision
is
included in an Award Agreement, the Committee shall determine whether such
payments shall be made in cash, in shares of Common Stock or in another form,
whether they shall be conditioned upon the exercise of the Award to which they
relate, the time or times at which they shall be made, and such other terms
and
conditions as the Committee shall deem appropriate.
2.9. Performance
Goals
The
Committee may establish performance goals with respect to any Award using one
or
more of the following goals: (a) market share (including, without limitation,
the market share of trading volume in certain types of securities), (b)
earnings, (c) earnings per share, (d) operating profit, (e) operating margin,
(f) return on equity, (g) return on assets, (h) total return to stockholders,
(i) technology improvements, (j) return on investment capital, (k) revenue
growth, (l) cash flow, (m) reliability, (n) revenue growth, (o) quality
objectives and (p) such other objectives or performance measures as the
Committee may select. In addition, Awards may be subject to comparisons of
the
performance
of other companies, such performance to be measured by one or more of the
foregoing business criteria.
ARTICLE
III
MISCELLANEOUS
3.1. Amendment
of the Plan
The
Board
may from time to time suspend, discontinue, revise or amend the Plan in any
respect whatsoever, and may also suspend the ability of a recipient of an Award
to exercise or otherwise realize the value of such Award, provided,
however,
that,
except with respect to the foregoing, no amendment shall materially adversely
affect a grantee without such person’s prior written consent.
3.2. Tax
Withholding
3.2.1. As
a
condition to the delivery of any shares of Common Stock, other property or
cash
pursuant to any Award or the lifting or lapse of restrictions on any Award,
or
in connection with any other event that gives rise to a federal or other
governmental tax withholding obligation on the part of the Company or any of
its
subsidiaries or affiliates relating to an Award (including, without limitation,
FICA tax), (a) the Company may deduct or withhold (or cause to be deducted
or
withheld) from any payment or distribution to a grantee whether or not pursuant
to the Plan or (b) the Committee shall be entitled to require that the grantee
remit cash to the Company or any of its subsidiaries or affiliates (through
payroll deduction or otherwise), or (c) the Company or any its of subsidiaries
or affiliates may enter into any other suitable arrangements to withhold in
each
case in an amount sufficient in the opinion of the Company to satisfy such
withholding obligation.
3.2.2. If
the
event giving rise to the withholding obligation involves a transfer of shares
of
Common Stock, then, unless the applicable Award Agreement provides otherwise,
at
the discretion of the Committee, the grantee may satisfy the withholding
obligation described under Section 3.2.1 by electing to have the Company
withhold shares of Common Stock (which withholding will be at a rate not in
excess of the statutory minimum rate) or by tendering previously owned shares
of
Common Stock, in each case having a Fair Market Value equal to the amount of
tax
to be withheld (or by any other mechanism as may be required or appropriate
to
conform with local tax and other rules). For this purpose, Fair Market Value
shall be determined as of the date on which the amount of tax to be withheld
is
determined (and the Company may cause any fractional share amount to be settled
in cash).
3.3. Required
Consents and Legends
3.3.1. If
the
Committee shall at any time determine that any consent (as hereinafter defined)
is necessary or desirable as a condition of, or in connection with, the granting
of any Award, the delivery of shares of Common Stock or the delivery of any
cash, securities or other property under the Plan, or the taking of any other
action thereunder (each such action being hereinafter referred to as a “plan
action”), then such plan action shall not be taken, in whole or in part, unless
and until such consent shall have been effected or obtained to the full
satisfaction of the Committee. The Committee may direct that any Certificate
evidencing shares delivered pursuant to the Plan shall bear a legend setting
forth such restrictions on transferability as the Committee may determine to
be
necessary or desirable, and may advise the transfer agent to place a stop order
against any legended shares.
3.3.2. The
term
“consent” as used herein with respect to any plan action includes (a) any and
all listings, registrations or qualifications in respect thereof upon any
securities exchange or under any federal, state, or local law, or law, rule
or
regulation of a jurisdiction outside the United States, (b) any and all
written agreements and representations by the grantee with respect to the
disposition of shares, or with respect to any other matter, which the Committee
may deem necessary or desirable to comply with the terms of any such listing,
registration or qualification or to obtain an exemption from the
requirement
that any such listing, qualification or registration be made, (c) any and all
other consents, clearances and approvals in respect of a plan action by any
governmental or other regulatory body or any stock exchange or self-regulatory
agency, (d) any and all consents by the grantee to (i) the Company’s supplying
to any third party recordkeeper of the Plan such personal information as the
Committee deems advisable to administer the Plan, (ii) the Company, or its
applicable subsidiary or affiliate, deducting amounts from the grantee’s wages,
or another arrangement satisfactory to the Committee, to reimburse the Company,
or its applicable subsidiary or affiliate, for advances made on the grantee’s
behalf to satisfy certain withholding and other tax obligations in connection
with an Award and (iii) the Company imposing sales and transfer procedures
and
restrictions and hedging restrictions on shares of Common Stock delivered under
the Plan and (e) any and all consents or authorizations required to comply
with, or required to be obtained under, applicable local law or otherwise
required by the Committee. Nothing herein shall require the Company to list,
register or qualify the shares of Common Stock on any securities
exchange.
