def14a
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
(Amendment No.___)
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Filed by the Registrant
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Filed by a Party other than the Registrant
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Check the appropriate box: |
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o Preliminary Proxy Statement
o Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
þ Definitive Proxy Statement
o Definitive Additional Materials
o Soliciting Material Pursuant to § 240.14a-12
ABAXIS, INC.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement if Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box)
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
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Aggregate number of securities to which transaction applies: |
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Per unit price or other underlying value of transaction computed pursuant to Exchange Act
Rule 0-11 (Set forth the amount on which the filing fee is calculated and state how it was
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Proposed maximum aggregate value of transaction: |
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Total fee paid: |
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Fee paid previously with preliminary materials. |
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Check box if any part of the fee is offset as provided by Exchange
Act Rule 0-11(a)(2) and identify the filing for which the
offsetting fee was paid previously. Identify the previous filing
by registration statement number, or the Form or Schedule and the
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Form, Schedule or Registration Statement No.: |
September 11,
2008
Dear Shareholder:
This years annual meeting of shareholders will be held on
Tuesday, October 28, 2008, at 10:00 a.m. Pacific
time, at our offices, located at 3240 Whipple Road, Union City,
California. You are cordially invited to attend.
The Notice of Annual Meeting of Shareholders and a Proxy
Statement, which describe the formal business to be conducted at
the meeting, follow this letter.
It is important that you use this opportunity to take part in
the affairs of Abaxis, Inc. by voting on the business to come
before this meeting. After reading the Proxy Statement, please
promptly mark, sign, date and return the enclosed proxy card in
the prepaid envelope to assure that your shares will be
represented. Regardless of the number of shares you own, your
careful consideration of, and vote on, the matters before our
shareholders is important.
A copy of Abaxis Annual Report to Shareholders is also
enclosed for your information. At the annual meeting we will
review Abaxis activities over the past year and our plans
for the future. We look forward to seeing you at the annual
meeting.
Sincerely yours,
CLINTON H. SEVERSON
Chairman of the Board, President and
Chief Executive Officer
ABAXIS,
INC.
3240 Whipple Road, Union City, California 94587
NOTICE OF ANNUAL MEETING OF
SHAREHOLDERS
To Be Held On October 28,
2008
Dear Shareholder:
You are cordially invited to attend the Annual Meeting of
Shareholders of Abaxis, Inc., a California corporation (the
Company). The meeting will be held on Tuesday,
October 28, 2008, at 10:00 a.m. local time at our
offices, located at 3240 Whipple Road, Union City, California
94587, for the following purposes:
1. To elect six directors to serve for the ensuing
year and until their successors are elected and qualified.
2. To approve an amendment to the Companys
2005 Equity Incentive Plan (the 2005 Plan) to
increase the aggregate number of shares of common stock
authorized for issuance under the 2005 Plan by
500,000 shares.
3. To ratify the selection by the Audit Committee of
the Board of Directors of Burr, Pilger & Mayer LLP as
the Companys independent registered public accounting firm
for the fiscal year ending March 31, 2009.
4. To conduct any other business properly brought
before the meeting.
These items of business are more fully described in the Proxy
Statement accompanying this Notice.
The record date for the Annual Meeting is August 29, 2008.
Only shareholders of record at the close of business on that
date may vote at the meeting or any adjournment thereof. For ten
days prior to the meeting, a complete list of shareholders
entitled to vote at the meeting will be available for
examination by any shareholder, for any purpose relating to the
meeting, during ordinary business hours at our offices located
at 3240 Whipple Road, Union City, California.
By Order of the Board of Directors
ALBERTO R. SANTA INES
Secretary
Union City, California
September 11, 2008
You are cordially invited to attend the meeting in person.
Whether or not you expect to attend the meeting, please
complete, date, sign and return the enclosed proxy, or vote over
the telephone or the Internet as instructed in these materials,
as promptly as possible in order to ensure your representation
at the meeting. A return envelope (which is postage prepaid if
mailed in the United States) is enclosed for your convenience.
Even if you have voted by proxy, you may still vote in person if
you attend the meeting. Please note, however, that if your
shares are held of record by a broker, bank or other nominee and
you wish to vote at the meeting, you must obtain a proxy issued
in your name from that record holder.
TABLE OF
CONTENTS
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ABAXIS,
INC.
3240 Whipple Road, Union City, California 94587
FOR THE 2008 ANNUAL MEETING OF
SHAREHOLDERS
October 28,
2008
QUESTIONS
AND ANSWERS ABOUT THIS PROXY MATERIAL AND VOTING
Why am I
receiving these materials?
We have sent you this proxy statement and the enclosed proxy
card because the Board of Directors of Abaxis, Inc., a
California corporation (referred to as the Company
or Abaxis), is soliciting your proxy to vote at the
2008 Annual Meeting of Shareholders, including at any
adjournments or postponements of the meeting. You are invited to
attend the annual meeting to vote on the proposals described in
this proxy statement. However, you do not need to attend the
meeting to vote your shares. Instead, you may simply complete,
sign and return the enclosed proxy card, or follow the
instructions below to submit your proxy over the telephone or on
the Internet.
The Company intends to mail this proxy statement and
accompanying proxy card on or about September 11, 2008 to
all shareholders of record entitled to vote at the annual
meeting.
Who can
vote at the annual meeting?
Only shareholders of record at the close of business on
August 29, 2008 will be entitled to vote at the annual
meeting. On this record date, there were 21,782,417 shares
of common stock outstanding and entitled to vote.
Shareholder
of Record: Shares Registered in Your Name
If on August 29, 2008 your shares were registered directly
in your name with Abaxis transfer agent, Computershare
Trust Company, N.A., then you are a shareholder of record.
As a shareholder of record, you may vote in person at the
meeting or vote by proxy. Whether or not you plan to attend the
meeting, we urge you to fill out and return the enclosed proxy
card or vote by proxy over the telephone or on the Internet as
instructed below to ensure your vote is counted.
Beneficial
Owner: Shares Registered in the Name of a Broker or
Bank
If on August 29, 2008 your shares were held, not in your
name, but rather in an account at a brokerage firm, bank,
dealer, or other similar organization, then you are the
beneficial owner of shares held in street name and
these proxy materials are being forwarded to you by that
organization. The organization holding your account is
considered to be the shareholder of record for purposes of
voting at the annual meeting. As a beneficial owner, you have
the right to direct your broker or other agent regarding how to
vote the shares in your account. You are also invited to attend
the annual meeting. However, since you are not the shareholder
of record, you may not vote your shares in person at the meeting
unless you request and obtain a valid proxy from your broker or
other agent.
What am I
voting on?
There are three matters scheduled for a vote:
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Election of six directors;
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Approval of an amendment to the Companys 2005 Equity
Incentive Plan (the 2005 Plan) to increase the
aggregate number of shares of common stock authorized for
issuance under the 2005 Plan by 500,000 shares; and
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Ratification of Burr, Pilger & Mayer LLP as our
independent registered public accounting firm for the fiscal
year ending March 31, 2009.
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1
How do I
vote?
You may either vote For all the nominees to the
Board of Directors or you may Withhold your vote for
any nominee you specify. For each of the other matters to be
voted on, you may vote For or Against or
abstain from voting. The procedures for voting are as follows:
Shareholder
of Record: Shares Registered in Your Name
If you are a shareholder of record, you may vote in person at
the annual meeting, vote by proxy using the enclosed proxy card,
vote by proxy over the telephone, or vote by proxy on the
Internet. Whether or not you plan to attend the meeting, we urge
you to vote by proxy to ensure your vote is counted. You may
still attend the meeting and vote in person even if you have
already voted by proxy.
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To vote in person, come to the annual meeting and we will give
you a ballot when you arrive.
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To vote using the proxy card, simply complete, sign and date the
enclosed proxy card and return it promptly in the envelope
provided. If you return your signed proxy card to us before the
annual meeting, we will vote your shares as you direct.
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To vote over the telephone, dial toll-free
1-800-652-VOTE,
(1-800-652-8683)
using a touch-tone phone and follow the recorded instructions.
You will be asked to provide the company number and control
number from the enclosed proxy card. Your vote must be received
by 1:00 a.m., Central time on October 28, 2008 to be
counted.
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To vote on the Internet, go to
http://www.investorvote.com/ABAX
to complete an electronic proxy card. You will be asked to
provide the company number and control number from the enclosed
proxy card. Your vote must be received by 1:00 a.m.,
Central time on October 28, 2008 to be counted.
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Beneficial
Owner: Shares Registered in the Name of Broker or
Bank
If you are a beneficial owner of shares registered in the name
of your broker, bank, or other agent, you should have received a
proxy card and voting instructions with these proxy materials
from that organization rather than from Abaxis. Simply complete
and mail the proxy card to ensure that your vote is counted.
Alternatively, you may vote by telephone or over the Internet if
instructed by your broker or bank. To vote in person at the
annual meeting, you must obtain a valid proxy from your broker,
bank or other agent. Follow the instructions from your broker or
bank included with these proxy materials, or contact your broker
or bank to request a proxy form.
We provide Internet proxy voting to allow you to vote your
shares online, with procedures designed to ensure the
authenticity and correctness of your proxy vote instructions.
However, please be aware that you must bear any costs associated
with your Internet access, such as usage charges from Internet
access providers and telephone companies.
How many
votes do I have?
On each matter to be voted upon other than the election of
directors, you have one vote for each share of common stock you
own as of August 29, 2008. For the election of directors,
cumulative voting is available. Under cumulative voting, you
would have six votes for each share of common stock you own. You
may cast all of your votes for one candidate, or you may
distribute your votes among different candidates as you choose.
However, you may cumulate votes (cast more than one vote per
share) for a candidate only if the candidate is nominated before
the voting and at least one shareholder gives notice at the
meeting, before the voting, that he or she intends to cumulate
votes. If you do not specify how to distribute your votes, by
giving your proxy you are authorizing the proxyholders (the
individuals named on your proxy card) to cumulate votes in their
discretion.
What if I
return a proxy card but do not make specific choices?
If you return a signed and dated proxy card without marking any
voting selections, your shares will be voted For the
election of all six (6) nominees for director,
For the approval of an amendment to the 2005 Plan to
increase the aggregate number of shares of common stock
authorized for issuance under the 2005 Plan by
2
500,000 shares and For the ratification of the
appointment of Burr, Pilger & Mayer LLP as independent
registered public accounting firm of the Company for its fiscal
year ending March 31, 2009. If any other matter is properly
presented at the meeting, your proxyholder (one of the
individuals named on your proxy card) will vote your shares
using his or her best judgment.
Who is
paying for this proxy solicitation?
We will pay for the entire cost of soliciting proxies, including
the preparation, assembly, printing and mailing of the proxy
materials and any additional solicitation materials furnished to
the shareholders. In addition to these mailed proxy materials,
our directors and employees and the firm of Morrow &
Co., LLC, which we have engaged to assist us in the solicitation
of proxies, may also solicit proxies in person, by telephone, or
by other means of communication. Directors and employees will
not be paid any additional compensation for soliciting proxies,
but Morrow & Co., LLC will be paid its customary fee
of approximately $7,500, plus reasonable out-of-pocket expenses.
We may also reimburse brokerage firms, banks and other agents
for the cost of forwarding proxy materials to beneficial owners.
What does
it mean if I receive more than one proxy card?
If you receive more than one proxy card, your shares are
registered in more than one name or are registered in different
accounts. Please complete, sign and return each proxy card to
ensure that all of your shares are voted.
Can I
change my vote after submitting my proxy?
Yes. You can revoke your proxy at any time before the final vote
at the meeting. If you are the record holder of your shares, you
may revoke your proxy in any one of three ways:
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You may submit another properly completed proxy card with a
later date.
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You may send a timely written notice that you are revoking your
proxy to Abaxis Secretary at 3240 Whipple Road,
Union City, California 94587.
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You may attend the annual meeting and vote in person. Simply
attending the meeting will not, by itself, revoke your proxy.
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If your shares are held by your broker or bank as a nominee or
agent, you should follow the instructions provided by your
broker or bank.
When are
shareholder proposals due for next years annual
meeting?
To be considered for inclusion in next years proxy
materials, your proposal must be submitted in writing by
May 14, 2009, the date not less than one hundred twenty
(120) days prior to the one year anniversary of our mailing
to shareholders of this Proxy Statement for the 2008 Annual
Meeting of Shareholders, to Abaxis Corporate Secretary at
3240 Whipple Road, Union City, California 94587. If you wish to
bring a matter before the shareholders at next years
annual meeting and you do not notify Abaxis before July 28,
2009, for all proxies we receive, the proxyholders will have
discretionary authority to vote on the matter, including
discretionary authority to vote in opposition to the matter.
How are
votes counted?
Votes will be counted by the inspector of election appointed for
the meeting, who will separately count For and
Withhold and, with respect to proposals other than
the election of directors, Against votes,
abstentions and broker non-votes. Although abstentions and
broker non-votes are counted as present for purposes of a
quorum, they are not counted as affirmative votes for the
proposals. For Proposal 2 and 3, abstentions and broker
non-votes will have no effect except to the extent the number of
abstentions and broker non-votes causes the number of shares
voted in favor of Proposal 2 and 3 not to equal or exceed a
majority of the quorum required for the meeting.
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What are
broker non-votes?
Broker non-votes occur when a beneficial owner of shares held in
street name does not give instructions to the broker
or nominee holding the shares as to how to vote on matters
deemed non-routine. Generally, if shares are held in
street name, the beneficial owner of the shares is entitled to
give voting instructions to the broker or nominee holding the
shares. If the beneficial owner does not provide voting
instructions, the broker or nominee can still vote the shares
with respect to matters that are considered to be
routine, but not with respect to
non-routine matters.
How many
votes are needed to approve each proposal?
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Proposal No. 1: Election of
Directors. For the election of directors, the six
(6) nominees receiving the most For votes (from
the holders of votes of shares present in person or represented
by proxy and entitled to vote on the election of directors) will
be elected. Only votes For or Withheld
will affect the outcome.
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Proposal No. 2: Approval of an
increase in the aggregate number of shares of common stock
authorized for issuance under the 2005 Plan by
500,000 shares. To be approved, Proposal No. 2
must receive For votes from the holders of a
majority of shares present either in person or by proxy and
voting, provided that the votes in favor of each of
Proposal No. 2 are a majority of the votes that
constitute the required quorum. Abstentions and broker non-votes
will not be counted towards the vote total.
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Proposal No. 3: Ratification of
Selection of Independent Registered Public Accounting Firm. To
be approved, Proposal No. 3 ratifying the selection by
the Audit Committee of the Board of Directors of Burr,
Pilger & Mayer LLP as independent registered public
accounting firm for the fiscal year ending March 31, 2009
must receive For votes from the holders of a
majority of shares present either in person or by proxy and
voting, provided that the votes in favor of each of
Proposal No. 3 are a majority of the votes that
constitute the required quorum. Abstentions and broker non-votes
will not be counted towards the vote total.
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What is
the quorum requirement?
A quorum of shareholders is necessary to hold a valid meeting. A
quorum will be present if shareholders holding at least a
majority of the outstanding shares entitled to vote are present
at the meeting in person or represented by proxy. On the record
date, there were 21,782,417 shares outstanding and entitled
to vote. Thus, the holders of 10,891,209 shares must be
present in person or represented by proxy at the meeting or by
proxy to have a quorum.
Votes for and against, abstentions and broker
non-votes will each be counted as present for the purposes
of determining the presence of a quorum. Your shares will be
counted towards the quorum only if you submit a valid proxy (or
one is submitted on your behalf by your broker, bank or other
nominee) or if you vote in person at the meeting. If there is no
quorum, the holders of a majority of shares present at the
meeting in person or represented by proxy may adjourn the
meeting to another date.
How can I
find out the results of the voting at the annual
meeting?
Preliminary voting results will be announced at the annual
meeting. Final voting results will be published in the
Companys quarterly report on
Form 10-Q
for the third quarter of fiscal 2009.
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Proposal 1
The Companys Bylaws authorize a Board of Directors
consisting of six directors. All of the Companys six
directors are to be elected for the ensuing year and will hold
office until the next annual meeting of shareholders and until
his or her successor is elected and qualified, or, if sooner,
until the directors death, resignation or removal. Proxies
cannot be voted for a greater number of persons than the number
of nominees named. Each of the nominees listed below is
currently a director of the Company who was previously elected
by the shareholders. It is the Companys policy to strongly
encourage nominees for directors to attend the Annual Meeting.
All of the Companys directors attended the 2007 Annual
Meeting of Shareholders.
The candidates receiving the highest number of affirmative votes
by the holders of shares entitled to be voted will be elected.
The persons named in the accompanying proxy will vote the shares
represented thereby for the nominees named below, but may
cumulate the votes for less than all of the nominees, as
permitted by the laws of the State of California, unless
otherwise instructed. If any nominee becomes unavailable for
election as a result of an unexpected occurrence, your shares
will be voted for the election of a substitute nominee proposed
by Abaxis. Each person nominated for election has agreed to
serve if elected. The Companys management has no reason to
believe that any nominee will be unable to serve.
Nominees
The nominees for election to the Board of Directors at the 2008
Annual Meeting are Clinton H. Severson, Richard J.
Bastiani, Ph.D., Henk J. Evenhuis, Brenton G.A. Hanlon,
Prithipal Singh, Ph.D. and
Ernest S. Tucker, III, M.D. Please see
Directors and Executive Officers of the Registrant
below for information concerning the nominees.
Vote
Required and Recommendation of the Board of Directors
Although abstentions and broker non-votes will each
be counted as present for purposes of determining a quorum,
neither abstentions nor broker non-votes will have
any impact on the election of directors and the
six candidates for election as directors at the annual
meeting who receive the highest number of affirmative votes will
be elected.
If the nominees decline to serve or become unavailable for any
reason, or if a vacancy occurs before the election (although
management knows of no reason to anticipate that this will
occur), the proxies may be voted for substitute nominees as the
Board of Directors may designate. In the event that additional
persons are nominated for election as directors, the proxy
holders intend to vote all proxies received by them in such a
manner in accordance with cumulative voting as will ensure the
election of as many of the nominees listed below as possible,
and, in such event, the specific nominees to be voted for will
be determined by the proxy holders.
THE BOARD
OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE
FOR THE NOMINEES NAMED ABOVE.
5
DIRECTORS
AND EXECUTIVE OFFICERS OF THE REGISTRANT
The following table sets forth certain information concerning
the Companys directors and executive officers:
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Name
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Age
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Title
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Clinton H. Severson
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60
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Chairman of the Board, President and Chief Executive Officer
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Richard J. Bastiani, Ph.D.(1)(2)(3)
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65
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Director
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Henk J. Evenhuis(1)(3)
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65
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Director
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Brenton G. A. Hanlon(1)(2)(3)
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62
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Director
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Prithipal Singh, Ph.D.(1)(3)
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69
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Director
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Ernest S. Tucker, III, M.D.(1)(3)
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75
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Director
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Alberto R. Santa Ines
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61
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Chief Financial Officer and Vice President of Finance
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Kenneth P. Aron, Ph.D.
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55
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Chief Technology Officer
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Donald P. Wood
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56
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Vice President of Operations
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Vladimir E. Ostoich, Ph.D.
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63
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Vice President of Government Affairs and Vice President of
Marketing for the Pacific Rim, Founder
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Christopher M. Bernard
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40
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Vice President of Sales and Marketing for the Domestic Medical
Market
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Martin V. Mulroy
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Vice President of Veterinary Sales and Marketing for North
America
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(1) |
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Member of the Audit Committee |
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Member of the Compensation Committee |
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Member of the Nominating and Corporate Governance Committee |
Clinton H. Severson has served as the Companys
President, Chief Executive Officer and one of our directors
since June 1996. He was appointed Chairman of the Board in May
1998. Since November 2006, Mr. Severson served on the Board
of Directors of CytoCore, Inc. (OTCBB: CYCR). From February 1989
to May 1996, Mr. Severson served as President and Chief
Executive Officer of MAST Immunosystems, Inc., a privately-held
medical diagnostic company.
Richard J. Bastiani, Ph.D. joined the Board of
Directors in September 1995. Dr. Bastiani is currently
retired and serves as Chairman of the Board of Directors of
Response Biomedical Corporation (CDNX: RBM). From 1998 to 2005,
Dr. Bastiani served as Chairman of the Board of Directors
of ID Biomedical Corporation (Nasdaq: IDBE), after he was
appointed to the Board of Directors of ID Biomedical Corporation
in October 1996. Dr. Bastiani was President of Dendreon
(Nasdaq: DNDN), a biotechnology company, from September 1995 to
September 1998. From 1971 until 1995, Dr. Bastiani held a
number of positions with Syva Company, a diagnostic company,
including as President from 1991 until Syva was acquired by a
subsidiary of Hoechst AG of Germany in 1995. Dr. Bastiani
is also a member of the board of directors of three-privately
held companies.
Henk J. Evenhuis joined the Board of Directors in
November 2002. Mr. Evenhuis is currently retired and serves
on the Board of Directors of Credence Systems Corporation
(Nasdaq: CMOS), a semiconductor equipment manufacturer.
Mr. Evenhuis served as Executive Vice President and Chief
Financial Officer of Fair Isaac Corporation (NYSE: FIC), a
global provider of analytic software products to the financial
services, insurance and health care industries from October 1999
to October 2002. From 1987 to 1998, he was Executive Vice
President and Chief Financial Officer of Lam Research
Corporation (Nasdaq: LRCX), a semiconductor equipment
manufacturer.
Brenton G. A. Hanlon joined the Board of Directors in
November 1996. Since January 2001, Mr. Hanlon has been
President and Chief Executive Officer of Hitachi Chemical
Diagnostics, a manufacturer of in vitro allergy diagnostic
products. Concurrently, from December 1996 until the present,
Mr. Hanlon has served as President and Chief Operating
Officer of Tri-Continent Scientific, a subsidiary of Hitachi
Chemical, specializing in liquid-
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handling products and instrument components for the medical
diagnostics and biotechnology industries. From 1989 to December
1996, Mr. Hanlon was Vice President and General Manager of
Tri-Continent Scientific. Mr. Hanlon serves on the board of
directors of two privately-held companies.
Prithipal Singh, Ph.D. joined the Board of Directors
in June 1992. Prior to retiring, Dr. Singh was the Founder,
Chairman and Chief Executive Officer of ChemTrak Inc. (Pink
Sheets: CMTR) from 1988 to 1998. Prior to this, Dr. Singh
was an Executive Vice President of Idetec Corporation from 1985
to 1988 and a Vice President of Syva Corporation from 1977
to 1985.
Ernest S. Tucker, III, M.D. joined the Board of
Directors in September 1995. Dr. Tucker currently serves as
a self-employed healthcare consultant after having retired as
Chief Compliance Officer for Scripps Health in San Diego in
September 2000, a position which he assumed in April 1998.
Dr. Tucker was Chairman of Pathology at Scripps Clinic and
Research Foundation from 1992 to 1998 and Chair of Pathology at
California Pacific Medical Center in San Francisco from
1989 to 1992.
Alberto R. Santa Ines has served as the Companys
Chief Financial Officer and Vice President of Finance since
April 2002. Mr. Santa Ines joined us in February 2000 as
Finance Manager. In April 2001, Mr. Santa Ines was promoted
to Interim Chief Financial Officer and Director of Finance, and
in April 2002 he was promoted to his current position. From
March 1998 to January 2000, Mr. Santa Ines was a
self-employed consultant to several companies. From August 1997
to March 1998, Mr. Santa Ines was the Controller of Unisil
(Pink Sheets: USIL), a semiconductor company. From April 1994 to
August 1997, he was a Senior Finance Manager at Lam Research
Corporation (Nasdaq: LRCX), a semiconductor equipment
manufacturer.
Kenneth P. Aron, Ph.D. has served as the
Companys Chief Technology Officer since April 2008.
Dr. Aron joined us in February 2000 as Vice President of
Research and Development. From April 1998 to November 1999,
Dr. Aron was Vice President of Engineering and Technology
of Incyte Pharmaceuticals (Nasdaq: INCY), a genomic information
company. From April 1996 to April 1998, Dr. Aron was Vice
President of Research, Development and Engineering for
Cardiogenesis Corporation (Nasdaq: CGCP), a manufacturer of
laser-based cardiology surgical products.
Donald P. Wood has served as the Companys Vice
President of Operations since October 2007. From April 2003
to September 2007, Mr. Wood was the Vice President of
Operations of Cholestech Corporation (Nasdaq: CTEC), a medical
products manufacturing company which was subsequently acquired
by Inverness Medical Innovations, Inc. in September 2007. From
July 2001 to March 2003, Mr. Wood served as Vice President
of Bone Health, a business unit of Quidel Corporation, a
manufacturing and marketer of point-of-care diagnostics, and was
responsible for Bone Health Product Operations, Device Research
and Development, and Sales and Marketing. He also served as
Quidels Vice President of Ultrasound Operations from
August 1999 to July 2001. Prior to joining Quidel, Mr. Wood
was the Director of Ultrasound Operations for Metra Biosystems
Inc., a developer and manufacturing company of point-of-care
products for osteoporosis, from July 1998 to August 1999 prior
to Quidels acquisition of Metra Biosystems Inc.
Vladimir E. Ostoich, Ph.D., one of the
Companys co-founders, is currently the Vice President of
Government Affairs and Vice President of Marketing for the
Pacific Rim. Dr. Ostoich has served as Vice President in
various capacities at Abaxis since inception, including as Vice
President of Research and Development, Senior
Vice President of Research and Development, Vice President
of Engineering and Instrument Manufacturing and Vice President
of Marketing and Sales for the United States and Canada.
Christopher M. Bernard joined the Company in November
2005 as Vice President of Marketing and Sales for the Domestic
Medical Market. From September 2000 to October 2005,
Mr. Bernard served as Regional Business Director for Cytyc
Corporation, which is now Hologic, Inc. (Nasdaq: HOLX), a
manufacturer of medical products primarily focused on
womens health. From December 1995 to August 2000,
Mr. Bernard held various sales and sales management
positions at Cytyc Corporation.
Martin V. Mulroy has served as the Companys Vice
President of Veterinary Sales and Marketing for
North America since May 2006. Mr. Mulroy joined us in
November 1997 as the Northeast Regional Sales Manager. He was
promoted to Eastern Area Director of Sales in December 1998 and,
in January 2005, he was promoted to National Sales Director for
the Domestic Veterinary market. From March 1996 to November
1997,
7
Mr. Mulroy was Regional Sales Manager for BioCircuits Inc.,
an immunoassay company in the medical market. Mr. Mulroy
was Regional Sales Manager from 1990 to 1992 and Field
Operations Manager from 1992 to 1995 for MAST Immunosystems
Inc., a privately-held medical diagnostic company.
INFORMATION
REGARDING THE BOARD OF DIRECTORS AND CORPORATE
GOVERNANCE
Independence
of the Board of Directors
As required under The Nasdaq Stock Market (Nasdaq)
listing standards, a majority of the members of a listed
companys Board of Directors must qualify as
independent, as affirmatively determined by the
Board of Directors. The Board consults with the Companys
counsel to ensure that the Boards determinations are
consistent with relevant securities and other laws and
regulations regarding the definition of independent,
including those set forth in pertinent listing standards of the
Nasdaq, as in effect from time to time.
Consistent with these considerations, after review of all
relevant transactions or relationships between each director, or
any of his or her family members, and the Company, its senior
management and its independent auditors, the Board has
affirmatively determined that the following five directors are
independent directors within the meaning of the applicable
Nasdaq listing standards: Mr. Evenhuis, Dr. Bastiani,
Mr. Hanlon, Dr. Singh and Dr. Tucker. In making
this determination, the Board found that none of these directors
or nominees for director had a material or other disqualifying
relationship with the Company. Mr. Severson, the
Companys President and Chief Executive Officer, is
not an independent director by virtue of his employment with the
Company. There are no family relationships among any of the
Companys directors or officers.
Meetings
of the Board of Directors
The Board of Directors met six times during the fiscal year
ended March 31, 2008. Each Board member attended 75% or
more of the aggregate of the meetings of the Board and of the
committees on which he served, held during the period for which
he was a director or committee member.
As required under applicable Nasdaq listing standards, in fiscal
2008, the Companys independent directors met four times in
regularly scheduled executive sessions at which only independent
directors were present.
Information
Regarding Committees of the Board of Directors
The Board has three committees: an Audit Committee, a
Compensation Committee and a Nominating and Corporate Governance
Committee. The following table provides membership and meeting
information for fiscal 2008 for each of the Board committees:
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Nominating and
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Corporate
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Name
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Audit
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Compensation
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Governance
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Clinton H. Severson
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Richard J. Bastiani, Ph.D.
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X
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X
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*
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X
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Henk J. Evenhuis
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X
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*
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X
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Brenton G. A. Hanlon
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X
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X
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X
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Prithipal Singh, Ph.D.
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X
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X
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*
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Ernest S. Tucker, III, M.D.
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X
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X
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Total meetings in fiscal 2008
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5
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1
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1
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Below is a description of each committee of the Board of
Directors. The Board of Directors has determined that each
member of each committee meets the applicable Nasdaq rules and
regulations regarding independence and that each
member is free of any relationship that would impair his or her
individual exercise of independent judgment with regard to the
Company.
