def14a
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Filed by the
Registrant þ
Filed by a Party other than the
Registrant o
Check the appropriate box:
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
CAS MEDICAL SYSTEMS, 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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þ
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No fee required.
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o
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Fee computed on table below per Exchange Act
Rules 14a-6(i)(1)
and 0-11.
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(1)
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Title of each class of securities to which transaction applies:
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(2)
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Aggregate number of securities to which transaction applies:
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(3)
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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 determined):
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(4)
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Proposed maximum aggregate value of transaction:
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o
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Fee paid previously with preliminary materials.
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o
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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 date of its
filing.
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(1)
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Amount Previously Paid:
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(2)
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Form, Schedule or Registration Statement No.:
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April 26, 2011
Dear Fellow Stockholder:
We will hold our 2011 annual meeting of stockholders at
10:30 a.m. on Wednesday, June 8, 2011 at The
WoodWinds, 29 Schoolground Road, Branford, Connecticut.
The notice of annual meeting, proxy statement and proxy card
accompanying this letter describe in detail the matters to be
acted upon at the meeting.
It is important that your shares be represented at the meeting.
Whether or not you plan to attend, please sign, date and return
your proxy card in the enclosed envelope as soon as possible.
We look forward to seeing you at the meeting.
Sincerely yours,
Louis P. Scheps
Chairman of the Board
CAS
MEDICAL SYSTEMS, INC.
NOTICE OF
ANNUAL MEETING
The annual meeting of stockholders of CAS Medical Systems, Inc.
will be held at 10:30 a.m. on Wednesday, June 8, 2011
at The WoodWinds, 29 Schoolground Road, Branford, Connecticut.
The items of business at the annual meeting are:
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1.
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Election of seven directors.
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2.
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Approval of the CAS Medical Systems, Inc. 2011 Equity Incentive
Plan.
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3.
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Appointment of independent accountants for 2011.
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4.
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Such other matters as may properly come before the meeting,
including any continuation of the meeting caused by any
adjournment or any postponement of the meeting.
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April 20, 2011 is the record date for the meeting.
This Proxy Statement and accompanying proxy card are being
distributed on or about April 27, 2011.
Jeffery A. Baird
Secretary
THIS PROXY STATEMENT AND THE 2010 ANNUAL REPORT ARE AVAILABLE
AT WWW.CASMED.COM.
CAS
MEDICAL SYSTEMS, INC.
44 East Industrial Road
Branford, Connecticut 06405
PROXY
STATEMENT
The
Annual Meeting and Voting
Our board of directors is soliciting proxies to be used at the
annual meeting of stockholders to be held on Wednesday,
June 8, 2011, or at any adjournment of the meeting. This
proxy statement contains information about the items being voted
on at the annual meeting.
Who is
entitled to vote?
Record stockholders of CAS Medical Systems, Inc. (CASMED) common
stock at the close of business on April 20, 2011 (the
record date) can vote at the meeting. As of the record date,
13,547,933 shares of CASMED common stock were issued and
outstanding. Each stockholder has one vote for each share of
common stock owned as of the record date. A list of all
stockholders entitled to vote at the meeting will be available
for examination by any stockholder for any purpose germane to
the meeting at our office at 44 East Industrial Road, Branford,
Connecticut, for the
ten-day
period immediately preceding the meeting.
How do I
vote?
A form of proxy card and a return envelope for the proxy card
are enclosed. Giving your proxy means that you authorize the
persons named in the enclosed proxy card to vote your shares at
the CASMED annual meeting in the manner you direct. You may vote
by proxy or in person at the annual meeting. To vote by proxy,
if you are a registered holder, please complete, sign and return
your proxy card in the accompanying postage-paid return envelope.
If any proxy is returned without indication as to how to vote,
the CASMED common stock represented by the proxy will be voted
by the persons named on the proxy in favor of each proposal and
in accordance with their best judgment on any other matters
which may come before the meeting.
How do I
vote if my shares are held in street name?
If your broker holds your shares of CASMED common stock in
street name, you must either direct your broker on how to vote
your shares or obtain a proxy from your broker to vote in person
at the annual meeting. If your shares are held in street name,
you should check the voting form that you receive to determine
whether shares may be voted by telephone or the internet.
May I
change my vote?
You may revoke your proxy at any time before it is voted at the
meeting in several ways. You may (i) send in a revised
proxy dated later than the first, (ii) vote in person at
the meeting, or (iii) notify our Secretary in writing prior
to the meeting that you have revoked your proxy.
What
constitutes a quorum?
The holders of a majority of the outstanding shares entitled to
vote at the meeting, present in person or represented by proxy,
constitute a quorum. Abstentions, broker non-votes and votes
withheld from director nominees are included in the count to
determine a quorum. If a quorum is present, each of the seven
director candidates who receive a majority of the votes of the
shares present in person or represented by proxy and entitled to
vote on the election of directors will be elected.
Proposals 2 and 3 will be approved if a quorum is present
and a majority of the votes cast by holders present in person or
represented by proxy are cast in favor of the applicable
proposal.
What is
the effect of broker non-votes and abstentions?
Under Nasdaq rules, if your broker holds your shares in its
street name, the broker may under certain
circumstances vote your shares on the agenda items even if it
does not receive instructions from you. Although they are
included in determining whether a quorum is present, broker
non-votes and abstentions are not considered votes cast on the
matters before the meeting and neither will have an effect on
the voting for these proposals.
By when
must stockholder proposals be submitted for the 2012 annual
meeting?
Stockholder proposals intended to be presented at our 2012
annual meeting pursuant to Securities Exchange Act
Rule 14a-8
must be received by our Secretary not later than
December 28, 2011, for inclusion in our proxy statement and
form of proxy relating to that meeting. Stockholder proposals
submitted outside the process provided in
Rule 14a-8
shall be considered untimely in accordance with
Rule 14a-5(e)
if made after March 4, 2012.
Which
stockholders own at least 5% of CASMED?
Other than a director listed in the director and officer
ownership table below, the only persons or groups known to us to
be beneficial owners of more than 5% of our outstanding common
stock as of April 20, 2011 are reflected in the chart
below. The following information is based upon Schedules 13D,
13F and 13G filed with the Securities and Exchange Commission by
the persons and entities shown as of the respective dates
appearing below or other information obtained by the company.
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Name and Address of
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Amount and Nature of
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Beneficial Owners
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Beneficial Ownership
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Percent of Class
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BMI Capital Corporation
570 Lexington Avenue
New York, NY 10022
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2,760,468
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(a)
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20.4
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%
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J. Sanford Davis
14 Longview Terrace
Madison, CT 06443
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921,500
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6.8
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%
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Norman H. Pessin
Sandra F. Pessin
366 Madison Avenue
14th
Floor
New York, NY 10017
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684,050
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(b)
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5.0
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%
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(a) |
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Based upon information set forth in a Schedule 13F filed
with the SEC on February 15, 2011. BMI Capital Corporation
holds sole dispositive power over the indicated shares. |
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(b) |
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Based upon information set forth in a Schedule 13D filed
with the SEC on June 29, 2010. Includes 284,050 shares
held by SEP IRA FBO Norman Pessin. |
2
How much
stock is owned by directors and executive officers?
The following table shows beneficial ownership of CASMED common
stock as of April 20, 2011 by our directors and our
executive officers and a former executive officer named in the
compensation tables in this proxy statement. Shares issuable
upon exercise of options or warrants are shown in a separate
column.
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Options and
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Shares Deemed to be
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Warrants
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Beneficially Owned
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Exercisable Within
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Percent
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Name of Beneficial
Owner
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(a)
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60 Days (b)
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of Class
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Jerome Baron
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125,431
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7,500
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*
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Lawrence S. Burstein
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103,106
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(c)
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115,000
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1.6
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%
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Evan Jones
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362,223
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(d)
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20,000
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2.8
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%
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Gregory P. Rainey
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1,977
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*
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Louis P. Scheps
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141,656
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714,401
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6.0
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%
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Kenneth R. Weisshaar
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6,849
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6,666
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*
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Thomas M. Patton
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478,300
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(e)
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65,625
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4.0
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%
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Jeffery A. Baird
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58,711
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110,000
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1.2
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%
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Matthew P. Herwig
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25,000
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*
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Andrew E. Kersey
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75,658
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80,000
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1.1
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%
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All current executive officers and directors as a group (9)
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1,303,253
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1,039,192
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16.1
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%
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Less than one percent of the class |
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(a) |
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Includes restricted stock held by the named individuals as
follows: Mr. Scheps, Mr. Baron, Mr. Burstein,
Mr. Jones and Mr. Weisshaar each
1,712 shares; Mr. Rainey 886 shares;
Mr. Baird and Mr. Herwig each
25,000 shares; and Mr. Patton
363,542 shares. |
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The director or executive officer has the right to acquire
beneficial ownership of this number of shares within
60 days of the record date for the annual meeting
(April 20, 2011) by exercising outstanding stock
options or warrants (as applicable). |
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Includes 75,000 shares held in Mr. Bursteins IRA
rollover account and 9,375 shares owned directly and
indirectly by a family member. |
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(d) |
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Includes 333,333 shares held by jVen Capital LLC. |
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Includes 20,000 shares held in a relatives IRA over
which Mr. Patton has dispositive power. |
Section 16(a)
Beneficial Ownership Reporting Compliance
Directors and persons who are considered officers of
the company for purposes of Section 16(a) of the Securities
Exchange Act of 1934, as amended, and greater than 10%
stockholders (referred to as reporting persons) are required to
file reports with the Securities and Exchange Commission showing
their holdings of and transactions in CASMED securities. It is
generally our practice to file the forms on behalf of our
reporting persons who are directors or officers. We believe that
all such forms have been timely filed for 2010.
3
Proposal 1:
Election
of Directors
Seven directors, constituting the entire board of directors of
CASMED, are to be elected at the annual meeting to serve for a
term of one year or until their respective successors are duly
elected and qualify. Information about each nominee for director
(all of whom are incumbent directors), including the
nominees age, is set forth below. Unless otherwise
indicated, each nominee has held his present position for at
least five years. The shares represented by the proxies will be
voted in favor of the election as directors of the persons named
below unless authority to do so is withheld. Should you choose
not to vote for a nominee, you may list on the proxy the name of
the nominee for whom you choose not to vote and mark your proxy
under Proposal No. 1 for all other nominees. Should
any nominee become unable to accept nomination or election as a
director (which is not now anticipated), the persons named in
the enclosed proxy will vote for a substitute nominee as may be
selected by the board of directors, unless the size of the board
is reduced.
NOMINEES
FOR ELECTION TO BOARD OF DIRECTORS
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Year First
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Principal Occupation
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Name
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Age
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Became Director
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During the Past Five Years
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Louis P. Scheps
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79
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1990
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Mr. Scheps currently serves as Chairman of the Board of CASMED.
He held the positions of President and Chief Executive Officer
of CASMED from 1990 until March 2007 and held the position of
Director of Manufacturing of CASMED from 1986 until 1990. Prior
to CASMED, Mr. Scheps was employed by
Posi-Seal
International as Vice President from 1969 to 1985. Mr. Scheps
received his engineering degree from Purdue University and his
business education from the GE Management Program. As our former
Chief Executive Officer, Mr. Scheps has extensive knowledge of
the Company and considerable experience in manufacturing
operations.
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Jerome Baron
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84
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1986
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Mr. Baron has been in the securities industry since 1944. He
was a Vice President in the International Department at Loeb
Rhoades & Company, a Partner at Andreson & Company,
and Chairman and Chief Executive Officer of Foster Securities,
Inc., which he founded in 1974. In 1977, Foster Securities
merged with Brean Murray and Company, Inc. Mr. Baron is
Vice-Chairman of Brean Murray, Carret & Co. He is a
Director of Haulbowline Ltd., a private offshore company. He
attended Kings Point Merchant Marine Academy and Pace
University. Mr. Baron has extensive knowledge of the capital
markets and has been a long-standing member of the
Companys Board of Directors where he has become very
familiar with the Companys operations.
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Year First
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Principal Occupation
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Name
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Age
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Became Director
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During the Past Five Years
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Lawrence S. Burstein
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68
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1985
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Mr. Burstein has been President and principal stockholder of
Unity Venture Capital Associates, Ltd. since March 1996. Prior
thereto he was President, a director and principal stockholder
of Trinity Capital Corporation since October 1982. Mr. Burstein
is a director of three other public companies: THQ, Inc., a
manufacturer of video game cartridges, I.D. Systems, Inc., which
designs, develops and produces a wireless monitoring and
tracking system; and Atrinsic, Inc., which is principally an
internet direct marketing company. In addition, Mr. Burstein was
formerly a director of Millennium India Acquisition Corporation,
a publicly traded 1940 Act investment company. He was also
formerly a director of American Telecom Services, Inc., a
provider of converged telecommunication services. Mr. Burstein
received an L.L.B. from Columbia Law School. Mr. Burstein has
considerable experience in legal and strategic business matters
across a variety of industries. His past experience with the
Company is important to the Boards ability to evaluate our
business strategies and decisions.
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Thomas M. Patton
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47
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2010
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Mr. Patton has served as CASMEDs President and Chief
Executive Officer and as a member of the CASMED Board of
Directors since August 2010. He previously served as the CEO of
Wright Medical Group, an orthopedic device company, located in
Memphis Tennessee, and as President of Novametrix Medical
Systems, a patient monitoring company, located in Wallingford,
CT. From 2003-2010, Mr. Patton has acted as an advisor to the
healthcare focused private equity group of Ferrer Freeman &
Company. Mr. Patton was a co-founder and CEO of QDx, Inc., a
start-up company that developed a platform for hematology
diagnostics in 2003. Mr. Patton attended The College of the
Holy Cross where he majored in Economics and Accounting.