3.4. Right
of Offset
The
Company and its subsidiaries and affiliates shall have the right to offset
against its obligation to deliver shares of Common Stock (or other property
or
cash) under the Plan or any Award Agreement any outstanding amounts (including,
without limitation, travel and entertainment or advance account balances, loans,
repayment obligations under any Awards, or amounts repayable to the Company
or
its subsidiaries or affiliates pursuant to tax equalization, housing, automobile
or other employee programs) the grantee then owes to the Company or its
subsidiaries or affiliates and any amounts the Committee otherwise deems
appropriate pursuant to any tax equalization policy or agreement.
3.5. Nonassignability
Except
to
the extent otherwise expressly provided in the applicable Award Agreement,
no
Award (or any rights and obligations thereunder) granted to any person under
the
Plan may be sold, exchanged, transferred, assigned, pledged, hypothecated,
fractionalized, hedged or otherwise disposed of (including through the use
of
any cash-settled instrument), whether voluntarily or involuntarily, other than
by will or by the laws of descent and distribution, and all such Awards (and
any
rights thereunder) shall be exercisable during the life of the grantee only
by
the grantee or the grantee’s legal representative. Notwithstanding the preceding
sentence, the Committee may permit, under such terms and conditions that it
deems appropriate in its sole discretion, a grantee to transfer any Award to
any
person or entity that the Committee so determines. Any sale, transfer,
assignment, pledge, hypothecation, fractionalization, hedge or other disposition
in violation of the provisions of this Section 3.5 shall be void. All of the
terms and conditions of this Plan and the Award Agreements shall be binding
upon
any such permitted successors and assigns.
3.6. Requirement
of Consent and Notification of Election Under Section 83(b) of the Code or
Similar Provision
No
election under Section 83(b) of the Code (to include in gross income in the
year
of transfer the amounts specified in Code Section 83(b)) or under a similar
provision of the law of a jurisdiction outside the United States may be made
unless expressly permitted by the terms of the Award Agreement or by action
of
the Committee in writing prior to the making of such election. If a grantee
of
an Award, in connection with the acquisition of shares of Common Stock under
the
Plan or otherwise, is expressly permitted under the terms of the Award Agreement
or by such Committee action to make any such election and the grantee makes
the
election, the grantee shall notify the Committee of such election within ten
(10) days of filing notice of the election with the Internal Revenue Service
or
other governmental authority, in addition to any filing and notification
required pursuant to regulations issued under Code Section 83(b) or other
applicable provision.
3.7. Requirement
of Notification Upon Disqualifying Disposition Under Section 421(b) of
the
Code
If
any
grantee shall make any disposition of shares of Common Stock delivered pursuant
to the exercise of an incentive stock option under the circumstances described
in Section 421(b) of the Code (relating to certain disqualifying dispositions),
such grantee shall notify the Company of such disposition within ten (10) days
thereof.
3.8. Change
in Control
3.8.1. In
the
event of a Change in Control, as hereinafter defined, (i) each option and stock
appreciation right shall be deemed fully vested and exercisable, (ii) the
restrictions applicable to all restricted shares of Common Stock and restricted
stock units shall lapse and such shares and share units shall be deemed fully
vested, (iii) all performance conditions shall be deemed satisfied in full,
and
(iv) all restricted stock units and performance stock units shall be paid in
cash if so specified by the Committee. The amount of any cash payment in respect
of a restricted stock unit or performance stock unit may be equal to: (A) in
the
event the Change in Control is the result of a tender offer or exchange offer
for Common Stock, the final offer price per share paid for the Common Stock
or
(B) in the event the Change in Control is the result of any other occurrence,
the aggregate per share value of Common Stock as determined by the Committee
at
such time. The Committee may, in its discretion, include such further provisions
and limitations in any agreement documenting such Awards as it may deem
equitable and in the best interests of the Company.