8
Audit
Committee
The Audit Committee reviews and monitors the Companys
corporate financial reporting and external audits, including,
among other things, the Companys control functions, the
results and scope of the annual audit and other services
provided by the independent registered public accountants and
the Companys compliance with legal matters that have a
significant impact on its financial reports. Among other things,
the Audit Committee:
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evaluates the performance of and assesses the qualifications of
the independent auditors;
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determines and approves the engagement of the independent
auditors;
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determines whether to retain or terminate the existing
independent auditors or to appoint and engage new independent
auditors;
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reviews and approves the retention of the independent auditors
to perform any proposed permissible non-audit services;
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monitors the rotation of partners of the independent auditors on
the Companys audit engagement team as required by law;
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reviews and approves transactions between the company and any
related persons;
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confers with management and the independent auditors regarding
the effectiveness of internal controls over financial reporting;
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establishes procedures for the receipt, retention and treatment
of complaints received by the Company regarding accounting,
internal accounting controls or auditing matters and the
confidential and anonymous submission by employees of concerns
regarding questionable accounting or auditing matters; and
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meets to review the Companys annual audited financial
statements and quarterly financial statements with management
and the independent auditor, including reviewing the
Companys disclosures under Managements
Discussion and Analysis of Financial Condition and Results of
Operations.
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The Audit Committee is composed of five directors:
Mr. Evenhuis, Dr. Bastiani, Mr. Hanlon,
Dr. Singh and Dr. Tucker. Mr. Evenhuis serves as
Chairman of the Audit Committee. The Audit Committee held five
meetings during the fiscal year ended March 31, 2008. For
additional information about the Audit Committee, see
Report of the Audit Committee of the Board of
Directors below. The Audit Committee has adopted a written
charter that is available to shareholders in the Investor
Relations section of the Companys website at
http://www.abaxis.com.
The Board of Directors annually reviews the Nasdaq listing
standards definition of independence for Audit Committee members
and has determined that all members of the Audit Committee are
independent (as independence is currently defined in
Rule 4350(d)(2)(A)(i) and (ii) of the Nasdaq listing
standards). Securities and Exchange Commission (SEC)
regulations require the Company to disclose whether a director
qualifying as an audit committee financial expert
serves on the Audit Committee. The Board of Directors has
determined that Mr. Evenhuis qualifies as an audit
committee financial expert, as defined in applicable SEC
rules. The Board of Directors made a qualitative assessment of
Mr. Evenhuiss level of knowledge and experience based
on a number of factors, including his formal education and
experience as a chief financial officer for public reporting
companies.
Report of
the Audit Committee of the Board of
Directors1
The Audit Committee oversees Abaxis financial reporting
process on behalf of the Board of Directors. Management has the
primary responsibility for the financial statements and the
reporting process, including internal control systems. In the
fiscal year ended March 31, 2008, Burr, Pilger &
Mayer LLP was responsible for expressing
1 The
material in this report is not soliciting material,
is not deemed filed with the Securities and Exchange
Commission and is not to be incorporated by reference in any
filing of Abaxis, Inc. under the Securities Act or the Exchange
Act, whether made before or after the date hereof and
irrespective of any general incorporation language in any such
filing.
9
an opinion as to the conformity of the Companys audited
financial statements with generally accepted accounting
principles. Burr, Pilger & Mayer LLP has acted in such
capacity since its appointment on August 25, 2005.
The Audit Committee has reviewed and discussed the audited
financial statements for the fiscal year ended March 31,
2008 with management of the Company. The Audit Committee has
discussed with the independent auditors the matters required to
be discussed by the Statement on Auditing Standards No. 61,
as amended (AICPA, Professional Standards, Vol. 1. AU
section 380), as adopted by the Public Company Accounting
Oversight Board (PCAOB) in Rule 3200T. The
Audit Committee has met with Burr, Pilger & Mayer LLP,
with and without management present, to discuss the overall
scope and results of Burr, Pilger & Mayer LLPs
audit and review procedures, and the overall quality of its
financial reporting. The Audit Committee has also received the
written disclosures and the letter from the independent
accountants required by the Independence Standards Board
Standard No. 1, (Independence Discussions with Audit
Committees), as adopted by the PCAOB in Rule 3600T and has
discussed with the independent accountants the independent
accountants independence. Based on the review and
discussions referred to above, the Audit Committee recommended
to the Board of Directors that Abaxis audited financial
statements be included in Abaxis Annual Report on
Form 10-K
for the fiscal year ended March 31, 2008.
THE AUDIT COMMITTEE
Henk J. Evenhuis, Chairman
Richard J. Bastiani, Ph.D.
Brenton G.A. Hanlon
Prithipal Singh, Ph.D.
Ernest S. Tucker, III, M.D.
Compensation
Committee
The Compensation Committee is composed of two directors:
Dr. Bastiani and Mr. Hanlon. Each of these individuals
is a non-employee member of the Companys Board of
Directors and is independent (as independence is currently
defined in Rule 4200(a)(15) of the Nasdaq listing
standards). The Compensation Committee held one meeting
during the fiscal year ended March 31, 2008, each of which
were attended by both Messrs. Bastiani and Hanlon. The
Compensation Committee has adopted a written charter that is
available to shareholders in the Investor Relations section of
the Companys website at
http://www.abaxis.com.
For additional information about the Compensation Committee, see
Compensation Committee Report and Executive
Compensation.
The Compensation Committee reviews and makes recommendations to
the Board of Directors regarding the Companys compensation
strategy, policies, plans and programs and all forms of
compensation to be provided to the Companys executive
officers and directors, including among other things:
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development or review and approval of corporate and individual
performance objectives relevant to the compensation of the
Companys Chief Executive Officer and evaluation of
performance in light of these stated objectives;
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review and approval of the compensation and other terms of
employment or service, including severance and
change-in-control
arrangements, of the Companys Chief Executive Officer and
the other executive officers; and
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development or review and approval of incentive-based or
equity-based compensation plans in which the Companys
executive officers and employees participate.
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The Compensation Committee also reviews with management the
Companys Compensation Discussion and Analysis and
considers whether to recommend that it be included in proxy
statements and other filings.
Compensation
Committee Processes and Procedures
Typically, the Compensation Committee meets at least one time
annually and with greater frequency if necessary. The agenda for
each meeting is usually developed by the Chair of the
Compensation Committee, in consultation with the Chief Executive
Officer. However, Mr. Severson does not participate in the
determination of
10
his own compensation. The charter of the Compensation Committee
grants the Compensation Committee authority to obtain, at the
expense of the Company, advice and assistance from internal and
external legal, accounting or other advisors and consultants and
other external resources that the Compensation Committee
considers necessary or appropriate in the performance of its
duties. In particular, the Compensation Committee has the sole
authority to retain compensation consultants to assist in its
evaluation of executive and director compensation, including the
authority to approve the consultants reasonable fees and
other retention terms.
The Compensation Committee does not delegate any of its
functions in determining executive
and/or
director compensation. To date, the Compensation Committee has
not established any formal policies or guidelines for allocating
compensation between long-term and currently paid out
compensation, cash and non-cash compensation, or among different
forms of non-cash compensation. The Compensation Committee may
discuss with the Chief Executive Officer or Chief Financial
Officer the Companys financial, operating and strategic
business objectives, bonus targets or performance goals. The
Compensation Committee reviews and determines the
appropriateness of the financial measures and performance goals,
as well as assesses the degree of difficulty in achieving
specific bonus targets and performance goals. From time to time,
the Compensation Committee may engage an independent
compensation advisor to obtain competitive compensation data.
The specific determinations of the Compensation Committee with
respect to executive compensation for fiscal 2008 are described
in greater detail in the Compensation Discussion and Analysis
section of this proxy statement.
Compensation
Committee Interlocks and Insider Participation
No member of the Compensation Committee has ever been an
executive officer or employee of the Company. None of the
Companys executive officers currently serves, or has
served during the last completed fiscal year, on the
Compensation Committee or board of directors of any other entity
that has one or more executive officers serving as a member of
the Companys board of directors or compensation committee.
For information with respect to related-person transactions
involving members of the Compensation Committee, see
Transactions with Related Persons.
Compensation
Committee
Report2
The Compensation Committee has reviewed and discussed with
management the disclosures contained in the Compensation
Discussion and Analysis (CD&A) contained in
this proxy statement. Based on this review and discussion, the
Compensation Committee has recommended to the Board of Directors
that the CD&A be included in this proxy statement.
THE COMPENSATION COMMITTEE
Richard J. Bastiani, Ph.D., Chair
Brenton G.A. Hanlon
Nominating
and Corporate Governance Committee
The members of the Nominating and Corporate Governance Committee
are Dr. Bastiani, Mr. Evenhuis, Mr. Hanlon,
Dr. Singh and Mr. Tucker. Each of the members of the
Nominating and Corporate Governance Committee are independent
(as independence is currently defined in Rule 4200(a)(15)
of the Nasdaq listing standards). The Nominating and Corporate
Governance Committee held one meeting during the fiscal year
ended March 31, 2008. The Nominating and Corporate
Governance Committee has adopted a written charter that is
available to shareholders in the Investor Relations section of
the Companys website at
http://www.abaxis.com.
2 The
material in this report is not soliciting material,
is not deemed filed with the Securities and Exchange
Commission and is not to be incorporated by reference in any
filing of Abaxis, Inc. under the Securities Act or the Exchange
Act, whether made before or after the date hereof and
irrespective of any general incorporation language in any such
filing.
11
The Nominating and Corporate Governance Committee reviews the
results of the evaluation of the Board of Directors and its
committees, and the needs of the Board of Directors for various
skills, experience, expected contributions and other
characteristics, and the optimal size of the Board in light of
these needs, in determining the director candidates to be
nominated at the annual meeting. The Nominating and Corporate
Governance Committee will evaluate candidates for directors,
including incumbent directors and candidates proposed by
directors, shareholders or management, in light of the
Nominating and Corporate Governance Committees views of
the current needs of the Board of Directors for certain skills,
experience or other characteristics, the candidates
background, skills, experience, other characteristics and
expected contributions and the qualification standards, if any,
established by the Nominating and Corporate Governance
Committee. If the Nominating and Corporate Governance Committee
believes that the Board of Directors requires additional
candidates for nomination, the Nominating and Corporate
Governance Committee may poll existing directors or management
for suggestions for candidates and may engage, as appropriate, a
third party search firm to assist in identifying qualified
candidates. The process may also include interviews and
additional background and reference checks for non-incumbent
nominees, at the discretion of the Nominating and Corporate
Governance Committee. In making the determinations regarding
nominations of directors, the Nominating and Corporate
Governance Committee may take into account the benefits of
diverse viewpoints as well as the benefits of a constructive
working relationship among directors. The Nominating and
Corporate Governance Committee will consider director
nominations made by shareholders in accordance with the
requirements of Abaxis bylaws consistent with these
procedures.
The Nominating and Corporate Governance Committee will consider
director candidates recommended by shareholders. Pursuant to the
Companys bylaws, any shareholder entitled to vote in the
election of directors generally may nominate one or more persons
for election as directors at a meeting only if timely notice of
such shareholders intent to make such nomination or
nominations has been given in writing to the secretary of
Abaxis. To be timely, a shareholder nomination for a director to
be elected at an annual meeting shall be received at
Abaxis principal executive offices not less than 120
calendar days in advance of the date that Abaxis proxy
statement was released to shareholders in connection with the
previous years annual meeting of shareholders, except that
if no annual meeting was held in the previous year or the date
of the annual meeting has been changed by more than
30 calendar days from the date contemplated at the time of
the previous years proxy statement, or in the event of a
nomination for director to be elected at a special meeting,
notice by the shareholders to be timely must be received not
later than the close of business on the tenth day following the
day on which such notice of the date of the special meeting was
mailed or such public disclosure was made. Each such notice
shall set forth: (a) the name and address of the
shareholder who intends to make the nomination and of the person
or persons to be nominated; (b) a representation that the
shareholder is a holder of record of stock of Abaxis entitled to
vote for the election of directors on the date of such notice
and intends to appear in person or by proxy at the meeting to
nominate the person or persons specified in the notice;
(c) a description of all arrangements or understandings
between the shareholder and each nominee and any other person or
persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the shareholder;
(d) such other information regarding each nominee proposed
by such shareholder as would be required to be included in a
proxy statement filed pursuant to the proxy rules of the
SEC, had the nominee been nominated, or intended to be
nominated, by the board of directors; and (e) the consent
of each nominee to serve as a director of Abaxis if so elected.
Other than the foregoing, there are no stated minimum criteria
for director nominees, although the Nominating and Corporate
Governance Committee may also consider such other factors as it
may deem to be in the best interests of Abaxis and its
shareholders.
12
Shareholder
Communications With The Board Of Directors
Shareholders may communicate with any and all company directors
by transmitting correspondence by mail, facsimile or email,
addressed as follows:
Chairman of the Board
or Board of Directors
or any individual director
c/o Mr. Alberto
R. Santa Ines, Chief Financial Officer and Secretary
3240 Whipple Road
Union City, CA 94587
Fax:
510-441-6151
or
Email Address: investors@abaxis.com
The Compliance Officer shall maintain a log of such
communications and transmit as soon as practicable such
communications to the identified director addressee(s), unless
there are safety or security concerns that mitigate against
further transmission of the communication, as determined by the
Compliance Officer in consultation with Abaxis legal
counsel. The Board of Directors or individual directors so
addressed shall be advised of any communication withheld for
safety or security reasons as soon as practicable. The
Compliance Officer shall relay all communications to directors
absent safety or security issues.
Code
of Business Conduct and Ethics
The Company has adopted the Abaxis, Inc. Code of Business
Conduct and Ethics that applies to all of the Companys
executive officers, directors and employees, including without
limitation the Companys principal executive officer,
principal financial officer, principal accounting officer or
controller or persons performing similar functions. The Code of
Business Conduct and Ethics is available on our website at
www.abaxis.com under Investor Relations at
Corporate Governance. If the Company makes any
substantive amendments to the Code of Business Conduct and
Ethics or grants any waiver from a provision of the Code of
Business Conduct and Ethics to any executive officer or
director, the Company will promptly disclose the nature of the
amendment or waiver on its website. The Company intends to
satisfy the disclosure requirement under Item 5.05 of
Form 8-K
regarding any amendment to, or waiver of, any provision of the
Code of Business Conduct and Ethics by disclosing such
information on the same website.
13
Proposal 2
Approval
Of Amendment To The 2005 Equity Incentive Plan
In July 2005, the Board of Directors (the Board)
adopted, and the Companys shareholders subsequently
approved, the Abaxis, Inc. 2005 Equity Incentive Plan (the
2005 Plan), which was an amendment and restatement
of the Companys 1998 Stock Option Plan. Prior to any
shareholder approval of the increase in shares subject to this
Proposal 2, as of August 29, 2008, there was an
aggregate total of 4,886,000 shares of common stock
authorized for issuance under the 2005 Plan. During fiscal 2008,
the Company granted restricted stock unit award of an aggregate
of 267,000 shares of common stock under the 2005 Plan. No
stock options were granted under the 2005 Plan during fiscal
2008.
In July 2008, the Board approved an amendment to the 2005 Plan,
subject to shareholder approval, to increase the aggregate
number of shares of common stock authorized for issuance under
the 2005 Plan by 500,000 shares to a total of
5,386,000 shares. The Board adopted this amendment in order
to ensure that the Company can continue to grant stock awards at
levels determined appropriate by the Board.
Shareholders are requested in this Proposal 2 to approve
the amendment to the Companys 2005 Plan described above.
The affirmative vote of the holders of a majority of the shares
present in person or represented by proxy and voting at the
meeting (which shares voting affirmatively also constitute at
least a majority of the required quorum) will be required to
approve the increase in shares under the 2005 Plan. For purposes
of this vote abstentions and broker non-votes will not be
counted for any purpose in determining whether this matter has
been approved.
THE BOARD
OF DIRECTORS RECOMMENDS
A VOTE IN FAVOR OF PROPOSAL 2.
The essential features of the 2005 Plan are outlined below:
General
The 2005 Plan provides for the grant of stock options, stock
appreciation rights, stock awards (stock purchase rights and
stock bonuses), restricted stock units, performance shares,
performance units, and other stock-based awards and cash-based
awards (collectively awards). Incentive stock
options granted under the 2005 Plan are intended to qualify as
incentive stock options within the meaning of
Section 422 of the Internal Revenue Code of 1986, as
amended (the Code). Nonstatutory stock options
granted under the 2005 Plan are not intended to qualify as
incentive stock options under the Code. Stock appreciation
rights granted under the 2005 Plan may be tandem rights or
freestanding rights. See Federal Income Tax
Information for a discussion of the tax treatment of
awards. To date, the Company has granted only stock options and
restricted stock units under the 2005 Plan.
Purpose
The Board adopted the 2005 Plan to provide a means by which
employees, directors and consultants of the Company may be given
an opportunity to purchase stock in the Company, to assist in
retaining the services of such persons, to secure and retain the
services of persons capable of filling such positions and to
provide incentives for such persons to exert maximum efforts for
the success of the Company. As of August 29, 2008, we had
approximately 324 employees, including seven executive
officers in addition to five non-employee directors who would be
eligible to receive awards under the 2005 Plan.
Administration
The 2005 Plan will be administered by the Compensation Committee
of the Board or another committee of the Board appointed to
administer the 2005 Plan, or, in the absence of such committee,
by the Board. (For purposes of this summary, the term
Committee refers to either such committee or the
Board.) Subject to the provisions of the 2005 Plan, the
Committee has the power to construe and interpret the 2005 Plan
and to determine in its discretion the persons to whom or the
dates on which awards will be granted, the number of shares of
common stock to be subject
14
to each award, the time or times during the term of each award
within which all or a portion of such award may be exercised,
the exercise price, the type of consideration and other terms of
the award.
The Committee may, subject to certain limitations on the
exercise of its discretion required by Section 162(m),
amend or cancel any award, waive any restrictions or conditions
applicable to any award, and accelerate, extend or defer the
vesting of any award. The Committee may delegate to one or more
of its members or one or more officers of Abaxis the authority
to grant awards under the 2005 Plan. The 2005 Plan provides,
subject to certain limitations, for indemnification by the
company of any director or officer against all reasonable
expenses, including attorneys fees, incurred in connection
with any legal action arising from such persons action or
failure to act in administering the 2005 Plan. All awards
granted under the 2005 Plan will be evidenced by a written or
electronic agreement between Abaxis and the participant
specifying the terms and conditions of the award, consistent
with the requirements of the 2005 Plan. The Committee will
interpret the 2005 Plan and awards granted thereunder, and all
determinations of the Committee will be final and binding on all
persons having an interest in the 2005 Plan or any award.
Shares
Subject to the 2005 Plan
As of August 29, 2008, restricted stock units and stock
options covering an aggregate of 1,681,784 shares of common
stock were outstanding under the 2005 Plan. Prior to the
increase discussed in this Proposal 2, an aggregate of
208,047 shares of common stock remain available as of
August 29, 2008 for future issuance under the 2005 Plan.
If awards granted under the 2005 Plan expire or otherwise
terminate for any reason without having been exercised or
settled in full, the shares of common stock not acquired
pursuant to such awards again become available for issuance
under the 2005 Plan. If unvested shares of common stock subject
to forfeiture or repurchase issued pursuant to stock awards
under the 2005 Plan are forfeited or repurchased by the Company,
the forfeited or repurchased stock will again become available
for issuance under the 2005 Plan. Shares will not be treated as
having been issued under the 2005 Plan and will therefore not
reduce the number of shares available for grant to the extent an
award other than an option or stock appreciation right is
settled in cash. Shares withheld or reacquired by the company in
satisfaction of a tax withholding obligation will not again
become available under the 2005 Plan. The number of shares
available under the 2005 Plan will be reduced upon the exercise
of a stock appreciation right by the gross number of shares for
which the award is exercised. If shares are tendered in payment
of the exercise price of an option, or the option is exercised
by means of a net-exercise procedure, the number of shares
available under the 2005 Plan will be reduced by the gross
number of shares for which the option is exercised.
Eligibility
Awards may be granted to employees, consultants and directors of
the Company or any affiliate of the Company. Incentive stock
options may be granted under the 2005 Plan only to employees
(including officers) of the Company and its affiliates.
Employees (including officers), directors and consultants of
both the Company and its affiliates are eligible to receive all
other types of awards under 2005 Plan.
No incentive stock option may be granted under the 2005 Plan to
any person who, at the time of the grant, owns (or is deemed to
own) stock possessing more than 10% of the total combined voting
power of the Company or any affiliate of the Company, unless the
exercise price is at least 110% of the fair market value of the
stock subject to the option on the date of grant and the term of
the option does not exceed five years from the date of grant. In
addition, the aggregate fair market value, determined at the
time of grant, of the shares of common stock with respect to
which incentive stock options are exercisable for the first time
by a participant during any calendar year (under the 2005 Plan
and any other such plans of the Company and its affiliates) may
not exceed $100,000.
In addition to the limitation described above on the total
number of shares of our common stock that will be authorized for
issuance under the 2005 Plan, the 2005 Plan limits the numbers
of shares that may be issued under each type of award, subject
to adjustment as described below. Subject to this
Proposal 2, no more than 5,386,000 shares may be
issued upon the exercise of incentive stock options or other
awards granted under the 2005 Plan. No more than
500,000 shares in the aggregate may be issued pursuant to
full value awards, which are stock purchase, stock
bonus or other stock-based awards under which shares are
acquired for less than their fair market value, restricted stock
units and performance share awards granted under the 2005 Plan.
In addition, no more
15
than 5% of the maximum aggregate number of shares authorized
under the 2005 Plan may be issued pursuant to such full value
awards that provide for vesting more rapidly than over a period
of three years if vesting is based upon continued service alone
or that have a performance period of less than 12 months if
vesting is based on the attainment of performance goals. To
enable compensation in connection with certain types of awards
to qualify as performance-based within the meaning
of Section 162(m) of the Code, the 2005 Plan establishes
limits on the maximum aggregate number of shares or dollar
amount for which any such award may be granted to an employee in
any fiscal year (the Section 162(m)
Limitations). The limits for awards intended to qualify as
performance-based are as follows:
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Stock options and stock appreciation
rights: No more than 100,000 shares.
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Stock purchase rights, stock bonuses and restricted stock
unit awards: No more than 500,000 shares.
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Performance share and performance unit
awards: No more than 500,000 shares, or
500,000 units, for each fiscal year contained in the
performance period of the award.
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Cash-based awards and other stock-based
awards: No more than 50,000 shares.
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Terms
of Options
The following is a description of the permissible terms of
options under the 2005 Plan. Individual option grants may be
more restrictive as to any or all of the permissible terms
described below.
Exercise Price; Payment. The exercise price of
incentive stock options may not be less than 100% of the fair
market value of the stock subject to the option on the effective
date of the grant and, in some cases (see
Eligibility above), may not be less than 110% of
such fair market value. The exercise price of nonstatutory
options may not be less than 100% of the fair market value of
the stock on the effective date of grant. As of August 29,
2008, the closing price of our common stock as reported on the
Nasdaq Global Market was $19.89 per share.
The exercise price of options granted under the 2005 Plan must
be made (i) in cash, by check or in cash equivalent,
(ii) by tender to the Company of shares of common stock
owned by the participant having a fair market value not less
than the exercise price, (iii) by means of a net-exercise
procedure, (iv) by means of a broker-assisted cashless exercise,
or (v) by such other consideration as may be approved by
the Committee from time to time to the extent permitted by
applicable law. The Committee may at any time or from time to
time grant options which do not permit all of the foregoing
forms of consideration to be used in payment of the exercise
price or which otherwise restrict one or more forms of
consideration.
Vesting. Options granted under the 2005 Plan
may become exercisable in cumulative increments, or
vest, as determined by the Committee. Shares covered
by currently outstanding options under the 2005 Plan typically
vest monthly during the participants employment by, or
service as a director or consultant to, the Company or an
affiliate (collectively, service), and certain
options do not begin to vest until the first anniversary of the
grant date. Shares covered by options granted in the future
under the 2005 Plan may be subject to different vesting terms.
Tax Withholding. To the extent provided by the
terms of an option, a participant may satisfy any federal, state
or local tax withholding obligation relating to the exercise of
such option by a cash payment upon exercise, by authorizing the
Company to withhold a portion of the stock otherwise issuable to
the participant, by delivering already-owned Abaxis common stock
or by a combination of these means.
Term. The maximum term of options under the
2005 Plan is 10 years, except that in certain cases (see
Eligibility), such as an incentive stock option
granted to a 10% shareholder, the maximum term is five years.
Options will remain exercisable for such period of time
following a participants termination of service as
determined by the Committee and provided in the
participants award agreement, provided that in no case may
an option be exercised after its expiration date. Options will
become exercisable in full upon a participants death.
A participants option agreement may provide that if a sale
of the shares acquired upon exercise of the option within the
applicable time periods following the termination of
the participants service would result in liability
under Section 16(b) of the Securities Exchange Act of 1934
(the Exchange Act), then the option shall
remain exercisable until the earlier of (i) the expiration
of the term of the option, (ii) the 10th day after the
last date on which
16
such sale would result in such liability under
Section 16(b), or (iii) the 190th day after the
termination of participants service. A participants
option agreement may provide that if the exercise of the option
following the termination of the participants service
would be prohibited because the issuance of stock would violate
the registration requirements under the Securities Act, then the
option will terminate on the earlier of (i) the expiration
of the term of the option or (ii) three months after the
participant is notified by the Company that the option is
exercisable, during which the exercise of the option would not
be in violation of such registration requirements.
Restrictions on Transfer. The participant may
not transfer an option except by will or by the laws of descent
and distribution. During the lifetime of the participant, an
option may be exercised only by the participant or permitted
transferee.
Terms
of Restricted Stock Unit Awards
Restricted stock unit awards may be granted under the 2005 Plan
pursuant to a restricted stock unit award agreement.
Consideration. The purchase price, if any, for
restricted stock unit awards may be paid in any form of legal
consideration acceptable to the Committee, including the
provision of services.
Settlement of Awards. A restricted stock unit
award may be settled and Abaxis shall issue shares underlying
the award on the date on which restricted stock units subject to
the participants restricted stock unit award vests or on
such other date determined by the Committee, in its discretion.
Notwithstanding the foregoing, if permitted by the Committee and
set forth in the award agreement, the participant may elect in
accordance with terms specified in the award agreement to defer
receipt of all or any portion of the shares of stock or other
property otherwise issuable to the participant in connection
with settlement of the restricted stock unit award.
Vesting. Restricted stock unit awards may or
may not be subject to vesting conditions based on service or the
achievement of such performance criteria as the Committee
specifies, including without limitation the attainment of one or
more performance goals similar to those described below in
connection with performance awards below. Except as otherwise
provided in the applicable award agreement, restricted stock
unit awards that have not vested will be forfeited upon the
participants termination of service for any reason,
whether voluntary or involuntary (including the
participants death or disability).
Restrictions on Transfer. During any period in
which shares acquired pursuant to a restricted stock unit award
remain subject to vesting conditions, such shares may not be
transferred by the participant other than by will or by the laws
of descent and distribution or as otherwise provided in the
award agreement.
Voting Rights; Dividend
Equivalents. Participants holding restricted
stock unit awards shall have no rights to vote the shares until
the date of issuance of such shares. The Committee, in its
discretion, may provide for participants to receive a dividend
equivalent to be credited with respect to shares covered by a
restricted stock unit award upon the grant of a cash dividend.
Such additional restricted stock units shall be subject to the
same terms and conditions and shall be settled in the same
manner and at the same time (or as soon thereafter as
practicable) as the restricted stock units originally subject to
the award. The Company does not anticipate paying cash dividends
on its common stock for the foreseeable future, however.
Terms
of Stock Appreciation Rights
Stock appreciation rights may be granted under the 2005 Plan
pursuant to stock appreciation rights agreements either in
tandem with a related option (a Tandem SAR) or
independently of any option (a Freestanding SAR). No
stock appreciation rights have been granted under the 2005 Plan
to date.
Exercise. A Tandem SAR requires the option
holder to elect between the exercise of the underlying option
for shares of common stock or the surrender of the option and
the exercise of the related stock appreciation right. A Tandem
SAR is exercisable only at the time and only to the extent that
the related stock option is exercisable, while a Freestanding
SAR is exercisable at such times and subject to such terms,
conditions, performance criteria or restrictions as specified by
the Committee. The exercise price of a Tandem SAR will be the
same as the exercise
17
price of the related option, and the exercise price of a
Freestanding SAR may not be less than the fair market value of a
share of our common stock on the date of grant.
Each stock appreciation right is denominated in shares of common
stock equivalents. Upon the exercise of any stock appreciation
right, the participant is entitled to receive an amount equal to
the excess of the fair market value of the underlying shares of
common stock as to which the right is exercised over the
aggregate exercise price for such shares, determined by the
Committee on the date of grant.
Settlement of Awards. Payment of the
appreciation distribution amount upon the exercise of a Tandem
SAR may be made only in shares of common stock whose fair market
value on the exercise date equals the payment amount. At the
Committees discretion, payment of this amount upon the
exercise of a Freestanding SAR may be made in cash or shares of
common stock and may be paid in a lump sum or on a deferred
basis in accordance with the terms of the participants
award agreement.
Vesting. Stock appreciation rights vest and
become exercisable at the rate specified in the stock
appreciation right agreement as determined by the Committee.
Termination of Service. Upon termination of a
participants service, the participant generally may
exercise any vested stock appreciation right for such period
specified in the stock appreciation right agreement after the
date such service relationship ends. In no event may a stock
appreciation right be exercised beyond the expiration of its
term. The maximum term of any Freestanding SAR granted under the
2005 Plan is ten years.
Restrictions on Transfer. Stock appreciation
rights are generally nontransferable by the participant other
than by will or by the laws of descent and distribution, and are
generally exercisable during the participants lifetime
only by the participant. Other terms of stock appreciation
rights are generally similar to the terms of comparable stock
options.