After graduating magna cum laude from Georgetown University Law
Center, Mr. Patton worked at the law firm of Williams &
Connolly in Washington, DC. Thereafter, he joined Wright
Medical Group as its General Counsel where he served in various
executive roles until being appointed CEO. Mr. Patton has
extensive experience in the medical device industry and as
President and Chief Executive Officer provides the Board with
primary knowledge of CASMEDs business operations.
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Year First
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Principal Occupation
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Name
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Age
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Became Director
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During the Past Five Years
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Evan Jones
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54
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2008
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Mr. Jones was a co-founder of Digene Corporation, a publicly
traded biotechnology company focused on womens health and
molecular diagnostic testing, serving as Chairman of the Board
from 1995 until its sale in 2007. Mr. Jones was CEO of Digene
from 1990 to 2006, and President from 1990 to 1999. In July
2007, Mr. Jones formed jVen Capital, LLC, a life sciences
investment company. Mr. Jones is a member of the Board of
Directors of the Childrens Research Institute in
Washington DC. He is Chairman of the Campaign for Public Health,
an independent, not-for-profit organization dedicated to
increasing funding for the Centers for Disease Control and
Prevention, and is a member of the Board of Directors and the
Executive Committee of Research!America. Mr. Jones received a
B.A. from the University of Colorado and an M.B.A. from The
Wharton School at the University of Pennsylvania. Mr. Jones has
considerable knowledge of the medical device market as well as
experience leading a publicly-traded company and interacting
with investors and shareholders. His experience is valuable to
the Boards ability to assess our strategy and direction
and evaluate our business decisions.
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Year First
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Principal Occupation
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Name
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Age
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Became Director
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During the Past Five Years
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Kenneth R. Weisshaar
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60
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2010
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Mr. Weisshaar currently serves as a member of the Board of
Directors of Orthofix International, N.V., a NASDAQ listed
orthopedic device company. Mr. Weisshaar also serves on the
Board of Directors of Beth Abraham Family of Health Services, a
large non-profit nursing home and managed care organization
located in the New York area. Mr. Weisshaar previously
served as a member of the Board of Directors of Digene
Corporation, a publicly traded biotechnology company focused on
womens health and molecular diagnostic testing.
Mr. Weisshaar served as Chief Operating Officer and
Strategy Advisor of Sensatex, Inc. a start-up company developing
wireless vital signs monitoring equipment from 2000 to 2002.
Mr. Weisshaar previously served in various capacities with
Becton Dickinson and Company from 1988 to 1999 including Senior
Vice-President and Chief Financial Officer from 1998 to 1999,
President of the Worldwide Consumer Health Care from 1996 to
1998, Sector President from 1994-1996, Divisional President
1992-1994 and Vice President, Corporate Planning and Development
from 1988-1992. Mr. Weisshaar was also employed by McKinsey and
Company primarily as a healthcare and manufacturing consultant
from 1982 to 1988 and held various positions with Raychem
Corporation from 1974 to 1982. Mr. Weisshaar received a
B.S. in Chemical Engineering from the Massachusetts Institute of
Technology and a MBA from the Harvard Business School. Mr.
Weisshaar, our audit committee chairman, has extensive
operating and financial management experience in the medical
device market.
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Year First
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Principal Occupation
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Name
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Age
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Became Director
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During the Past Five Years
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Gregory P. Rainey
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58
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2010
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Mr. Rainey is currently President of CCI Performance Group, LLC
which provides strategic and sales management consulting serves
for healthcare companies. From 1994 2004, Mr. Rainey
was employed by Stryker Corporation where he held various sales
management positions including the position of Vice President of
Sales. Mr. Rainey has also held various sales positions with
Joint Medical Corporation and U.S. Surgical Corporation. He
currently serves as a member of the board of directors of RTI
Biologics, Inc., a leading provider of sterile biological
implants. Mr. Rainey is a graduate of Loyola University
with a B.S. in Biology. Mr. Raineys extensive sales
experience is valuable to the boards ability to assess our
sales management and product distribution strategies.
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The board
of directors recommends that stockholders vote FOR the nominees
described in Proposal 1.
Executive
Officers
Our executive officers are as follows:
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Name
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Age
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Position
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Thomas M. Patton
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47
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President and Chief Executive Officer
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Jeffery A. Baird
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57
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Chief Financial Officer and Secretary
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Matthew J. Herwig
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44
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Vice President Sales and Marketing
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Information
Concerning Executive Officers Who Are Not Directors
Jeffery A. Baird joined CASMED during January 2004 as
Chief Financial Officer and Secretary. From April 2003 to
December 2003, Mr. Baird was CFO of QDx, Inc., a startup
venture engaged in the development of novel medical diagnostic
products. Mr. Baird was employed by Novametrix Medical
Systems, Inc. from 1988 to 2002 and held various positions
including Controller, Treasurer and CFO. Prior to joining
Novametrix, Mr. Baird was employed by Philips Medical
Systems, Inc., a medical diagnostic imaging company.
Matthew J. Herwig joined CASMED during January 2011 as
Vice President Sales and Marketing. From 2009 to 2010,
Mr. Herwig was Vice President of U.S. Marketing for
Energy Based Devices at Covidien Healthcare, a leading global
healthcare products company. From 2002 to 2006 and from 2008 to
2009, he was employed by Covidien holding numerous positions
including Director of Global Marketing Imaging
Solutions/Pharmaceuticals, Director of
U.S. Marketing Imaging Solutions and Vice
President of Marketing and Sales Training for the Nellcor
division. From 1997 to 2002, Mr. Herwig held various
marketing and sales positions for Mallinckrodt, which was
purchased by Covidien Healthcare. In addition, from 2006 to 2008
he was employed by Computerized Medical Systems, an Elekta
Company, as the Vice President of Global Marketing and North
America Sales. Prior to joining Mallinckrodt, he was employed by
Ethicon, Inc., a Johnson & Johnson company.
8
Board
Information and Committees
The board met 11 times in 2010 and acted six times by
unanimous written consent. Each director attended at least 75%
of the total number of board meetings and meetings held by the
board committees on which he served during 2010. The board has
determined that each of our non-employee directors currently
serving on the board or who served on the board during 2010,
other than Mr. Scheps who is our former President and Chief
Executive Officer, is independent based upon the criteria
provided by Nasdaq Stock Market rules. Members of the board
serve on one or more of the committees described below, except
for directors who are also employees or former employees of the
company, who do not serve on board committees.
We maintain a leadership structure for CASMED that separates the
positions of Chairman of the Board and Chief Executive Officer.
By having different individuals serve in these roles, we believe
that we provide for additional independence of and oversight by
the board of directors and enable our Chief Executive Officer to
focus his time and attention on the Companys operations
and strategic direction. Our current Chairman of the Board,
Mr. Scheps, served as our Chief Executive Officer from 1990
until March 2007, which we believe gives him additional
experience and insight that enhances the ability of the board to
oversee CASMED and the Chief Executive Officer.
The board of directors has general risk oversight
responsibilities. The board believes that its structure enables
it to effectively oversee risk management.
The board has standing audit, compensation, and nominating and
governance committees. Further information regarding these
committees and the director nomination process is provided below.
The Audit Committee, which met eight times in 2010,
monitors our financial reporting standards and practices and our
internal financial controls to ensure compliance with the
policies and objectives established by the board of directors.
The committee directly retains and recommends for stockholder
approval an independent accounting firm to conduct the annual
audit, and discusses with our independent accountants the scope
of their examinations, with particular attention to areas where
either the committee or the independent accountants believe
special emphasis should be directed. The committee reviews the
quarterly and annual financial statements and the annual
independent accountants report, invites the
accountants recommendations on internal controls and on
other matters, and reviews the evaluation given and corrective
action taken by management. It reviews the independence of the
accountants and pre-approves audit and permissible non-audit
services. Members of the committee are Jerome Baron, Gregory
Rainey and Kenneth Weisshaar. Mr. Weisshaar joined the
committee upon his appointment to the board in April 2010 and
was elected chairman of the committee in October 2010. Each
member of the committee is independent as defined in
Rule 10A-3
of the Securities and Exchange Commission and the listing
standards of the Nasdaq Stock Market. The board of directors has
determined that each of Jerome Baron, Gregory Rainey and Kenneth
Weisshaar qualifies as an audit committee financial
expert as that term is defined in
Regulation S-K
of the Securities and Exchange Commission.
The Compensation Committee, which met seven times in
2010, oversees our executive and director compensation programs,
including establishing our executive and director compensation
policies and annually reviewing all components of compensation
to ensure that our objectives are appropriately achieved. These
functions are not delegated to our officers or to third-party
professionals, although the committee may from time to time
retain third-party consultants to provide advice regarding
compensation issues. No such consultants were retained during
2010. The committee also considers input from our executive
officers although final decisions regarding executive
compensation are made by the committee. The committee is also
responsible for certain administrative aspects of our
compensation plans and stock plans, and approves or recommends
changes in these plans. It also approves performance targets and
grants under our incentive plans and our stock plan for our
executive officers. The committee also reviews officers
potential for growth, and, with the chief executive officer,
will be responsible for
9
succession planning and ensuring management continuity. The
members are Jerome Baron, Lawrence Burstein, Evan Jones and
Gregory Rainey. Mr. Jones was elected chairman of the
committee during October 2010.
The Nominating and Governance Committee, which was formed
during October 2010, reviews on a periodic basis the overall
effectiveness
and/or
appropriateness of our corporate governance and recommends
improvements when necessary; assists the Board in identifying,
screening, and reviewing individuals qualified to serve as
directors in accordance with criteria approved by the Board and
shall recommend to the Board candidates for nomination for
election at the annual meeting of shareholders or to fill Board
vacancies; develops and recommends to the Board and oversees
implementation of our policies and procedures for the receipt of
shareholder suggestions regarding Board composition and
recommendations of candidates for nomination by the Board; and
assists the Board in disclosing information relating to
functions of the committee as may be required in accordance with
the federal securities laws. Members of the committee are
Lawrence Burstein, Evan Jones and Kenneth Weisshaar. The
committee did not meet during 2010.
Each committee is governed by a written charter. Copies of each
committee charter are available on our website at
www.casmed.com.
Director
Compensation
Director Fees. We pay our non-employee
directors an annual retainer. The Chairman of the Board receives
$25,000 and each other director receives $20,000. We also pay an
annual retainer of $4,000 each to the Audit Committee and
Compensation Committee chairmen and $2,000 to the Nominating and
Governance Committee chairman. We pay an annual retainer of
$2,000 to each other Audit Committee and Compensation Committee
member and $1,000 to each other Nominating and Governance
Committee member. During 2010, we paid total annual fees of
$103,333 to the non-employee directors for their participation
as Board members and a total of $14,167 in fees to the
non-employee directors for their participation as committee
members.
Our non-employee directors are eligible to receive options,
restricted stock and other equity-linked grants under our 2003
Equity Incentive Plan. On June 9, 2010, we granted
6,849 shares of restricted common stock under the 2003
Equity Incentive Plan to each of Messrs. Baron, Burstein,
Jones, Scheps and Weisshaar. The grants were intended to
approximate $10,000 in cash value based upon the market value of
the common stock at the date of grant. These restricted stock
grants vest in equal quarterly installments during the twelve
months from date of grant. On November 19, 2010, we granted
a prorated amount of 1,977 shares to Mr. Rainey upon
his appointment to the board of directors.
In 2011, the board intends to grant to each non-employee
director, on the date of the annual meeting of stockholders, a
number of restricted shares equal to $10,000 divided by the
closing price of the common stock on such date. The
aforementioned grant would vest over one year from the date of
grant in quarterly installments.
Director Compensation Table. The following
table shows all compensation paid or granted, during or with
respect to the 2010 fiscal year to each of the non-employee
directors for services rendered to CASMED during 2010.
2010
DIRECTOR COMPENSATION
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Fees Earned or
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Stock
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Option
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All Other
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Name (a)
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Paid in Cash ($)
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Awards ($)(b)
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Awards ($)(c)
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Compensation ($)
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Total ($)
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Jerome Baron
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$
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25,000
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$
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10,000
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$
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0
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$
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35,000
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Lawrence S. Burstein
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$
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23,000
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$
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10,000
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$
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0
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$
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33,000
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Evan Jones
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$
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24,000
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$
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10,000
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$
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0
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$
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34,000
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Gregory P. Rainey
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$
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4,000
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$
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5,832
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$
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59,000
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$
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0
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$
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68,832
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Louis P. Scheps
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$
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25,000
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$
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10,000
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$
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0
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$
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35,000
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Kenneth R. Weisshaar
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$
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16,500
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$
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10,000
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$
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38,000
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$
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0
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$
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64,500
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10
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(a) |
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As of December 31, 2010, Mr. Baron held an option to
purchase 7,500 shares of our common stock,
Mr. Burstein held options and warrants to purchase an
aggregate of 115,000 shares of our common stock,
Messrs. Jones, Rainey and Weisshaar each held an option to
purchase an aggregate of 20,000 shares of our common stock
and Mr. Scheps held warrants to purchase
714,401 shares of our common stock. As of December 31,
2010, Messrs. Baron, Burstein, Jones, Scheps and Weisshaar
each held 3,424 shares of restricted stock and
Mr. Rainey held 1,772 shares of restricted stock. |
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(b) |
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Dollar amounts represent the fair market value of
6,849 shares of restricted stock granted to each outside
director on June 9, 2010 and 1,977 shares of
restricted stock granted to Mr. Rainey on November 19,
2010. The fair market value of the grants issued on June 9,
2010 and November 19, 2010 was $1.46 and $2.95,
respectively, representing the closing market price on the date
of grant. The shares vest quarterly over a one year period from
grant date with the exception of Mr. Raineys shares
which vest pro rata from date of issue to June 8, 2011. |
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(c) |
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Dollar amounts represent the grant date fair value of an option
to purchase 20,000 shares of our common stock granted each
to Mr. Weisshaar and Mr. Rainey on April 1, 2010
and October 28, 2010, respectively. The options vest in
three annual installments from the grant date. |
Communications
with Directors
In order to provide our security holders and other interested
parties with a direct and open line of communication to the
board of directors, the board of directors has adopted the
following procedures. CASMED security holders and other
interested persons may communicate with the chairmen of our
Compensation Committee, Audit Committee or Nominating and
Governance Committee or with the non-management directors as a
group by sending written correspondence to our Secretary. The
correspondence should specify which of the foregoing is the
intended recipient. Communications should be sent by mail
addressed in care of the corporate Secretary, CAS Medical
Systems, Inc., 44 East Industrial Road, Branford, Connecticut
06405.