3.8.2 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 25% or more of the
combined voting power of the Company's then outstanding securities eligible
to
vote for the election of the Board (the "Company Voting Securities");
provided,
however,
that the
event described in this clause (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 (iii) below); (ii) during any
period of not more than two years, individuals who constitute the Board as
of
the beginning of the period (the "Incumbent Directors") cease for any reason
to
constitute at least a majority of the Board, provided
that any
person becoming a director subsequent to the beginning of the period, whose
election or nomination for election was approved by a vote (either by specific
vote or by approval of the proxy statement of the Company in which such person
is named as a nominee for director, without objection to such nomination) of
at
least three-quarters of the Incumbent Directors who remain on the Board,
including those directors whose election or nomination for election was
previously so approved, shall also be deemed to be an Incumbent Director;
provided;
however,
that no
individual initially elected or nominated as a director of the Company as a
result of an actual or threatened election contest with respect to directors
or
any other actual or threatened solicitation of proxies or consents by or on
behalf of any person other than the Board shall be deemed to be an Incumbent
Director; (iii) 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 powers 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 25% 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 Incumbent 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 (iv) 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 shall not be deemed
to occur solely because any person acquires beneficial ownership of more than
25% 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.
3.9. Right
of Discharge Reserved
Neither
the grant of an Award nor any provision in the Plan or in any Award Agreement
shall confer upon any grantee the right to continued Employment by the Company
or any of its affiliates or subsidiaries or affect any right that the Company
or
its subsidiaries or affiliates may have to terminate or alter the terms and
conditions of the grantee’s Employment.
3.10. Nature
of Payments
3.10.1. Any
and
all grants of Awards and deliveries of shares of Common Stock, cash, securities
or other property under the Plan shall be in consideration of services performed
or to be performed for the Company or its subsidiaries or affiliates by the
grantee. Awards under the Plan may, in the sole discretion of the Committee,
be
made in substitution in whole or in part for cash or other compensation
otherwise payable to an Employee. Deliveries of shares of Common Stock may
be
rounded to avoid fractional shares. In addition, the Company may pay cash in
lieu of fractional shares.
3.10.2. All
grants of Awards and deliveries of shares of Common Stock, cash or other
property under the Plan shall constitute a special discretionary incentive
payment to the grantee and shall not be required to be taken into account in
computing the amount of salary or compensation of the grantee for the purpose
of
determining any contributions to or any benefits under any pension, retirement,
profit-sharing, bonus, life insurance, severance or other benefit plan of the
Company or its subsidiaries or affiliates or under any agreement with the
grantee, unless the Company or its subsidiaries or affiliates specifically
provides otherwise.
3.11. Non-Uniform
Determinations
None
of
the Committee’s determinations under the Plan and Award Agreements need to be
uniform, and any such determination may be made by it selectively among persons
who receive, or are eligible to receive, Awards under the Plan (whether or
not
such persons are similarly situated). Without limiting the generality of the
foregoing, the Committee shall be entitled, among other things, to make
non-uniform and selective determinations under Award Agreements, and to enter
into non-uniform and selective Award Agreements, as to (a) the persons to
receive Awards, (b) the terms and provisions of Awards, (c) whether a grantee’s
Employment has been terminated for purposes of the Plan and (d) any adjustments
to be made to Award pursuant to Section 1.6.2 or otherwise.
3.12. Other
Payments or Awards
Nothing
contained in the Plan shall be deemed in any way to limit or restrict the
Company or its subsidiaries or affiliates from making any award or payment
to
any person under any other plan, arrangement or understanding, whether now
existing or hereafter in effect.
3.13. Plan
Headings
The
headings in this Plan are for the purpose of convenience only and are not
intended to define or limit the construction of the provisions
hereof.
3.14. References
to Laws, Rules or Regulations
Any
reference in this Plan to any law, rule or regulation shall be deemed to include
any amendments, revisions or successor provisions to such law, rule or
regulation.
3.15. Adoption
Date, Effective Date, and Term of Plan
The
Plan
was adopted on February 17, 2006. The Plan shall become effective upon
shareholder approval of the Plan. Unless sooner terminated by the Board, the
provisions of the Plan which address the grant of incentive stock options shall
terminate on the day before the tenth anniversary of the date the Plan was
adopted, and no incentive stock options shall thereafter be granted under the
Plan. Unless sooner terminated by the Board, the provisions of Section 1.6.1
which provide that shares of Common Stock that are withheld from Awards of
restricted stock upon vesting to satisfy a grantee’s income tax or other
withholding obligations shall be added back to the total shares that may be
delivered pursuant to Awards granted under the Plan shall terminate on the
day
before the tenth anniversary of the date the Plan was approved by shareholders.