Terms
of Restricted Stock Awards
Restricted stock awards may be granted under the 2005 Plan
pursuant to a restricted stock award agreement. No restricted
stock awards have been granted under the 2005 Plan.
Consideration. The purchase price, if any, for
shares of stock issuable under each restricted stock award and
the means of payment shall be established by the Committee in
its discretion.
Settlement of Awards. A restricted stock award
may be settled by the delivery of shares of our common stock, as
determined by the Committee.
Vesting. Shares issued pursuant to any
restricted stock award may or may not be subject to vesting
conditions based on service or the achievement of such
performance criteria as the Committee specifies, including the
attainment of one or more performance goals similar to those
described below in connection with performance awards. Unless
otherwise provided by the Committee, a participant will forfeit
any shares of stock as to which vesting conditions have not been
satisfied prior to the participants termination of service.
Restrictions on Transfer. During any period in
which shares acquired pursuant to a restricted stock award
remain subject to vesting conditions, such shares may not be
transferred by the participant other than by will or by the laws
of descent and distribution or as otherwise provided in the
award agreement.
Voting Rights; Dividend Equivalents. Unless
otherwise determined by the Committee, participants holding
stock awards subject to vesting conditions will have the right
to vote the shares and to receive any dividends paid, except
that dividends or other distributions paid in shares will be
subject to the same restrictions as the original award.
Performance
Awards
Under the 2005 Plan, the Committee may grant performance awards
subject to such conditions and the attainment of such
performance goals over such periods as the Committee determines
in writing and sets forth in a written agreement between the
company and the participant. These awards may be designated as
performance shares or performance units. Performance shares and
performance units are unfunded bookkeeping entries
18
generally having initial values, respectively, equal to the fair
market value determined on the grant date of a share of common
stock and a monetary value established by the Committee at the
time of grant.
Performance Terms. In granting a performance
award, the Committee will set a period of time (a
performance period) over which the attainment of one
or more goals (performance goals) will be measured
for the purpose of determining whether the award recipient has a
vested right in or to such stock award. Within the time period
prescribed by Section 162(m) of the Code (typically before
the 90th day of a performance period), the Committee will
establish the performance goals, based upon one or more
pre-established criteria (performance criteria)
enumerated in the 2005 Plan and described below.
Performance goals will be based on the attainment of specified
target levels with respect to one or more measures of business
or financial performance of the company
and/or any
affiliate of the Company, or any of its business units as may be
selected by the Committee. The Committee, in its discretion, may
base performance goals on one or more of the following such
measures:
revenue; sales; expenses; operating income; gross margin;
operating margin; earnings before any one or more of:
stock-based compensation expense, interest, taxes, depreciation
and amortization; pre-tax profit; net operating income; net
income; economic value added; free cash flow; operating cash
flow; stock price; earnings per share; return on shareholder
equity; return on capital; return on assets; return on
investment; employee satisfaction; employee retention; balance
of cash, cash equivalents and marketable securities; market
share; daily average revenue trades; asset gathering metrics;
number of customers; customer satisfaction; product development;
completion of a joint venture or other corporate transaction;
completion of identified special project; and overall
effectiveness of management; or other measures of performance
selected by the Committee.
The target levels with respect to these performance measures may
be expressed on an absolute basis or relative to a standard
specified by the Committee. The degree of attainment of
performance measures will be calculated in accordance with
generally accepted accounting principles, but prior to the
accrual or payment of any performance award for the same
performance period, and, according to criteria established by
the Committee, excluding the effect (whether positive or
negative) of changes in accounting standards or any
extraordinary, unusual or nonrecurring item occurring after the
establishment of the performance goals applicable to a
performance award.
Settlement of Awards. Following completion of
the applicable performance period, the Committee will certify in
writing the extent to which the applicable performance goals
have been attained and the resulting value to be paid to the
participant. To the extent earned, performance awards may be
settled in cash, shares of common stock or any combination
thereof. The Committee may provide for performance award
payments in a lump sum or installments pursuant to a schedule
elected by the participant.
Adjustments. The Committee retains the
discretion to eliminate or reduce, but not increase, the amount
that would otherwise be payable on the basis of the performance
goals attained to a participant who is a covered
employee within the meaning of Section 162(m) of the
Code. However, no such reduction may increase the amount paid to
any other participant. The Committee may make positive or
negative adjustments to performance award payments to
participants other than covered employees to reflect the
participants individual job performance or other factors
determined by the Committee. In its discretion, the Committee
may provide a participant awarded performance shares with
dividend equivalent rights with respect to cash dividends paid
on the companys common stock.
Termination of Service. Unless otherwise
provided by the Committee, if a participants service
terminates due to the participants death or disability
prior to completion of the applicable performance period, the
final award value will be determined at the end of the
performance period on the basis of the performance goals
attained during the entire performance period but will be
prorated for the number of months of the participants
service during the performance period. If a participants
service terminates prior to completion of the applicable
performance period for any other reason, the 2005 Plan provides
that, unless otherwise determined by the Committee, the
performance award will be forfeited.
Restrictions on Transfer. No performance award
may be sold or transferred other than by will or the laws of
descent and distribution prior to the end of the applicable
performance period.
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Voting Rights; Dividend
Equivalents. Participants holding performance
share awards shall have no rights to vote the shares until the
date of issuance of such shares. The Committee, in its
discretion, may provide for participants to receive a dividend
equivalent to be credited with respect to shares covered by a
performance share award upon the grant of a cash dividend. No
deemed equivalents shall be paid with respect to performance
units.
Deferred
Compensation Awards
The 2005 Plan authorizes the Committee to establish a deferred
compensation award program. If and when implemented,
participants designated by the Committee who are officers,
directors or members of a select group of highly compensated
employees may elect to receive, in lieu of compensation
otherwise payable in cash an award of a stock bonus or deferred
stock units or in lieu of cash or shares of common stock
issuable upon the exercise or settlement of stock options, stock
appreciation rights or performance share or performance unit
awards, an award of deferred stock units. Each such stock unit
represents a right to receive one share of our common stock at a
future date determined in accordance with the participants
award agreement.
Settlement of Awards. Deferred stock units
will be settled by distribution to the participant of a number
of whole shares of common stock equal to the number of stock
units subject to the award as soon as practicable following the
earlier of the date on which the participants service
terminates or a settlement date elected by the participant at
the time of his or her election to receive the deferred stock
unit award. Participants are not required to pay any additional
consideration in connection with the payment of a stock bonus or
the settlement of deferred stock units.
Voting Rights; Dividend Equivalents. A holder
of deferred stock units has no voting rights or other rights as
a shareholder until shares of common stock are issued to the
participant in settlement of the deferred stock units. However,
participants holding deferred stock units will be entitled to
receive dividend equivalents with respect to any payment of cash
dividends on an equivalent number of shares of common stock.
Such dividend equivalents will be credited in the form of
additional whole and fractional stock units determined in
accordance with a method specified by the Committee in the
participants award agreement.
Restrictions on Transfer. Prior to settlement,
deferred stock units may not be assigned or transferred other
than by will or the laws of descent and distribution.
Cash-Based
Awards and Other Stock-Based Awards
The Committee may grant cash-based awards or other stock-based
awards in such amounts and subject to such terms and conditions
as the Committee determines. Cash-based awards will specify a
monetary payment or range of payments, while other stock-based
awards will specify a number of shares or units based on shares
or other equity-related awards. Such awards may be subject to
the attainment of one or more performance goals similar to those
described above in connection with performance awards.
Settlement of cash-based awards or other stock-based awards may
be in cash or shares of common stock, as determined by the
Committee. A participant will have no voting rights with respect
to any such award unless and until shares are issued pursuant to
the award. The committee may grant dividend equivalent rights
with respect to other stock-based awards. The effect on such
awards of the participants termination of service will be
determined by the Committee and set forth in the
participants award agreement.
Adjustment
Provisions
The Committee, in its discretion and to prevent dilution or
enlargement of participants rights under the 2005 Plan,
will adjust the number of shares authorized under the 2005 Plan,
the numerical limits on awards and the number and kind of shares
and exercise price subject to outstanding awards in the event of
any change in the Companys common stock through merger,
consolidation, reorganization, reincorporation,
recapitalization, reclassification, stock dividend, stock split,
reverse stock split, combination of shares, exchange of shares
or similar change in capital structure of the Company, or if the
Company makes a distribution to its shareholders in a form other
than common stock (excluding normal cash dividends) that has a
material effect on the fair market value of its common stock. In
such circumstances, the Committee also has the discretion under
the 2005 Plan to adjust the terms of outstanding awards as it
deems appropriate.
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Effect
of Certain Corporate Events
In the event of a change in control, as such term is
defined by the 2005 Plan, the surviving, continuing, successor
or purchasing entity or its parent may, without the consent of
any participant, either assume or continue in effect any or all
outstanding options and stock appreciation rights or substitute
substantially equivalent options or rights for its stock. Any
options or stock appreciation rights which are not assumed or
continued in connection with a change in control or exercised
prior to the change in control will terminate effective as of
the time of the change in control. The Committee may provide for
the acceleration of vesting of any or all outstanding options or
stock appreciation rights upon such terms and to such extent as
it determines.
The 2005 Plan also authorizes the Committee, in its discretion
and without the consent of any participant, to cancel each or
any outstanding option or stock appreciation right upon a change
in control in exchange for a payment to the participant with
respect to each vested share (and each unvested share if so
determined by the Committee) subject to the cancelled award of
an amount equal to the excess of the consideration to be paid
per share of common stock in the change in control transaction
over the exercise price per share under the award. The
Committee, in its discretion, may provide in the event of a
change in control for the acceleration of vesting
and/or
settlement of any stock award, restricted stock unit award,
performance share or performance unit, cash-based award or other
stock-based award held by a participant upon such conditions and
to such extent as determined by the Committee. The Compensation
Committee, in its discretion, may provide in the event of a
change in control for the acceleration of vesting
and/or
settlement of any stock award, restricted stock unit award,
performance share or performance unit, cash-based award or other
share-based award held by a participant upon such conditions and
to such extent as determined by our Compensation Committee. It
is currently anticipated that awards granted to executive
officers will accelerate fully on a change of control. The
vesting of non-employee director awards granted under the 2005
Plan automatically will accelerate in full upon a change in
control.
Duration,
Amendment and Termination
The 2005 Plan will continue in effect until its termination by
the Committee provided that all awards shall be granted within
10 years from the effective date of its adoption upon
approval by the shareholders. The Committee may terminate or
amend the 2005 Plan at any time, provided that no amendment will
be effective unless approved by the Companys shareholders
within 12 months before or after its adoption by the Board
if the amendment would: (i) modify the requirements as to
eligibility for participation (to the extent such modification
requires shareholder approval in order for the 2005 Plan to
satisfy Section 422 of the Code, if applicable, or
Rule 16b-3
of the Exchange Act); (ii) increase the number of shares
reserved for issuance upon exercise of awards; or
(iii) change any other provision of the 2005 Plan in any
other way if such modification requires shareholder approval in
order to comply with
Rule 16b-3
of the Exchange Act or satisfy the requirements of
Section 422 of the Code or any securities exchange listing
requirements. No termination or amendment may affect any
outstanding award unless expressly provided by the Committee,
and, in any event, may not adversely affect an outstanding award
without the consent of the participant unless necessary to
comply with any applicable law, including, but not limited to,
Section 409A of the Code, providing rules regarding the
taxation of nonqualified deferred compensation plans.
Federal
Income Tax Information
The following is a summary of the principal United States
federal income tax consequences to employees and the Company
with respect to participation in the 2005 Plan. This summary is
not intended to be exhaustive, and does not discuss the income
tax laws of any city, state or foreign jurisdiction in which a
participant may reside.
Incentive Stock Options. Incentive stock
options under the 2005 Plan are intended to be eligible for the
favorable federal income tax treatment accorded incentive
stock options under the Code. There generally are no
federal income tax consequences to the participant or the
Company by reason of the grant or exercise of an incentive stock
option. However, the exercise of an incentive stock option may
increase the participants alternative minimum tax
liability, if any.
If a participant holds stock acquired through exercise of an
incentive stock option for more than two years from the date on
which the option was granted and more than one year after the
date the option was exercised for those shares, any gain or loss
on a disposition of those shares will be a long-term capital
gain or loss if the participant held
21
the stock for more than one year. Upon such a qualifying
disposition, the Company will not be entitled to any income tax
deduction.
Generally, if the participant disposes of the stock before the
expiration of either of these holding periods (a
disqualifying disposition), then at the time of
disposition the participant will realize taxable ordinary income
equal to the lesser of (i) the excess of the stocks
fair market value on the date of exercise over the exercise
price, or (ii) the participants actual gain, if any,
on the purchase and sale. The participants additional gain
or any loss upon the disqualifying disposition will be a capital
gain or loss, which will be long-term or short-term depending on
whether the stock was held for more than one year.
To the extent the participant recognizes ordinary income by
reason of a disqualifying disposition, the Company will
generally be entitled (subject to the requirement of
reasonableness, the provisions of Section 162(m) of the
Code and the satisfaction of a tax reporting obligation) to a
corresponding business expense deduction in the tax year in
which the disqualifying disposition occurs.
Nonstatutory Stock Options. Nonstatutory stock
options granted under the 2005 Plan generally have the following
federal income tax consequences. There are no tax consequences
to the participant or the Company by reason of the grant. Upon
acquisition of the stock, the participant normally will
recognize taxable ordinary income equal to the excess, if any,
of the stocks fair market value on the acquisition date
over the purchase price. However, to the extent the stock is
subject to certain types of vesting restrictions, the taxable
event will be delayed until the vesting restrictions lapse
unless the participant elects to be taxed on receipt of the
stock. With respect to employees, the Company is generally
required to withhold from regular wages or supplemental wage
payments an amount based on the ordinary income recognized.
Subject to the requirement of reasonableness, the provisions of
Section 162(m) of the Code and the satisfaction of a tax
reporting obligation, Abaxis will generally be entitled to a
business expense deduction equal to the taxable ordinary income
realized by the participant.
Upon disposition of the stock, the participant will recognize a
capital gain or loss equal to the difference between the selling
price and the sum of the amount paid for such stock plus any
amount recognized as ordinary income upon acquisition (or
vesting) of the stock. Such gain or loss will be long-term or
short-term depending on whether the stock was held for more than
one year. Slightly different rules may apply to participants who
acquire stock subject to certain repurchase options or who are
subject to Section 16(b) of the Exchange Act.
Performance Awards, Restricted Stock Unit Awards, Cash-Based
Awards and Other Stock-Based Awards. A
participant generally will recognize no income upon the grant of
a performance share, performance unit, restricted stock unit,
cash-based or other stock-based award. Upon the settlement of
such awards, participants normally will recognize ordinary
income in the year of settlement in an amount equal to the cash
received and the fair market value of any unrestricted shares of
stock received. If the participant is an employee, such ordinary
income generally is subject to withholding of income and
employment taxes. If the participant receives shares of
restricted stock, the participant generally will be taxed in the
same manner as described below under Stock Awards.
Upon the sale of any shares received, any gain or loss, based on
the difference between the sale price and the fair market value
on the determination date (as defined below under Stock
Awards), will be taxed as capital gain or loss. Abaxis
generally should be entitled to a deduction equal to the amount
of ordinary income recognized by the participant on the
determination date, except to the extent such deduction is
limited by applicable provisions of the Code.
Stock Appreciation Rights. No taxable income
is realized upon the receipt of a stock appreciation right, but
upon exercise of the stock appreciation right the fair market
value of the shares (or cash in lieu of shares) received must be
treated as compensation taxable as ordinary income to the
participant in the year of such exercise. Generally, with
respect to employees, the Company is required to withhold from
the payment made on exercise of the stock appreciation right, or
from regular wages or supplemental wage payments, an amount
based on the ordinary income recognized. Subject to the
requirement of reasonableness, Section 162(m) of the Code
and the satisfaction of a reporting obligation, the Company will
be entitled to a business expense deduction equal to the taxable
ordinary income recognized by the participant.
Stock Awards. A participant acquiring stock by
means of a stock purchase right or stock bonus generally will
recognize ordinary income equal to the excess of the fair market
value of the shares on the determination date over
the price paid, if any, for such shares. The determination
date is the date on which the participant acquires
the shares unless the shares are subject to a substantial
risk of forfeiture and are not transferable, in which case the
determination date is the
22
earlier of (i) the date on which the shares become
transferable or (ii) the date on which the shares are no
longer subject to a substantial risk of forfeiture. If the
determination date is after the date on which the participant
acquires the shares, the participant may elect, pursuant to
Section 83(b) of the Code, to have the date of acquisition
be the determination date by filing an election with the
Internal Revenue Service no later than 30 days after the
date on which the shares are acquired. If the participant is an
employee, such ordinary income generally is subject to
withholding of income and employment taxes. Upon the sale of
shares acquired pursuant to a stock award, any gain or loss,
based on the difference between the sale price and the fair
market value on the determination date, will be taxed as capital
gain or loss. The Company generally should be entitled to a
deduction equal to the amount of ordinary income recognized by
the participant on the determination date, except to the extent
such deduction is limited by applicable provisions of the Code.
Potential Limitation on Company
Deductions. Section 162(m) of the Code
denies a deduction to any publicly held corporation for
compensation paid to certain covered employees in a
taxable year to the extent that compensation to such covered
employee exceeds $1 million. It is possible that
compensation attributable to awards, when combined with all
other types of compensation received by a covered employee from
the Company, may cause this limitation to be exceeded in any
particular year.
Certain kinds of compensation, including qualified
performance-based compensation, are disregarded for
purposes of the deduction limitation. In accordance with
Treasury Regulations issued under Section 162(m),
compensation attributable to stock options and stock
appreciation rights will qualify as performance-based
compensation if the award is granted by a compensation committee
solely comprising outside directors and either
(i) the plan contains a per-employee limitation on the
number of shares for which such awards may be granted during a
specified period, the per-employee limitation is approved by the
shareholders, and the exercise price of the award is no less
than the fair market value of the stock on the date of grant, or
(ii) the award is granted (or exercisable) only upon the
achievement (as certified in writing by the Committee) of an
objective performance goal established in writing by the
Committee while the outcome is substantially uncertain, and the
award is approved by shareholders.
Awards to purchase restricted stock and stock bonus awards will
qualify as performance-based compensation under the Treasury
Regulations only if (i) the award is granted by a
compensation committee comprised solely of outside
directors, (ii) the award is granted (or exercisable)
only upon the achievement of an objective performance goal
established in writing by the compensation committee while the
outcome is substantially uncertain, (iii) the compensation
committee certifies in writing prior to the granting (or
exercisability) of the award that the performance goal has been
satisfied and (iv) prior to the granting (or
exercisability) of the award, shareholders have approved the
material terms of the award (including the class of employees
eligible for such award, the business criteria on which the
performance goal is based, and the maximum amount or
formula used to calculate the amount payable upon
attainment of the performance goal).
Securities
Authorized for Issuance Under Equity Compensation
Plans
The Company has two equity incentive plans under which its
equity securities are or have been authorized for issuance to
its employees, directors and consultants: (i) the 2005 Plan
and (ii) the 1992 Outside Directors Stock Option Plan (the
Directors Plan). Both the 2005 Plan and the
Directors Plan have been approved by the Companys
shareholders. In June 2002, the time period for granting options
under the Directors Plan expired in accordance with the terms of
the plan.
23
The following table provides aggregate information as of
March 31, 2008 regarding outstanding options, unvested
restricted stock units and shares reserved under the
Companys equity compensation plans.
Equity
Compensation Plan Information
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
Number of
|
|
|
|
Securities to be
|
|
|
|
|
|
Securities
|
|
|
|
Issued Upon
|
|
|
|
|
|
Remaining
|
|
|
|
Exercise of
|
|
|
Weighted-Average
|
|
|
Available for
|
|
|
|
Outstanding
|
|
|
Exercise Price of
|
|
|
Future Issuance
|
|
|
|
Options,
|
|
|
Outstanding
|
|
|
Under Equity
|
|
|
|
Warrants and
|
|
|
Options, Warrants
|
|
|
Compensation
|
|
Plan Category
|
|
Rights
|
|
|
and Rights
|
|
|
Plans(1)
|
|
|
Equity compensation plans approved by shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
2005 Equity Incentive Plan(2)
|
|
|
1,483,000
|
|
|
$
|
8.00
|
(3)
|
|
|
442,000
|
|
1992 Outside Directors Stock Option Plan
|
|
|
55,000
|
|
|
$
|
4.55
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity compensation plans not approved by shareholders:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total:
|
|
|
1,538,000
|
|
|
$
|
7.82
|
(3)
|
|
|
442,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
The shares are available for award grant purposes under the 2005
Plan and excludes shares listed under the column Number of
Securities to be Issued Upon Exercise of Outstanding Options,
Warrants and Rights. |
|
(2) |
|
The 2005 Plan amended and restated the 1998 Stock Option Plan in
October 2005. To date, share-based awards granted under the 2005
Plan includes stock options and restricted stock units. |
|
(3) |
|
Excludes outstanding and unvested restricted stock unit awards,
for which there is no exercise price. |
24
Proposal 3
Registered Public
Accounting Firm
The Audit Committee of the Board of Directors has selected Burr,
Pilger & Mayer LLP as the Companys independent
registered public accounting firm for the fiscal year ending
March 31, 2009 and has further directed that management
submit the selection for ratification by the shareholders at the
Annual Meeting. Burr, Pilger & Mayer LLP has audited
the Companys financial statements since its appointment on
August 25, 2005. A representative of Burr,
Pilger & Mayer LLP is expected to be present at the
Annual Meeting, with the opportunity to make a statement if the
representative desires to do so, and is expected to be available
to respond to appropriate questions.
Neither the Companys Bylaws nor other governing documents
or law require shareholder ratification of the selection of
Burr, Pilger & Mayer LLP as the Companys
independent registered public accounting firm. However, the
Audit Committee of the Board of Directors is submitting the
selection of Burr, Pilger & Mayer LLP to the
shareholders for ratification as a matter of good corporate
practice. If the shareholders fail to ratify the selection, the
Audit Committee of the Board of Directors will reconsider
whether or not to retain that firm. Even if the selection is
ratified, the Audit Committee of the Board of Directors in its
discretion may direct the appointment of a different independent
registered public accounting firm at any time during the year if
they determine that such a change would be in the best interests
of the Company and its shareholders.
Principal
Accountant Fees and Services
For the fiscal years ended March 31, 2008 and 2007, the
Companys independent registered public accounting firm,
Burr, Pilger & Mayer LLP, billed the approximate fees
set forth below. All fees included below were approved by the
Audit Committee.
|
|
|
|
|
|
|
|
|
|
|
Year Ended March 31,
|
|
|
|
2008
|
|
|
2007
|
|
|
Audit Fees(1)
|
|
$
|
614,000
|
|
|
$
|
580,000
|
|
Audit-Related Fees
|
|
|
|
|
|
|
|
|
Tax Fees
|
|
|
|
|
|
|
|
|
All Other Fees(2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total All Fees
|
|
$
|
614,000
|
|
|
$
|
580,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Audit fees represent fees for professional services provided in
connection with the audit of the Companys financial
statements and review of its quarterly financial statements,
including attestation services related to Section 404 of
the Sarbanes-Oxley Act of 2002. |
|
(2) |
|
All other fees consist of fees for products and services other
than the services reported above. |
Pre-Approval
Policies and Procedures
The Audit Committee has adopted a policy for the pre-approval of
all audit and non-audit services to be performed for the Company
by the independent registered public accounting firm. The policy
generally pre-approves specified services in the defined
categories of audit services, audit-related services, and tax
services up to specified amounts. Pre-approval may also be given
as part of the Audit Committees approval of the scope of
the engagement of the independent auditor or on an individual
explicit
case-by-case
basis before the independent auditor is engaged to provide each
service. The pre-approval of services may be delegated to one or
more of the Audit Committees members, but the decision
must be reported to the full Audit Committee at its next
scheduled meeting.
The Audit Committee has considered the role of Burr,
Pilger & Mayer LLP in providing audit and
audit-related services to Abaxis and has concluded that the
rendering of the services other than audit services by Burr,
Pilger & Mayer LLP is compatible with maintaining the
principal accountants independence.
25
Vote
Required and Recommendation of the Board of Directors
The affirmative vote of the holders of a majority of the shares
present in person or represented by proxy and voting at the
annual meeting (which shares voting affirmatively also
constitute at least a majority of the required quorum) will be
required to ratify the selection of Burr, Pilger &
Mayer LLP. Although abstentions and broker non-votes
are counted as present for purposes of a quorum, they will not
be counted for any purpose in determining whether this matter
has been approved.
THE BOARD OF DIRECTORS RECOMMENDS
A VOTE IN FAVOR OF PROPOSAL 3.
26
Security
Ownership Of
Certain Beneficial Owners And Management
The following table sets forth certain information with respect
to the beneficial ownership of the Companys common stock
as of August 29, 2008 by: (i) each of the Named
Executive Officers in the Summary Compensation Table appearing
in this proxy statement; (ii) each of the Companys
directors; (iii) all of the Companys executive
officers and directors as a group and (iv) four holders of
at least five percent of the Companys common stock. The
persons named in the table have sole or shared voting and
investment power with respect to all shares of common stock
shown as beneficially owned by them, subject to community
property laws where applicable and to the information contained
in the footnotes to this table.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Percent of Abaxis
|
|
|
|
Shares
|
|
|
Common Stock
|
|
|
|
Beneficially
|
|
|
Beneficially
|
|
Name and Address of Beneficial Owner
|
|
Owned
|
|
|
Owned(1)
|
|
|
Five Percent Holders:
|
|
|
|
|
|
|
|
|
Next Century Growth Investors, LLC.(3)
|
|
|
1,756,185
|
|
|
|
8.1
|
%
|
Brown Capital Management, Inc.(4)
|
|
|
1,606,215
|
|
|
|
7.4
|
%
|
Kayne Anderson Rudnick Investment Management, LLC(5)
|
|
|
1,491,156
|
|
|
|
6.8
|
%
|
Wasatch Advisors, Inc.(6)
|
|
|
1,191,183
|
|
|
|
5.5
|
%
|
Named Executive Officers(2):
|
|
|
|
|
|
|
|
|
Clinton H. Severson(7)
|
|
|
658,802
|
|
|
|
3.0
|
%
|
Vladimir E. Ostoich, Ph.D.(8)
|
|
|
401,357
|
|
|
|
1.8
|
%
|
Alberto R. Santa Ines(9)
|
|
|
122,990
|
|
|
|
*
|
|
Kenneth P. Aron, Ph.D.(10)
|
|
|
108,498
|
|
|
|
*
|
|
Christopher M. Bernard(11)
|
|
|
2,569
|
|
|
|
*
|
|
Outside Directors(2):
|
|
|
|
|
|
|
|
|
Richard J. Bastiani, Ph.D.(12)
|
|
|
78,000
|
|
|
|
*
|
|
Brenton G. A. Hanlon(13)
|
|
|
31,000
|
|
|
|
*
|
|
Prithipal Singh, Ph.D.(14)
|
|
|
29,000
|
|
|
|
*
|
|
Ernest S. Tucker, III, M.D.(15)
|
|
|
13,000
|
|
|
|
*
|
|
Henk J. Evenhuis(16)
|
|
|
21,000
|
|
|
|
*
|
|
Executive officers and directors as a group (12 persons)(17)
|
|
|
1,483,461
|
|
|
|
6.6
|
%
|
|
|
|
* |
|
Less than one percent. |
|
(1) |
|
The percentages shown in this column are calculated based on
21,782,417 shares of common stock outstanding on
August 29, 2008 and includes shares of common stock that
such person or group had the right to acquire on or within
60 days after that date, including, but not limited to,
upon the exercise of options. |
|
(2) |
|
The business address of the beneficial owners listed is
c/o Abaxis,
Inc., 3240 Whipple Road, Union City, CA 94587. |
|
(3) |
|
Based on information set forth in a Schedule 13G filed with
the SEC on February 14, 2008 by Next Century Growth
Investors, LLC., reporting shared power to vote and dispose of
1,756,185 shares. The business address for Next Century
Growth Investors, LLC, Thomas L. Press and Donald M. Longlet is
5500 Wayzata Boulevard, Suite 1275, Minneapolis, MN
55416. |
|
(4) |
|
Based on information set forth in a Schedule 13G/A filed
with the SEC on February 12, 2008 by Brown Capital
Management, Inc., reporting sole power to vote and dispose of
728,600 and 1,606,215 shares, respectively. The business
address for Brown Capital Management, Inc. is 1201 North Calvert
Street, Baltimore, MD 21202. |
|
(5) |
|
Based on information set forth in a Schedule 13G filed with
the SEC on February 11, 2008 by Kayne Anderson Rudnick
Investment Management, LLC, reporting sole power to vote and
dispose of 1,491,156 shares. The |
27
|
|
|
|
|
business address for Kayne Anderson Rudnick Investment
Management, LLC is 1800 Avenue of the Stars, 2nd Floor, Los
Angeles, CA 90067. |
|
(6) |
|
Based on information set forth in a Schedule 13G/A filed
with the SEC on February 11, 2008 by Wasatch Advisors,
Inc., reporting sole power to vote and dispose of
1,191,183 shares. The business address for Wasatch
Advisors, Inc. is 150 Social Hall Avenue, Salt Lake City, UT
84111. |
|
(7) |
|
Includes: |
|
|
|
|
|
378,485 shares held by Mr. Severson; and
|
|
|
|
280,317 shares subject to stock options exercisable by
Mr. Severson within 60 days of August 29, 2008.
|
|
|
|
|
|
97,774 shares held by Dr. Ostoich;
|
|
|
|
26,355 shares held by Dr. Ostoichs IRA;
|
|
|
|
22,400 shares held by Mrs. Ostoichs IRA;
|
|
|
|
117,328 shares held by the Vladimir Ostoich and Liliana
Ostoich Trust Fund, for the benefit of Dr. Ostoich and
his wife; and
|
|
|
|
137,500 shares subject to stock options exercisable by
Dr. Ostoich within 60 days of August 29, 2008.
|
|
|
|
|
|
20,558 shares held by Mr. Santa Ines; and
|
|
|
|
102,432 shares subject to stock options exercisable by
Mr. Santa Ines within 60 days of August 29, 2008.
|
|
|
|
|
|
10,889 shares held by Dr. Aron; and
|
|
|
|
97,609 shares subject to stock options exercisable by
Dr. Aron within 60 days of August 29, 2008.
|
|
|
|
(11) |
|
Reflects 2,569 shares held by Mr. Bernard. |
|
(12) |
|
Includes: |
|
|
|
|
|
54,000 shares held by Dr. Bastiani; and
|
|
|
|
24,000 shares subject to stock options exercisable by
Dr. Bastiani within 60 days of August 29, 2008.
|
|
|
|
|
|
3,000 shares held by Mr. Hanlon; and
|
|
|
|
28,000 shares subject to stock options exercisable by
Mr. Hanlon within 60 days of August 29, 2008.
|
|
|
|
|
|
7,000 shares held by Dr. Singh; and
|
|
|
|
22,000 shares subject to stock options exercisable by
Dr. Singh within 60 days of August 29, 2008.
|
|
|
|
(15) |
|
Reflects 13,000 shares subject to stock options exercisable
by Dr. Tucker within 60 days of August 29, 2008. |
|
(16) |
|
Includes: |
|
|
|
|
|
3,000 shares held by Mr. Evenhuis; and
|
|
|
|
18,000 shares subject to stock options exercisable by
Mr. Evenhuis within 60 days of August 29, 2008.
|
|
|
|
|
|
747,287 shares held by all executive officers and directors
as a group; and
|
|
|
|
736,174 shares subject to stock options exercisable by all
executive officers and directors as a group within 60 days
of August 29, 2008.
|
28
Section 16(a)
Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as
amended (the 1934 Act) requires the
Companys directors and executive officers, and persons who
own more than ten percent of a registered class of the
Companys equity securities, to file with the SEC initial
reports of ownership and reports of changes in ownership of
common stock and other equity securities of the Company.