All communications received in accordance with these procedures
will be reviewed initially by our corporate Secretary. The
Secretary will relay all such communications to the appropriate
director or directors unless the Secretary determines that the
communication:
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does not relate to the business or affairs of CASMED or the
functioning or constitution of the board of directors or any of
its committees;
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relates to routine or insignificant matters that do not warrant
the attention of the board of directors;
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is an advertisement or other commercial solicitation or
communication;
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is frivolous or offensive; or
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is otherwise not appropriate for delivery to directors.
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The director or directors who receive any such communication
will have discretion to determine whether the subject matter of
the communication should be brought to the attention of the full
board of directors or one or more of its committees and whether
any response to the person sending the communication is
appropriate. Any response will be made only in accordance with
applicable law and regulations relating to the disclosure of
information.
Our Secretary will retain copies of all communications received
pursuant to these procedures for a period of at least one year.
The board of directors will review the effectiveness of these
procedures from time to time and, if appropriate, recommend
changes. We have not established a formal policy regarding
director attendance at our annual meetings of stockholders, but
our directors generally do attend the annual meeting. The
chairman of the board presides at the annual meeting of
stockholders, and the board of directors generally holds one of
its regular meetings in conjunction with the annual meeting of
stockholders. Accordingly, unless one or more members of the
board are unable to attend, all members of the board are present
for the annual meeting. Each of the six members of the board at
the time of our 2010 annual meeting of stockholders attended
that meeting.
11
Nomination
of Directors
The Nominating and Governance Committee assists the board of
directors in identifying, screening, and reviewing individuals
qualified to serve as directors in accordance with criteria
approved by the board and shall recommend to the board
candidates for nomination for election at the annual meeting of
shareholders or to fill board vacancies. The Nominating and
Governance Committee develops and recommends to the board and
oversees implementation of our policies and procedures for the
receipt of shareholder suggestions regarding board composition
and recommendations of candidates for nomination by the board.
The full board has adopted specifications applicable to members
of the board, and nominees for the board must meet these
specifications. The specifications provide that a candidate for
director should:
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Have a reputation for industry, integrity, honesty, candor,
fairness and discretion;
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Be knowledgeable in his or her chosen field of endeavor, which
field should have such relevance to our businesses as would
contribute to the companys success;
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Be knowledgeable, or willing and able to become so quickly, in
the critical aspects of our businesses and operations; and
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Be experienced and skillful in serving as a competent overseer
of, and trusted advisor to, senior management of a publicly held
corporation.
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In addition, nominees for the board of directors should
contribute to the mix of skills, core competencies and
qualifications of the board through expertise in one or more of
the following areas: accounting and finance, the healthcare
industry, international business, mergers and acquisitions,
leadership, business and management, strategic planning,
government relations, investor relations, executive leadership
development, and executive compensation.
Mr. Weisshaar, who joined the board in 2010, was
recommended to the board by one of our current non-employee
directors, Mr. Jones. Mr. Rainey also joined the board
in 2010. He was previously known by Mr. Patton. We did not
employ a third party to undertake a search for these positions.
The board of directors also seeks nominees who will contribute
to the boards diversity. While the board of directors does
not maintain a formulaic policy or approach with respect to
diversity, it continually seeks a wide range of perspectives and
experiences among its members.
The board will consider nominees recommended by stockholders for
election at the 2012 annual meeting of stockholders that are
submitted prior to the end of 2011 to our Secretary at CAS
Medical Systems, Inc., 44 East Industrial Road, Branford,
Connecticut 06405. Any recommendation must be in writing and
must include a detailed description of the business experience
and other qualifications of the recommended nominee as well as
the signed consent of the nominee to serve if nominated and
elected, so that the candidate may be properly considered. All
stockholder recommendations will be reviewed in the same manner
as other potential candidates for board membership.
The board has not received any nominees for election to the
board at the 2011 annual meeting from any stockholder or group
that has held more than 5% of our common stock for a period of
one year.
Code of
Ethics
Our board of directors has approved a Code of Ethics in
accordance with the rules of the Securities and Exchange
Commission and The Nasdaq Stock Market that governs the conduct
of each of our directors and senior executive officers,
including our principal executive officer, principal financial
officer, principal accounting officer and controller. Our Code
of Ethics is maintained on our website at www.casmed.com. Any
amendments to or waivers of the Code of Ethics that apply to our
principal executive officer, principal financial officer or
principal accounting officer and that relates to any element of
the definition of the term code of ethics, as the
term is defined by the Securities and Exchange Commission, will
be posted on our website at www.casmed.com. There are currently
no such amendments or waivers.
12
We recognize the importance of preventing both actual conflicts
of interest and the appearance of such conflicts in dealings
between CASMED and related persons (CASMED
directors, director nominees, executive officers, stockholders
owning 5% or greater of our common stock or the immediate family
members of any of the foregoing). In accordance with its
charter, the Audit Committee regularly reviews our corporate
policies with respect to conflicts of interest including related
party transactions and investigates instances of such conflicts.
Executive
Officer Compensation
Executive
Contracts and Severance and Change of Control
Arrangements
Thomas M. Patton. On August 27, 2010, we
entered into an employment agreement with Thomas M. Patton, our
President and Chief Executive Officer. Under the terms of the
agreement, Mr. Patton is employed on an at will
basis, will receive an annual base salary of $300,000 and will
be eligible for an annual bonus in the form of cash or CASMED
common stock as determined at the sole discretion of the
Compensation Committee of the board. Mr. Patton will also
be eligible for a performance-based bonus for 2011 equal to 50%
of his annual salary if certain targets are achieved. The
designation of the performance targets and the attainment of
such targets will be determined by the Compensation Committee of
the Board of Directors in consultation with Mr. Patton.
Mr. Patton will also be entitled to participate in all of
our employee benefit programs as such programs may be in effect
from time to time.
As an inducement to cause Mr. Patton to accept employment
with our Company, Mr. Patton was granted a non-qualified
stock option to purchase 350,000 shares of our common stock
at $2.10, the closing price of our common stock on the NASDAQ
market upon the effective date of the agreement. Such stock
options vest in equal monthly installments over a period of four
years from date of grant. As a further inducement to consummate
Mr. Pattons employment, Mr. Patton was granted
250,000 shares of restricted common stock of our Company.
Such restricted shares vest over a period of four (4) years
from date of grant in the following manner
20,833 shares vested as of December 30, 2010 and the
remaining shares vest on the first day following the end of each
calendar quarter beginning with April 1, 2011 and
continuing each
July 1st,
October 1st,
January 1st,
and
April 1st thereafter
until October 1, 2014. At each quarterly vesting date,
15,625 shares will vest except for October 1, 2014 at
which time 10,417 shares will vest provided that
Mr. Patton is still employed with the Company.
Mr. Patton was also granted 150,000 shares of
restricted common stock of our Company the vesting of which will
occur on the earlier of the following 1) upon
the Companys stock price meeting or exceeding an average
of $4.15 per share for sixty consecutive trading days based upon
the daily closing price of the primary market in which our
common stock is traded, or 2) a change in control subject
to certain conditions.
If we terminate Mr. Pattons employment without
Serious Cause (as defined in the Employment Agreement) or
Mr. Patton terminates his employment for Good Reason (as
defined in the Employment Agreement), we will continue to pay
Mr. Patton his then-current base salary for a period of one
year from the date of such termination. Mr. Patton will be
entitled to participate in our health benefit plans (with
standard employee payment not to exceed the payment level prior
to termination) for the one year period. This would represent a
payment of approximately $300,000 based upon his current salary
and benefits level. In addition, if Mr. Patton terminates
his employment for Good Reason or if we terminate
Mr. Pattons employment without Serious Cause, all of
Mr. Pattons equity-linked grants (such as stock
options and restricted stock) shall immediately accelerate and
vest in full.
If we (or a successor company) terminate Mr. Pattons
employment without Serious Cause or Mr. Patton terminates
his employment for Good Reason, within the period commencing on
the date that a Change of Control (as defined in the Employment
Agreement) is formally proposed to our board of directors and
ending on the second anniversary of the date on which such
Change of Control occurs, then Mr. Patton will be entitled
to receive his then-current base salary
13
for a period of one year from the date of such termination and
in addition will be entitled to participate in our health
benefit plans (with standard employee payment not to exceed the
payment level prior to the change in control) for the period of
one year. This would represent a payment of approximately
$300,000 based upon his current salary and benefits level. In
addition, all of Mr. Pattons equity-linked grants
(such as stock options and restricted stock) shall immediately
accelerate and vest in full. The intrinsic value of those
equity-linked awards subject to acceleration and outstanding as
of December 31, 2010 was $1,566,000 based upon the closing
price of $3.20 of our common stock on the NASDAQ market as of
that date.
Jeffery A. Baird. On August 10, 2009, we
entered into an employment agreement with Jeffery A. Baird
pursuant to which Mr. Baird is serving as our Chief
Financial Officer. Under the terms of the employment agreement,
Mr. Baird is employed on an at will basis, will
receive an annual base salary of $208,000 and will be eligible
for an annual bonus in the form of cash or CASMED common stock
as determined at the sole discretion of the Compensation
Committee of the board. Mr. Baird will also be entitled to
participate in all of our employee benefit programs as such
programs may be in effect from time to time.
If we terminate Mr. Bairds employment without Serious
Cause (as defined in the Employment Agreement) or Mr. Baird
terminates his employment for Good Reason (as defined in the
Employment Agreement), we will continue to pay Mr. Baird
his then-current base salary for a period of six months from the
date of such termination and he will be entitled to participate
in our health benefit plans (with standard employee payment not
to exceed the payment level prior to termination) for the six
month period. This would represent a payment of approximately
$104,000 based upon his current salary and benefits level. In
addition, if Mr. Baird terminates his employment for Good
Reason or if we terminate Mr. Bairds employment
without Serious Cause, all of Mr. Bairds
equity-linked grants (such as stock options and restricted
stock) shall immediately accelerate and vest in full.
If we (or a successor company) terminate Mr. Bairds
employment without Serious Cause or Mr. Baird terminates
his employment for Good Reason, within the period commencing on
the date that a Change of Control (as defined in the Employment
Agreement) is formally proposed to our board of directors and
ending on the second anniversary of the date on which such
Change of Control occurs, then Mr. Baird will be entitled
to receive his then-current base salary for a period of one year
from the date of such termination and in addition will be
entitled to participate in our health benefit plans (with
standard employee payment not to exceed the payment level prior
to the change in control) for the period of one year. This would
represent a payment of approximately $209,000 based upon his
current salary and benefits level. In addition, all of
Mr. Bairds equity-linked grants (such as stock
options and restricted stock) shall immediately accelerate and
vest in full. The intrinsic value of those equity-linked awards
subject to acceleration and outstanding as of December 31,
2010 was $16,000 based upon the closing price of $3.20 of our
common stock on the NASDAQ market as of that date.
Matthew J. Herwig. On January 7, 2011, we
entered into an employment agreement with Matthew J. Herwig
pursuant to which Mr. Herwig is serving as our Vice
President of Sales and Marketing. Under the terms of the
employment agreement, Mr. Herwig is employed on an at
will basis, will receive an annual base salary of $215,000
and will be eligible for an annual bonus with a target equal to
30% of his actual salary payable in the form of cash or CASMED
common stock as determined at the sole discretion of the
Compensation Committee of the board. Mr. Herwig will also
be entitled to participate in all of our employee benefit
programs as such programs may be in effect from time to time.
As an inducement to cause Mr. Herwig to accept employment
with our Company, Mr. Herwig was granted a non-qualified
stock option to purchase 150,000 shares of our common stock
at a price of $3.16 which reflected the closing price of our
common stock on the NASDAQ market upon the effective date of the
agreement. The grant will vest over a four year period with
37,500 shares vesting on the first anniversary of the grant
and the remaining shares vesting in equal monthly installments,
so long as Mr. Herwig remains an employee. As a further
inducement to
14
consummate Mr. Herwigs employment, Mr. Herwig
was granted 25,000 shares of restricted common stock of our
Company which will also vest over a four year period with
6,250 shares vesting on the first anniversary of the grant
and the remaining shares vesting in equal quarterly installments
on the first day of the following calendar quarters, so long as
Mr. Herwig remains an employee.