The Board reserves the right to terminate the Plan at any time; provided,
however,
that
all Awards made under the Plan prior to its termination shall remain in effect
until such Awards have been satisfied or terminated in accordance with the
terms
and provisions of the Plan and the applicable Award Agreements.
3.16. Governing
Law
ALL
RIGHTS AND OBLIGATIONS UNDER THE PLAN AND EACH AWARD AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
3.17. Arbitration
Any
dispute, controversy or claim between the Company and any participant arising
out of or relating to or concerning the provisions of the Plan shall be finally
settled by arbitration in New York, New York before, and in accordance with,
the
rules then obtaining of the American Arbitration Association (the “AAA”) in
accordance with the commercial arbitration rules of the AAA, provided that
the
sole persons who may be selected to serve as arbitrators shall be partners
of
nationally recognized law firms with experience in securities laws issues
generally and equity compensation plans in particular. Prior to arbitration,
all
disputes, controversies or claims maintained by any participant must first
be
submitted to the Committee in accordance with claim procedures determined by
the
Committee in its sole discretion.
3.18. Severability;
Entire Agreement
If
any of
the provisions of this Plan or any Award Agreement is finally held to be
invalid, illegal or unenforceable (whether in whole or in part), such provision
shall be deemed modified to the extent, but only to the extent, of such
invalidity, illegality or unenforceability and the remaining provisions shall
not be affected thereby; provided
that, if
any of such provisions is finally held to be invalid, illegal, or unenforceable
because it exceeds the maximum scope determined to be acceptable to
permit
such provision to be enforceable, such provision shall be deemed to be modified
to the minimum extent necessary to modify such scope in order to make such
provision enforceable hereunder. The Plan and any Award Agreements contain
the
entire agreement of the parties with respect to the subject matter thereof
and
supersede all prior agreements, promises, covenants, arrangements,
communications, representations and warranties between them, whether written
or
oral with respect to the subject matter thereof.
3.19. No
Third Party Beneficiaries
Except
as
expressly provided in an Award Agreement, neither the Plan nor any Award
Agreement shall confer on any person other than the Company and the grantee
of
the Award any rights or remedies thereunder; provided
that the
exculpation and indemnification provisions of Section 1.3.5 shall inure to
the benefit of a Covered Person’s estate, beneficiaries and
legatees.
3.20. Successors
and Assigns of the Company
The
terms
of this Plan shall be binding upon and inure to the benefit of the Company
and
its successors and assigns.
E-11
Exhibit 5
Exhibit
5
August
7,
2006
CONMED
Corporation
525
French Road
Utica,
New York 13502-5944
Dear
Sirs
and Mesdames:
In
connection with the registration under the Securities Act of 1933, as amended
(the “Act”), by CONMED Corporation, a New York corporation (the “Company”),
of 1,000,000 shares of the Company’s Common Stock, par value $.01 per share (the
“Shares”), I have examined such corporate records, certificates and other
documents and such questions of law as I have considered necessary or
appropriate for the purposes of this opinion. The Shares are to be issued
pursuant to the CONMED Corporation 2006 Stock Incentive Plan (the
“Plan”).
Upon
the
basis of such examination, I advise you that, in my opinion, the Shares have
been duly authorized and when the Registration Statement has become effective
under the Act and the Shares have been duly issued as provided in the Plan,
the
Shares will be validly issued, fully paid and nonassessable.
In
rendering the foregoing opinion, I have, with your approval, relied as to
certain matters on information obtained from officers of the Company and other
sources believed by me to be responsible, and I have assumed that the signatures
on all documents examined by me are genuine, assumptions which I have not
independently verified.
I
hereby
consent to the filing of this opinion as an exhibit to the Registration
Statement relating to the Shares. In giving such consent, I do not thereby
admit
that I am in the category of persons whose consent is required under Section
7
of the Act.
|
Very
truly yours,
|
|
|
|
/s/
Daniel
S. Jonas
|
|
Daniel
S. Jonas
|
|
Vice
President - Legal Affairs
|
|
General
Counsel
|
E-12
Exhibit 23.2
Exhibit
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby
consent to the incorporation by reference in this Registration Statement on
Form
S-8 of our report dated August 8, 2006, relating to the financial statements,
management’s assessment of the effectiveness of internal control over financial
reporting and the effectiveness of internal control over financial reporting,
which appear in the 2005 Annual Report to Shareholders of CONMED Corporation,
which is incorporated by reference in CONMED Corporation’s Annual Report on Form
10-K for the year ended December 31, 2005.
/s/
PricewaterhouseCoopers LLP
Syracuse,
New York
August
8,
2006
E-13