Officers, directors and greater than ten percent shareholders
are required by SEC regulation to furnish the Company with
copies of all Section 16(a) forms they file.
To the Companys knowledge, based solely on a review of the
copies of such reports furnished to the Company and written
representations that no other reports were required, during the
fiscal year ended March 31, 2008, all Section 16(a)
filing requirements applicable to its officers, directors and
greater than ten percent beneficial owners were complied with;
except with respect to one late report filing, covering one
transaction, by Mr. Donald Wood, an executive officer.
29
Executive
Compensation
Compensation
Discussion and Analysis
Overview
The goals of our executive compensation program are to attract,
retain, motivate and reward executive officers who contribute to
our success and to incentivize these executives on both a
short-term and long-term basis to achieve our business
objectives. This program combines cash and equity awards in the
proportions that we believe will motivate our executive officers
to increase shareholder value over the long-term.
Our executive compensation program is designed to achieve the
following objectives:
|
|
|
|
|
to align our executive compensation with our strategic business
objectives;
|
|
|
|
to align the interests of our executive officers with both
short-term and long-term shareholder interests; and
|
|
|
|
to place a substantial portion of our executives
compensation at risk such that actual compensation depends on
both overall company performance and individual performance.
|
Executive
Compensation Program Objectives and Framework
Our executive compensation program has three primary components:
(1) base salary, (2) annual cash incentive bonus and
(3) equity grants. Base salaries for our executive officers
are a minimum fixed level of compensation consistent with or
below competitive market practice. Annual cash incentive bonuses
awarded to our executive officers are intended to incentivize
and reward achievement of financial, operating and strategic
objectives during the fiscal year. Equity grants awarded to our
executive officers are designed to ensure that incentive
compensation is linked to our long-term company performance,
promote retention and to align our executives long-term
interests with shareholders long-term interests. Our
executive officers total potential cash compensation is
heavily weighted toward annual cash incentive bonuses, because
our Compensation Committee and Board of Directors believes this
weighting best aligns the interests of our executive officers
with that of shareholders generally.
Executive compensation is reviewed annually by our Compensation
Committee and Board of Directors, and adjustments are made to
reflect company objectives and competitive conditions.
Generally, base salaries are adjusted effective May 1 of each
year. We also offer our executive officers participation in our
401(k) plan, health care insurance, flexible spending accounts
and certain other benefits available generally to all full-time
employees.
Role
of Our Compensation Committee
Our Compensation Committee, which operates under a written
charter adopted by the Board of Directors, is primarily
responsible for reviewing and recommending to the Board of
Directors for approval the compensation arrangements for our
executive officers and directors. In carrying out these
responsibilities, the Compensation Committee shall review all
components of executive officer and director compensation for
consistency with the Compensation Committees compensation
philosophy as in effect from time to time. In connection with
their review and recommendations, our Compensation Committee
also considers the recommendations of our Chief Executive
Officer, Mr. Clinton Severson. Our Compensation Committee
gives considerable weight to Mr. Seversons
recommendations because of his direct knowledge of each
executive officers performance and contribution to our
financial performance. However, Mr. Severson does not
participate in the determination of his own compensation. No
other executive officers participate in the determination or
recommendation of the amount or form of executive officer
compensation, except the Companys Chief Financial Officer
as discussed below. Our Compensation Committee does not delegate
any of its functions in determining executive
and/or
director compensation. To date, our Compensation Committee has
not established any formal policies or guidelines for allocating
compensation between long-term and currently paid out
compensation, cash and non-cash compensation, or among different
forms of non-cash compensation.
Our Compensation Committee may discuss with our Chief Executive
Officer or Chief Financial Officer our financial, operating and
strategic business objectives, bonus targets or performance
goals. The Compensation Committee reviews and determines the
appropriateness of the financial measures and performance goals,
as well as
30
assesses the degree of difficulty in achieving specific bonus
targets and performance goals. The Compensation Committee then
presents its recommendation for executive compensation to the
Board of Directors for final review and approval. Typically,
these recommendations are made to our Board of Directors during
the first quarter of the ensuing fiscal year.
From time to time, our Compensation Committee may engage an
independent compensation advisor to obtain competitive
compensation data. In March 2006, we retained the independent
compensation consulting firm of Top Five Data Services, Inc.
(Top Five) to, among other things, help identify
appropriate peer group companies and to obtain and evaluate
executive compensation data for these companies, and took its
recommendations into account in setting fiscal 2007 executive
compensation. We did not engage another compensation consultant,
or request additional recommendations from Top Five, in
connection with our determination of fiscal 2008 or fiscal 2009
executive compensation because our Compensation Committee and
Board of Directors determined that many of the recommendations
made by Top Five with respect to fiscal 2007 continued to be
relevant for fiscal 2008 and fiscal 2009. Our Compensation
Committee and Board of Directors may engage compensation
consultants in the future as they deem it to be necessary or
appropriate.
Competitive
Benchmarking
In April 2006, Top Five, in consultation with our Compensation
Committee, compared our senior management compensation to the
senior management compensation at a group of 19 companies
(the Compensation Peer Group). This Compensation
Peer Group represented similarly-situated medical device and
diagnostic companies that were identified by Top Five Data
Services, Inc. as companies with similar financial growth and as
competitors for executive talent. The following companies
comprised the Compensation Peer Group:
|
|
|
|
|
Abiomed
|
|
Conceptus
|
|
Palomar Medical Technologies
|
Adeza Biomedical
|
|
Cutera
|
|
Surmodics
|
Angiodynamics
|
|
Digene
|
|
Thoratec
|
Aspect Medical Systems
|
|
Intralase
|
|
Vivus
|
ATS Medical
|
|
Kensey Nash
|
|
VNUS Medical Technologies
|
Biosite
|
|
Meridian Bioscience
|
|
|
Cholestech
|
|
Orasure Technologies
|
|
|
Top Five measured our relative performance against the
Compensation Peer Group over one and three year periods based on
the following three financial metrics:
|
|
|
|
|
total shareholder return;
|
|
|
|
revenue; and
|
|
|
|
EBITDA (earnings before income tax, depreciation and
amortization).
|
The market data obtained regarding the Compensation Peer Group
was considered by the Compensation Committee in its fiscal 2008
and fiscal 2009 executive compensation decisions.
Compensation
Determinations
The Compensation Committee did not target executive compensation
in fiscal 2008 and fiscal 2009 to any specific benchmarks
against the Compensation Peer Group, but did generally target
total compensation to be competitive with companies in the
Compensation Peer Group with similar financial growth rates
based on the compensation information for the Compensation Peer
Group in fiscal 2006. However, our executive officers
total potential cash compensation is more heavily weighted
toward annual cash incentive bonuses than most companies in the
Compensation Peer Group. In addition to any competitive
benchmarks the Compensation Committee deems relevant, the
Compensation Committee also considers the recommendations from
our Chief Executive Officer regarding the compensation of our
executive officers who report directly to him. These
recommendations generally include annual adjustments to
compensation levels, an assessment of each executive
officers overall individual contribution, scope of
responsibilities and level of experience.
31
Elements
of Compensation
Base
Salary
We provide an annual base salary to each of our executive
officers, including each of the Named Executive Officers listed
on the Summary Compensation Table beginning on page 38,
(the Named Executive Officers). Each base salary is
reviewed annually by the Compensation Committee and adjusted for
the ensuing year based on both (i) an evaluation of
individual job performance during the prior year, and
(ii) an evaluation of the compensation levels of
similarly-situated executive officers at the Compensation Peer
Group and in our industry generally. In determining fiscal 2008
and fiscal 2009 base salaries for our Named Executive Officers
our Compensation Committee generally targeted salaries to be
between the 25th and 50th percentile of the
Compensation Peer Group. Our Compensation Committee considered
this 25th and 50th percentile range as a general
guideline for the appropriate level of potential salaries, but
did not attempt to specifically match this or any other
percentile. Our Compensation Committee also considered the
recommendations of the Chief Executive Officer regarding the
compensation of each of the Named Executive Officers who
reported directly to him. However, the Compensation Committee
and our Board of Directors did not base their considerations on
any single factor but rather considered a mix of factors and
evaluated individual salaries against that mix.
Based on the recommendations of the Compensation Committee, our
Board of Directors approved the following base salaries
(effective May 1, 2007 for fiscal 2008 and April 1,
2008 for fiscal 2009) for our Named Executive Officers:
|
|
|
|
|
|
|
|
|
|
|
Fiscal 2008
|
|
|
Fiscal 2009
|
|
Named Executive Officer
|
|
Base Salary
|
|
|
Base Salary
|
|
|
Clinton H. Severson
|
|
$
|
338,000
|
|
|
$
|
360,000
|
|
Alberto R. Santa Ines
|
|
$
|
185,000
|
|
|
$
|
200,000
|
|
Kenneth P. Aron, Ph.D.
|
|
$
|
193,000
|
|
|
$
|
210,000
|
|
Vladimir E. Ostoich, Ph.D.
|
|
$
|
203,000
|
|
|
$
|
210,000
|
|
Christopher M. Bernard
|
|
$
|
175,000
|
|
|
$
|
185,000
|
|
Our Board of Directors set such increased salaries after
considering a peer company analysis of total compensation for
executive officers prepared in April 2006 by Top Five and the
recommendations of the Compensation Committee. The Compensation
Committee recommended that we increase base salaries in amounts
designed to reward each of the Named Executive Officers for
their performance in the prior year while maintaining base
salaries at an appropriately competitive level. Our Compensation
Committee did not use any specific formula based on the factors
described above to determine the final base salary levels for
each Named Executive Officer. For fiscal 2009, Dr. Aron
received an increase of 8.8% in his base salary upon his
promotion to Chief Technology Officer. Fiscal 2008 and 2009 base
salary increases for the Named Executive Officers were as
follows:
|
|
|
|
|
|
|
|
|
|
|
Fiscal 2008
|
|
|
Fiscal 2009
|
|
|
|
Percent Increase in
|
|
|
Percent Increase in
|
|
Named Executive Officer
|
|
Base Salary
|
|
|
Base Salary
|
|
|
Clinton H. Severson
|
|
|
4.0
|
%
|
|
|
6.5
|
%
|
Alberto R. Santa Ines
|
|
|
5.7
|
%
|
|
|
8.1
|
%
|
Kenneth P. Aron, Ph.D.
|
|
|
4.3
|
%
|
|
|
8.8
|
%
|
Vladimir E. Ostoich, Ph.D.
|
|
|
4.1
|
%
|
|
|
3.5
|
%
|
Christopher M. Bernard
|
|
|
16.7
|
%
|
|
|
5.7
|
%
|
Annual
Cash Incentive Bonus
Our annual cash incentive bonus program is an
at-risk compensation arrangement designed to provide
market competitive cash incentive opportunities that reward our
executive officers for the achievement of key financial
performance goals that we believe are important for us in
creating long-term shareholder value. Most importantly, the
program is structured to achieve our overall objective of tying
this element of compensation to the attainment of company
performance goals that will contribute to our financial success
and create shareholder value.
32
Our annual cash incentive bonus paid to each executive officer,
including each of our Named Executive Officers, is primarily
based upon Abaxis achieving two equally-weighted financial
performance goals, quarterly net sales and quarterly pre-tax
income. Additionally, the bonus targets established by the
Compensation Committee require executive officers to increase
annual corporate financial performance during the applicable
fiscal year, compared to our previous years actual
financial results. Accordingly, meeting the bonus targets is
highly challenging and requires executive officers to improve
financial performance on a year-over-year basis and, thus, a
substantial portion of our executive officers compensation
is at risk if corporate financial results are not achieved
during a particular fiscal year. In addition to meeting
financial goals, we must not exceed a certain failure rate on
our reagents discs in order for cash incentives to be paid to
our executive officers. However, our Compensation Committee has
the discretion to grant bonuses even if these performance goals
are not met.
For fiscal 2008, our Compensation Committee generally targeted
total cash compensation to be at or above the
75th percentile of the Compensation Peer Group. Our
Compensation Committee considered this 75th percentile
target as a general guideline for the appropriate level of
potential cash bonus compensation, but did not attempt to
specifically match this or any other percentile. In April 2007,
our Board of Directors approved the fiscal 2008 target bonus
levels for our executive officers. The following table
summarizes the fiscal 2008 target bonus amounts and the bonus
amounts awarded for fiscal 2008 for our Named Executive Officers:
|
|
|
|
|
|
|
|
|
|
|
Fiscal 2008
|
|
|
Fiscal 2008
|
|
Named Executive Officer
|
|
Target Bonus
|
|
|
Bonus Awarded
|
|
|
Clinton H. Severson
|
|
$
|
480,000
|
|
|
$
|
456,000
|
|
Alberto R. Santa Ines
|
|
$
|
275,000
|
|
|
$
|
261,250
|
|
Kenneth P. Aron, Ph.D.
|
|
$
|
275,000
|
|
|
$
|
261,250
|
|
Vladimir E. Ostoich, Ph.D.
|
|
$
|
275,000
|
|
|
$
|
261,250
|
|
Christopher M. Bernard
|
|
$
|
250,000
|
|
|
$
|
231,250
|
|
Payment of the target bonus is equally weighted between
achievement of our quarterly net sales performance goal and our
quarterly pre-tax income performance goal. For fiscal 2008,
bonuses were earned only if we achieved at least 90% of one or
more of our pre-established quarterly net sales
and/or
quarterly pre-tax income goals. After the initial threshold is
met, the amount of the target bonus paid is based on a sliding
scale relative to the proportionate achievement of the
performance goals. If we achieve 90% of only one performance
goal, the payout would be limited to 25% of the aggregate target
bonus. For each 1% above 90% of that performance goal, the
payout would increase by 2.5% for the aggregate target bonus.
The target bonus will be fully earned if at least 100% of both
performance goals are achieved. For each 1% above 100% of a
performance goal, the payout would increase by 1.5% for the
aggregate target bonus. The maximum potential bonus payout is
200% of the target bonus, provided we achieve greater than 133%
of at least one of the performance goals. Assuming targets are
reached, the bonus payments are paid as follows: 15% of the
applicable bonus amount for the first quarter, 25% in the second
and third quarters, and 35% in the fourth quarter. At the end of
the fourth quarter, the final amount of the bonus earned will be
adjusted to reflect overall performance against the year. For
the Named Executive Officers, excluding Mr. Bernard, our
Vice President of Sales and Marketing for the Domestic Medical
Market, the financial targets for fiscal 2008 were based on the
companys annual net sales and pre-tax income goals. Based
on these pre-established goals, our other Named Executive
Officers received 95% of their target bonus awards for fiscal
2008. Since Mr. Bernards responsibility is to manage
the sales in the domestic medical market, his financial targets
for fiscal 2008 were based on sales for the domestic medical
market and on the companys annual pre-tax income goals.
Based on these
pre-established
goals, Mr. Bernard received 92.5% of his target bonus
awards for fiscal 2008.
For fiscal 2009, our Compensation Committee recommended to our
Board of Directors that we increase target bonuses in amounts
designed to reward each of the Named Executive Officers for
their performance in fiscal 2008 while maintaining total
compensation at an appropriately competitive level. In April
2008, our Board of Directors approved the fiscal 2009 target
bonus levels for our executive officers based on a reasonable
increase of
33
approximately 9.0-10.0% over the prior year at an appropriately
competitive level in the industry. The following table
summarizes the fiscal 2009 target bonus amounts for our Named
Executive Officers:
|
|
|
|
|
|
|
Fiscal 2009
|
|
Named Executive Officer
|
|
Target Bonus
|
|
|
Clinton H. Severson
|
|
$
|
525,000
|
|
Alberto R. Santa Ines
|
|
$
|
300,000
|
|
Kenneth P. Aron, Ph.D.
|
|
$
|
300,000
|
|
Vladimir E. Ostoich, Ph.D.
|
|
$
|
300,000
|
|
Christopher M. Bernard
|
|
$
|
275,000
|
|
We expect payment of the target bonus, as identified above, to
continue to be equally weighted at 50% for achievement of our
quarterly net sales performance goal and 50% for achievement of
our quarterly pre-tax income performance goal. For fiscal 2009,
bonuses will only be earned if we achieve at least 90% of one or
more of our pre-established quarterly net sales
and/or
quarterly pre-tax income goals during fiscal 2009. After the
initial threshold is met, the amount of the target bonus paid
will be based on a sliding scale relative to the proportionate
achievement of the performance goals. If we achieve 90% of only
one performance goal, the payout would be limited to 25% of the
aggregate target bonus. For each 1% above 90% of that
performance goal, the payout would increase by 2.5% for the
aggregate target bonus. The target bonus will be fully earned if
at least 100% of both performance goals are achieved. For each
1% above 100% of a performance goal, the payout would increase
by 1.5% for the aggregate target bonus. The maximum potential
bonus payout is 200% of the target bonus, provided we achieve
greater than 133% of at least one of the performance goals.
Assuming targets are reached, we expect that the bonus payments
will be paid as follows: 15% of the applicable bonus amount for
the first quarter, 25% in the second and third quarters,
and 35% in the fourth quarter. At the end of the fourth quarter
of fiscal 2009, the final payment will be adjusted to reflect
overall performance against the year. Our Compensation Committee
and Board of Directors have the discretion to adjust the
parameters and performance goals for payment of these annual
performance bonuses.
We do not currently have a formal policy regarding adjustments
or recovery of awards or payments following a restatement of
financial performance targets. In such a circumstance, the
Compensation Committee would evaluate whether compensation
adjustments were appropriate based upon the facts and
circumstances surrounding the restatement.
Long-term
Equity Incentive Compensation
Under our 2005 Equity Incentive Plan, we are permitted to award
stock options, stock appreciation rights, restricted stock
awards, restricted stock units, performance shares, performance
units, deferred compensation awards or other share-based awards.
Beginning in fiscal 2007, we began granting restricted stock
units to our executive officers in lieu of other forms of
equity-based grants. Prior to fiscal 2007, equity-based grants
to our executive officers comprised solely of stock options.
There were no equity grants to our current Named Executive
Officers in fiscal 2006. Equity grants to our Named Executive
Officers in fiscal 2008 and fiscal 2009 are discussed below. We
do not currently have stock ownership guidelines for our
executive officers.
Stock
Options
Prior to fiscal 2007, a substantial portion of our executive
compensation arrangement consisted of long-term incentive
grants, comprising of stock options. We granted stock options
with an exercise price equal to the fair market value of our
common stock on the grant date. Accordingly, our executive
officers only realize actual compensation value if our
shareholders realize value. In addition, we believe the stock
options granted to executive officers created retention
incentives as the stock options vested over a period of four
years based on cliff-vesting terms only as long as executive
officers remained an employee with us. For the unvested stock
options granted prior to April 1, 2006, we are required to
recognize share-based compensation expense over the vesting
period in accordance with Statement of Financial Accounting
Standards No. 123 (revised 2004), Share-Based
Payment, which we adopted in fiscal 2007 using the
modified prospective method.
34
Restricted
Stock Units
Fiscal 2008 Restricted Stock Unit Grants. In
fiscal 2007, we granted restricted stock units with performance
acceleration. Our Board of Directors believed that this form of
long-term equity incentive will help ensure executive retention
and more directly link executive pay to company financial
performance. The four-year time-based vesting of the restricted
stock units granted in fiscal 2007 accelerates if certain
performance criteria are exceeded during the performance period.
For a discussion of the performance criteria, see the table
entitled Outstanding Equity Awards at Fiscal Year End
2008 below. The Compensation Committee approves all
restricted stock unit grants to our Named Executive Officers and
other executive officers.
In May 2007, after considering an analysis of total compensation
for our Named Executive Officers and upon the recommendation of
our Compensation Committee, our Board of Directors granted
50,000 restricted stock units to our Chief Executive Officer and
20,000 restricted stock units to each of our other Named
Executive Officers. The value of these equity grants was
approximately $1.1 million for our Chief Executive Officer
and approximately $423,000 for each of our other Named Executive
Officers. The Compensation Committee believed that these grants
of restricted stock units were appropriate based on our
financial performance over the prior year. The four-year
time-based vesting terms of the fiscal 2008 restricted stock
unit awards are as follows:
|
|
|
|
|
five percent vesting after the first year of continuous
employment;
|
|
|
|
additional ten percent after the second year of continuous
employment;
|
|
|
|
additional 15 percent after the third year of continuous
employment; and
|
|
|
|
the remaining 70 percent after the fourth year of
continuous employment.
|
Time-based vesting terms is intended to provide retention for
our executive officers as the awards vest based on continuous
employment. Unlike the fiscal 2007 restricted stock units, these
restricted stock units are not subject to performance-based
acceleration. Our Compensation Committee believed that retention
of the Named Executive Officers was key to our success and that
these additional restricted stock units would be more likely,
given the time-based vesting schedule of the restricted stock
units, to maximize retention of our Named Executive Officers
without performance-based acceleration milestones.
Fiscal 2009 Restricted Stock Unit Grants. In
April 2008, after considering an analysis of total compensation
for our Named Executive Officers and upon the recommendation of
the Compensation Committee, our Board of Directors granted
50,000 restricted stock units to our Chief Executive Officer and
20,000 restricted stock units to each of our other Named
Executive Officers. The Compensation Committee believed that
these grants of restricted stock units were appropriate based on
our financial performance over the prior year. The fiscal 2009
restricted stock unit awards vest in the same manner as the
fiscal 2008 restricted stock unit awards discussed above. The
fiscal 2009 restricted stock units are also not subject to
performance-based acceleration. Our Compensation Committee
believed that retention of the Named Executive Officers was key
to our success and that these additional restricted stock units
would be more likely, given the time-based vesting schedule of
the restricted stock units, to maximize retention of our Named
Executive Officers without performance-based acceleration
milestones.
Other
Compensation and Benefits
We do not provide any of our executive officers with any
material perquisites. Currently, all benefits offered to our
executive officers, including an opportunity to participate in
our 401(k) plan, medical, dental, vision, life insurance,
disability coverage and flexible spending accounts, are also
available on a non-discriminatory basis to other full-time
employees. We also provide vacation and other paid holidays to
all full-time employees, including our Named Executive Officers.
Employment
Agreements
In August 2005, we entered into an employment agreement with
Clinton H. Severson, our President and Chief Executive
Officer, which provides Mr. Severson with a severance
payment equal to two years of salary, bonus and benefits if his
employment with us is terminated for any reason other than
cause. Certain severance benefits provided pursuant to the
Severance Plan (described below in Change in Control
Agreements) with respect to a
35
change of control supersede those provided pursuant to the
employment agreement. None of our other executives have
employment agreements with us.
Change
in Control Agreements
In July 2006, our Board of Directors, after considering a change
of control program analysis from the Compensation Peer Group
prepared by Top Five and upon the recommendation of our
Compensation Committee, approved and adopted the Abaxis, Inc.
Executive Change of Control Severance Plan (the Severance
Plan). The Severance Plan was adopted by our Board of
Directors to reduce the distraction of executives and potential
loss of executive talent that could arise from a potential
change of control. Participants in the Severance Plan include
Abaxis senior managers who are selected by the Board of
Directors. Our Board of Directors has designated the following
executive officers as participants in the Severance Plan:
Clinton H. Severson, our Chairman, President and Chief Executive
Officer; Alberto R. Santa Ines, our Chief Financial Officer and
Vice President of Finance; Vladimir E. Ostoich, Ph.D., our
Vice President of Government Affairs and Vice President of
Marketing for the Pacific Rim; Kenneth P. Aron, Ph.D., our
Vice President of Research and Development; Christopher M.
Bernard, our Vice President of Sales and Marketing for the
Domestic Medical Market; and Martin V. Mulroy, our
Vice President of Veterinary Sales and Marketing for North
America. In addition, our Board of Directors designated Donald
P. Wood, our Vice President of Operations, as a participant in
the Severance Plan beginning with the fiscal year ending
March 31, 2009.
The Severance Plan provides that upon the occurrence of a change
of control a participants outstanding stock option(s) and
restricted stock units will accelerate in full, and any such
stock awards shall become immediately exercisable at the closing
of the change of control event.
In addition, the Severance Plan provides that, if the
participants employment is terminated by us (or any
successor of Abaxis) for any reason other than cause, death, or
disability within 18 months following the change of control
date, the participant is eligible to receive severance benefits
as follows:
|
|
|
|
|
a lump sum payment equal to two times the sum of the
participants annual base salary and the participants
target annual bonus amount for the year in which the change of
control occurs;
|
|
|
|
a lump sum payment relating to all options or equity
instruments, which were not exercised as of the termination
date, in an amount equal to the difference between the share
price established in the change of control transaction and the
exercise price of the instrument;
|
|
|
|
payment of 24 months of premiums for medical, dental,
disability and life insurance benefits, provided, however, that
if the participant becomes eligible to receive comparable
benefits under another employers plan, the Companys
benefits shall be secondary to those provided under such other
plan; and
|
|
|
|
payment of an amount equal to any excise tax imposed under
Section 4999 of the Code.
|
Payment of the foregoing severance benefits is conditioned upon
the participants execution of a valid and effective
release of claims against us.
Tax
Considerations
Deductibility
of Executive Compensation
We have considered the provisions of Section 162(m) of the
Code and related Treasury Regulations which restrict
deductibility of executive compensation paid to our Named
Executive Officers and our other executive officers holding
office at the end of any year to the extent such compensation
exceeds $1.0 million for any of such officers in any year
and does not qualify for an exception under the statute or
regulations. The Compensation Committee endeavors to maximize
deductibility of compensation under Section 162(m) of the
Code to the extent practicable while maintaining a competitive,
performance-based compensation program. However, tax
consequences, including tax deductibility, are subject to many
factors (such as changes in the tax laws and regulations or
interpretations thereof and the timing of various decisions by
officers regarding stock options) which are beyond the control
of both the company and our Compensation Committee. In addition,
our Compensation Committee believes that it is important to
retain maximum flexibility in designing compensation programs
that meet its stated business
36
objectives. For these reasons, our Compensation Committee, while
considering tax deductibility as a factor in determining
compensation, will not limit compensation to those levels or
types of compensation that will be deductible. Our Compensation
Committee will continue to consider alternative forms of
compensation, consistent with its compensation goals that
preserve deductibility. The Compensation Committee does not
believe that the components of our compensation will be likely
to exceed $1.0 million by a material amount for any
affected executive officer in the near future and therefore
concluded that no further action with respect to qualifying such
compensation for deductibility was necessary at this time.
37
EXECUTIVE
COMPENSATION
Summary
Compensation Table
The following table sets forth for fiscal 2008 and 2007, the
compensation awarded or paid to, or earned by, our Chief
Executive Officer, Chief Financial Officer and the three other
most highly compensated executive officers at March 31,
2008 (collectively, the Named Executive Officers).