If we terminate Mr. Herwigs employment without
Serious Cause (as defined in the Employment Agreement) or
Mr. Herwig terminates his employment for Good Reason (as
defined in the Employment Agreement), we will continue to pay
Mr. Herwig his then-current base salary for a period of six
months from the date of such termination and he will be entitled
to participate in our health benefit plans (with standard
employee payment not to exceed the payment level prior to
termination) for the six month period. This would represent a
payment of approximately $115,000 based upon his current salary
and benefits level. In addition, if Mr. Herwig terminates
his employment for Good Reason or if we terminate
Mr. Herwigs employment without Serious Cause, all of
Mr. Herwigs equity-linked grants (such as stock
options and restricted stock) shall immediately accelerate and
vest in full.
If we (or a successor company) terminate Mr. Herwigs
employment without Serious Cause or Mr. Herwig terminates
his employment for Good Reason, within the period commencing on
the date that a Change of Control (as defined in the Employment
Agreement) is formally proposed to our board of directors and
ending on the second anniversary of the date on which such
Change of Control occurs, then Mr. Herwig will be entitled
to receive his then-current base salary for a period of one year
from the date of such termination and in addition will be
entitled to participate in our health benefit plans (with
standard employee payment not to exceed the payment level prior
to the change in control) for the period of one year. This would
represent a payment of approximately $230,000 based upon his
current salary and benefits level.
Andrew E. Kersey. On August 10, 2009, we
entered into an employment agreement with Andrew E. Kersey, our
former President and Chief Executive Officer. This agreement
superseded Mr. Kerseys previous agreement dated
March 16, 2007 as amended December 29, 2008. Under the
terms of the employment agreement, Mr. Kersey was employed
on an at will basis, received an annual base salary
of two hundred fifty thousand dollars ($250,000) and was
eligible for an annual bonus in the form of cash or CASMED
common stock as determined at the sole discretion of the
Compensation Committee of the board. Mr. Kersey was also
entitled to participate in all of our employee benefit programs
as such programs were in effect from time to time.
If we terminated Mr. Kerseys employment without
Serious Cause (as defined in the Employment Agreement) or
Mr. Kersey terminated his employment for Good Reason (as
defined in the Employment Agreement), we would continue to pay
Mr. Kersey his then-current base salary for a period of six
months from the date of such termination and he would be
entitled to participate in our health benefit plans (with
standard employee payment not to exceed the payment level prior
to termination) for the six month period. In addition, if
Mr. Kersey terminated his employment for Good Reason or if
we terminated Mr. Kerseys employment without Serious
Cause, all of Mr. Kerseys equity-linked grants (such
as stock options and restricted stock) would immediately
accelerate and vest in full. If we (or a successor company)
terminated Mr. Kerseys employment without Serious
Cause or Mr. Kersey terminated his employment for Good
Reason, within the period commencing on the date that a Change
of Control (as defined in the Employment Agreement) was formally
proposed to our board of directors and ending on the second
anniversary of the date on which such Change of Control
occurred, then Mr. Kersey would be entitled to receive his
then-current base salary for a period of one year from the date
of such termination and in addition would be entitled to
participate in our health benefit plans (with standard employee
payment not to exceed the payment level prior to the change in
control) for the period of one year.
On August 27, 2010, Mr. Kersey stepped down from his
positions as President and Chief Executive Officer and resigned
from his position as a member of the board of directors of the
Company. Under the terms of his Agreement, Mr. Kersey was
paid severance of $125,000 representing six months of his then
current salary.
15
Compensation
Discussion and Analysis
Our Compensation Committee, which is comprised of four
independent non-employee directors, has formulated a
compensation philosophy that is designed to enable us to
attract, retain and reward capable employees who can contribute
to the success of CASMED, principally through a combination of
(1) base salaries, (2) annual incentive opportunities
and (3) longer term incentive opportunities for senior
management. We believe that implementation of a system of
compensation that emphasizes performance-based compensation
provides a strong alignment to stockholders interests.
Five key principles serve as the guiding framework for
compensation decisions for all executive officers of CASMED:
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To attract and retain the most highly qualified management and
employee team.
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To pay competitively compared to similar companies in our
industry.
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To encourage superior employee performance by aligning rewards
with stockholder interests.
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To motivate senior executives to achieve CASMEDs annual
and long-term business goals by providing equity-based incentive
opportunities.
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To strive for fairness in administration by emphasizing
performance related contributions as the basis for pay decisions.
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To implement these policies, we have designed the framework for
a four-part executive compensation program consisting of base
salary, annual incentives, long-term incentive opportunities for
senior management, and other employment benefits.
Base Salary. We will seek to maintain levels
of compensation that are competitive with similar companies in
our industry. Base salary represents the fixed component of the
executive compensation program. CASMEDs philosophy
regarding base salaries is to maintain salaries for the
aggregate officer group at the competitive industry average.
Periodic increases in base salary will relate to individual
contributions evaluated against established objectives, length
of service, and the industrys annual competitive pay
practice movement. We believe that base salary for 2010 for our
chief executive officer and for the other executive officers was
generally at the competitive industry average.
Annual Incentive Program. Each year the
Compensation Committee assesses whether to pay bonuses to our
employees including senior executives either in cash or stock
based upon performance. Payment of the performance bonuses is at
the sole discretion of the Compensation Committee and is not
based on specific metrics, although the Compensation Committee
bases its decisions on numerous factors, including overall
corporate and personal performance. No cash bonus payments were
made to the named executive officers for 2010.
During January 2011, the Compensation Committee approved the
2011 management bonus program. The criteria under the program
consist of certain targets including revenues, operating cash
flows, and research and development timetables. Upon 100%
achievement of the targets, a bonus of $600,000 in aggregate
would be payable to our senior management upon the close of the
2011 fiscal year in either cash or vested common stock. The
program provides for reduced payouts at certain achievements
below 100% as well as increased payouts for performance above
target.
Long-Term Incentives. We believe that
long-term incentives should provide senior executives with an
opportunity to increase their ownership and potentially gain
financially from CASMED stock price increases. By this approach,
the best interests of stockholders and senior executives will be
closely aligned. Therefore, senior executives are eligible to
receive restricted stock and stock options. These grants will
vest based upon the passage of time, the achievement of
performance metrics, or both. We believe that the use of
restricted stock and stock options as the basis for long-term
incentive compensation meets our defined compensation strategy
and business needs by achieving increased value for stockholders
and retaining key employees.
Other Benefits. Our philosophy is to provide
competitive health and welfare-oriented benefits to executives
and employees, but to maintain a
16
conservative posture relative to executive benefits. We do
provide life insurance and supplemental disability insurance to
our senior executive officers.
Compliance with Section 162(m) of the Internal Revenue
Code. Section 162(m) of the Internal Revenue
Code generally disallows a tax deduction to a public corporation
for compensation over $1 million paid to a
corporations chief executive officer and four other most
highly compensated executive officers. Qualifying
performance-based compensation will not be subject to the cap if
certain requirements are met. The salaries for our highest paid
executives will be set, in part based on independent studies, at
the competitive industry average but are not expected to reach
$1 million in the near future. We intend to structure the
overall compensation of our executive officers in a manner that
should ensure that CASMED does not lose any tax deductions
because of the $1 million compensation limit in the
foreseeable future. Our 2003 Equity Incentive Plan incorporates
maximum limitations on individual annual stock option and
restricted stock grants so as to meet the requirements of
Section 162(m). The 2003 Equity Incentive Plan also
identifies performance measures to be used if we decide to use
performance-based vesting restricted stock in the future to meet
the requirements of Section 162(m).
Compensation
Disclosure Tables
Summary Compensation Table. The following
table (Table I) shows all compensation paid or granted,
during or with respect to the 2009 and 2010 fiscal years to
(i) our chief executive officer and (ii) the other
most highly compensated executive officer, other than the CEO,
whose total compensation during 2010 exceeded $100,000 and who
was serving as an executive officer as of December 31, 2010
and (iii) one former executive officer whose total
compensation exceeded $100,000 during 2010. (Persons in this
group are referred to individually as a named executive
officer and collectively as the named executive
officers, and, unless otherwise noted, the titles listed
are the titles held as of the end of the 2010 fiscal year.)
TABLE
I
2009-2010
SUMMARY COMPENSATION TABLE
|
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Incentive
|
|
All
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
Option
|
|
Plan
|
|
Other
|
|
|
|
|
|
|
Salary
|
|
Bonus
|
|
Awards
|
|
Awards
|
|
Compensation
|
|
Compensation
|
|
Total
|
Name and Principal Position
|
|
Year
|
|
($)
|
|
($)
|
|
($) (a)
|
|
($) (a)
|
|
($)
|
|
($) (b)
|
|
($)
|
|
Thomas M. Patton
|
|
|
2010
|
|
|
$
|
99,258
|
|
|
$
|
0
|
|
|
$
|
834,960
|
|
|
$
|
529,450
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
1,463,668
|
|
President and Chief
Executive Officer (c)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Jeffery A. Baird
|
|
|
2010
|
|
|
$
|
196,716
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
3,631
|
|
|
$
|
200,347
|
|
Chief Financial Officer
|
|
|
2009
|
|
|
$
|
193,614
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
3,544
|
|
|
$
|
197,158
|
|
Andrew E. Kersey
|
|
|
2010
|
|
|
$
|
176,942
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
84,942
|
|
|
$
|
261,884
|
|
Former President and
|
|
|
2009
|
|
|
$
|
242,055
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
$
|
2,622
|
|
|
$
|
244,677
|
|
Chief Executive Officer (d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
Dollar amounts set forth with regard to restricted stock and
stock option grants are computed in accordance with FASB ASC
Topic 718. Share value utilized for purposes of this
determination is the applicable fair market value on the date of
grant. Fair market value utilized for Mr. Pattons
restricted stock grant of 250,000 shares represents the
closing market price on the date of grant. Fair market value
utilized for Mr. Pattons restricted stock grant of
150,000 shares was based upon a lattice model calculation
assuming a 2.7% risk free interest rate, volatility of 97%, a
term of 4 years and an annual dividend rate of zero. Fair
market value utilized for stock option grants are based upon on
a Black-Scholes calculation assuming a 2.7% risk free interest
rate, volatility of 97%, a term of 4.4 years and an annual
dividend rate of zero. For a further discussion of the
assumptions underlying these amounts, reference is made to the
footnotes to CASMEDs financial statements set forth in
Form 10-K
for the fiscal year ended December 31, 2010. |
17
|
|
|
(b) |
|
Amounts shown include the cost of term life and disability
insurance for Messrs. Kersey and Baird.
Mr. Kerseys other compensation includes $83,153 of
severance payments and accrued vacation paid through
December 31, 2010 associated with his termination of
employment. |
|
(c) |
|
Mr. Patton joined the Company on August 27, 2010. |
|
(d) |
|
Mr. Kersey resigned on August 27, 2010. |
Grants of Plan-Based Awards Table. The
following table (Table II) shows all plan-based equity and
non-equity grants made by CASMED during the 2010 fiscal year to
the named executive officers.
TABLE
II
2010
GRANTS OF PLAN-BASED AWARDS
|
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|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other
|
|
|
All Other
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Awards:
|
|
|
Awards:
|
|
|
Exercise
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Number of
|
|
|
or Base
|
|
|
|
|
|
|
|
|
|
Estimated Future Payouts Under
|
|
|
Shares of
|
|
|
Securities
|
|
|
Price of
|
|
|
Grant Date
|
|
|
|
|
|
|
Non-Equity Incentive Plan Awards
|
|
|
Stock or
|
|
|
Underlying
|
|
|
Option
|
|
|
Fair Value of
|
|
|
|
Grant
|
|
|
Threshold
|
|
|
Target
|
|
|
Maximum
|
|
|
Units
|
|
|
Options
|
|
|
Awards
|
|
|
Stock and
|
|
Name
|
|
Date
|
|
|
($)
|
|
|
($)
|
|
|
($)
|
|
|
(#) (a)
|
|
|
(#) (b)
|
|
|
($/sh)
|
|
|
Option Awards
|
|
|
Thomas M. Patton
|
|
|
8/27/10
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
250,000
|
|
|
|
|
|
|
|
|
|
|
$
|
525,000
|
|
|
|
|
8/27/10
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
150,000
|
|
|
|
|
|
|
|
|
|
|
|
309,960
|
|
|
|
|
8/27/10
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
350,000
|
|
|
$
|
2.10
|
|
|
|
520,450
|
|
|
|
|
(a) |
|
Amounts represent two inducement grants of restricted stock. The
grant of 250,000 shares of restricted common stock vests as
follows: 20,833 shares vest on December 30, 2010 and
thereafter 15,625 shares vest on the day following the end
of each calendar quarter beginning April 1, 2011 and
continuing on each July 1st, October 1st,
January 1st, and April 1st thereafter until
October 1, 2014 at which time the remaining
10,417 shares vest. Vesting ceases when Mr. Patton is
no longer employed with the Company. The grant of
150,000 shares of restricted common stock vests immediately
following the date when the Companys closing stock price
has maintained an average of $4.15 per share for sixty
consecutive trading days. |
|
|
|
(b) |
|
Represents a stock option grant for the purchase of
350,000 shares of CASMED common stock which vests ratably
over forty-eight months from grant date. |
18
Outstanding Equity Awards at Fiscal Year-End
Table. Shown in Table III below is
information with respect to outstanding equity-based awards
(consisting of unexercised options to purchase CASMED common
stock and unvested restricted CASMED common stock) held by the
named executive officers at December 31, 2010.