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-Equity
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
Option
|
|
Incentive Plan
|
|
All Other
|
|
|
|
|
Fiscal
|
|
Salary
|
|
Awards
|
|
Awards
|
|
Compensation
|
|
Compensation
|
|
Total
|
Name and Principal Position
|
|
Year
|
|
($)
|
|
($)(1)
|
|
($)(1)
|
|
($)(2)
|
|
($)(3)
|
|
($)
|
|
Clinton H. Severson
|
|
|
2008
|
|
|
|
336,500
|
|
|
|
253,941
|
|
|
|
1,099
|
|
|
|
456,000
|
|
|
|
11,535
|
(4)
|
|
|
1,059,075
|
|
President, Chief Executive
|
|
|
2007
|
|
|
|
323,500
|
|
|
|
101,040
|
|
|
|
8,603
|
|
|
|
500,250
|
|
|
|
13,823
|
(4)
|
|
|
947,216
|
|
Officer and Chairman of the Board
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alberto R. Santa Ines
|
|
|
2008
|
|
|
|
183,846
|
|
|
|
64,597
|
|
|
|
879
|
|
|
|
261,250
|
|
|
|
10,972
|
(5)
|
|
|
521,544
|
|
Chief Financial Officer and
Vice President of Finance
|
|
|
2007
|
|
|
|
174,008
|
|
|
|
22,453
|
|
|
|
8,997
|
|
|
|
287,500
|
|
|
|
13,227
|
(5)
|
|
|
506,185
|
|
Kenneth P. Aron, Ph.D.
|
|
|
2008
|
|
|
|
192,077
|
|
|
|
64,597
|
|
|
|
879
|
|
|
|
261,250
|
|
|
|
20,753
|
(6)
|
|
|
539,556
|
|
Vice President of
|
|
|
2007
|
|
|
|
184,054
|
|
|
|
22,453
|
|
|
|
6,882
|
|
|
|
287,500
|
|
|
|
22,592
|
(6)
|
|
|
523,481
|
|
Research and Development(7)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vladimir E. Ostoich, Ph.D.
|
|
|
2008
|
|
|
|
202,077
|
|
|
|
64,597
|
|
|
|
879
|
|
|
|
261,250
|
|
|
|
16,599
|
(8)
|
|
|
545,402
|
|
Vice President of Government Affairs and
|
|
|
2007
|
|
|
|
194,100
|
|
|
|
22,453
|
|
|
|
6,882
|
|
|
|
287,500
|
|
|
|
17,013
|
(8)
|
|
|
527,948
|
|
Vice President of Marketing for the Pacific Rim
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Christopher M. Bernard
|
|
|
2008
|
|
|
|
172,115
|
|
|
|
64,597
|
|
|
|
|
|
|
|
231,250
|
|
|
|
22,256
|
(10)
|
|
|
490,218
|
|
Vice President of Sales and Marketing
for the Domestic Medical Market(9)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Amounts listed in this column represent the compensation cost
recognized by us for financial statement reporting purposes for
fiscal 2008 and 2007 related to stock options and restricted
stock unit awards granted to the Named Executive Officers during
fiscal 2008 and 2007 and prior to fiscal 2007. These amounts
have been calculated in accordance with Statement of Financial
Accounting Standards No. 123 (revised 2004),
Share-Based Payment
(SFAS No. 123(R)). For a discussion of the
assumptions used in determining the fair value of awards of
stock options and restricted stock units in the above table, see
Note 10 of the Notes to Financial Statements included in
our Annual Report on
Form 10-K
filed with the SEC on June 13, 2008. |
|
(2) |
|
Represents aggregate cash performance bonuses earned during each
fiscal year based on achievement of corporate financial
performance goals, as described under Executive
Compensation Compensation Discussion and
Analysis above. These bonuses were paid in four quarterly
installments within one month following the end of the
applicable quarter. Amounts do not include bonuses paid during a
fiscal year, with respect to bonuses earned in a prior fiscal
year. |
|
(3) |
|
Amounts listed are based upon our actual costs expensed in
connection with such compensation. |
|
(4) |
|
In fiscal 2008, consists of $4,378 in supplemental health plan
expenses reimbursed by us, $780 in group life insurance paid by
us, $752 in disability insurance premiums paid by us and $5,625
in matching contributions made by us to Mr. Seversons
401(k) account. In fiscal 2007, consists of $4,366 in
supplemental health plan expenses reimbursed by us, $780 in
group life insurance paid by us, $812 in disability insurance
premiums paid by us and $7,865 in matching contributions made by
us to Mr. Seversons 401(k) account. |
|
(5) |
|
In fiscal 2008, consists of $4,490 in supplemental health plan
expenses reimbursed by us, $420 in group life insurance paid by
us, $437 in disability insurance premiums paid by us and $5,625
in matching contributions made by us to Mr. Santa
Ines 401(k) account. In fiscal 2007, consists of $4,505 in
supplemental health plan expenses reimbursed by us, $420 in
group life insurance paid by us, $437 in disability insurance
premiums paid by us and $7,865 in matching contributions made by
us to Mr. Santa Ines 401(k) account. |
|
(6) |
|
In fiscal 2008, consists of $14,222 in supplemental health plan
expenses reimbursed by us, $444 in group life insurance paid by
us, $462 in disability insurance premiums paid by us and $5,625
in matching contributions made by us to Mr. Arons
401(k) account. In fiscal 2007, consists of $14,186 in
supplemental health plan expenses reimbursed by us, $444 in
group life insurance paid by us, $462 in disability insurance
premiums paid by us and $7,500 in matching contributions made by
us to Mr. Arons 401(k) account. |
38
|
|
|
(7) |
|
Dr. Aron was promoted to Chief Technology Officer in April
2008. |
|
(8) |
|
In fiscal 2008, consists of $10,043 in supplemental health plan
expenses reimbursed by us, $444 in group life insurance paid by
us, $487 in disability insurance premiums paid by us and $5,625
in matching contributions made by us to Mr. Ostoichs
401(k) account. In fiscal 2007, consists of $10,058 in
supplemental health plan expenses reimbursed by us, $468 in
group life insurance paid by us, $487 in disability insurance
premiums paid by us and $6,000 in matching contributions made by
us to Mr. Ostoichs 401(k) account. |
|
(9) |
|
Mr. Bernard was not a Named Executive Officer for fiscal
2007. |
|
(10) |
|
In fiscal 2008, consists of $14,222 in supplemental health plan
expenses reimbursed by us, $360 in group life insurance paid by
us, $375 in disability insurance premiums paid by us and $7,299
in matching contributions made by us to Mr. Bernards
401(k) account. |
Salary and Bonus in Proportion to Total
Compensation. The following table sets forth the
percentage of base salary and annual cash incentive bonus earned
by each Named Executive Officer as a percentage of total
compensation for fiscal 2008.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Annual Cash
|
|
|
|
Base Salary
|
|
|
Incentive Bonus
|
|
|
|
as a Percentage of
|
|
|
as a Percentage of
|
|
Named Executive Officer
|
|
Total Compensation
|
|
|
Total Compensation
|
|
|
Clinton H. Severson
|
|
|
32%
|
|
|
|
43%
|
|
Alberto R. Santa Ines
|
|
|
35%
|
|
|
|
50%
|
|
Kenneth P. Aron, Ph.D.
|
|
|
36%
|
|
|
|
48%
|
|
Vladimir E. Ostoich, Ph.D.
|
|
|
37%
|
|
|
|
48%
|
|
Christopher M. Bernard
|
|
|
35%
|
|
|
|
47%
|
|
CEO Employment Agreement. In August 2005, we
entered into an employment agreement with Clinton H. Severson,
our President and Chief Executive Officer, which provides
Mr. Severson with a severance payment equal to two years of
salary, bonus and benefits if his employment with us is
terminated for any reason other than cause. Certain severance
benefits provided pursuant to the Severance Plan (described
above in Change of Control Agreements) with respect
to a change of control supersede those provided pursuant to the
employment agreement. None of our other executives have
employment agreements with us.
Grants of
Plan-Based Awards in Fiscal 2008
The following table sets forth the grants of plan-based awards
to our Named Executive Officers during fiscal 2008.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
|
Grant Date
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Fair Value of
|
|
|
|
|
|
|
Estimated Future Payouts Under
|
|
|
Estimated Future Payouts Under
|
|
|
Shares of
|
|
|
Stock and
|
|
|
|
|
|
|
Non-Equity Incentive Plan Awards(1)
|
|
|
Equity Incentive Plan Awards
|
|
|
Stock or
|
|
|
Option
|
|
|
|
Grant
|
|
|
Threshold
|
|
|
Target
|
|
|
Maximum
|
|
|
Threshold
|
|
|
Target
|
|
|
Maximum
|
|
|
Units
|
|
|
Awards
|
|
Name
|
|
Date
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
(#)
|
|
|
(#)
|
|
|
(#)(2)
|
|
|
(#)
|
|
|
($)(3)
|
|
|
Clinton H. Severson
|
|
|
5/15/2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000
|
|
|
|
|
|
|
|
1,056,500
|
|
|
|
|
|
|
|
|
120,000
|
|
|
|
480,000
|
|
|
|
960,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Alberto R. Santa Ines
|
|
|
5/15/2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000
|
|
|
|
|
|
|
|
422,600
|
|
|
|
|
|
|
|
|
68,750
|
|
|
|
275,000
|
|
|
|
550,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Kenneth P. Aron, Ph.D.
|
|
|
5/15/2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000
|
|
|
|
|
|
|
|
422,600
|
|
|
|
|
|
|
|
|
68,750
|
|
|
|
275,000
|
|
|
|
550,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vladimir E. Ostoich, Ph.D.
|
|
|
5/15/2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000
|
|
|
|
|
|
|
|
422,600
|
|
|
|
|
|
|
|
|
68,750
|
|
|
|
275,000
|
|
|
|
550,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Christopher M. Bernard
|
|
|
5/15/2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000
|
|
|
|
|
|
|
|
422,600
|
|
|
|
|
|
|
|
|
62,500
|
|
|
|
250,000
|
|
|
|
500,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) |
|
Actual cash performance bonuses, which were approved by the
Board of Directors upon recommendation by the Compensation
Committee based on achievement of corporate financial
performance goals for fiscal 2008, were paid in four quarterly
installments within one month following the end of the
applicable quarter and are |
39
|
|
|
|
|
shown in the Non-Equity Incentive Plan Compensation
column of the Summary Compensation Table above. |
|
(2) |
|
Each of the equity-based awards reported in the Grants of
Plan-Based Awards table was granted under, and is subject
to, the terms of our 2005 Equity Incentive Plan. The time-based
vesting schedule of restricted stock unit grants during fiscal
2008 are described above in Restricted Stock Units. |
|
(3) |
|
Represents the fair value of the restricted stock unit award on
the date of grant, pursuant to SFAS No. 123(R). See
Note 10 of the Notes to Financial Statements included in
our Annual Report on
Form 10-K
filed with the SEC on June 13, 2008 for additional
information. |
Outstanding
Equity Awards at Fiscal Year End 2008
The following table shows, for the fiscal year ended
March 31, 2008, certain information regarding outstanding
equity awards at fiscal year end for our Named Executive
Officers.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
Stock Awards
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive
|
|
Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Plan
|
|
Incentive Plan
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
Awards:
|
|
|
|
|
|
|
|
|
|
|
|
|
Market
|
|
Number of
|
|
Market or
|
|
|
Number of
|
|
|
|
|
|
|
|
Number
|
|
Value of
|
|
Unearned
|
|
Payout Value
|
|
|
Securities
|
|
Number of
|
|
|
|
|
|
of Shares
|
|
Shares or
|
|
Shares,
|
|
of Unearned
|
|
|
Underlying
|
|
Securities
|
|
|
|
|
|
or Units
|
|
Units of
|
|
Units or
|
|
Shares, Units
|
|
|
Unexercised
|
|
Underlying
|
|
|
|
|
|
of Stock
|
|
Stock
|
|
Other
|
|
or Other
|
|
|
Options
|
|
Unexercised
|
|
Option
|
|
|
|
That
|
|
That
|
|
Rights That
|
|
Rights That
|
|
|
(#)
|
|
Options
|
|
Exercise
|
|
Option
|
|
Have Not
|
|
Have Not
|
|
Have Not
|
|
Have Not
|
|
|
Exercisable
|
|
(#)
|
|
Price
|
|
Expiration
|
|
Vested
|
|
Vested
|
|
Vested
|
|
Vested
|
Name
|
|
(1)
|
|
Unexercisable
|
|
($)(2)
|
|
Date
|
|
(#)
|
|
($)
|
|
(#)
|
|
($)(3)
|
|
Clinton H. Severson
|
|
|
70,000
|
|
|
|
|
|
|
|
1.5625
|
|
|
|
1/26/2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
150,000
|
|
|
|
|
|
|
|
4.87
|
|
|
|
4/24/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,417
|
|
|
|
|
|
|
|
3.85
|
|
|
|
4/22/2013
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000
|
(4)
|
|
|
|
|
|
|
21.65
|
|
|
|
4/20/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
38,000
|
(5)
|
|
|
880,460
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
47,500
|
(5)
|
|
|
1,100,575
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000
|
(6)
|
|
|
1,158,500
|
|
Alberto R. Santa Ines
|
|
|
37,432
|
|
|
|
|
|
|
|
3.00
|
|
|
|
7/23/2012
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25,000
|
|
|
|
|
|
|
|
3.85
|
|
|
|
4/22/2013
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
40,000
|
(4)
|
|
|
|
|
|
|
21.65
|
|
|
|
4/20/2014
|
|
|
|
|
|
|
|
|
|
|
|
19,000
|
(5)
|
|
|
440,230
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000
|
(6)
|
|
|
463,400
|
|
Kenneth P. Aron, Ph.D.
|
|
|
3,109
|
|
|
|
|
|
|
|
7.5625
|
|
|
|
2/7/2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
50,000
|
|
|
|
|
|
|
|
6.31
|
|
|
|
10/31/2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4,500
|
|
|
|
|
|
|
|
5.47
|
|
|
|
7/24/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
40,000
|
(4)
|
|
|
|
|
|
|
21.65
|
|
|
|
4/20/2014
|
|
|
|
|
|
|
|
|
|
|
|
19,000
|
(5)
|
|
|
440,230
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000
|
(6)
|
|
|
463,400
|
|
Vladimir E. Ostoich, Ph.D.
|
|
|
25,000
|
|
|
|
|
|
|
|
1.875
|
|
|
|
10/26/2008
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25,000
|
|
|
|
|
|
|
|
2.25
|
|
|
|
4/27/2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16,000
|
|
|
|
|
|
|
|
8.125
|
|
|
|
1/25/2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9,500
|
|
|
|
|
|
|
|
5.47
|
|
|
|
7/24/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
40,000
|
|
|
|
|
|
|
|
3.85
|
|
|
|
4/22/2013
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
22,000
|
(4)
|
|
|
|
|
|
|
21.65
|
|
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|
4/20/2014
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|
|
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|
|
|
|
|
|
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|
|
|
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19,000
|
(5)
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440,230
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|
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|
|
|
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|
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20,000
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(6)
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463,400
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Christopher M. Bernard
|
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|
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19,000
|
(5)
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|
440,230
|
|
|
|
|
|
|
|
|
|
|
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|
|
|
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20,000
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(6)
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463,400
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(1) |
|
Options granted to the Named Executive Officers expire ten years
after the grant date. All options vest one-fourth on the first
anniversary date of grant and vests at a rate of 1/48th for each
full month thereafter, except as otherwise noted. |
|
(2) |
|
Represents the fair value of our common stock on the grant date
of the option. |
|
(3) |
|
The value of the equity award is based on the closing price of
our common stock of $23.17 on March 31, 2008, as reported
on the Nasdaq Global Select Market. |
40
|
|
|
(4) |
|
These options were accelerated in full by our Board of Directors
and became fully vested on December 5, 2005. However,
pursuant to a
lock-up and
consent agreement entered into with each of our Named Executive
Officers, these options may not be exercised prior to the date
on which the exercise would have been permitted under the
vesting schedule set forth in footnote 1, or earlier upon the
Named Executive Officers last day of employment or a
change in control. On April 20, 2008, the restrictions
under the
lock-up and
consent agreements expired and 100% of these shares became
exercisable. |
|
(5) |
|
The four-year time-based vesting terms of the restricted stock
units is as follows, assuming continuous employment: five
percent of the shares vest on April 25, 2007; ten percent
of the shares vest on April 25, 2008; 15 percent of
the shares vest on April 25, 2009; and 70 percent of
the shares vest on April 25, 2010. Additionally, these
restricted stock unit awards are also subject to accelerated
vesting upon achieving the following performance-based
milestones: |
|
|
|
|
|
upon attainment of certain pre-tax income goals by
March 31, 2007, vesting will accelerate to an aggregate of
25% within one year from grant date; by March 31, 2008,
vesting will accelerate to an aggregate of 25% within two years
from grant date; by March 31, 2009, vesting will accelerate
to an aggregate of 30%, within three years of grant date; hence,
meeting pre-tax income goals in each of the fiscal years ended
March 31, 2007, 2008 and 2009 can result in a cumulative
vesting of 80% over three years;
|
|
|
|
upon attainment of certain product development objectives prior
to June 30, 2007, an additional vesting of 10% would be
awarded;
|
|
|
|
upon satisfaction of certain regulatory requirements prior to
March 31, 2008, an additional vesting of 10% would be
awarded; or
|
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|
upon attainment of a certain level of operating income per share
for any fiscal year during the four-year vesting period, the
restricted stock units will accelerate in full.
|
To date, none of the foregoing performance-based milestones
required for acceleration has been achieved. In each case,
vesting of the equity award is conditioned upon the Named
Executive Officers continuous employment through the
applicable vesting date.
(6) The four-year time-based vesting terms of the
restricted stock units is as follows, assuming continuous
employment: five percent of the shares vest on April 30,
2008; ten percent of the shares vest on April 30, 2009;
15 percent of the shares vest on April 30, 2010; and
70 percent of the shares vest on April 30, 2011.
Option
Exercises and Stock Vested in Fiscal 2008
The following table shows all shares of common stock acquired
upon exercise of stock options and value realized upon exercise,
and all stock awards vested and value realized upon vesting,
held by our Named Executive Officers during fiscal 2008.
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Option Awards
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Stock Awards
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|
Number of
|
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|
|
|
Number of
|
|
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|
|
|
|
Shares
|
|
|
Value
|
|
|
Shares
|
|
|
Value
|
|
|
|
Acquired on
|
|
|
Realized on
|
|
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Acquired on
|
|
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Realized
|
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Exercise
|
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|
Exercise
|
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Vesting
|
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|
on Vesting
|
|
Name
|
|
(#)
|
|
|
($)(1)
|
|
|
(#)
|
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($)(2)
|
|
|
Clinton H. Severson
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|
70,000
|
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2,200,160
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|
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4,500
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102,735
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|
Alberto R. Santa Ines
|
|
|
62,568
|
|
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|
1,347,913
|
|
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1,000
|
|
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|
22,830
|
|
Kenneth P. Aron, Ph.D.
|
|
|
59,391
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|
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|
1,011,227
|
|
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|
1,000
|
|
|
|
22,830
|
|
Vladimir E. Ostoich, Ph.D.
|
|
|
56,000
|
|
|
|
817,289
|
|
|
|
1,000
|
|
|
|
22,830
|
|
Christopher M. Bernard
|
|
|
|
|
|
|
|
|
|
|
1,000
|
|
|
|
22,830
|
|
|
|
|
(1) |
|
The value realized equals the difference between the option
exercise price and the fair market value of our common stock on
the date of exercise, as reported on the NASDAQ Global Market,
multiplied by the number of shares for which the option was
exercised. |
41
|
|
|
(2) |
|
The value realized on vesting of restricted stock units equals
the fair market value of our common stock on the settlement
date, multiplied by the number of shares that vested. |
Severance
and Change in Control Agreements
Employment
Agreement
In August 2005, we entered into an employment agreement with
Clinton H. Severson, our President and Chief Executive
Officer, which provides Mr. Severson with a severance
payment equal to two years of salary, bonus and benefits if his
employment with us is terminated for any reason other than
cause. Certain severance benefits provided pursuant to the
Severance Plan (described below in Change of Control
Agreements) with respect to a change of control supersede
those provided pursuant to the employment agreement. None of our
other executives have employment agreements with us.
Executive
Change of Control Severance Plan
In July 2006, our Board of Directors, after considering a change
of control program analysis from the Compensation Peer
Group prepared by an independent compensation expert and upon
the recommendation of the Compensation Committee, approved and
adopted the Abaxis, Inc. Executive Change of Control Severance
Plan (the Severance Plan). The Severance Plan was
adopted by the Board to reduce the distraction of executives and
potential loss of executive talent that could arise from a
potential change of control. Participants in the Severance Plan
include Abaxis senior managers who are selected by the
Board. The Board has designated the following executive officers
as participants in the Severance Plan: Clinton H. Severson, our
Chairman, President and Chief Executive Officer; Alberto R.
Santa Ines, our Chief Financial Officer and Vice President of
Finance; Kenneth P. Aron, Ph.D., our Vice President of
Research and Development; Vladimir E. Ostoich, Ph.D., our
Vice President of Government Affairs and Vice President of
Marketing for the Pacific Rim; Christopher M. Bernard, our Vice
President of Sales and Marketing for the Domestic Medical
Market; and Martin V. Mulroy, our Vice President of Veterinary
Sales and Marketing for North America. In addition, our Board of
Directors designated Donald P. Wood, our Vice President of
Operations, as a participant in the Severance Plan beginning
with the fiscal year ending March 31, 2009.
The Severance Plan provides that upon the occurrence of a change
of control a participants outstanding stock option(s) and
restricted stock units will accelerate in full, and any such
stock awards shall become immediately exercisable at the closing
of the change of control event.
In addition, the Severance Plan provides that, if the
participants employment is terminated by us for any reason
other than cause, death, or disability within 18 months
from the change of control date, the participant is eligible to
receive severance benefits as follows:
|
|
|
|
|
a lump sum payment equal to two times the sum of the
participants annual salary and the participants
target annual bonus amount for the year in which the change of
control occurs;
|
|
|
|
a lump sum payment relating to all options or equity
instruments, which were not exercised as of the termination
date, in an amount equal to the difference between the share
price established in the change of control transaction and the
exercise price of the instrument;
|
|
|
|
payment of 24 months of premiums for medical, dental,
disability and life insurance benefits, provided, however, that
if the participant becomes eligible to receive comparable
benefits under another employers plan, the Companys
benefits shall be secondary to those provided under such other
plan; and
|
|
|
|
payment of an amount equal to any excise tax imposed under
Section 4999 of the Internal Revenue Code of 1986, as amended.
|
Payment of the foregoing severance benefits is conditioned upon
the participants execution of a valid and effective
release of claims from us.
42
Incentive
Plans
Under our 2005 Equity Incentive Plan, (the 2005
Plan) in the event of a change in control, as
such term is defined by the 2005 Plan, the surviving,
continuing, successor or purchasing entity or its parent may,
without the consent of any participant, either assume or
continue in effect any or all outstanding options and stock
appreciation rights or substitute substantially equivalent
options or rights for its stock. Any options or stock
appreciation rights which are not assumed or continued in
connection with a change in control or exercised prior to the
change in control will terminate effective as of the time of the
change in control. Our Compensation Committee may provide for
the acceleration of vesting of any or all outstanding options or
stock appreciation rights upon such terms and to such extent as
it determines. The 2005 Plan also authorizes our Compensation
Committee, in its discretion and without the consent of any
participant, to cancel each or any outstanding option or stock
appreciation right upon a change in control in exchange for a
payment to the participant with respect to each vested share
(and each unvested share if so determined by the Compensation
Committee) subject to the cancelled award of an amount equal to
the excess of the consideration to be paid per share of common
stock in the change in control transaction over the exercise
price per share under the award. The Compensation Committee, in
its discretion, may provide in the event of a change in control
for the acceleration of vesting
and/or
settlement of any stock award, restricted stock unit award,
performance share or performance unit, cash-based award or other
share-based award held by a participant upon such conditions and
to such extent as determined by our Compensation Committee. It
is currently anticipated that awards granted to executive
officers will accelerate fully on a change of control. The
vesting of non-employee director awards granted under the 2005
Plan automatically will accelerate in full upon a change in
control.
All outstanding stock options under our 1992 Outside
Directors Stock Option Plan (the Directors
Plan) are fully vested and no additional options will be
granted under the Directors Plan. Our Directors Plan provides
that, in the event of a transfer of control of the company, the
surviving, continuing, successor or purchasing corporation or a
parent corporation thereof, as the case may be, shall either
assume our rights and obligations under stock option agreements
outstanding under our option plans or substitute options for the
acquiring corporations stock for such outstanding options.
Any options which are neither assumed by the acquiring
corporation, nor exercised as of the date of the transfer of
control, shall terminate effective as of the date of the
transfer of control.
As described above, certain additional compensation is payable
to a Named Executive Officer (i) if his employment was
involuntarily terminated without cause, (ii) upon a change
in control or (iii) if his employment was terminated
involuntarily following a change in control. The amounts shown
in the table below assume that such termination was effective as
of March 31, 2008, and do not include amounts in which the
Named Executive Officer had already vested as of March 31,
2008. The actual compensation to be paid can only be determined
at the time of the change in control
and/or a
Named Executive Officers termination of employment.
43
Potential
Payments Upon Termination or Change in Control
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Involuntary
|
|
|
|
|
|
|
Termination
|
|
|
Involuntary
|
|
|
|
without Cause
|
|
|
Termination
|
|
Change in Control
|
|
Following a
|
Executive Benefits and Payments Upon Separation
|
|
without Cause(1)
|
|
(No Termination)
|
|
Change in Control(2)
|
|
Clinton H. Severson
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary and bonus
|
|
$
|
1,714,000
|
|
|
|
|
|
|
$
|
1,714,000
|
|
Vesting of restricted stock units(3)
|
|
$
|
3,139,535
|
|
|
$
|
3,139,535
|
|
|
$
|
3,139,535
|
|
Health and welfare benefits
|
|
$
|
11,820
|
|
|
|
|
|
|
$
|
11,820
|
|
Total
|
|
$
|
4,865,355
|
|
|
$
|
3,139,535
|
|
|
$
|
4,865,355
|
|
Alberto R. Santa Ines
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary and bonus
|
|
|
|
|
|
|
|
|
|
$
|
962,692
|
|
Vesting of restricted stock units(3)
|
|
|
|
|
|
$
|
903,630
|
|
|
$
|
903,630
|
|
Health and welfare benefits
|
|
|
|
|
|
|
|
|
|
$
|
10,694
|
|
Excise tax reimbursements(4)
|
|
|
|
|
|
|
|
|
|
$
|
79,588
|
|
Total
|
|
|
|
|
|
$
|
903,630
|
|
|
$
|
1,956,604
|
|
Kenneth P. Aron, Ph.D.
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary and bonus
|
|
|
|
|
|
|
|
|
|
$
|
980,224
|
|
Vesting of restricted stock units(3)
|
|
|
|
|
|
$
|
903,630
|
|
|
$
|
903,630
|
|
Health and welfare benefits
|
|
|
|
|
|
|
|
|
|
$
|
30,256
|
|
Total
|
|
|
|
|
|
$
|
903,630
|
|
|
$
|
1,914,110
|
|
Vladimir E. Ostoich, Ph.D.