TABLE
III
OUTSTANDING
EQUITY AWARDS AT 2010 FISCAL YEAR END
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
|
|
|
|
|
|
|
Number of
|
|
Number of
|
|
|
|
|
|
Stock Awards
|
|
|
Securities
|
|
Securities
|
|
|
|
|
|
Number of
|
|
Market Value
|
|
|
Underlying
|
|
Underlying
|
|
|
|
|
|
Shares or Units
|
|
of Shares or
|
|
|
Unexercised
|
|
Unexercised
|
|
Option
|
|
Option
|
|
of Stock That
|
|
Units of Stock
|
|
|
Options (#)
|
|
Options (#)
|
|
Exercise
|
|
Expiration
|
|
Have Not
|
|
That Have Not
|
Name
|
|
Exercisable
|
|
Unexercisable
|
|
Price ($)
|
|
Date
|
|
Vested (#)
|
|
Vested ($) (a)
|
|
Thomas M. Patton
|
|
|
29,166
|
|
|
|
320,834
|
|
|
$
|
2.10
|
|
|
|
8/27/2020
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
379,167
|
|
|
$
|
1,213,334
|
|
Jeffery A. Baird
|
|
|
50,000
|
|
|
|
0
|
|
|
$
|
1.40
|
|
|
|
1/6/2014
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000
|
|
|
|
0
|
|
|
$
|
2.30
|
|
|
|
2/17/2015
|
|
|
|
|
|
|
|
|
|
|
|
|
40,000
|
|
|
|
0
|
|
|
$
|
3.10
|
|
|
|
6/15/2015
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,000
|
|
|
|
16,000
|
|
Andrew E. Kersey
|
|
|
20,000
|
|
|
|
0
|
|
|
$
|
1.50
|
|
|
|
8/27/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
20,000
|
|
|
|
0
|
|
|
$
|
2.30
|
|
|
|
8/27/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
40,000
|
|
|
|
0
|
|
|
$
|
3.10
|
|
|
|
8/27/2011
|
|
|
|
|
|
|
|
|
|
|
|
|
(a) |
|
These values are based on $3.20 per share, the market price of a
share of CASMED common stock as of December 31, 2010 (the
final trading day of 2010). |
Option Exercises and Stock Vested Table. The
following table (Table IV) shows information with respect
to all stock options exercised by the named executive officers
during 2010 and information regarding restricted stock held by
those persons that vested during 2010.
TABLE
IV
OPTION
EXERCISES AND STOCK VESTED TABLE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Option Awards
|
|
Stock Awards
|
|
|
|
|
|
|
Number of
|
|
|
|
|
Number of
|
|
|
|
Shares
|
|
Value
|
|
|
Shares Acquired
|
|
Value Realized
|
|
Acquired on
|
|
Realized on
|
|
|
on Exercise
|
|
on Exercise
|
|
Vesting
|
|
Vesting
|
Name
|
|
(#)
|
|
($)
|
|
(#)
|
|
($)
|
|
Thomas M. Patton
|
|
|
|
|
|
|
|
|
|
|
20,833
|
|
|
$
|
66,666
|
|
Jeffery A. Baird
|
|
|
|
|
|
|
|
|
|
|
6,500
|
|
|
$
|
13,150
|
|
Andrew E. Kersey
|
|
|
70,000
|
|
|
$
|
168,200
|
|
|
|
15,001
|
|
|
$
|
30,169
|
|
19
Equity Compensation Plan Table. The following
table (Table V) sets forth general information concerning
our equity compensation plans as of December 31, 2010.
TABLE
V
EQUITY
COMPENSATION PLAN INFORMATION
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of securities
|
|
|
|
|
|
|
|
|
|
remaining available for
|
|
|
|
Number of securities
|
|
|
Weighted-average
|
|
|
issuance under equity
|
|
|
|
to be issued upon
|
|
|
exercise price of
|
|
|
compensation plans
|
|
|
|
exercise of outstanding
|
|
|
outstanding options,
|
|
|
(excluding securities
|
|
|
|
options, warrants and
|
|
|
warrants and rights
|
|
|
reflected in column (a))
|
|
Plan Category
|
|
rights (col. a)
|
|
|
($) (col. b)
|
|
|
(col. c)
|
|
|
Equity compensation plans approved by security holders: (a)
|
|
|
585,875
|
|
|
$
|
2.41
|
|
|
|
201,552
|
|
Equity compensation plans not approved by security holders: (b)
|
|
|
1,239,401
|
|
|
$
|
0.90
|
|
|
|
0
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
1,825,276
|
|
|
$
|
1.38
|
|
|
|
201,552
|
|
|
|
|
(a) |
|
Equity compensation plans approved by security holders consist
of the 1994 Employees Incentive Stock Option Plan
(referred to as the 1994 Plan) and the 2003 Equity Incentive
Plan. The 1994 Plan expired on December 31, 2003 and, as
such, there are no further options available for issuance
thereunder. |
|
|
|
(b) |
|
The equity compensation plans not approved by security holders
consist of an inducement stock option grant of
350,000 shares of common stock awarded to Mr. Patton
during 2010 commensurate with his appointment as President and
Chief Executive Officer and warrants granted during prior years
to the chairman of the board of directors, a former director,
and current outside directors of the company as compensation for
services rendered to the company. The inducement stock option
grant has an exercise price of $2.10. The warrants generally
have no specific expiration date and have an exercise price
range of $0.30 to $1.44. |
20
Audit
Committee Report
The Audit Committee reviews CASMEDs financial reporting
function on behalf of the board of directors. Management has the
primary responsibility for preparing the financial statements in
accordance with accounting standards generally accepted in the
United States and the reporting process, including the system of
internal controls. CASMEDs independent accountants are
responsible for expressing an opinion on the annual financial
statements as to whether or not they are presented in conformity
in all material respects with accounting principles generally
accepted in the United States. The Audit Committee monitors
these processes through periodic meetings with management and
the independent registered public accounting firm.
In this context, the Audit Committee has reviewed and discussed
with management and the independent accountants the audited
financial statements for the year ended December 31, 2010,
including the audit scope, internal control matters, and audit
results. The Audit Committee also met with the independent
accountants without management present. The Audit Committee has
discussed with the independent accountants the matters required
to be discussed by auditing standards. In addition, the Audit
Committee has received from the independent accountants the
written disclosures and letter required by the applicable
requirements of the Public Company Accounting Oversight Board
regarding the independent accountants communications with
the Audit Committee concerning independence, and discussed with
them their independence from CASMED and its management. The
Audit Committee has also considered whether all non-audit
services rendered by the independent accountants to CASMED are
compatible with the accountants independence.
In reliance on the reviews and discussions referred to above,
the Audit Committee recommended to the board of directors, and
the board has approved, that the financial statements for the
year ended December 31, 2010 be included for filing in
CASMEDs annual report on
Form 10-K
for the year ended December 31, 2010.
Audit Committee of the Board of Directors
Jerome Baron
Gregory P. Rainey
Kenneth R. Weisshaar
Audit
Committee Pre-Approval Policy
The Audit Committee operates under a written charter. Under
this charter, the Audit Committee is responsible for selecting,
approving, compensating and overseeing the independence,
qualifications and performance of the independent accountants.
Further, the Audit Committee has adopted a pre-approval policy
pursuant to which certain permissible non-audit services may be
provided by the independent accountants. Pre-approval is
generally provided for up to one year and may be detailed as to
the particular service or category of services and may be
subject to a specific budget. The Audit Committee may also
pre-approve particular services on a
case-by-case
basis. In assessing requests for services from the independent
accountants by management, the Audit Committee considers whether
such services are consistent with the auditors
independence; whether the independent accountants are likely to
provide the most effective and efficient service based upon
their familiarity with the company; and whether the service
could enhance our ability to manage or control risk or improve
audit quality.
Notwithstanding the pre-approval policy, all of the
audit-related, tax and other services provided by J.H. Cohn LLP
in fiscal year 2010 were approved in advance by the Audit
Committee.
21
Proposal 2:
Approval
of the 2011 Equity Incentive Plan
On April 11, 2011, the board of directors adopted, subject
to stockholder approval, the CAS Medical Systems, Inc. 2011
Equity Incentive Plan (referred to as the Incentive Plan). The
following summary of certain important features of the Incentive
Plan is qualified by reference to the complete text of the
Incentive Plan which is attached to this proxy statement as
Exhibit A.
Purposes. The purposes of the Incentive Plan
are:
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to make available to our key employees, directors, and
consultants certain compensatory arrangements related to the
growth in value of our common stock so as to generate an
increased incentive to contribute to our future financial
success and prosperity,
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to enhance our ability to attract and retain exceptionally
qualified individuals whose efforts can affect our financial
growth and profitability, and
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align generally the interests of our key employees, directors
and consultants with the interests of our stockholders.
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Principal Features of the Incentive
Plan. Awards that may be granted under the
Incentive Plan include options, restricted stock and restricted
stock units, dividend equivalents, and other stock-based awards
(which we refer to collectively as Awards).
Administration of Incentive Plan. Our
Compensation Committee, consisting of directors chosen by our
board of directors, each of whom is a disinterested
person within the meaning of
Rule 16b-3
under the Securities Exchange Act of 1934, as amended, and each
of whom are outside directors within the meaning of
Section 162(m) of the Internal Revenue Code will, among
other things, administer the Incentive Plan, and will determine
which of our employees, directors and consultants (whom we refer
to collectively as Eligible Recipients) will receive Awards and
the terms and conditions of these Awards. The number of Eligible
Recipients who may receive Awards under the Incentive Plan will
likely vary from year to year.
Shares Available for Issuance. The
maximum number of shares of our common stock that may be
available under the Incentive Plan is 1,000,000 shares. The
number of shares of our common stock delivered under the
Incentive Plan with respect to Awards of restricted stock and
restricted stock units shall not exceed 500,000 shares. It
is expected that our shares delivered under the Incentive Plan
will be authorized but unissued shares or shares that we have
reacquired. Shares of our common stock subject to Awards that
are forfeited, terminated, canceled or settled without the
delivery of our common stock under the Incentive Plan will again
be available for Awards under the Incentive Plan. Also,
(x) shares tendered to us in satisfaction or partial
satisfaction of the exercise price of any Award under the
Incentive Plan and (y) remittances from option exercises
used to repurchase shares of our common stock on the open market
will increase the number of shares available for delivery
pursuant to Awards granted under the Incentive Plan. In
addition, any shares of our common stock underlying Awards
granted in assumption of, or in substitution for, outstanding
awards previously granted by a company acquired by us, or with
which we combine (which we refer to as Substitute Awards) shall
not be counted against the shares available for delivery under
the Incentive Plan.
Adjustments. If a fundamental corporate event
occurs, our Compensation Committee may, as it deems appropriate,
adjust the number and kind of our shares that may be delivered
under the Incentive Plan in the future and the number and kind
of shares and the grant, exercise or conversion price, if
applicable, under all outstanding Awards to preserve, or to
prevent the enlargement of, the benefits made available under
the Incentive Plan. Cash payments may also be made.
Grants
Under the Incentive Plan
Stock Options. Our Compensation Committee may
grant options under the Incentive Plan in the form of
non-statutory stock options (which we refer to as NSOs) and
incentive stock options (which we refer to as ISOs). These
options may
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contain any terms that our Compensation Committee determines.
The exercise price shall not be less than 100% of the fair
market value on the date of grant. Our Compensation Committee
shall have the discretion to determine the terms and conditions
upon which options shall be exercisable.
Restricted Stock and Restricted Stock
Units. Our Compensation Committee may grant an
Eligible Recipient restricted stock units which provide a
contractual right to receive shares of our common stock or cash
based on the fair market value of the related shares at the end
of a restricted period determined by our Compensation Committee,
which restricted period is generally expected to be three years
or more. Our Compensation Committee also may grant shares of
restricted stock that are nontransferable and subject to
substantial risk of forfeiture during the applicable restricted
period. Our Compensation Committee shall have the discretion to
provide that Awards of restricted stock and restricted stock
units will vest, if at all, upon the (i) employees
continued employment during the relevant restricted period as
determined by our Compensation Committee
and/or
(ii) attainment or partial attainment of performance
objectives determined by our Compensation Committee. In general,
an employee who has been granted restricted stock, the vesting
restrictions of which relate solely to the passage of time and
continued employment, will from the date of grant have the
benefits of ownership in respect of such shares, including the
right to receive dividends and other distributions thereon,
subject to the restrictions set forth in the Incentive Plan and
in the instrument evidencing such Award. With respect to any
performance period, no Eligible Recipient may be granted Awards
of incentive stock or incentive units which vest upon the
achievement of performance objectives in respect of more than
500,000 shares of our common stock or, if such Awards are
settled in cash, the fair market value of such shares determined
at the time of payment (each subject to adjustment as described
above).
With respect to any Award of restricted stock or restricted
stock units made to one of our Eligible Recipients that our
Compensation Committee determines will vest based on the
achievement of performance objectives, such performance
objectives shall relate to at least one of the following
criteria, which may be determined solely by reference to our
performance or the performance of a subsidiary or an affiliate
(or any business unit thereof) or based on comparative
performance relative to other companies: (i) net income;
(ii) earnings before income taxes; (iii) earnings per
share; (iv) return on shareholders equity;
(v) expense management; (vi) profitability of an
identifiable business unit or product; (vii) revenue
growth; (viii) earnings growth; (ix) total shareholder
return; (x) cash flow; (xi) return on assets;
(xii) pretax operating income; (xiii) net economic
profit (operating earnings minus a charge for capital);
(xiv) customer satisfaction; (xv) provider
satisfaction; (xvi) employee satisfaction;
(xvii) strategic innovation; or (xviii) any
combination of the foregoing.