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary and bonus
|
|
|
|
|
|
|
|
|
|
$
|
1,001,193
|
|
Vesting of restricted stock units(3)
|
|
|
|
|
|
$
|
903,630
|
|
|
$
|
903,630
|
|
Health and welfare benefits
|
|
|
|
|
|
|
|
|
|
$
|
21,948
|
|
Total
|
|
|
|
|
|
$
|
903,630
|
|
|
$
|
1,926,771
|
|
Christopher M. Bernard
|
|
|
|
|
|
|
|
|
|
|
|
|
Salary and bonus
|
|
|
|
|
|
|
|
|
|
$
|
874,657
|
|
Vesting of restricted stock units(3)
|
|
|
|
|
|
$
|
903,630
|
|
|
$
|
903,630
|
|
Health and welfare benefits
|
|
|
|
|
|
|
|
|
|
$
|
29,914
|
|
Excise tax reimbursement(5)
|
|
|
|
|
|
|
|
|
|
$
|
158,640
|
|
Total
|
|
|
|
|
|
$
|
903,630
|
|
|
$
|
1,966,841
|
|
|
|
|
(1) |
|
Amounts relate to payments to Mr. Severson equal to two
years of salary, bonus and benefits if his employment with us is
terminated for any reason other than cause (as defined in
Mr. Seversons employment agreement). |
|
(2) |
|
Amounts assume that the Named Executive Officer was terminated
without cause or due to constructive termination during the
18-month
period following a change in control. |
|
(3) |
|
The value of the restricted stock unit assumes that the market
price per share of our common stock on the date of termination
of employment was equal to the closing price of our common stock
of $23.17 on March 31, 2008, as reported on the NASDAQ
Global Select Market. |
|
(4) |
|
For purposes of computing the excise tax reimbursement payments,
base amount calculations are based on Mr. Santa Ines
taxable wages for the fiscal years 2003 through 2008. |
|
(5) |
|
For purposes of computing the excise tax reimbursement payments,
base amount calculations are based on Mr. Bernards
taxable wages for the fiscal years 2006 through 2008, when he
joined us in fiscal 2006. |
44
DIRECTOR
COMPENSATION
Director
Compensation Table
The table below summarizes the compensation paid to our
non-employee directors for fiscal 2008.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees Earned
|
|
|
|
|
|
|
|
|
|
|
or Paid in
|
|
|
|
Option
|
|
All Other
|
|
|
|
|
Cash
|
|
Stock Awards
|
|
Awards
|
|
Compensation
|
|
Total
|
Name(1)
|
|
($)
|
|
($)(2)(3)(4)
|
|
($)(5)
|
|
($)(6)
|
|
($)
|
|
Richard J. Bastiani, Ph.D.
|
|
|
24,000
|
|
|
|
32,548
|
|
|
|
|
|
|
|
|
|
|
|
56,548
|
|
Henk J. Evenhuis
|
|
|
27,000
|
|
|
|
32,548
|
|
|
|
|
|
|
|
|
|
|
|
59,548
|
|
Brenton G. A. Hanlon
|
|
|
23,000
|
|
|
|
32,548
|
|
|
|
|
|
|
|
|
|
|
|
55,548
|
|
Prithipal Singh, Ph.D.
|
|
|
22,000
|
|
|
|
32,548
|
|
|
|
|
|
|
|
|
|
|
|
54,548
|
|
Ernest S. Tucker, III, M.D.
|
|
|
22,000
|
|
|
|
32,548
|
|
|
|
|
|
|
|
938
|
|
|
|
55,486
|
|
|
|
|
(1) |
|
Clinton H. Severson, our Chief Executive Officer and Director,
is not included in this table as he is an employee of the
Company and receives no compensation for his services as a
director. The compensation received by Mr. Severson as an
employee is shown in the Summary Compensation Table
above. |
|
(2) |
|
Amounts listed in this column represent our accounting expense
for these awards, over the requisite service period, in
accordance with SFAS No. 123(R). For a discussion of the
assumptions used in determining the fair value of awards of
restricted stock units in the above table, see Note 10 of
the Notes to Financial Statements in our Annual Report on
Form 10-K
filed with the SEC on June 13, 2008. Restricted stock units
were not granted to non-employee directors prior to fiscal 2007.
No stock awards were forfeited by any of our non-employee
directors during fiscal 2008. |
|
(3) |
|
Each non-employee director listed in the table above was granted
an award of 1,500 restricted stock units on May 15, 2007
under our 2005 Plan. The grant date fair value, as determined in
accordance with SFAS No. 123(R), of the restricted
stock units granted during fiscal 2008 for each of the directors
listed in the table above was $31,695. |
|
(4) |
|
As of March 31, 2008, each of our non-employee directors
held 1,500 shares of unvested restricted stock units. |
|
(5) |
|
No options were awarded to our non-employee directors in fiscal
2007 or fiscal 2008. As of March 31, 2008, the non-employee
director held the following number of outstanding options:
Dr. Bastiani, 28,000; Mr. Evenhuis, 18,000;
Mr. Hanlon, 28,000; Dr. Singh, 26,000; and
Dr. Tucker, 13,000 shares. |
|
(6) |
|
Represents the reimbursement of travel expenses. |
Cash
Compensation Paid to Board Members
During fiscal 2008, all non-employee directors received an
annual retainer of $12,000. The non-employee Chairs of our Audit
Committee and Compensation Committee received an annual
supplement of $5,000 and $2,000, respectively. Our non-employee
directors each received $1,250 per board meeting attended and
$1,000 per committee meeting attended. We also reimburse our
non-employee directors for reasonable travel expenses incurred
in connection with attending board and committee meetings.
Directors who are employees receive no compensation for their
service as directors.
Equity
Compensation Paid to Board Members
Non-employee directors are eligible to receive awards under the
2005 Plan, but such awards are discretionary and not automatic.
In fiscal 2008 and fiscal 2007, each non-employee director
received an annual equity award of 1,500 restricted stock units
granted under the 2005 Plan. Each award of restricted stock
units represents the right of the participant to receive,
without payment of monetary consideration, on the vesting date,
a number of shares of common stock equal to the number of units
vesting on such date. Subject to the directors continued
service with us through the applicable vesting date, each
restricted stock unit award will vest in full 12 months
after the grant date. Under the terms of the 2005 Plan, the
vesting of each non-employee director restricted stock unit
award will also be accelerated in full in the event of a
change in control, as defined in the 2005 Plan.
45
Transactions
With Related Persons
Certain
Relationships and Related Transactions
During the fiscal year ended March 31, 2008 and as of the
date hereof, there was not, nor is there any currently proposed
transaction or series of similar transactions to which the
Company was or is to be a party in which the amount involved
exceeds $120,000 and in which any executive officer, director or
holder of more than 5% of any class of voting securities of the
Company and members of that persons immediate family had
or will have a direct or indirect material interest, other than
as set forth in the Summary Compensation Table above.
Indemnification
Agreements
The Company has entered into indemnity agreements with certain
officers and directors which provide, among other things, that
the Company will indemnify such officer or director, under the
circumstances and to the extent provided for therein, for
expenses, damages, judgments, fines and settlements he or she
may be required to pay in actions or proceedings which he or she
is or may be made a party by reason of his or her position as a
director, officer or other agent of the Company, and otherwise
to the fullest extent permitted under applicable law.
Related-Person
Transactions Policy and Procedures
Pursuant to the requirements set forth in the charter of the
Companys Audit Committee, the Audit Committee is
responsible for reviewing and approving any related-party
transactions, after reviewing each such transaction for
potential conflicts of interests and other improprieties. The
Company does not have any additional written procedures
governing the process for addressing related-person
transactions. However, in approving or rejecting proposed
transactions, the Audit Committee generally considers the
relevant facts and circumstances available and deemed relevant,
including, but not limited to the risks, costs and benefits to
the Company, the terms of the transaction, the availability of
other sources for comparable services or products, and, if
applicable, the impact on a directors independence.
As required under the Nasdaq listing standards, a majority of
the members of a listed companys Board of Directors must
qualify as independent, as affirmatively determined
by the Board of Directors. The Board consults with the
Companys counsel to ensure that the Boards
determinations are consistent with relevant securities and other
laws and regulations regarding the definition of
independent, including those set forth in the Nasdaq
listing standards, as in effect time to time. Consistent with
these considerations, after review of all relevant transactions
or relationships between each director, or any of his or her
family members, and the Company, its senior management, and its
independent registered public accounting firm, the Board has
affirmatively determined that the following five directors are
independent directors within the meaning of the applicable
Nasdaq listing standards: Messrs. Evenhuis and Hanlon and
Drs. Bastiani, Singh and Tucker. In making this
determination, the Board found that none of the directors had a
material or other disqualifying relationship with the Company.
Mr. Severson, the Companys Chairman, President and
Chief Executive Officer, is not an independent director by
virtue of his employment with the Company.
Householding
of Proxy Materials
The SEC has adopted rules that permit companies and
intermediaries (e.g., brokers) to satisfy the delivery
requirements for proxy statements and annual reports with
respect to two or more shareholders sharing the same address by
delivering a single proxy statement addressed to those
shareholders. This process, which is commonly referred to as
householding, potentially means extra convenience
for shareholders and cost savings for companies.
This year, a number of brokers with account holders who are
Abaxis shareholders may be householding proxy
materials. A single proxy statement may be delivered to multiple
shareholders sharing an address unless contrary instructions
have been received from the affected shareholders. Once you have
received notice from your broker that they will be
householding communications to your address,
householding will continue until you are notified
otherwise or until you revoke your consent. If, at any time, you
no longer wish to participate in
46
householding and would prefer to receive a separate
proxy statement and annual report, please notify your broker.
Direct your written request to Abaxis, Inc., Alberto R. Santa
Ines, Chief Financial Officer and Secretary, 3240 Whipple Road,
Union City, California 94587 or contact Alberto R. Santa Ines at
1-510-675-6500. Shareholders who currently receive multiple
copies of the proxy statement at their addresses and would like
to request householding of their communications
should contact their brokers.
Other
Matters
The Board of Directors knows of no other matters that will be
presented for consideration at the Annual Meeting. If any other
matters are properly brought before the meeting, it is the
intention of the persons named in the accompanying proxy to vote
on such matters in accordance with their best judgment.
By Order of the Board of Directors
ALBERTO R. SANTA INES
Chief Financial Officer and Secretary
September 11, 2008
A copy of the Companys Annual Report to the Securities
and Exchange Commission on
Form 10-K
for the fiscal year ended March 31, 2008 is available
without charge upon written request to: Investor Relations,
Abaxis, Inc., 3240 Whipple Road, Union City, California
94587.
47
Appendix A
Abaxis, Inc.
2005 Equity Incentive Plan
TABLE OF CONTENTS
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Page |
1. Establishment, Purpose and Term of Plan |
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1 |
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1.1 Establishment |
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1 |
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1.2 Purpose |
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1 |
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1.3 Term of Plan |
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1 |
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2. Definitions and Construction |
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1 |
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2.1 Definitions |
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1 |
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2.2 Construction |
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7 |
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3. Administration |
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7 |
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3.1 Administration by the Committee |
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7 |
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3.2 Authority of Officers |
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7 |
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3.3 Administration with Respect to Insiders |
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7 |
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3.4 Committee Complying with Section 162(m) |
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7 |
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3.5 Powers of the Committee |
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8 |
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3.6 Option or SAR Repricing |
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9 |
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3.7 Indemnification |
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9 |
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4. Shares Subject to Plan |
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9 |
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4.1 Maximum Number of Shares Issuable |
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9 |
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4.2 Adjustments for Changes in Capital Structure |
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10 |
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5. Eligibility and Award Limitations |
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10 |
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5.1 Persons Eligible for Awards |
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10 |
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5.2 Participation |
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11 |
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5.3 Incentive Stock Option Limitations |
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11 |
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5.4 Award Limits |
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11 |
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6. Terms and Conditions of Options |
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12 |
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6.1 Exercise Price |
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12 |
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6.2 Exercisability and Term of Options |
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13 |
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6.3 Payment of Exercise Price |
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13 |
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6.4 Effect of Termination of Service |
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14 |
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6.5 Transferability of Options |
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14 |
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7. Terms and Conditions of Stock Appreciation Rights |
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14 |
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7.1 Types of SARs Authorized |
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14 |
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7.2 Exercise Price |
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15 |
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7.3 Exercisability and Term of SARs |
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15 |
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7.4 Deemed Exercise of SARs |
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15 |
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7.5 Effect of Termination of Service |
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15 |
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-i-
TABLE OF CONTENTS
(continued)
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Page |
7.6 Nontransferability of SARs |
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15 |
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8. Terms and Conditions of Restricted Stock Awards |
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15 |
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8.1 Types of Restricted Stock Awards Authorized |
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16 |
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8.2 Purchase Price |
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16 |
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8.3 Purchase Period |
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16 |
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8.4 Vesting and Restrictions on Transfer |
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16 |
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8.5 Voting Rights; Dividends and Distributions |
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16 |
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8.6 Effect of Termination of Service |
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17 |
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8.7 Nontransferability of Restricted Stock Award Rights |
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17 |
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9. Terms and Conditions of Performance Awards |
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17 |
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9.1 Types of Performance Awards Authorized |
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17 |
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9.2 Initial Value of Performance Shares and Performance Units |
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17 |
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9.3 Establishment of Performance Period, Performance Goals and Performance
Award Formula |
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17 |
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9.4 Measurement of Performance Goals |
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18 |
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9.5 Settlement of Performance Awards |
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19 |
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9.6 Voting Rights; Dividend Equivalent Rights and Distributions |
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19 |
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9.7 Effect of Termination of Service |
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20 |
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9.8 Nontransferability of Performance Awards |
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20 |
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10. Terms and Conditions of Restricted Stock Unit Awards |
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20 |
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10.1 Grant of Restricted Stock Unit Awards |
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21 |
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10.2 Vesting |
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21 |
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10.3 Voting Rights, Dividend Equivalent Rights and Distributions |
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21 |
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10.4 Effect of Termination of Service |
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21 |
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10.5 Settlement of Restricted Stock Unit Awards |
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22 |
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10.6 Nontransferability of Restricted Stock Unit Awards |
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22 |
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11. Deferred Compensation Awards |
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22 |
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11.1 Establishment of Deferred Compensation Award Programs |
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22 |
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11.2 Terms and Conditions of Deferred Compensation Awards |
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23 |
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12. Other Stock-Based Awards |
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24 |
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13. Change in Control |
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24 |
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13.1 Effect of Change in Control on Options and SARs |
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24 |
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13.2 Effect of Change in Control on Restricted Stock Awards |
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25 |
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13.3 Effect of Change in Control on Performance Awards |
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25 |
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13.4 Effect of Change in Control on Restricted Stock Unit Awards |
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25 |
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13.5 Effect of Change in Control on Deferred Compensation Awards |
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25 |
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ii
TABLE OF CONTENTS
(continued)
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Page |
14. Compliance with Securities Law |
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26 |
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15. Tax Withholding |
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26 |
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15.1 Tax Withholding in General |
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26 |
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15.2 Withholding in Shares |
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26 |
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16. Amendment or Termination of Plan |
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26 |
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17. Miscellaneous Provisions |
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27 |
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17.1 Repurchase Rights |
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27 |
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17.2 Provision of Information |
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27 |
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17.3 Rights as Employee, Consultant or Director |
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27 |
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17.4 Rights as a Shareholder |
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27 |
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17.5 Fractional Shares |
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27 |
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17.6 Severability |
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27 |
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17.7 Beneficiary Designation |
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28 |
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17.8 Unfunded Obligation |
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28 |
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17.9 Choice of Law |
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28 |
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iii
Abaxis, Inc.
2005 Equity Incentive Plan
1. Establishment, Purpose and Term of Plan.
1.1 Establishment. The Abaxis, Inc. 2005 Equity Incentive Plan (the Plan) is hereby
established effective as of its approval by the shareholders of the Company (the Effective Date).
The Plan is the successor to the Companys 1998 Stock Option Plan and its share reserve.
1.2 Purpose. The purpose of the Plan is to advance the interests of the Participating Company
Group and its shareholders by providing an incentive to attract and retain the best qualified
personnel to perform services for the Participating Company Group, by motivating such persons to
contribute to the growth and profitability of the Participating Company Group, by aligning their
interests with interests of the Companys shareholders, and by rewarding such persons for their
services by tying a significant portion of their total compensation package to the success of the
Company. The Plan seeks to achieve this purpose by providing for Awards in the form of Options,
Stock Appreciation Rights, Restricted Stock Awards, Performance Shares, Performance Units,
Restricted Stock Units, Deferred Compensation Awards and other Stock-Based Awards as described
below.
1.3 Term of Plan. The Plan shall continue in effect until the earlier of its termination by
the Board or the date on which all of the shares of Stock available for issuance under the Plan
have been issued and all restrictions on such shares under the terms of the Plan and the agreements
evidencing Awards granted under the Plan have lapsed. However, all Awards shall be granted, if at
all, within ten (10) years from the Effective Date.
2. Definitions and Construction.
2.1 Definitions. Whenever used herein, the following terms shall have their respective
meanings set forth below:
(a) Affiliate means (i) an entity, other than a Parent Corporation, that directly, or
indirectly through one or more intermediary entities, controls the Company or (ii) an entity, other
than a Subsidiary Corporation, that is controlled by the Company directly, or indirectly through
one or more intermediary entities. For this purpose, the term control (including the term
controlled by) means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of the relevant entity, whether through the ownership of
voting securities, by contract or otherwise; or shall have such other meaning assigned such term
for the purposes of registration on Form S-8 under the Securities Act.
(b) Award means any Option, SAR, Restricted Stock Award, Performance Share, Performance
Unit, Restricted Stock Unit or Deferred Compensation Award or other Stock-Based Award granted under
the Plan.
1
(c) Award Agreement means a written agreement between the Company and a Participant setting
forth the terms, conditions and restrictions of the Award granted to the Participant.
(d) Board means the Board of Directors of the Company.
(e) Change in Control means, unless otherwise defined by the Participants Award Agreement
or contract of employment or service, an Ownership Change Event or a series of related Ownership
Change Events (collectively, the Transaction) wherein the shareholders of the Company immediately
before the Transaction do not retain immediately after the Transaction, in substantially the same
proportions as their ownership of shares of the Companys voting stock immediately before the
Transaction, direct or indirect beneficial ownership of more than fifty percent (50%) of the total
combined voting power of the outstanding voting stock of the Company or the corporation or
corporations to which the assets of the Company were transferred (the Transferee Corporation(s)),
as the case may be. For purposes of the preceding sentence, indirect beneficial ownership shall
include, without limitation, an interest resulting from ownership of the voting stock of one or
more corporations which, as a result of the Transaction, own the Company or the Transferee
Corporation(s), as the case may be, either directly or through one or more subsidiary corporations.
The Board shall have the right to determine whether multiple sales or exchanges of the voting
stock of the Company or multiple Ownership Change Events are related, and its determination shall
be final, binding and conclusive.
(f) Code means the Internal Revenue Code of 1986, as amended, and any applicable regulations
promulgated thereunder.
(g) Committee means the Compensation Committee or other committee of the Board duly
appointed to administer the Plan and having such powers as shall be specified by the Board. If no
committee of the Board has been appointed to administer the Plan, the Board shall exercise all of
the powers of the Committee granted herein, and, in any event, the Board may in its discretion
exercise any or all of such powers.
(h) Company means Abaxis, Inc., a California corporation, or any successor corporation
thereto.
(i) Consultant means a person engaged to provide consulting or advisory services (other than
as an Employee or a member of the Board) to a Participating Company, provided that the identity of
such person, the nature of such services or the entity to which such services are provided would
not preclude the Company from offering or selling securities to such person pursuant to the Plan in
reliance on registration on a Form S-8 Registration Statement under the Securities Act.
(j) Deferred Compensation Award means an award of Stock Units granted to a Participant
pursuant to Section 11 of the Plan.
(k) Director means a member of the Board.
2
(l) Disability means the permanent and total disability of the Participant, within the
meaning of Section 22(e)(3) of the Code.
(m) Dividend Equivalent means a credit, made at the discretion of the Committee or as
otherwise provided by the Plan, to the account of a Participant in an amount equal to the cash
dividends paid on one share of Stock for each share of Stock represented by an Award held by such
Participant.
(n) Employee means any person treated as an employee (including an Officer or a member of
the Board who is also treated as an employee) in the records of a Participating Company and, with
respect to any Incentive Stock Option granted to such person, who is an employee for purposes of
Section 422 of the Code; provided, however, that neither service as a member of the Board nor
payment of a directors fee shall be sufficient to constitute employment for purposes of the Plan.
The Company shall determine in good faith and in the exercise of its discretion whether an
individual has become or has ceased to be an Employee and the effective date of such individuals
employment or termination of employment, as the case may be. For purposes of an individuals
rights, if any, under the Plan as of the time of the Companys determination, all such
determinations by the Company shall be final, binding and conclusive, notwithstanding that the
Company or any court of law or governmental agency subsequently makes a contrary determination.
(o) Exchange Act means the Securities Exchange Act of 1934, as amended.
(p) Fair Market Value means, as of any date, the value of a share of Stock or other property
as determined by the Committee, in its discretion, or by the Company, in its discretion, if such
determination is expressly allocated to the Company herein, subject to the following:
(i) Except as otherwise determined by the Committee, if, on such date, the Stock is listed on
a national or regional securities exchange or market system, the Fair Market Value of a share of
Stock shall be the closing price of a share of Stock as quoted on the New York Stock Exchange or
such other national or regional securities exchange or market system constituting the primary
market for the Stock, as reported in The Wall Street Journal or such other source as the Company
deems reliable. If the relevant date does not fall on a day on which the Stock has traded on such
securities exchange or market system, the date on which the Fair Market Value shall be established
shall be the last day on which the Stock was so traded prior to the relevant date, or such other
appropriate day as shall be determined by the Committee, in its discretion.
(ii) Notwithstanding the foregoing, the Committee may, in its discretion, determine the Fair
Market Value on the basis of the opening, closing, high, low or average sale price of a share of
Stock or the actual sale price of a share of Stock received by a Participant, on such date, the
preceding trading day, the next succeeding trading day or an average determined over a period of
trading days. The Committee may vary its method of determination of the Fair Market Value as
provided in this Section for different purposes under the Plan.
3
(iii) If, on such date, the Stock is not listed on a national or regional securities exchange
or market system, the Fair Market Value of a share of Stock shall be as determined by the Committee
in good faith without regard to any restriction other than a restriction which, by its terms, will
never lapse.
(q) Incentive Stock Option means an Option intended to be (as set forth in the Award
Agreement) and which qualifies as an incentive stock option within the meaning of Section 422(b) of
the Code.
(r) Insider means an Officer, a Director or any other person whose transactions in Stock are
subject to Section 16 of the Exchange Act.
(s) Net-Exercise means a procedure by which the Participant will be issued a number of
shares of Stock determined in accordance with the following formula:
X = Y(A-B)/A, where
X = the number of shares of Stock to be issued to the Participant upon exercise of the Option;
Y = the total number of shares with respect to which the Participant has elected to exercise
the Option;
A = the Fair Market Value of one (1) share of Stock;
B = the exercise price per share (as defined in the Participants Award Agreement).
(t) Nonemployee Director means a Director who is not an Employee.
(u) Nonstatutory Stock Option means an Option not intended to be (as set forth in the Award
Agreement) an incentive stock option within the meaning of Section 422(b) of the Code.
(v) Officer means any person designated by the Board as an officer of the Company.
(w) Option means the right to purchase Stock at a stated price for a specified period of
time granted to a Participant pursuant to Section 6 of the Plan. An Option may be either an
Incentive Stock Option or a Nonstatutory Stock Option.
(x) Option Expiration Date means the date of expiration of the Options term as set forth in
the Award Agreement.
(y) Ownership Change Event shall be deemed to have occurred if any of the following occurs
with respect to the Company:
(i) the direct or indirect sale or exchange in a single or series of related transactions by
the shareholders of the Company of more than fifty percent (50%) of the voting stock of the
Company;
(ii) a merger or consolidation in which the Company is a party;
4
(iii) the sale, exchange, or transfer of all or substantially all of the assets of the
Company; or
(iv) a liquidation or dissolution of the Company.
(z) Parent Corporation means any present or future parent corporation of the Company, as
defined in Section 424(e) of the Code.
(aa) Participant means any eligible person who has been granted one or more Awards.
(bb) Participating Company means the Company or any Parent Corporation, Subsidiary
Corporation or Affiliate.
(cc) Participating Company Group means, at any point in time, all entities collectively
which are then Participating Companies.
(dd) Performance Award means an Award of Performance Shares or Performance Units.
(ee) Performance Award Formula means, for any Performance Award, a formula or table
established by the Committee pursuant to Section 9.3 of the Plan which provides the basis for
computing the value of a Performance Award at one or more threshold levels of attainment of the
applicable Performance Goal(s) measured as of the end of the applicable Performance Period.
(ff) Performance Goal means a performance goal established by the Committee pursuant to
Section 9.3 of the Plan.
(gg) Performance Period means a period established by the Committee pursuant to Section 9.3
of the Plan at the end of which one or more Performance Goals are to be measured.
(hh) Performance Share means a bookkeeping entry representing a right granted to a
Participant pursuant to Section 9 of the Plan to receive a payment equal to the value of a
Performance Share, as determined by the Committee, based on performance.
(ii) Performance Unit means a bookkeeping entry representing a right granted to a
Participant pursuant to Section 9 of the Plan to receive a payment equal to the value of a
Performance Unit, as determined by the Committee, based upon performance.
(jj) Restricted Stock Award means an Award of Restricted Stock.
(kk) Restricted Stock Unit or Stock Unit means a bookkeeping entry representing a right
granted to a Participant pursuant to Section 10 or Section 11 of the Plan, respectively, to receive
a share of Stock on a date determined in accordance with the provisions of Section 10 or
Section 11, as applicable, and the Participants Award Agreement.
5
(ll) Restriction Period means the period established in accordance with Section 8.4 of the
Plan during which shares subject to a Restricted Stock Award are subject to Vesting Conditions.
(mm) Retirement means termination as an Employee of a Participating Company at age 55 or
older, provided that the Participant was an Employee for at least five consecutive years prior to
the date of such termination.
(nn) Rule 16b-3 means Rule 16b-3 under the Exchange Act, as amended from time to time, or
any successor rule or regulation.
(oo) SAR or Stock Appreciation Right means a bookkeeping entry representing, for each
share of Stock subject to such SAR, a right granted to a Participant pursuant to Section 7 of the
Plan to receive payment in any combination of shares of Stock or cash of an amount equal to the
excess, if any, of the Fair Market Value of a share of Stock on the date of exercise of the SAR
over the exercise price.
(pp) Section 162(m) means Section 162(m) of the Code.
(qq) Securities Act means the Securities Act of 1933, as amended.
(rr) Service means a Participants employment or service with the Participating Company
Group, whether in the capacity of an Employee, a Director or a Consultant. A Participants Service
shall not be deemed to have terminated merely because of a change in the capacity in which the
Participant renders such Service or a change in the Participating Company for which the Participant
renders such Service, provided that there is no interruption or termination of the Participants
Service. Furthermore, a Participants Service shall not be deemed to have terminated if the
Participant takes any military leave, sick leave, or other bona fide leave of absence approved by
the Company. However, if any such leave taken by a Participant exceeds ninety (90) days, then on
the one hundred eighty-first (181st) day following the commencement of such leave any Incentive
Stock Option held by the Participant shall cease to be treated as an Incentive Stock Option and
instead shall be treated thereafter as a Nonstatutory Stock Option, unless the Participants right
to return to Service with the Participating Company Group is guaranteed by statute or contract.
Notwithstanding the foregoing, unless otherwise designated by the Company or required by law, a
leave of absence shall not be treated as Service for purposes of determining vesting under the
Participants Award Agreement. A Participants Service shall be deemed to have terminated either
upon an actual termination of Service or upon the entity for which the Participant performs Service
ceasing to be a Participating Company. Subject to the foregoing, the Company, in its discretion,
shall determine whether the Participants Service has terminated and the effective date of such
termination.
(ss) Stock means the common stock of the Company, as adjusted from time to time in
accordance with Section 4.2 of the Plan.
(tt) Stock-Based Awards means any award that is valued in whole or in part by reference to,
or is otherwise based on, the Stock, including dividends on the Stock, but not limited to those
Awards described in Sections 6 through 11 of the Plan.
6
(uu) Subsidiary Corporation means any present or future subsidiary corporation of the
Company, as defined in Section 424(f) of the Code.
(vv) Ten Percent Owner means a Participant who, at the time an Option is granted to the
Participant, owns stock possessing more than ten percent (10%) of the total combined voting power
of all classes of stock of a Participating Company (other than an Affiliate) within the meaning of
Section 422(b)(6) of the Code.
(ww) Vesting Conditions mean those conditions established in accordance with Section 8.4 or
Section 10.2 of the Plan prior to the satisfaction of which shares subject to a Restricted Stock
Award or Restricted Stock Unit Award, respectively, remain subject to forfeiture or a repurchase
option in favor of the Company upon the Participants termination of Service.
2.2 Construction. Captions and titles contained herein are for convenience only and shall not
affect the meaning or interpretation of any provision of the Plan. Except when otherwise indicated
by the context, the singular shall include the plural and the plural shall include the singular.
Use of the term or is not intended to be exclusive, unless the context clearly requires
otherwise.
3. Administration.
3.1 Administration by the Committee. The Plan shall be administered by the Committee. All
questions of interpretation of the Plan or of any Award shall be determined by the Committee, and
such determinations shall be final and binding upon all persons having an interest in the Plan or
such Award.
3.2 Authority of Officers. Any Officer shall have the authority to act on behalf of the
Company with respect to any matter, right, obligation, determination or election which is the
responsibility of or which is allocated to the Company herein, provided the Officer has apparent
authority with respect to such matter, right, obligation, determination or election. In addition,
to the extent specified in a resolution adopted by the Board, the Chief Executive Officer of the
Company shall have the authority to grant Awards to an Employee who is not an Insider and who is
receiving a salary below the level which requires approval by the Committee; provided that the
terms of such Awards conform to guidelines established by the Committee and provided further that
at the time of making such Awards the Chief Executive Officer also is a Director.
3.3 Administration with Respect to Insiders. With respect to participation by Insiders in the
Plan, at any time that any class of equity security of the Company is registered pursuant to
Section 12 of the Exchange Act, the Plan shall be administered in compliance with the requirements,
if any, of Rule 16b-3.
3.4 Committee Complying with Section 162(m). While the Company is a publicly held
corporation within the meaning of Section 162(m), the Board may establish a Committee of outside
directors within the meaning of Section 162(m) to approve the grant of any Award which might
reasonably be anticipated to result in the payment of employee
7
remuneration that would otherwise exceed the limit on employee remuneration deductible for
income tax purposes pursuant to Section 162(m).
3.5 Powers of the Committee. In addition to any other powers set forth in the Plan and
subject to the provisions of the Plan, the Committee shall have the full and final power and
authority, in its discretion:
(a) to determine the persons to whom, and the time or times at which, Awards shall be granted
and the number of shares of Stock or units to be subject to each Award;
(b) to determine the type of Award granted and to designate Options as Incentive Stock Options
or Nonstatutory Stock Options;
(c) to determine the Fair Market Value of shares of Stock or other property;
(d) to determine the terms, conditions and restrictions applicable to each Award (which need
not be identical) and any shares acquired pursuant thereto, including, without limitation, (i) the
exercise or purchase price of shares purchased pursuant to any Award, (ii) the method of payment
for shares purchased pursuant to any Award, (iii) the method for satisfaction of any tax
withholding obligation arising in connection with Award, including by the withholding or delivery
of shares of Stock, (iv) the timing, terms and conditions of the exercisability or vesting of any
Award or any shares acquired pursuant thereto, (v) the Performance Award Formula and Performance
Goals applicable to any Award and the extent to which such Performance Goals have been attained,
(vi) the time of the expiration of any Award, (vii) the effect of the Participants termination of
Service on any of the foregoing, and (viii) all other terms, conditions and restrictions applicable
to any Award or shares acquired pursuant thereto not inconsistent with the terms of the Plan;
(e) to determine whether an Award will be settled in shares of Stock, cash, or in any
combination thereof;
(f) to approve one or more forms of Award Agreement;
(g) to amend, modify, extend, cancel or renew any Award or to waive any restrictions or
conditions applicable to any Award or any shares acquired pursuant thereto;
(h) to accelerate, continue, extend or defer the exercisability or vesting of any Award or any
shares acquired pursuant thereto, including with respect to the period following a Participants
termination of Service;
(i) without the consent of the affected Participant and notwithstanding the provisions of any
Award Agreement to the contrary, to unilaterally substitute at any time a Stock Appreciation Right
providing for settlement solely in shares of Stock in place of any outstanding Option, provided
that such Stock Appreciation Right covers the same number of shares of Stock and provides for the
same exercise price (subject in each case to adjustment in accordance with Section 4.2) as the
replaced Option and otherwise provides substantially equivalent terms and conditions as the
replaced Option, as determined by the Committee;
8
(j) to prescribe, amend or rescind rules, guidelines and policies relating to the Plan, or to
adopt sub-plans or supplements to, or alternative versions of, the Plan, including, without
limitation, as the Committee deems necessary or desirable to comply with the laws or regulations of
or to accommodate the tax policy, accounting principles or custom of, foreign jurisdictions whose
citizens may be granted Awards;
(k) to correct any defect, supply any omission or reconcile any inconsistency in the Plan or
any Award Agreement and to make all other determinations and take such other actions with respect
to the Plan or any Award as the Committee may deem advisable to the extent not inconsistent with
the provisions of the Plan or applicable law; and
(l) to delegate to the Chief Executive Officer or the Senior Vice President of Human Resources
the authority with respect to ministerial matters regarding the Plan and Awards made under the
Plan.
3.6 Option or SAR Repricing. Without the affirmative vote of holders of a majority of the
shares of Stock cast in person or by proxy at a meeting of the shareholders of the Company at which
a quorum representing a majority of all outstanding shares of Stock is present or represented by
proxy, the Board shall not approve a program providing for either (a) the cancellation of
outstanding Options or SARs and the grant in substitution therefore of new Options or SARs having a
lower exercise price or (b) the amendment of outstanding Options or SARs to reduce the exercise
price thereof. This paragraph shall not be construed to apply to issuing or assuming a stock
option in a transaction to which section 424(a) applies, within the meaning of Section 424 of the
Code.
3.7 Indemnification. In addition to such other rights of indemnification as they may have as
members of the Board or the Committee or as officers or employees of the Participating Company
Group, members of the Board or the Committee and any officers or employees of the Participating
Company Group to whom authority to act for the Board, the Committee or the Company is delegated
shall be indemnified by the Company against all reasonable expenses, including attorneys fees,
actually and necessarily incurred in connection with the defense of any action, suit or proceeding,
or in connection with any appeal therein, to which they or any of them may be a party by reason of
any action taken or failure to act under or in connection with the Plan, or any right granted
hereunder, and against all amounts paid by them in settlement thereof (provided such settlement is
approved by independent legal counsel selected by the Company) or paid by them in satisfaction of a
judgment in any such action, suit or proceeding, except in relation to matters as to which it shall
be adjudged in such action, suit or proceeding that such person is liable for gross negligence, bad
faith or intentional misconduct in duties; provided, however, that within sixty (60) days after the
institution of such action, suit or proceeding, such person shall offer to the Company, in writing,
the opportunity at its own expense to handle and defend the same.
4. Shares Subject to Plan.
4.1 Maximum Number of Shares Issuable. Subject to adjustment as provided in Section 4.2, the
maximum aggregate number of shares of Stock that may be issued under the Plan shall be four million
eight hundred eighty-six thousand (4,886,000) and shall
9
consist of authorized but unissued or reacquired shares of Stock or any combination thereof.
If an outstanding Award for any reason expires or is terminated or canceled without having been
exercised or settled in full, or if shares of Stock acquired pursuant to an Award subject to
forfeiture or repurchase are forfeited or repurchased by the Company, the shares of Stock allocable
to the terminated portion of such Award or such forfeited or repurchased shares of Stock shall
again be available for issuance under the Plan. Shares of Stock shall not be deemed to have been
issued pursuant to the Plan (a) with respect to any portion of an Award that is settled in cash or
(b) to the extent such shares are withheld or reacquired by the Company in satisfaction of tax
withholding obligations pursuant to Section 15.2. Upon payment in shares of Stock pursuant to the
exercise of an SAR, the number of shares available for issuance under the Plan shall be reduced
only by the number of shares actually issued in such payment. If the exercise price of an Option
is paid by tender to the Company, or attestation to the ownership, of shares of Stock owned by the
Participant, or by means of a Net-Exercise, the number of shares available for issuance under the
Plan shall be reduced only by the net number of shares for which the Option is exercised.
4.2 Adjustments for Changes in Capital Structure. Subject to any required action by the
shareholders of the Company, in the event of any change in the Stock effected without receipt of
consideration by the Company, whether through merger, consolidation, reorganization,
reincorporation, recapitalization, reclassification, stock dividend, stock split, reverse stock
split, split-up, split-off, spin-off, combination of shares, exchange of shares, or similar change
in the capital structure of the Company, or in the event of payment of a dividend or distribution
to the shareholders of the Company in a form other than Stock (excepting normal cash dividends)
that has a material effect on the Fair Market Value of shares of Stock, appropriate adjustments
shall be made in the number and kind of shares subject to the Plan and to any outstanding Awards,
in the Award limits set forth in Section 5.4, and in the exercise or purchase price per share under
any outstanding Award in order to prevent dilution or enlargement of Participants rights under the
Plan. For purposes of the foregoing, conversion of any convertible securities of the Company shall
not be treated as effected without receipt of consideration by the Company. Any fractional share
resulting from an adjustment pursuant to this Section 4.2 shall be rounded down to the nearest
whole number. The Committee in its sole discretion, may also make such adjustments in the terms of
any Award to reflect, or related to, such changes in the capital structure of the Company or
distributions as it deems appropriate, including modification of Performance Goals, Performance
Award Formulas and Performance Periods. The adjustments determined by the Committee pursuant to
this Section 4.2 shall be final, binding and conclusive.
5. Eligibility and Award Limitations.
5.1 Persons Eligible for Awards. Awards may be granted only to Employees, Consultants and
Directors. For purposes of the foregoing sentence, Employees, Consultantsand Directors shall
include prospective Employees, prospective Consultants and prospective Directors to whom Awards are
granted in connection with written offers of an employment or other service relationship with the
Participating Company Group; provided, however, that no Stock subject to any such Award shall vest,
become exercisable or be issued prior to the date on which such person commences Service. A
Nonemployee Director Award may be granted only to a person who, at the time of grant, is a
Nonemployee Director.
10
5.2 Participation. Awards other than Nonemployee Director Awards are granted solely at the
discretion of the Committee. Eligible persons may be granted more than one Award. However,
excepting Nonemployee Director Awards, eligibility in accordance with this Section shall not
entitle any person to be granted an Award, or, having been granted an Award, to be granted an
additional Award.
5.3 Incentive Stock Option Limitations.
(a) Persons Eligible. An Incentive Stock Option may be granted only to a person who, on the
effective date of grant, is an Employee of the Company, a Parent Corporation or a Subsidiary
Corporation (each being an ISO-Qualifying Corporation). Any person who is not an Employee of an
ISO-Qualifying Corporation on the effective date of the grant of an Option to such person may be
granted only a Nonstatutory Stock Option. An Incentive Stock Option granted to a prospective
Employee upon the condition that such person become an Employee of an ISO-Qualifying Corporation
shall be deemed granted effective on the date such person commences Service with an ISO-Qualifying
Corporation, with an exercise price determined as of such date in accordance with Section 6.1.
(b) Fair Market Value Limitation. To the extent that options designated as Incentive Stock
Options (granted under all stock option plans of the Participating Company Group, including the
Plan) become exercisable by a Participant for the first time during any calendar year for stock
having a Fair Market Value greater than One Hundred Thousand Dollars ($100,000), the portion of
such options which exceeds such amount shall be treated as Nonstatutory Stock Options. For
purposes of this Section, options designated as Incentive Stock Options shall be taken into account
in the order in which they were granted, and the Fair Market Value of stock shall be determined as
of the time the option with respect to such stock is granted. If the Code is amended to provide
for a limitation different from that set forth in this Section, such different limitation shall be
deemed incorporated herein effective as of the date and with respect to such Options as required or
permitted by such amendment to the Code. If an Option is treated as an Incentive Stock Option in
part and as a Nonstatutory Stock Option in part by reason of the limitation set forth in this
Section, the Participant may designate which portion of such Option the Participant is exercising.
In the absence of such designation, the Participant shall be deemed to have exercised the Incentive
Stock Option portion of the Option first. Upon exercise, shares issued pursuant to each such
portion shall be separately identified.
5.4 Award Limits.
(a) Maximum Number of Shares Issuable Pursuant to Incentive Stock Options. Subject to
adjustment as provided in Section 4.2, the maximum aggregate number of shares of Stock that may be
issued under the Plan pursuant to the exercise of Incentive Stock Options shall not exceed four
million eight hundred eighty-six thousand (4,886,000) shares. The maximum aggregate number of
shares of Stock that may be issued under the Plan pursuant to all Awards other than Incentive Stock
Options shall be the number of shares determined in accordance with Section 4.1, subject to
adjustment as provided in Section 4.2 and further subject to the limitation set forth in
Section 5.4(b) below.
11
(b) Aggregate Limit on Full Value Awards. Subject to adjustment as provided in Section 4.2,
in no event shall more than five hundred thousand (500,000) shares in the aggregate be issued under
the Plan pursuant to the exercise or settlement of Restricted Stock Awards, Restricted Stock Unit
Awards and Performance Awards (Full Value Awards). Except with respect to a maximum of five
percent (5%) of the shares of Stock authorized in this Section 5.4(b), any Full Value Awards which
vest on the basis of the Participants continued Service shall not provide for vesting which is
any more rapid than annual pro rata vesting over a three (3) year period and any Full Value Awards
which vest upon the attainment of Performance Goals shall provide for a Performance Period of at
least twelve (12) months.
(c) Section 162(m) Award Limits. The following limits shall apply to the grant of any Award
if, at the time of grant, the Company is a publicly held corporation within the meaning of
Section 162(m).
(i) Options and SARs. Subject to adjustment as provided in Section 4.2, no Employee shall be
granted within any fiscal year of the Company one or more Options or Freestanding SARs which in the
aggregate are for more than 100,000 shares.
(ii) Restricted Stock and Restricted Stock Unit Awards. Subject to adjustment as provided in
Section 4.2, no Employee shall be granted within any fiscal year of the Company one or more
Restricted Stock Awards or Restricted Stock Unit Awards, subject to Vesting Conditions based on the
attainment of Performance Goals, for more than 500,000 shares.
(iii) Performance Awards. Subject to adjustment as provided in Section 4.2, no Employee shall
be granted (1) Performance Shares which could result in such Employee receiving more than 500,000
shares for each full fiscal year of the Company contained in the Performance Period for such Award,
or (2) Performance Units which could result in such Employee receiving value equal to more than
500,000 shares for each full fiscal year of the Company contained in the Performance Period for
such Award. No Participant may be granted more than one Performance Award for the same Performance
Period.
(iv) Stock-Based Awards. Subject to adjustment as provided in Section 4.2, no Employee may be
granted Stock-Based Awards which could result in the Employee receiving more than 50,000 shares (or
equivalent value) in any fiscal year of the Company.
6. Terms and Conditions of Options.
Options shall be evidenced by Award Agreements specifying the number of shares of Stock
covered thereby, in such form as the Committee shall from time to time establish. No Option or
purported Option shall be a valid and binding obligation of the Company unless evidenced by a fully
executed Award Agreement. Award Agreements evidencing Options may incorporate all or any of the
terms of the Plan by reference and shall comply with and be subject to the following terms and
conditions:
6.1 Exercise Price. The exercise price for each Option shall be established in the discretion
of the Committee; provided, however, that (a) the exercise price per share shall be
12
not less than the Fair Market Value of a share of Stock on the effective date of grant of the
Option and (b) no Incentive Stock Option granted to a Ten Percent Owner shall have an exercise
price per share less than one hundred ten percent (110%) of the Fair Market Value of a share of
Stock on the effective date of grant of the Option. Notwithstanding the foregoing, an Option
(whether an Incentive Stock Option or a Nonstatutory Stock Option) may be granted with an exercise
price lower than the minimum exercise price set forth above if such Option is granted pursuant to
an assumption or substitution for another option in a manner qualifying under the provisions of
Section 424(a) of the Code.
6.2 Exercisability and Term of Options. Options shall be exercisable at such time or times,
or upon such event or events, and subject to such terms, conditions, performance criteria and
restrictions as shall be determined by the Committee and set forth in the Award Agreement
evidencing such Option; provided, however, that (a) no Option shall be exercisable after the
expiration of ten (10) years after the effective date of grant of such Option, (b) no Incentive
Stock Option granted to a Ten Percent Owner shall be exercisable after the expiration of five (5)
years after the effective date of grant of such Option, and (c) no Option granted to a prospective
Employee, prospective Consultant or prospective Director may become exercisable prior to the date
on which such person commences Service. Subject to the foregoing, unless otherwise specified by
the Committee in the grant of an Option, any Option granted hereunder shall terminate ten (10)
years after the effective date of grant of the Option, unless earlier terminated in accordance with
its provisions.
6.3 Payment of Exercise Price.
(a) Forms of Consideration Authorized. Except as otherwise provided below, payment of the
exercise price for the number of shares of Stock being purchased pursuant to any Option shall be
made (i) in cash, by check or in cash equivalent, (ii) by tender to the Company, or attestation to
the ownership, of shares of Stock owned by the Participant having a Fair Market Value not less than
the exercise price, (iii) by delivery of a properly executed notice of exercise together with
irrevocable instructions to a broker providing for the assignment to the Company of the proceeds of
a sale or loan with respect to some or all of the shares being acquired upon the exercise of the
Option (including, without limitation, through an exercise complying with the provisions of
Regulation T as promulgated from time to time by the Board of Governors of the Federal Reserve
System) (a Cashless Exercise), (iv) by delivery of a properly executed notice of exercise
electing a Net-Exercise, (v) by such other consideration as may be approved by the Committee from
time to time to the extent permitted by applicable law, or (vi) by any combination thereof. The
Committee may at any time or from time to time grant Options which do not permit all of the
foregoing forms of consideration to be used in payment of the exercise price or which otherwise
restrict one or more forms of consideration.
(b) Limitations on Forms of Consideration.
(i) Tender of Stock. Notwithstanding the foregoing, an Option may not be exercised by tender
to the Company, or attestation to the ownership, of shares of Stock to the extent such tender or
attestation would constitute a violation of the provisions of any law, regulation or agreement
restricting the redemption of the Companys stock.
13
(ii) Cashless Exercise. The Company reserves, at any and all times, the right, in the
Companys sole and absolute discretion, to establish, decline to approve or terminate any program
or procedures for the exercise of Options by means of a Cashless Exercise, including with respect
to one or more Participants specified by the Company notwithstanding that such program or
procedures may be available to other Participants.
6.4 Effect of Termination of Service.
(a) Option Exercisability. Subject to earlier termination of the Option as otherwise provided
herein and unless otherwise provided by the Committee, an Option shall be exercisable after a
Participants termination of Service only during the applicable time periods provided in the Award
Agreement.
(b) Extension if Exercise Prevented by Law. Notwithstanding the foregoing, unless the
Committee provides otherwise in the Award Agreement, if the exercise of an Option within the
applicable time periods is prevented by the provisions of Section 14 below, the Option shall remain
exercisable until three (3) months (or such longer period of time as determined by the Committee,
in its discretion) after the date the Participant is notified by the Company that the Option is
exercisable, but in any event no later than the Option Expiration Date.
(c) Extension if Participant Subject to Section 16(b). Notwithstanding the foregoing, if a
sale within the applicable time periods of shares acquired upon the exercise of the Option would
subject the Participant to suit under Section 16(b) of the Exchange Act, the Option shall remain
exercisable until the earliest to occur of (i) the tenth (10th) day following the date on which a
sale of such shares by the Participant would no longer be subject to such suit, (ii) the one
hundred and ninetieth (190th) day after the Participants termination of Service, or (iii) the
Option Expiration Date.
6.5 Transferability of Options. During the lifetime of the Participant, an Option shall be
exercisable only by the Participant or the Participants guardian or legal representative. Prior
to the issuance of shares of Stock upon the exercise of an Option, the Option shall not be subject
in any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge,
encumbrance, or garnishment by creditors of the Participant or the Participants beneficiary,
except transfer by will or by the laws of descent and distribution.
7. Terms and Conditions of Stock Appreciation Rights.
Stock Appreciation Rights shall be evidenced by Award Agreements specifying the number of
shares of Stock subject to the Award, in such form as the Committee shall from time to time
establish. No SAR or purported SAR shall be a valid and binding obligation of the Company unless
evidenced by a fully executed Award Agreement. Award Agreements evidencing SARs may incorporate
all or any of the terms of the Plan by reference and shall comply with and be subject to the
following terms and conditions:
7.1 Types of SARs Authorized. SARs may be granted in tandem with all or any portion of a
related Option (a Tandem SAR) or may be granted independently of any Option (a Freestanding
SAR). A Tandem SAR may be granted either concurrently with the
14
grant of the related Option or at any time thereafter prior to the complete exercise, termination,
expiration or cancellation of such related Option.
7.2 Exercise Price. The exercise price for each SAR shall be established in the discretion of
the Committee; provided, however, that (a) the exercise price per share subject to a Tandem SAR
shall be the exercise price per share under the related Option and (b) the exercise price per share
subject to a Freestanding SAR shall be not less than the Fair Market Value of a share of Stock on
the effective date of grant of the SAR.
7.3 Exercisability and Term of SARs.
(a) Tandem SARs. Tandem SARs shall be exercisable only at the time and to the extent, and
only to the extent, that the related Option is exercisable, subject to such provisions as the
Committee may specify where the Tandem SAR is granted with respect to less than the full number of
shares of Stock subject to the related Option.
(b) Freestanding SARs. Freestanding SARs shall be exercisable at such time or times, or upon
such event or events, and subject to such terms, conditions, performance criteria and restrictions
as shall be determined by the Committee and set forth in the Award Agreement evidencing such SAR;
provided, however, that no Freestanding SAR shall be exercisable after the expiration of ten (10)
years after the effective date of grant of such SAR.
7.4 Deemed Exercise of SARs. If, on the date on which an SAR would otherwise terminate or
expire, the SAR by its terms remains exercisable immediately prior to such termination or
expiration and, if so exercised, would result in a payment to the holder of such SAR, then any
portion of such SAR which has not previously been exercised shall automatically be deemed to be
exercised as of such date with respect to such portion.
7.5 Effect of Termination of Service. Subject to earlier termination of the SAR as otherwise
provided herein and unless otherwise provided by the Committee in the grant of an SAR and set forth
in the Award Agreement, an SAR shall be exercisable after a Participants termination of Service
only as provided in the Award Agreement.
7.6 Nontransferability of SARs. During the lifetime of the Participant, an SAR shall be
exercisable only by the Participant or the Participants guardian or legal representative. Prior
to the exercise of an SAR, the SAR shall not be subject in any manner to anticipation, alienation,
sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors of the
Participant or the Participants beneficiary, except transfer by will or by the laws of descent and
distribution.
8. Terms and Conditions of Restricted Stock Awards.
Restricted Stock Awards shall be evidenced by Award Agreements specifying the number of shares
of Stock subject to the Award, in such form as the Committee shall from time to time establish. No
Restricted Stock Award or purported Restricted Stock Award shall be a valid and binding obligation
of the Company unless evidenced by a fully executed Award Agreement. Award Agreements evidencing
Restricted Stock Awards may incorporate all or any
15
of the terms of the Plan by reference and shall comply with and be subject to the following
terms and conditions:
8.1 Types of Restricted Stock Awards Authorized. Restricted Stock Awards may or may not
require the payment of cash compensation for the stock. Restricted Stock Awards may be granted
upon such conditions as the Committee shall determine, including, without limitation, upon the
attainment of one or more Performance Goals described in Section 9.4. If either the grant of a
Restricted Stock Award or the lapsing of the Restriction Period is to be contingent upon the
attainment of one or more Performance Goals, the Committee shall follow procedures substantially
equivalent to those set forth in Sections 9.3 through 9.5(a).
8.2 Purchase Price. The purchase price, if any, for shares of Stock issuable under each
Restricted Stock Award and the means of payment shall be established by the Committee in its
discretion.
8.3 Purchase Period. A Restricted Stock Award requiring the payment of cash consideration
shall be exercisable within a period established by the Committee; provided, however, that no
Restricted Stock Award granted to a prospective Employee, prospective Consultant or prospective
Director may become exercisable prior to the date on which such person commences Service.
8.4 Vesting and Restrictions on Transfer. Shares issued pursuant to any Restricted Stock
Award may or may not be made subject to Vesting Conditions based upon the satisfaction of such
Service requirements, conditions, restrictions or performance criteria, including, without
limitation, Performance Goals as described in Section 9.4, as shall be established by the Committee
and set forth in the Award Agreement evidencing such Award. During any Restriction Period in which
shares acquired pursuant to a Restricted Stock Award remain subject to Vesting Conditions, such
shares may not be sold, exchanged, transferred, pledged, assigned or otherwise disposed of other
than as provided in the Award Agreement or as provided in Section 8.7. Upon request by the Company,
each Participant shall execute any agreement evidencing such transfer restrictions prior to the
receipt of shares of Stock hereunder and shall promptly present to the Company any and all
certificates representing shares of Stock acquired hereunder for the placement on such certificates
of appropriate legends evidencing any such transfer restrictions.
8.5 Voting Rights; Dividends and Distributions. Except as provided in this Section, Section 8.4
and any Award Agreement, during the Restriction Period applicable to shares subject to a Restricted
Stock Award, the Participant shall have all of the rights of a shareholder of the Company holding
shares of Stock, including the right to vote such shares and to receive all dividends and other
distributions paid with respect to such shares. However, in the event of a dividend or
distribution paid in shares of Stock or any other adjustment made upon a change in the capital
structure of the Company as described in Section 4.2, any and all
new, substituted or additional securities or other property (other than normal cash dividends) to
which the Participant is entitled by reason of the Participants Restricted Stock Award shall be
immediately subject to the same Vesting Conditions as the shares subject to the Restricted Stock
Award with respect to which such dividends or distributions were paid or adjustments were made.
16
8.6 Effect of Termination of Service. Unless otherwise provided by the Committee in the grant
of a Restricted Stock Award and set forth in the Award Agreement, if a Participants Service
terminates for any reason, whether voluntary or involuntary (including the Participants death or
disability), then the Participant shall forfeit to the Company any shares acquired by the
Participant pursuant to a Restricted Stock Award which remain subject to Vesting Conditions as of
the date of the Participants termination of Service in exchange for the payment of the purchase
price, if any, paid by the Participant. The Company shall have the right to assign at any time any
repurchase right it may have, whether or not such right is then exercisable, to one or more persons
as may be selected by the Company.
8.7 Nontransferability of Restricted Stock Award Rights. Prior to the issuance of shares of
Stock pursuant to a Restricted Stock Award, rights to acquire such shares shall not be subject in
any manner to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance
or garnishment by creditors of the Participant or the Participants beneficiary, except transfer by
will or the laws of descent and distribution. All rights with respect to a Restricted Stock Award
granted to a Participant hereunder shall be exercisable during his or her lifetime only by such
Participant or the Participants guardian or legal representative.
9. Terms and Conditions of Performance Awards.
Performance Awards shall be evidenced by Award Agreements in such form as the Committee shall
from time to time establish. No Performance Award or purported Performance Award shall be a valid
and binding obligation of the Company unless evidenced by a fully executed Award Agreement. Award
Agreements evidencing Performance Awards may incorporate all or any of the terms of the Plan by
reference and shall comply with and be subject to the following terms and conditions:
9.1 Types of Performance Awards Authorized. Performance Awards may be in the form of either
Performance Shares or Performance Units. Each Award Agreement evidencing a Performance Award shall
specify the number of Performance Shares or Performance Units subject thereto, the Performance
Award Formula, the Performance Goal(s) and Performance Period applicable to the Award, and the
other terms, conditions and restrictions of the Award.
9.2 Initial Value of Performance Shares and Performance Units. Unless otherwise provided by
the Committee in granting a Performance Award, each Performance Share shall have an initial value
equal to the Fair Market Value of one (1) share of Stock, subject to adjustment as provided in
Section 4.2, on the effective date of grant of the Performance
Share. Each Performance Unit shall have an initial value determined by the Committee. The final
value payable to the Participant in settlement of a Performance Award determined on the basis of
the applicable Performance Award Formula will depend on the extent to which Performance Goals
established by the Committee are attained within the applicable Performance Period established by
the Committee.
9.3 Establishment of Performance Period, Performance Goals and Performance Award Formula. In
granting each Performance Award, the Committee shall
17
establish in writing the applicable Performance Period, Performance Award Formula and one or
more Performance Goals which, when measured at the end of the Performance Period, shall determine
on the basis of the Performance Award Formula the final value of the Performance Award to be paid
to the Participant. To the extent compliance with the requirements under Section 162(m) with
respect to performance-based compensation is desired, the Committee shall establish the
Performance Goal(s) and Performance Award Formula applicable to each Performance Award no later
than the earlier of (a) the date ninety (90) days after the commencement of the applicable
Performance Period or (b) the date on which 25% of the Performance Period has elapsed, and, in any
event, at a time when the outcome of the Performance Goals remains substantially uncertain. Once
established, the Performance Goals and Performance Award Formula shall not be changed during the
Performance Period. The Company shall notify each Participant granted a Performance Award of the
terms of such Award, including the Performance Period, Performance Goal(s) and Performance Award
Formula.
9.4 Measurement of Performance Goals. Performance Goals shall be established by the Committee
on the basis of targets to be attained (Performance Targets) with respect to one or more measures
of business or financial performance (each, a Performance Measure), subject to the following:
(a) Performance Measures. Performance Measures shall have the same meanings as used in the
Companys financial statements, or, if such terms are not used in the Companys financial
statements, they shall have the meaning applied pursuant to generally accepted accounting
principles, or as used generally in the Companys industry. Performance Measures shall be
calculated with respect to the Company and each Subsidiary Corporation consolidated therewith for
financial reporting purposes or such division or other business unit as may be selected by the
Committee. For purposes of the Plan, the Performance Measures applicable to a Performance Award
shall be calculated in accordance with generally accepted accounting principles, but prior to the
accrual or payment of any Performance Award for the same Performance Period and excluding the
effect (whether positive or negative) of any change in accounting standards or any extraordinary,
unusual or nonrecurring item, as determined by the Committee, occurring after the establishment of
the Performance Goals applicable to the Performance Award. Each such adjustment, if any, shall be
made solely for the purpose of providing a consistent basis from period to period for the
calculation of Performance Measures in order to prevent the dilution or enlargement of the
Participants rights with respect to a Performance Award. Performance Measures may be one or more
of the following, as determined by the Committee: revenue; sales; expenses; operating income;
gross margin; operating margin; earnings before any one or more of: stock-based compensation
expense, interest, taxes, depreciation and amortization; pre-tax profit; net operating income; net
income; economic value added; free cash flow; operating cash flow; stock price; earnings per share;
return on shareholder equity; return on capital; return on assets; return on investment; employee
satisfaction; employee retention; balance of cash, cash equivalents and marketable securities;
market share; daily average revenue trades; asset gathering metrics; number of customers; customer
satisfaction; product development; completion of a joint venture or other corporate transaction;
completion of identified special project; and overall effectiveness of management; or such other
measures as determined by the Committee consistent with this Section 9.4(a).
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(b) Performance Targets. Performance Targets may include a minimum, maximum, target level and
intermediate levels of performance, with the final value of a Performance Award determined under
the applicable Performance Award Formula by the level attained during the applicable Performance
Period. A Performance Target may be stated as an absolute value or as a value determined relative
to a standard selected by the Committee.
9.5 Settlement of Performance Awards.
(a) Determination of Final Value. As soon as practicable following the completion of the
Performance Period applicable to a Performance Award, the Committee shall certify in writing the
extent to which the applicable Performance Goals have been attained and the resulting final value
of the Award earned by the Participant and to be paid upon its settlement in accordance with the
applicable Performance Award Formula.