Dividends and Dividend Equivalents. Our
Compensation Committee may provide that any Award shall include
dividends or dividend equivalents, payable in cash or deemed
reinvested in our common stock.
Other Stock-Based Awards. The Incentive Plan
also authorizes our Compensation Committee to grant other
stock-based awards to Eligible Recipients.
Limitation on Awards. No Eligible Recipient
may be granted Awards covering more than 500,000 shares of
our common stock in respect of any two year period in which the
Incentive Plan is in effect (subject to adjustment as described
above).
Effect of Awards on Termination of
Employment. Our Compensation Committee generally
has broad discretion as to the specific terms and conditions of
each Award and any rules applicable thereto, including but not
limited to the effect thereon of the death, retirement or other
termination of employment of the Eligible Recipient.
Change of Control. All Awards vest in full
upon a change in control of the Company (as such term is defined
in the Incentive Plan).
Award Agreement. The terms of each Award are
to be evidenced by a written instrument delivered to the
Eligible Recipient.
Transferability. Unless our Compensation
Committee expressly permits transfers for the
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benefit of charity or of members of the Eligible
Recipients immediate family or trust or similar vehicle
for their benefit, Awards under the Incentive Plan may not be
assigned or transferred except by will or the laws of descent
and distribution.
Amendment or Termination. Our board of
directors may terminate or suspend the Incentive Plan at any
time, but the termination or suspension will not adversely
affect any Awards then outstanding under the Incentive Plan.
Unless previously terminated by action of the board, no Award
may be granted under the Incentive Plan after the tenth
anniversary of the date the Incentive Plan is approved by the
stockholders. The Incentive Plan may be amended or terminated at
any time by our board of directors, except that no amendment may
be made without stockholder approval if our Compensation
Committee determines that such approval is necessary to comply
with any tax or regulatory requirement, including any approval
requirement that is a prerequisite for exemptive relief from
Section 16 of the Securities Exchange Act of 1934, as
amended, for which or with which our Compensation Committee
determines that it is desirable to qualify or comply. Our
Compensation Committee may amend the term of the Award granted,
retroactively or prospectively, but no amendment may adversely
affect any Award without the holders consent.
Certain Federal Income Tax Consequences. The
options described above are intended to comply with the
requirements of the Internal Revenue Code regarding the
deductibility of certain performance based compensation. Under
currently applicable federal income tax law, an Eligible
Recipient will receive no taxable income upon the grant of an
NSO or an ISO. When an Eligible Recipient exercises an NSO, the
excess of the fair market value of the shares on the date of
exercise over the exercise price paid will be ordinary income to
the Eligible Recipient and his or her employer generally will be
allowed a federal income tax deduction in the same amount. When
an Eligible Recipient exercises an ISO while employed or within
three months after termination of employment (one year for
disability), no income will be recognized upon exercise of the
ISO. However, the favorable regular tax treatment that applies
to an ISO doesnt apply for alternative minimum tax (AMT)
purposes. An Eligible Recipient who exercises an ISO will
generally recognize AMT income in the year of exercise in an
amount equal to the excess of the fair market value of the stock
on the exercise date over the exercise price (unless the stock
acquired through exercise of the ISO is disposed of in the same
tax year). If the Eligible Recipient holds shares acquired for
at least one year after exercise and two years after the grant
of the ISO, the excess of the amount realized upon disposition
of the shares over the exercise price paid is treated as
long-term capital gain for the Eligible Recipient and the
Eligible Recipients employer is not allowed a federal
income tax deduction. A sale or other exchange of the underlying
stock before the end of either of the required holding periods
will be a disqualifying disposition which will
generally result in the Eligible Employee being taxed on the
gain derived from the exercise of an ISO as though it were an
NSO and the Eligible Employees employer generally will be
allowed a federal income tax deduction in the same amount.
Special rules apply if the exercise price is paid in shares.
New Plan Benefits. The amount or type of
grants that will be allocated to or received by any person or
group of persons cannot be determined at this time.
The board of directors recommends that stockholders vote FOR
the approval of the 2011 Equity Incentive Plan.
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Proposal 3:
Approval
of Appointment of CASMEDs Independent
Accountants
The Audit Committee of our board of directors has selected J.H.
Cohn LLP as our independent registered public accounting firm
for the year ending December 31, 2011, and has directed
that the selection of independent accountants be submitted for
ratification by stockholders at the annual meeting. A
representative of J.H. Cohn LLP is expected to be present at the
annual meeting and will have an opportunity to make a statement
if he or she desires and will be available to respond to
appropriate questions.
Stockholder ratification of the selection of J.H. Cohn LLP as
our independent accountants is not required by our Bylaws or
otherwise. However, the Audit Committee is submitting the
selection of J.H. Cohn LLP to the stockholders for ratification
as a matter of good corporate practice. If the stockholders fail
to ratify the selection, the Audit Committee will reconsider
whether or not to retain that firm. Even if the selection were
ratified, the Audit Committee in its discretion may direct the
appointment of a different independent accounting firm at any
time during the year if the Audit Committee determines that such
a change would be in the best interests of CASMED and its
stockholders.
Change of
Independent Accountants
On April 19, 2010 UHY LLP, our prior independent registered
public accounting firm, informed us that effective
April 16, 2010, its New England practice was acquired by
Marcum LLP. UHY LLP also informed us that, as a result of this
transaction, it declined reappointment as our independent
registered public accounting firm for the fiscal year ending
December 31, 2010.
UHY LLP audited our financial statements for the fiscal year
ended December 31, 2009. The audit reports of UHY LLP on
our financial statements for that year did not contain an
adverse opinion, or a disclaimer of opinion, or qualification or
modification as to any uncertainty, audit scope, or accounting
principles.
During the fiscal year ended December 31, 2009 and
subsequently to April 19, 2010, there were no disagreements
with UHY LLP on any matter of accounting principles or
practices, financial statement disclosure, or auditing scope or
procedure that, if not resolved to UHY LLPs satisfaction,
would have caused UHY LLP to make reference to the subject
matter of the disagreement in connection with its audit reports
nor were there any reportable events (as that term
is described in Item 304(a)(1)(v) of
Regulation S-K).
UHY LLP issued a letter dated April 21, 2010 addressed to
the Securities and Exchange Commission stating that UHY LLP
agreed with the above statements.
Our audit committee appointed J.H. Cohn LLP as the successor
independent registered public accounting firm on April 21,
2010. Prior to such appointment, we had not consulted with J.H.
Cohn LLP with respect to: 1) the application of accounting
principles to a specified transaction, either completed or
proposed; 2) the type of audit opinion that might be
rendered on our financial statements; or 3) any matter that
was either the subject of a disagreement (as defined in
Item 304(a)(1)(iv) of
Regulation S-K)
or a reportable event (as described in Item 304(a)(1)(v) of
Regulation S-K).
The audit committee made its determination based in part on
maintaining continuity of service due to the UHY LLP lead
account partner joining J.H. Cohn LLP.
Audit
Fees
J.H. Cohn LLP performed the audit of our annual consolidated
financial statements included in the annual report on
Form 10-K
and the review of interim consolidated financial statements
included in quarterly reports on
Form 10-Q
and the review and audit of the application of new accounting
pronouncements and SEC releases. Aggregate fees billed by J.H.
Cohn LLP were $143,903 for the year ended December 31,
2010. UHY LLP performed the audit for the year ended
December 31, 2009 and the fees for those services were
$147,386.
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Audit-Related
Fees
J.H. Cohn LLP also provided 401(K) Plan audit services to the
Company during 2010 for the plan year ended December 31,
2009. Fees billed for those services were $12,818.UHY LLP
performed those services in 2009 for the plan year ended
December 31, 2008. Fees billed by UHY LLP for those
services were $12,666.
Tax
Fees
J.H. Cohn LLP did not provide tax services to CASMED during the
years ended December 31, 2010 and 2009. The Company
utilizes an independent third-party accounting firm to perform
those services.
All Other
Fees
J.H. Cohn LLP did not provide any services in addition to those
described above during the years ended December 31, 2010
and 2009.
The board of directors recommends that stockholders vote FOR
the appointment of J.H. Cohn LLP as the companys
independent accountants for 2011.
Additional
Information
Solicitation
of Proxies
In addition to the use of the mails, proxies may be solicited by
the directors, officers, and employees of the company without
additional compensation in person, or by telephone, facsimile,
email or otherwise. Arrangements may also be made with brokerage
firms and other custodians, nominees, and fiduciaries for the
forwarding of solicitation material to the beneficial owners of
CASMED common stock, and we will reimburse these brokers,
custodians, nominees, and fiduciaries for reasonable
out-of-pocket
expenses incurred. The cost of solicitation will be borne
entirely by CASMED.
Other
Matters
Directions to the annual meeting can be obtained by making a
written or oral request to our Secretary,
c/o CAS
Medical Systems, Inc., 44 East Industrial Road, Branford,
Connecticut 06405 or by telephone
(203-488-6056).
Management knows of no other matters which may be presented for
consideration at the meeting. However, if any other matters
properly come before the meeting, it is the intention of the
individuals named in the enclosed proxy to vote in accordance
with their judgment.
By order of the board of directors.
Jeffery A. Baird
Secretary
26
Exhibit A
CAS
MEDICAL SYSTEMS, INC. 2011 EQUITY INCENTIVE PLAN
Section 1. Purpose.
The purposes of this CAS Medical Systems, Inc. 2011 Equity
Incentive Plan (the Plan) are (1) to
make available to key employees, directors and consultants
certain compensatory arrangements related to the growth in value
of the common stock of the Company so as to generate an
increased incentive to contribute to the Companys future
financial success and prosperity, (2) to enhance the
ability of the Company and its Affiliates to attract and retain
exceptionally qualified individuals whose efforts can affect the
financial growth and profitability of the Company, and
(3) to align generally the interests of key employees,
directors and consultants of the Company and its Affiliates with
the interests of the Companys stockholders.
Section 2. Definitions.
As used in the Plan, the following terms shall have the meanings
set forth below:
(a) Affiliate shall mean (i) any
entity that, directly or through one or more intermediaries, is
controlled by the Company or (ii) any entity in which the
Company has a significant equity interest, as determined by the
Committee.
(b) Award shall mean any Option,
Restricted Stock Award, Restricted Stock Unit, Dividend
Equivalent, Other Stock-Based Award, Performance Award or
Substitute Award, granted under the Plan.
(c) Award Agreement shall mean any
written agreement, contract, or other instrument or document
evidencing any Award granted under the Plan.
(d) Board of Directors shall mean the
Board of Directors of the Company as it may be composed from
time to time.
(e) Business Relationship shall mean,
with respect to a Consultant, such Consultant continuing to
render, in the sole determination of the Board of Directors or
the Committee, substantial ongoing services as an independent
contractor of the Company.
(f) Code shall mean the Internal Revenue
Code of 1986, as amended from time to time, or any successor
code thereto.
(g) Committee shall mean the Board of
Directors, excluding any director who is not a
Non-Employee Director within the meaning of
Rule 16b-3,
or any such other committee designated by the Board of Directors
to administer the Plan, which committee shall be composed of not
less than the minimum number of members of the Board of
Directors from time to time required by
Rule 16b-3
or any applicable law, each of whom is a Non-Employee Director
within the meaning of
Rule 16b-3.
(h) Company shall mean CAS Medical
Systems, Inc., or any successor thereto.
(i) Company Service shall mean any
service with the Company or any Affiliate in which the Company
have at least a 51% ownership interest.
(j) Consultant shall mean a natural
person providing bona fide services to the Company or any
Affiliate that are not in connection with the offer or sale of
securities in a capital raising transaction, and such party does
not directly or indirectly promote or maintain a market in the
Companys securities.
(k) Covered Award means an Award, other
than an Option or other Award with an exercise price per Share
not less than the Fair Market Value of a Share on the date of
grant of
A-1
such Award, to a Covered Employee, if it is designated as such
by the Committee at the time it is granted. Covered Awards are
subject to the provisions of Section 13 of this Plan.
(l) Covered Employees means Participants
who are designated by the Committee prior to the grant of an
Award who are, or are expected to be at the time taxable income
will be realized with respect to the Award, covered
employees within the meaning of Section 162(m).
(m) Dividend Equivalent shall mean any
right granted under Section 6(c) of the Plan.
(n) Effective Date shall mean the date
that the Plan is first approved by the stockholders of the
Company.
(o) Employee shall mean any employee or
employee director of the Company or of any Affiliate.
(p) Fair Market Value shall mean, with
respect to any property (including, without limitation, any
Shares or other securities), the fair market value of such
property determined by such methods, or procedures as shall be
established from time to time by the Committee.
(q) Incentive Stock Option or
ISO shall mean an option granted under
Section 6(a) of the Plan that is intended to meet the
requirements of Section 422 of the Code, or any successor
provision thereto.
(r) Non-Qualified Stock Option shall
mean an option granted under Section 6(a) of the Plan that
is not intended to be an Incentive Stock Option.
(s) Option shall mean an Incentive Stock
Option or a Non-Qualified Stock Option.
(t) Other Stock-Based Award shall mean
any Award granted under Section 6(d) of the Plan.
(u) Participant shall mean an Employee,
Consultant or member of the Board of Directors who is granted an
Award under the Plan.
(v) Performance Award shall mean any
Award granted hereunder that complies with Section 6(e)(ii)
of the Plan.