(b) Discretionary Adjustment of Award Formula. In its discretion, the Committee may, either
at the time it grants a Performance Award or at any time thereafter, provide for the positive or
negative adjustment of the Performance Award Formula applicable to a Performance Award that is not
intended to constitute qualified performance based compensation to a covered employee within
the meaning of Section 162(m) (a Covered Employee) to reflect such Participants individual
performance in his or her position with the Company or such other factors as the Committee may
determine. With respect to a Performance Award intended to constitute qualified performance-based
compensation to a Covered Employee, the Committee shall have the discretion to reduce some or all
of the value of the Performance Award that would otherwise be paid to the Covered Employee upon its
settlement notwithstanding the attainment of any Performance Goal and the resulting value of the
Performance Award determined in accordance with the Performance Award Formula.
(c) Payment in Settlement of Performance Awards. As soon as practicable following the
Committees determination and certification in accordance with Sections 9.5(a) and (b), payment shall be
made to each eligible Participant (or such Participants legal representative or other person who
acquired the right to receive such payment by reason of the Participants death) of the final value
of the Participants Performance Award. Payment of such amount shall be made in cash, shares of
Stock, or a combination thereof as determined by the Committee.
9.6 Voting Rights; Dividend Equivalent Rights and Distributions. Participants shall have no
voting rights with respect to shares of Stock represented by Performance Share Awards until the
date of the issuance of such shares, if any (as evidenced by the appropriate entry on the books of
the Company or of a duly authorized transfer agent of the Company). However, the Committee, in its
discretion, may provide in the Award Agreement evidencing any Performance Share Award that the
Participant shall be entitled to receive Dividend Equivalents with respect to the payment of cash
dividends on Stock having a record date prior to the date on which the Performance Shares are
settled or forfeited. Such Dividend Equivalents, if any, shall be credited to the Participant in
the form of additional whole Performance Shares as of the date of payment of such cash dividends on
Stock. The number of additional Performance Shares (rounded to the nearest whole number) to be so
credited shall be determined by dividing (a) the amount of cash dividends paid on such date with
respect to the
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number of shares of Stock represented by the Performance Shares previously credited to the
Participant by (b) the Fair Market Value per share of Stock on such date. Dividend
Equivalents may be paid currently or may be accumulated and paid to the extent that Performance
Shares become nonforfeitable, as determined by the Committee. Settlement of Dividend Equivalents
may be made in cash, shares of Stock, or a combination thereof as determined by the Committee, and
may be paid on the same basis as settlement of the related Performance Share as provided in
Section 9.5. Dividend Equivalents shall not be paid with respect to Performance Units. In the event
of a dividend or distribution paid in shares of Stock or any other adjustment made upon a change in
the capital structure of the Company as described in Section 4.2,
appropriate adjustments shall be made in the Participants Performance Share Award so that it
represents the right to receive upon settlement any and all new, substituted or additional
securities or other property (other than normal cash dividends) to which the Participant would
entitled by reason of the shares of Stock issuable upon settlement of the Performance Share Award,
and all such new, substituted or additional securities or other property shall be immediately
subject to the same Performance Goals as are applicable to the Award.
9.7 Effect of Termination of Service. Unless otherwise provided by the Committee in the grant
of a Performance Award and set forth in the Award Agreement, the effect of a Participants
termination of Service on the Performance Award shall be as follows:
(a) Death or Disability. If the Participants Service terminates because of the death or
Disability of the Participant before the completion of the Performance Period applicable to the
Performance Award, the final value of the Participants Performance Award shall be determined by
the extent to which the applicable Performance Goals have been attained with respect to the entire
Performance Period and shall be prorated based on the number of months of the Participants Service
during the Performance Period. Payment shall be made following the end of the Performance Period
in any manner permitted by Section 9.5.
(b) Other Termination of Service. If the Participants Service terminates for any reason
except death or Disability before the completion of the Performance Period applicable to the
Performance Award, such Award shall be forfeited in its entirety; provided, however, that in the
event of an involuntary termination of the Participants Service, the Committee, in its sole
discretion, may waive the automatic forfeiture of all or any portion of any such Award.
9.8 Nontransferability of Performance Awards. Prior to settlement in accordance with the
provisions of the Plan, no Performance Award shall be subject in any manner to anticipation,
alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors
of the Participant or the Participants beneficiary, except transfer by will or by the laws of
descent and distribution. All rights with respect to a Performance Award granted to a Participant
hereunder shall be exercisable during his or her lifetime only by such Participant or the
Participants guardian or legal representative.
10. Terms and Conditions of Restricted Stock Unit Awards.
Restricted Stock Unit Awards shall be evidenced by Award Agreements specifying the number of
Restricted Stock Units subject to the Award, in such form as the
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Committee shall from time to time establish. No Restricted Stock Unit Award or purported
Restricted Stock Unit Award shall be a valid and binding obligation of the Company unless evidenced
by a fully executed Award Agreement. Award Agreements evidencing Restricted Stock Units may
incorporate all or any of the terms of the Plan by reference and shall comply with and be subject
to the following terms and conditions:
10.1 Grant of Restricted Stock Unit Awards. Restricted Stock Unit Awards may be granted upon
such conditions as the Committee shall determine, including, without limitation, upon the
attainment of one or more Performance Goals described in Section 9.4. If either the grant of a
Restricted Stock Unit Award or the Vesting Conditions with respect to such Award is to be
contingent upon the attainment of one or more Performance Goals, the Committee shall follow
procedures substantially equivalent to those set forth in Sections 9.3 through 9.5(a).
10.2 Vesting. Restricted Stock Units may or may not be made subject to Vesting Conditions
based upon the satisfaction of such Service requirements, conditions, restrictions or performance
criteria, including, without limitation, Performance Goals as described in Section 9.4, as shall be
established by the Committee and set forth in the Award Agreement evidencing such Award.
10.3 Voting Rights, Dividend Equivalent Rights and Distributions. Participants shall have no
voting rights with respect to shares of Stock represented by Restricted Stock Units until the date
of the issuance of such shares (as evidenced by the appropriate entry on the books of the Company
or of a duly authorized transfer agent of the Company). However, the Committee, in its discretion,
may provide in the Award Agreement evidencing any Restricted Stock Unit Award that the Participant
shall be entitled to receive Dividend Equivalents with respect to the payment of cash dividends on
Stock having a record date prior to the date on which Restricted Stock Units held by such
Participant are settled. Such Dividend Equivalents, if any, shall be paid by crediting the
Participant with additional whole Restricted Stock Units as of the date of payment of such cash
dividends on Stock. The number of additional Restricted Stock Units (rounded to the nearest whole
number) to be so credited shall be determined by dividing (a) the amount of cash dividends paid on
such date with respect to the number of shares of Stock represented by the Restricted Stock Units
previously credited to the Participant by (b) the Fair Market Value per share of Stock on such
date. Such additional Restricted Stock Units shall be subject to the same terms and conditions and
shall be settled in the same manner and at the same time (or as soon thereafter as practicable) as
the Restricted Stock Units originally subject to the Restricted Stock Unit Award. In the event of
a dividend or distribution paid in shares of Stock or any other adjustment made upon a change in
the capital structure of the Company as described in Section 4.2,
appropriate adjustments shall be made in the Participants Restricted Stock Unit Award so that it
represents the right to receive upon settlement any and all new, substituted or additional
securities or other property (other than normal cash dividends) to which the Participant would
entitled by reason of the shares of Stock issuable upon settlement of the Award, and all such new,
substituted or additional securities or other property shall be immediately subject to the same
Vesting Conditions as are applicable to the Award.
10.4 Effect of Termination of Service. Unless otherwise provided by the Committee in the
grant of a Restricted Stock Unit Award and set forth in the Award Agreement,
21
if a Participants Service terminates for any reason, whether voluntary or involuntary
(including the Participants death or disability), then the Participant shall forfeit to the
Company any Restricted Stock Units pursuant to the Award which remain subject to Vesting Conditions
as of the date of the Participants termination of Service.
10.5 Settlement of Restricted Stock Unit Awards. The Company shall issue to a Participant on
the date on which Restricted Stock Units subject to the Participants Restricted Stock Unit Award
vest or on such other date determined by the Committee, in its discretion, and set forth in the
Award Agreement one (1) share of Stock (and/or any other new, substituted or additional securities
or other property pursuant to an adjustment described in Section 10.3) for each Restricted Stock Unit
then becoming vested or otherwise to be settled on such date, subject to the withholding of
applicable taxes. Notwithstanding the foregoing, if permitted by the Committee and set forth in
the Award Agreement, the Participant may elect in accordance with terms specified in the Award
Agreement to defer receipt of all or any portion of the shares of Stock or other property otherwise
issuable to the Participant pursuant to this Section.
10.6 Nontransferability of Restricted Stock Unit Awards. Prior to the issuance of shares of
Stock in settlement of a Restricted Stock Unit Award, the Award shall not be subject in any manner
to anticipation, alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or
garnishment by creditors of the Participant or the Participants beneficiary, except transfer by
will or by the laws of descent and distribution. All rights with respect to a Restricted Stock
Unit Award granted to a Participant hereunder shall be exercisable during his or her lifetime only
by such Participant or the Participants guardian or legal representative.
11. Deferred Compensation Awards.
11.1 Establishment of Deferred Compensation Award Programs. This Section 11 shall not be
effective unless and until the Committee determines to establish a program pursuant to this
Section. The Committee, in its discretion and upon such terms and conditions as it may determine,
may establish one or more programs pursuant to the Plan under which:
(a) Participants designated by the Committee who are Insiders or otherwise among a select
group of highly compensated Employees may irrevocably elect, prior to a date specified by the
Committee, to reduce such Participants compensation otherwise payable in cash (subject to any
minimum or maximum reductions imposed by the Committee) and to be granted automatically at such
time or times as specified by the Committee one or more Awards of Stock Units with respect to such
numbers of shares of Stock as determined in accordance with the rules of the program established by
the Committee and having such other terms and conditions as established by the Committee.
(b) Participants designated by the Committee who are Insiders or otherwise among a select
group of highly compensated Employees may irrevocably elect, prior to a date specified by the
Committee, to be granted automatically an Award of Stock Units with respect to such number of
shares of Stock and upon such other terms and conditions as established by the Committee in lieu
of:
22
(i) shares of Stock otherwise issuable to such Participant upon the exercise of an Option;
(ii) cash or shares of Stock otherwise issuable to such Participant upon the exercise of an
SAR; or
(iii) cash or shares of Stock otherwise issuable to such Participant upon the settlement of a
Performance Award or Performance Unit.
11.2 Terms and Conditions of Deferred Compensation Awards. Deferred Compensation Awards
granted pursuant to this Section 11 shall be evidenced by Award Agreements in such form as the
Committee shall from time to time establish. No such Deferred Compensation Award or purported
Deferred Compensation Award shall be a valid and binding obligation of the Company unless evidenced
by a fully executed Award Agreement. Award Agreements evidencing Deferred Compensation Awards may
incorporate all or any of the terms of the Plan by reference and shall comply with and be subject
to the following terms and conditions:
(a) Vesting Conditions. Deferred Compensation Awards shall not be subject to any vesting
conditions.
(b) Terms and Conditions of Stock Units.
(i) Voting Rights; Dividend Equivalent Rights and Distributions. Participants shall have no
voting rights with respect to shares of Stock represented by Stock Units until the date of the
issuance of such shares (as evidenced by the appropriate entry on the books of the Company or of a
duly authorized transfer agent of the Company). However, a Participant shall be entitled to
receive Dividend Equivalents with respect to the payment of cash dividends on Stock having a record
date prior to date on which Stock Units held by such Participant are settled. Such Dividend
Equivalents shall be paid by crediting the Participant with additional whole and/or fractional
Stock Units as of the date of payment of such cash dividends on Stock. The method of determining
the number of additional Stock Units to be so credited shall be specified by the Committee and set
forth in the Award Agreement. Such additional Stock Units shall be subject to the same terms and
conditions and shall be settled in the same manner and at the same time (or as soon thereafter as
practicable) as the Stock Units originally subject to the Stock Unit Award. In the event of a
dividend or distribution paid in shares of Stock or any other adjustment made upon a change in the
capital structure of the Company as described in Section 4.2,
appropriate adjustments shall be made in the Participants Stock Unit Award so that it represent
the right to receive upon settlement any and all new, substituted or additional securities or other
property (other than normal cash dividends) to which the Participant would be entitled by reason of
the shares of Stock issuable upon settlement of the Award.
(ii) Settlement of Stock Unit Awards. A Participant electing to receive an Award of Stock
Units pursuant to this Section 11, shall specify at the time of such election a settlement date
with respect to such Award. The Company shall issue to the Participant as soon as practicable
following the earlier of the settlement date elected by the
23
Participant or the date of termination of the Participants Service, a number of whole shares
of Stock equal to the number of whole Stock Units subject to the Stock Unit Award. Such shares of
Stock shall be fully vested, and the Participant shall not be required to pay any additional
consideration (other than applicable tax withholding) to acquire such shares. Any fractional Stock
Unit subject to the Stock Unit Award shall be settled by the Company by payment in cash of an
amount equal to the Fair Market Value as of the payment date of such fractional share.
(iii) Nontransferability of Stock Unit Awards. Prior to their settlement in accordance with
the provision of the Plan, no Stock Unit Award shall be subject in any manner to anticipation,
alienation, sale, exchange, transfer, assignment, pledge, encumbrance, or garnishment by creditors
of the Participant or the Participants beneficiary, except transfer by will or by the laws of
descent and distribution. All rights with respect to a Stock Unit Award granted to a Participant
hereunder shall be exercisable during his or her lifetime only by such Participant or the
Participants guardian or legal representative.
12. Other Stock-Based Awards.
In addition to the Awards set forth in Sections 6 through 11 above, the Committee, in its sole
discretion, may carry out the purpose of this Plan by awarding Stock-Based Awards as it determines
to be in the best interests of the Company and subject to such other terms and conditions as it
deems necessary and appropriate.
13. Change in Control.
Notwithstanding any other provision of the Plan, any unexercisable or unvested portion of each
outstanding Award held by a Nonemployee Director or an officer and any shares acquired upon the
exercise thereof shall be immediately exercisable and vested in full as of the date ten (10) days
prior to the date of a Change in Control but conditioned upon the consummation of the Change in
Control.
13.1 Effect of Change in Control on Options and SARs.
(a) Accelerated Vesting. Notwithstanding any other provision of the Plan to the contrary
except as provided in this Section 13, the Committee, in its sole discretion, may provide in any
Award Agreement or, in the event of a Change in Control, may take such actions as it deems
appropriate to provide for the acceleration of the exercisability and vesting in connection with
such Change in Control of any or all outstanding Options and SARs and shares acquired upon the
exercise of such Options and SARs upon such conditions and to such extent as the Committee shall
determine.
(b) Assumption or Substitution. In the event of a Change in Control, the surviving,
continuing, successor, or purchasing entity or parent thereof, as the case may be (the Acquiror),
may, without the consent of any Participant, either assume the Companys rights and obligations
under outstanding Options and SARs or substitute for outstanding Options and SARs substantially
equivalent options and SARs (as the case may be) for the Acquirors stock. Any Options or SARs
which are not assumed by the Acquiror in connection with the Change in Control nor exercised as of
the time of consummation of the Change in Control shall
24
terminate and cease to be outstanding effective as of the time of consummation of the Change
in Control.
(c) Cash-Out of Options. The Committee may, in its sole discretion and without the consent of
any Participant, determine that, upon the occurrence of a Change in Control, each or any Option or
SAR outstanding immediately prior to the Change in Control shall be canceled in exchange for a
payment with respect to each vested share of Stock subject to such canceled Option or SAR in (i)
cash, (ii) stock of the Company or of a corporation or other business entity a party to the Change
in Control, or (iii) other property which, in any such case, shall be in an amount having a Fair
Market Value equal to the excess of the Fair Market Value of the consideration to be paid per share
of Stock in the Change in Control over the exercise price per share under such Option or SAR (the
Spread). In the event such determination is made by the Committee, the Spread (reduced by
applicable withholding taxes, if any) shall be paid to Participants in respect of their canceled
Options and SARs as soon as practicable following the date of the Change in Control.
13.2 Effect of Change in Control on Restricted Stock Awards. The Committee may, in its
discretion, provide in any Award Agreement evidencing a Restricted Stock Award that, in the event
of a Change in Control, the lapsing of the Restriction Period applicable to the shares subject to
the Restricted Stock Award held by a Participant whose Service has not terminated prior to the
Change in Control shall be accelerated effective immediately prior to the consummation of the
Change in Control to such extent as specified in such Award Agreement. Any acceleration of the
lapsing of the Restriction Period that was permissible solely by reason of this Section 13.2 and
the provisions of such Award Agreement shall be conditioned upon the consummation of the Change in
Control.
13.3 Effect of Change in Control on Performance Awards. The Committee may, in its discretion,
provide in any Award Agreement evidencing a Performance Award that, in the event of a Change in
Control, the Performance Award held by a Participant whose Service has not terminated prior to the
Change in Control or whose Service terminated by reason of the Participants death or Disability
shall become payable effective as of the date of the Change in Control to such extent as specified
in such Award Agreement.
13.4 Effect of Change in Control on Restricted Stock Unit Awards. The Committee may, in its
discretion, provide in any Award Agreement evidencing a Restricted Stock Unit Award that, in the
event of a Change in Control, the Restricted Stock Unit Award held by a Participant whose Service
has not terminated prior to such date shall be settled effective as of the date of the Change in
Control to such extent as specified in such Award Agreement.
13.5 Effect of Change in Control on Deferred Compensation and Other Stock-Based Awards. The
Committee may, in its discretion, provide in any Award Agreement evidencing a Deferred Compensation
Award or other Stock-Based Award that, in the event of a Change in Control, the amounts payable
pursuant to such Award shall be settled effective as of the date of the Change in Control to such
extent as specified in such Award Agreement.
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14. Compliance with Securities Law.
The grant of Awards and the issuance of shares of Stock pursuant to any Award shall be subject
to compliance with all applicable requirements of federal, state and foreign law with respect to
such securities and the requirements of any stock exchange or market system upon which the Stock
may then be listed. In addition, no Award may be exercised or shares issued pursuant to an Award
unless (a) a registration statement under the Securities Act shall at the time of such exercise or
issuance be in effect with respect to the shares issuable pursuant to the Award or (b) in the
opinion of legal counsel to the Company, the shares issuable pursuant to the Award may be issued in
accordance with the terms of an applicable exemption from the registration requirements of the
Securities Act. The inability of the Company to obtain from any regulatory body having
jurisdiction the authority, if any, deemed by the Companys legal counsel to be necessary to the
lawful issuance and sale of any shares hereunder shall relieve the Company of any liability in
respect of the failure to issue or sell such shares as to which such requisite authority shall not
have been obtained. As a condition to issuance of any Stock, the Company may require the
Participant to satisfy any qualifications that may be necessary or appropriate, to evidence
compliance with any applicable law or regulation and to make any representation or warranty with
respect thereto as may be requested by the Company.
15. Tax Withholding.
15.1 Tax Withholding in General. The Company shall have the right to deduct from any and all
payments made under the Plan, or to require the Participant, through payroll withholding, cash
payment or otherwise, including by means of a Cashless Exercise or Net Exercise of an Option, to
make adequate provision for, the federal, state, local and foreign taxes, if any, required by law
to be withheld by the Participating Company Group with respect to an Award or the shares acquired
pursuant thereto. The Company shall have no obligation to deliver shares of Stock, to release
shares of Stock from an escrow established pursuant to an Award Agreement, or to make any payment
in cash under the Plan until the Participating Company Groups tax withholding obligations have
been satisfied by the Participant.
15.2 Withholding in Shares. The Company shall have the right, but not the obligation, to
deduct from the shares of Stock issuable to a Participant upon the exercise or settlement of an
Award, or to accept from the Participant the tender of, a number of whole shares of Stock having a
Fair Market Value, as determined by the Company, equal to all or any part of the tax withholding
obligations of the Participating Company Group. The Fair Market Value of any shares of Stock
withheld or tendered to satisfy any such tax withholding obligations shall not exceed the amount
determined by the applicable minimum statutory withholding rates.
16. Amendment or Termination of Plan.
The Board or the Committee may amend, suspend or terminate the Plan at any time. However,
without the approval of the Companys shareholders, there shall be (a) no increase in the maximum
aggregate number of shares of Stock that may be issued under the Plan (except by operation of the
provisions of Section 4.2), (b) no change in the class of persons eligible to receive Incentive
Stock Options, and (c) no other amendment of the Plan that would require approval of the Companys
shareholders under any applicable law, regulation or rule. No
26
amendment, suspension or termination of the Plan shall affect any then outstanding Award
unless expressly provided by the Board or the Committee. In any event, no amendment, suspension or
termination of the Plan may adversely affect any then outstanding Award without the consent of the
Participant unless necessary to comply with any applicable law, regulation or rule, including
Section 409A of the Code.
17. Miscellaneous Provisions.
17.1 Repurchase Rights. Shares issued under the Plan may be subject to one or more repurchase
options, or other conditions and restrictions as determined by the Committee in its discretion at
the time the Award is granted. The Company shall have the right to assign at any time any
repurchase right it may have, whether or not such right is then exercisable, to one or more persons
as may be selected by the Company. Upon request by the Company, each Participant shall execute any
agreement evidencing such transfer restrictions prior to the receipt of shares of Stock hereunder
and shall promptly present to the Company any and all certificates representing shares of Stock
acquired hereunder for the placement on such certificates of appropriate legends evidencing any
such transfer restrictions.
17.2 Provision of Information. Each Participant shall be given access to information
concerning the Company equivalent to that information generally made available to the Companys
common shareholders.
17.3 Rights as Employee, Consultant or Director. No person, even though eligible pursuant to
Section 5, shall have a right to be selected as a Participant, or,
having been so selected, to be selected again as a Participant. Nothing in the Plan or any Award
granted under the Plan shall confer on any Participant a right to remain an Employee, Consultant or
Director or interfere with or limit in any way any right of a Participating Company to terminate
the Participants Service at any time. To the extent that an Employee of a Participating Company
other than the Company receives an Award under the Plan, that Award shall in no event be understood
or interpreted to mean that the Company is the Employees employer or that the Employee has an
employment relationship with the Company.
17.4 Rights as a Shareholder. A Participant shall have no rights as a shareholder with
respect to any shares covered by an Award until the date of the issuance of such shares (as
evidenced by the appropriate entry on the books of the Company or of a duly authorized transfer
agent of the Company). No adjustment shall be made for dividends, distributions or other rights
for which the record date is prior to the date such shares are issued, except as provided in
Section 4.2 or another provision of the Plan.
17.5 Fractional Shares. The Company shall not be required to issue fractional shares upon the
exercise or settlement of any Award.
17.6 Severability. If any one or more of the provisions (or any part thereof) of this Plan
shall be held invalid, illegal or unenforceable in any respect, such provision shall be modified so
as to make it valid, legal and enforceable, and the validity, legality and enforceability of the
remaining provisions (or any part thereof) of the Plan shall not in any way be affected or impaired
thereby.
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17.7 Beneficiary Designation. Subject to local laws and procedures, each Participant may file
with the Company a written designation of a beneficiary who is to receive any benefit under the
Plan to which the Participant is entitled in the event of such Participants death before he or she
receives any or all of such benefit. Each designation will revoke all prior designations by the
same Participant, shall be in a form prescribed by the Company, and will be effective only when
filed by the Participant in writing with the Company during the Participants lifetime. If a
married Participant designates a beneficiary other than the Participants spouse, the effectiveness
of such designation may be subject to the consent of the Participants spouse. If a Participant
dies without an effective designation of a beneficiary who is living at the time of the
Participants death, the Company will pay any remaining unpaid benefits to the Participants legal
representative.
17.8 Unfunded Obligation. Participants shall have the status of general unsecured creditors
of the Company. Any amounts payable to Participants pursuant to the Plan shall be unfunded and
unsecured obligations for all purposes, including, without limitation, Title I of the Employee
Retirement Income Security Act of 1974. No Participating Company shall be required to segregate
any monies from its general funds, or to create any trusts, or establish any special accounts with
respect to such obligations. The Company shall retain at all times beneficial ownership of any
investments, including trust investments, which the Company may make to fulfill its payment
obligations hereunder. Any investments or the creation or maintenance of any trust or any
Participant account shall not create or constitute a trust or fiduciary relationship between the
Committee or any Participating Company and a Participant, or otherwise create any vested or
beneficial interest in any Participant or the Participants creditors in any assets of any
Participating Company. The Participants shall have no claim against any Participating Company for
any changes in the value of any assets which may be invested or reinvested by the Company with
respect to the Plan. Each Participating Company shall be responsible for making benefit payments
pursuant to the Plan on behalf of its Participants or for reimbursing the Company for the cost of
such payments, as determined by the Company in its sole discretion. In the event the respective
Participating Company fails to make such payment or reimbursement, a Participants (or other
individuals) sole recourse shall be against the respective Participating Company, and not against
the Company. A Participants acceptance of an Award pursuant to the Plan shall constitute
agreement with this provision.
17.9 Choice of Law. Except to the extent governed by applicable federal law, the validity,
interpretation, construction and performance of the Plan and each Award Agreement shall be governed
by the laws of the State of California, without regard to its conflict of law rules.
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Electronic Voting Instructions
You can vote by Internet or telephone!
Available 24 hours a day, 7 days a
week!
Instead of mailing your proxy, you may choose one of the two voting
methods outlined below to vote your proxy.
VALIDATION
DETAILS ARE LOCATED BELOW IN THE TITLE BAR.
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Proxies submitted by the Internet or telephone must be received by 1:00 a.m., Central Time, on October 28, 2008. |
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Vote by
Internet Log
on to the Internet and go to
www.investorvote.com/ABAX Follow the steps outlined on the secured website. |
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Vote by
telephone Call toll free 1-800-652-VOTE (8683) within the United
States, Canada &
Puerto Rico any time on a touch tone telephone. There is NO CHARGE to you for the call. |
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Follow the instructions provided by the recorded message. |
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Using a black ink pen, mark your votes with an X as shown in this example. Please do not write
outside the designated areas. |
x |
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Annual Meeting Proxy Card
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IF YOU HAVE NOT VOTED VIA THE INTERNET OR TELEPHONE, FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE.
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A
Proposals The Board of Directors recommends a vote FOR all the nominees listed and FOR Proposal 2 and Proposal 3.
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1. |
Election of Directors: |
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Withhold |
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01 Clinton H. Severson *
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02 Richard J. Bastiani, Ph.D. *
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03 Henk J. Evenhuis *
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For |
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Withhold |
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04 Brenton G. A. Hanlon *
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05 Prithipal Singh, Ph.D. *
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06 Ernest S. Tucker III, M.D. * |
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2.
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To approve and ratify the adoption of an increase in the maximum aggregate number of shares of Common Stock that may be
issued under Abaxis 2005 Equity Incentive Plan by 500,000 shares, from 4,886,000 to 5,386,000 shares.
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For
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Against
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Abstain
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3.
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To ratify the appointment of Burr, Pilger & Mayer LLP as the independent registered public accounting firm of Abaxis, Inc. for the fiscal year ending March 31, 2009. |
For
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Abstain [ ] |
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B Non-Voting
Items |
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Change of Address
Please print your new address below.
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Comments Please print your comments below.
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Meeting Attendance Mark the box to the right
if you plan to attend the
Annual Meeting. |
[ ] |
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C |
Authorized
Signatures
This section must be completed for your vote to be counted.
Date and Sign Below
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Please sign here exactly as your name(s) appears on your stock certificate. If shares of stock are held jointly, both or all of such persons should sign. Corporate or partnership proxies should be signed in full corporate name by an authorized person. Persons signing in a fiduciary capacity should indicate their full titles in such capacity. Please date the Proxy.
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Date (mm/dd/yyyy) Please print date below.
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Signature 1 Please keep signature within the box.
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Signature 2 Please keep signature within the box. |
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IF YOU HAVE NOT VOTED VIA THE INTERNET OR TELEPHONE, FOLD ALONG THE PERFORATION, DETACH AND RETURN THE BOTTOM PORTION IN THE ENCLOSED ENVELOPE.
Proxy Abaxis, Inc.
PROXY FOR ANNUAL MEETING OF SHAREHOLDERS
TO BE HELD ON OCTOBER 28, 2008
SOLICITED BY THE BOARD OF DIRECTORS
The undersigned hereby appoints Clinton H. Severson and Alberto R. Santa Ines, and each of them, with full power of substitution, to represent the undersigned and to vote all of the shares of stock in Abaxis, Inc. a California corporation, which the undersigned is entitled to vote at the Annual Meeting of Shareholders of Abaxis to be held at the principal offices
of Abaxis at 3240 Whipple Road, Union City, California 94587, on Tuesday, October 28, 2008, at 10:00 a.m. local time,
and at any adjournment or postponement thereof (1) as hereinafter specified upon the proposals listed on the reverse side
and as more particularly described in the Proxy Statement for the 2008 Annual Meeting of Abaxis Shareholders
(the Proxy Statement), receipt of which is hereby acknowledged, and (2) in their discretion upon
such other matters as may properly come before the meeting.
THE SHARES REPRESENTED HEREBY SHALL BE VOTED AS SPECIFIED.
IF NO SPECIFICATION IS MADE, SUCH SHARES SHALL BE VOTED FOR ALL NOMINEES UNDER PROPOSAL 1 AND FOR
PROPOSAL 2 AND PROPOSAL 3.
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING IN PERSON, YOU ARE URGED TO SIGN AND PROMPTLY MAIL THIS PROXY IN THE RETURN ENVELOPE SO THAT YOUR STOCK MAY BE REPRESENTED AT THE MEETING.