(w) Performance Goals means one or more
objective performance goals, established by the Committee at the
time an Award is granted, and based upon the attainment of
targets for one or any combination of the following criteria,
which may be determined solely by reference to the
Companys performance or the performance of a subsidiary or
an Affiliate (or any business unit thereof) or based on
comparative performance relative to other companies:
(i) net income; (ii) earnings before income taxes;
(iii) earnings per share; (iv) return on
stockholders equity; (v) expense management;
(vi) profitability of an identifiable business unit or
product; (vii) revenue growth; (viii) earnings growth;
(ix) total stockholder return; (x) cash flow;
(xi) return on assets; (xii) pre-tax operating income;
(xiii) net economic profit (operating earnings minus a
charge for capital); (xiv) customer satisfaction;
(xv) provider satisfaction; (xvi) employee
satisfaction; (xvii) strategic innovation; or
(xviii) any combination of the foregoing. Performance Goals
shall be set by the Committee within the time period prescribed
by Section 162(m).
(x) Person shall mean any individual,
corporation, partnership, association, joint-stock company,
trust, unincorporated organization, or government or political
subdivision thereof.
(y) Released Securities shall mean
securities that were Restricted Securities with respect to which
all applicable restrictions have expired, lapsed, or been waived.
(z) Restricted Securities shall mean
Awards of Restricted Stock or other Awards under which issued
and outstanding Shares are held subject to certain restrictions.
(aa) Restricted Stock shall mean any
Share granted under Section 6(b) of the Plan.
A-2
(bb) Restricted Stock Unit shall mean
any right granted under Section 6(b) of the Plan that is
denominated in Shares.
(cc) Rule 16b-3
shall mean
Rule 16b-3
promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934 as amended, or any successor
rule and the regulation thereto.
(dd) Section 162(m) means
Section 162(m) of the Code or any successor thereto, and
the Treasury Regulations thereunder.
(ee) Share or Shares
shall mean share(s) of the common stock of the Company, and such
other securities or property as may become the subject of Awards
pursuant to the adjustment provisions of Section 4(c).
(ff) Substitute Award shall mean an
Award granted in assumption of, or in substitution for, an
outstanding award previously granted by a company acquired by
the Company or with which the Company combines.
Section 3. Administration.
(a) The Plan shall be administered by the Committee.
Subject to the terms of the Plan and applicable law, the
Committee shall have full power and authority to designate
Participants and:
(i) determine the type or types of Awards to be granted to
each Participant under the Plan;
(ii) determine the number of Shares to be covered by (or
with respect to which payments, rights, or other matters are to
be calculated in connection with) Awards;
(iii) determine the terms and conditions of any Award;
(iv) determine whether, to what extent, and under what
circumstances Awards may be settled or exercised in cash,
Shares, other securities, other Awards, or other property, or to
what extent, and under what circumstances Awards may be
canceled, forfeited, or suspended, and the method or methods by
which Awards may be settled, exercised, canceled, forfeited, or
suspended;
(v) determine whether, to what extent, and under what
circumstances cash, Shares, other securities, other Awards,
other property, and other amounts payable with respect to an
Award under the Plan shall be deferred either automatically or
at the election of the holder thereof or of the Committee;
(vi) interpret and administer the Plan and any instrument
or agreement relating to the Plan, or any Award made under the
Plan, including any Award Agreement;
(vii) establish, amend, suspend, or reconcile such rules
and regulations and appoint such agents as it shall deem
appropriate for the proper administration of the Plan; and
(viii) make any other determination and take any other
action that the Committee deems necessary or desirable for the
administration of the Plan.
(b) Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations, and other
decisions under or with respect to the Plan, any Award, or any
Award Agreement, shall be within the sole discretion of the
Committee, may be made at any time, and shall be final,
conclusive, and binding upon all Persons, including the Company,
any Affiliate, any Participant, any holder or beneficiary of any
Award, and any employee of the Company or of any Affiliate.
(c) The Committee may delegate to one or more executive
officers of the Company or to a committee of executive officers
of the Company the authority to grant Awards to Employees who
are not officers or directors of the Company and to amend,
modify, cancel or suspend Awards to such employees, subject to
Sections 7 and 9.
A-3
Section 4. Shares Available
For Awards.
(a) Maximum
Shares Available. The maximum number of
Shares that may be issued to Participants pursuant to Awards
under the Plan shall be 1,000,000 Shares (the Plan
Maximum), subject to adjustment as provided in
Section 4(c) below. Only 500,000 Shares may be issued
pursuant to Awards of Restricted Stock and Restricted Stock
Units under Section 6(b) of the Plan. Pursuant to any
Awards, the Company may in its discretion issue treasury Shares
or authorized but previously unissued Shares pursuant to Awards
hereunder. For the purpose of accounting for Shares available
for Awards under the Plan, the following shall apply:
(i) Only Shares relating to Awards actually issued or
granted hereunder shall be counted against the Plan Maximum.
Shares corresponding to Awards that by their terms expired, or
that are forfeited, canceled or surrendered to the Company
without full consideration paid therefore shall not be counted
against the Plan Maximum.
(ii) Shares that are forfeited by a Participant after
issuance, or that are reacquired by the Company after issuance
without full consideration paid therefor, shall be deemed to
have never been issued under the Plan and accordingly shall not
be counted against the Plan Maximum.
(iii) Awards not denominated in Shares shall be counted
against the Plan Maximum in such amount and at such time as the
Committee shall determine under procedures adopted by the
Committee consistent with the purposes of the Plan.
(iv) Substitute Awards shall not be counted against the
Plan Maximum, and clauses (i) and (ii) of this Section
shall not apply to such Awards.
(v) The maximum number of Shares that may be the subject of
Awards made to a single Participant in any two year period shall
be 500,000.
(vi) With respect to any performance period no Participant
may be granted Awards of incentive stock or incentive units that
vest upon the achievement of performance objectives in respect
of more than 500,000 Shares of common stock or, if such
Awards are settled in cash, the fair market value thereof
determined at the time of payment, each subject to adjustment as
provided in Section 4(c) below.
(b) Shares Available for
ISOs. The maximum number of Shares for which
ISOs may be granted under the Plan shall not exceed the Plan
Maximum as defined in Section 4(a) above, subject to
adjustment as provided in Section 4(c) below.
(c) Adjustments to Avoid
Dilution. Notwithstanding paragraphs
(a) and (b) above, in the event of a stock or
extraordinary cash dividend,
split-up or
combination of Shares, merger, consolidation, reorganization,
recapitalization, or other change in the corporate structure or
capitalization affecting the outstanding common stock of the
Company, such that an adjustment is determined by the Committee
to be appropriate in order to prevent dilution or enlargement of
the benefits or potential benefits intended to be made available
under the Plan or any Award, then the Committee may make
appropriate adjustments to (i) the number or kind of Shares
available for the future granting of Awards hereunder,
(ii) the number and type of Shares subject to outstanding
Awards, and (iii) the grant, purchase, or exercise price
with respect to any Award; or if it deems such action
appropriate, the Committee may make provision for a cash payment
to the holder of an outstanding Award; provided, however,
that with respect to any ISO no such adjustment shall be
authorized to the extent that such would cause the ISO to
violate Code Section 422 or any successor provision
thereto. The determination of the Committee as to the
adjustments or payments, if any, to be made shall be conclusive.
(d) Other Plans. Shares issued
under other plans of the Company shall not be counted against
the Plan Maximum under the Plan.
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Section 5. Eligibility.
Any director of the Company, Consultant or Employee shall be
eligible to be designated a Participant.
Section 6. Awards.
(a) Options. The Committee is
hereby authorized to grant Options to Participants with the
following terms and conditions and with such additional terms
and conditions, not inconsistent with the provisions of the
Plan, as the Committee shall determine:
(i) Exercise Price. The exercise price
per Share under an Option shall be determined by the Committee;
provided, however, that except in the case of Substitute Awards,
no Option granted hereunder may have an exercise price of less
than 100% of Fair Market Value of a Share on the date of grant.
(ii) Times and Method of Exercise. The
Committee shall determine the time or times at which an Option
may be exercised in whole or in part; in no event, however,
shall the period for exercising an Option extend more than
10 years from the date of grant. The Committee shall also
determine the method or methods by which Options may be
exercised, and the form or forms (including without limitation,
cash, Shares, other Awards, or other property, or any
combination thereof, having a Fair Market Value on the exercise
date equal to the relevant exercise price), in which payment of
the exercise price with respect thereto may be made or deemed to
have been made.
(iii) Incentive Stock Options. The terms
of any Incentive Stock Option granted under the Plan shall
comply in all respects with the provisions of Section 422
of the Code, or any successor provision thereto, and any
regulations promulgated there under.
(iv) Termination. In the event that a
Participant terminates employment or director status or becomes
disabled, or in the case of a Consultant, ceases to have a
Business Relationship with the Company, Options granted
hereunder shall be exercisable only as specified below:
(A) Disability or Death. Except as
otherwise provided in an employment agreement with a Participant
or as the Committee may otherwise provide, if a Participant
becomes disabled or dies, any vested, unexercised portion of an
Option that is at least partially vested at the time of the
termination shall be forfeited in its entirety if not exercised
by the Participant (or his or her heirs or representatives)
within six (6) months of the date of death or disability,
unless the Committee has in its sole discretion established an
additional exercise period (but in any case not longer than the
original option term). Except as otherwise provided in an
employment agreement with a Participant or as the Committee may
otherwise provide, any portion of such partially vested Option
that is not vested at the time of disability or death shall be
forfeited. Except as otherwise provided in an employment
agreement with a Participant or as the Committee may otherwise
provide, any outstanding Option granted to a Participant at the
time of disability or death, for which no vesting has occurred
at the time of disability or death, shall be forfeited on the
date of disability or death.
(B) Termination for Reasons Other Than Death or
Disability. Except as otherwise provided in an
employment agreement with a Participant or as the Committee may
otherwise provide, if a Participant terminates employment or
director status for reasons other than death or disability, or
in the case of a Consultant, ceases to have a Business
Relationship with the Company, any vested, unexercised portion
of an Option that is at least partially vested at the time of
the termination shall be forfeited in its entirety if not
exercised by the Participant within three (3) months of the
date of termination of employment or director status, unless the
Committee has in its sole discretion established an additional
exercise period (but in any case not longer than the original
option term). Any portion of such partially vested Option that
is not vested at the time of termination shall be forfeited
unless the Committee has in its
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sole discretion established that a Participant may continue to
satisfy the vesting requirements beyond the date of his or her
termination of employment, director or Consultant status. Except
as otherwise provided in an employment agreement with a
Participant or as the Committee may otherwise provide, any
outstanding Option granted to a Participant terminating
employment, director or Consultant status other than for death
or disability, for which no vesting has occurred at the time of
the termination shall be forfeited on the date of termination.
(C) Sale of Business. Except as otherwise
provided in an employment agreement with a Participant or as the
Committee may otherwise provide, in the event the
business unit, (defined as a division,
subsidiary, unit or other delineation that the Committee in its
sole discretion may determine) for which the Participant
performs substantially all of his or her services is assigned,
sold, outsourced or otherwise transferred, including an asset,
stock or joint venture transaction, to an unrelated third party
such that after such transaction the Company owns or controls
directly or indirectly less than 51% of the business unit, the
affected Participant shall become 100% vested in all outstanding
Options as of the date of the closing of such transaction,
whether or not fully or partially vested, and such Participant
shall be entitled to exercise such Options during the three
(3) months following the closing of such transaction,
unless the Committee has in its sole discretion established an
additional exercise period (but in any case not longer than the
original option term). Except as otherwise provided in an
employment agreement with a Participant or as the Committee may
otherwise provide, all Options which are unexercised at the end
of such three (3) months shall be automatically forfeited.
(D) Conditions Imposed on Unvested
Options. Notwithstanding the foregoing provisions
describing the additional exercise periods for Options upon
termination of employment, director or Consultant status, the
Committee may in its sole discretion condition the right of a
Participant to exercise any portion of a partially vested Option
for which the Committee has established an additional exercise
period on the Participants agreement to adhere to such
conditions and stipulations which the Committee may impose,
including, but not limited to, restrictions on the solicitation
of employees or independent contractors, disclosure of
confidential information, covenants not to compete, refraining
from denigrating through adverse or disparaging communication,
written or oral, whether or not true, the operations, business,
management, products or services of the Company or its current
or former employees and directors, including without limitation,
the expression of personal views, opinions or judgments. The
unvested Options of any Participant for whom the Committee has
given an additional exercise period subject to such conditions
subsequent as set forth in this Section 6(a)(iv)(D) shall be
forfeited immediately upon a breach of such conditions.
(E) Forfeiture for Gross
Misconduct. Notwithstanding anything to the
contrary herein, any Participant who engages in Gross
Misconduct, as defined herein, (including any
Participant who may otherwise qualify for disability status)
shall forfeit all outstanding, unexercised Options, whether
vested or unvested, as of the date such Gross Misconduct occurs.
For purposes of the Plan, Gross Misconduct shall be defined to
mean (i) the Participants conviction of a felony (or
crime of similar magnitude in
non-U.S. jurisdictions)
in connection with the performance or nonperformance of the
Participants duties or (ii) the Participants
willful act or failure to act in a way that results in material
injury to the business or reputation of the Company or employees
of the Company.
(F) Vesting. For purposes of the Plan,
any reference to the vesting of an Option
shall mean any events or conditions which, if satisfied, entitle
a Participant to exercise an Option with respect to all or a
portion of the shares covered by the Option. The complete
vesting of an Option shall be subject to
Section 6(a)(iv)(E) hereof. Such vesting events or
conditions may be set forth in the Notice of Grant or otherwise
be determined by the Committee.
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(b) Restricted Stock and Restricted Stock
Units. The Committee is hereby authorized to
grant Awards of Restricted Stock and or Restricted Stock Units
to Participants with the following terms and conditions.
(i) Restrictions. Shares of Restricted
Stock and Restricted Stock Units shall be subject to such
restrictions as the Committee may impose (including, without
limitation, continued employment, director or Consultant service
over a specified period or the attainment of specified
Performance Objectives (as defined in Section 6(e)(ii)(B)) or
Performance Goals, in accordance with Section 13), which
restrictions may lapse separately or concurrently at such time
or times, in such installments or otherwise, as the Committee
may deem appropriate.
(ii) Registration. Any Restricted Stock
granted under the Plan may be evidenced in such manner as the
Committee may deem appropriate including, without limitation,
book-entry registration or issuance of a stock certificate or
certificates. In the event any stock certificate is issued in
respect of Shares of Restricted Stock granted under the Plan,
such certificate shall be registered in the name of the
Participant and shall bear an appropriate legend referring to
the terms, conditions, and restrictions applicable to such
Restricted Stock.
(iii) Termination. Except as otherwise
provided in an employment agreement with a Participant or as the
Committee may otherwise provide, upon termination of employment
or director service of a Participant, or in the case of a
Consultant, ceases to have a Business Relationship with the
Company, for any reason during the applicable restriction
period, all Restricted Stock and all Restricted Stock Units, or
portion thereof, still subject to restriction shall be forfeited
and reacquired by the Company; provided, however, that in the
event termination of employment or director service is due to
the death or disability of the Participant, the Committee may
waive in whole or in part any or all remaining restrictions with
respect to Restricted Stock or Restricted Stock Units.
(c) Dividend Equivalents. The
Committee may grant to Participants Dividend Equivalents under
which the holders thereof shall be entitled to receive payments
equivalent to dividends with respect to a number of Shares
determined by the Committee, and the Committee may provide that
such amounts shall be deemed to have been reinvested in
additional Shares or otherwise reinvested. Subject to the terms
of the Plan, such Awards may have such terms and conditions as
the Committee shall determine.
(i) Termination. Except as otherwise
provided in an employment agreement with a Participant or as the
Committee may otherwise provide, upon termination of the
Participants employment or director service, or in the
case of a Consultant, ceases to have a Business Relationship
with the Company, for any reason during the term of a Dividend
Equivalent, the right of a Participant to payment under a
Dividend Equivalent shall terminate as of the date of
termination; provided, however, that in the event the
Participants employment or director service terminates
because of the death or disability of a Participant the
Committee may determine that such right terminates at a later
date.
(d) Other Stock-Based Awards. The
Committee is hereby authorized to grant to Participants such
other Awards that are denominated or payable in, valued in whole
or in part by reference to, or otherwise based on or related to
Shares (including without limitation securities convertible into
Shares), as are deemed by the Committee to be consistent with
the purposes of the Plan; provided, however, that such grants
must comply with
Rule 16b-3
and applicable law.
(i) Consideration. If applicable, Shares or other
securities delivered pursuant to a purchase right granted under
this Section 6(d) shall be purchased for such
consideration, which may be paid by such method or methods and
in such form or forms, including without limitation cash,
Shares, other securities, other Awards or other property, or any
combination thereof, as the Committee shall determine; provided,
however, that except in the case of Substitute Awards, no
derivative security (as defined in
Rule 16b-3)
awarded hereunder may have an exercise price of less than 100%
of Fair Market Value of a Share on the date of grant.
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(ii) Termination. In granting any Stock-Based Award
pursuant to this Section 6(d) the Committee shall also
determine what effect the termination of employment or director
service of the Participant holding such Award, or in the case of
a Consultant, ceasing to have a Business Relationship with the
Company, shall have on the rights of the Participant pursuant to
the Award.
(e) General. The following general
provisions shall apply to all Awards granted hereunder, subject
to the terms of other sections of this Plan or any Award
Agreement.
(i) Award Agreements. Each Award granted under this
Plan shall be evidenced by an Award Agreement which shall
specify the relevant material terms and conditions of the Award
and which shall be signed by the Participant receiving such
Award, if so indicated by the Award.
(ii) Performance Awards. Subject to the other terms
of this Plan, the payment, release or exercisability of any
Award, in whole or in part, may be conditioned upon the
achievement of such Performance Objectives (as defined below)
during such performance periods as are specified by the
Committee. Hereinafter in this Section 6(e)(ii) the terms
payment, pay, and paid also refer to the release or
exercisability of a Performance Award, as the case may require.
(A) Terms. The Committee shall establish
the terms and conditions of any Performance Award including the
Performance Objectives (as defined below) to be achieved during
any performance period, the length of any performance period,
any event the occurrence of which will entitle the holder to
payment, and the amount of any Performance Award granted.
(B) Performance Objectives. The Committee
shall establish Performance Objectives the
achievement of which shall entitle the Participant to payment
under a Performance Award. Performance Objectives may be any
measure of the business performance of the Company, or any of
its divisions or Affiliates, including but not limited to the
growth in book or market value of capital stock, the increase in
the earnings in total or per share, or any other financial or
non-financial indicator specified by the Committee.
(C) Fulfillment of Conditions and
Payment. The Committee shall determine in a
timely manner whether all or part of the conditions to payment
of a Performance Award have been fulfilled and, if so, the
amount, if any, of the payment to which the Participant is
entitled.
(iii) Rule 16b-3
Six Month Limitations. To the extent required in
order to render the grant of an Award, the exercise of an Award
or any derivative security, or the sale of securities
corresponding to an Award, an exempt transaction under
Section 16(b) of the Securities Exchange Act of 1934 only,
any equity security granted under the Plan to a Participant must
be held by such Participant for at least six months from the
date of grant, or in the case of a derivative security granted
pursuant to the Plan to a Participant, at least six months must
elapse from the date of acquisition of the derivative security
to the date of disposition of the derivative security (other
than upon exercise or conversion) or its underlying equity
security. Terms used in the preceding sentence shall, for the
purposes of such sentence only, have the meanings if any,
assigned or attributed to them under
Rule 16b-3.
(iv) Limits on Transfer of Awards. No
Award (other than Released Securities), and no right under any
such Award shall be assignable, alienable, pledgeable,
attachable, encumberable, saleable, or transferable by a
Participant other than by will or by the laws of descent and
distribution or pursuant to a domestic relations order (or, in
the case of Awards that are forfeited or canceled, to the
Company); and any purported assignment, sale, transfer, thereof
shall be void and unenforceable against the Company or
Affiliate. If the Committee so indicates in writing to a
Participant, he or she may designate one or more beneficiaries
who may exercise the rights of the Participant and receive any
property distributable with respect to any Award upon the death
of the Participant.
(v) Exercisability. Each Award, and each
right under any Award, shall be exercisable, during the
Participants lifetime only by the Participant or, if
permissible under applicable law, by the
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Participants guardian or legal representative or by a
transferee receiving such Award pursuant to a domestic relations
order referred to above.
(vi) No Cash Consideration for Awards. Awards may be
granted for no cash consideration, or for such minimal cash
consideration as the Committee may specify, or as may be
required by applicable law.
(vii) Awards May Be Granted Separately or Together.
Awards may, in the discretion of the Committee, be granted
either alone or in addition to, in tandem with, or in
substitution for any other Award or any award granted under any
other plan of the Company or any Affiliate. Awards granted in
addition to or in tandem with other Awards or in addition to or
in tandem with awards granted under any other plan of the
Company or any Affiliate may be granted either at the same time
as or at a different time from the grant of such other Awards or
awards. Performance Awards and Awards which are not Performance
Awards may be granted to the same Participant.
(viii) Forms of Payment Under Awards. Subject to the
terms of the Plan and of any applicable Award Agreement,
payments or transfers to be made by the Company or an Affiliate
upon the grant, exercise, or payment of an Award may be made in
such form or forms as the Committee shall determine, including,
without limitation, cash, Shares, other securities, other
Awards, or other property, or any combination thereof, and may
be made in a single payment or transfer, in installments, or on
a deferred basis, in each case in accordance with rules and
procedures established by the Committee. Such rules and
procedures may include, without limitation, provisions for the
payment or crediting of reasonable interest on installment or
deferred payments or the grant or crediting of Dividend
Equivalents in respect of installment or deferred payments.
(ix) Term of Awards. Except as provided in
Sections 6(a)(ii) or 6(a)(iv), the term of each Award shall
be for such period as may be determined by the Committee.
(x) Share Certificates. All certificates for Shares
or other securities delivered under the Plan pursuant to any
Award or the exercise thereof shall be subject to such stop
transfer orders and other restrictions as the Committee may deem
advisable under the Plan or the rules, regulations, and other
requirements of the Securities and Exchange Commission, any
stock exchange upon which such Shares or other securities are
then listed, and any applicable Federal or state securities
laws, and the Committee may cause a legend or legends to be put
on any such certificates to make appropriate reference to such
restrictions. Unrestricted certificates representing Shares,
evidenced in such manner as the Committee shall deem
appropriate, shall be delivered to the holder of Restricted
Stock, Restricted Stock Units or any other relevant Award
promptly after such related Shares shall become Released
Securities.
Section 7. Amendment
and Termination of Awards.
Except to the extent prohibited by applicable law and unless
otherwise expressly provided in an Award Agreement or in the
Plan, the following shall apply to all Awards.
(a) Amendments to Awards. Subject
to Section 6(b)(i), the Committee may waive any conditions
or rights under, amend any terms of, or amend, alter, suspend,
discontinue, cancel or terminate, any Award heretofore granted
without the consent of any relevant Participant or holder or
beneficiary of an Award; provided, however, that no such
amendment, alteration, suspension, discontinuance, cancellation
or termination that would be adverse to the holder of such Award
may be made without such holders consent. Notwithstanding
the foregoing, the Committee shall not amend any outstanding
Option to change the exercise price thereof to any price that is
lower than the original exercise price thereof except in
connection with an adjustment authorized under Section 4(c).
(b) Adjustments of Awards Upon Certain
Acquisitions. In the event the Company or an
Affiliate shall issue Substitute Awards, the Committee may make
such adjustments, not inconsistent with the terms of the Plan,
in the terms of Awards as it shall deem appropriate in order to
achieve reasonable
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comparability or other equitable relationship between the
assumed awards and the Substitute Awards granted under the Plan.
(c) Adjustments of Awards Upon the Occurrence of
Certain Unusual or Nonrecurring Events. The
Committee shall be authorized to make adjustments in the terms
and conditions of, and the criteria included in, Awards in
recognition of unusual or nonrecurring events (including,
without limitation, the events described in Section 4(c)
hereof) affecting the Company, any Affiliate, or the financial
statements of the Company or any Affiliate, or of changes in
applicable laws, regulations, or accounting principles, whenever
the Committee determines that such adjustments are appropriate
in order to prevent dilution or enlargement of the benefits or
potential benefits to be made available under the Plan or an
Award Agreement.
(d) Correction of Defects, Omissions, and
Inconsistencies. The Committee may correct
any defect, supply any omission, or reconcile any inconsistency
in any Award Agreement in the manner and to the extent it shall
deem desirable to carry the Plan into effect.
Section 8. Acceleration
upon a Change of Control. In the event of a
Change of Control (as defined in Section 8(b) below) the
following shall apply:
(a) Effect on Awards.
(i) Options. In the event of a Change of
Control, (1) all Options outstanding on the date of such
Change of Control shall become immediately and fully exercisable
without regard to any vesting schedule provided for in the
Option.
(ii) Restricted Stock and Restricted Stock
Units. In the event of a Change of Control, all
restrictions applicable to any Restricted Stock or Restricted
Stock Unit shall terminate and be deemed to be fully satisfied
for the entire stated restricted period of any such Award, and
the total number of underlying Shares shall become Released
Securities. The Participant shall immediately have the right to
the prompt delivery of certificates reflecting such Released
Securities.
(iii) Dividend Equivalents. In the event
of a Change of Control, the holder of any outstanding Dividend
Equivalent shall be entitled to surrender such Award to the
Company and to receive payment of an amount equal to the amount
that would have been paid over the remaining term of the
Dividend Equivalent, as determined by the Committee.
(iv) Other Stock-Based Awards. In the
event of a Change of Control, all outstanding Other Stock-Based
Awards of whatever type shall become immediately vested and
payable in an amount that assumes that the Awards were
outstanding for the entire period stated therein, as determined
by the Committee.
(v) Performance Awards. In the event of a
Change of Control, Performance Awards for all performance
periods, including those not yet completed, shall immediately
become fully vested and payable in accordance with the following:
(A) Non-Financial Performance
Objectives. The total amount of Performance
Awards conditioned on nonfinancial Performance Objectives and
those conditioned on financial performance shall be immediately
payable (or exercisable or released, as the case may be) as if
the Performance Objectives had been fully achieved for the
entire performance period.
(B) Financial Performance Objectives. For
Performance Awards conditioned on financial Performance
Objectives and payable in cash, the Committee shall determine
the amount payable under such Award by taking into consideration
the actual level of attainment of the Performance Objectives
during that portion of the performance period that had occurred
prior to the date of the Change of Control, and with respect to
the part of the performance period that had not occurred prior
to the date of the Change of Control, the Committee shall
determine an anticipated level of attainment taking into
consideration available historical data and the last projections
made by the Companys Chief Financial Officer prior to the
Change of Control. The amount payable shall be the present value
of the
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amount so determined by the Committee discounted using a factor
that is the Prime Rate as established by JP Morgan Chase, N.A.
as of the date of the Change of Control.
(vi) Determination Final. The
Committees determination of amounts payable under this
Section 8(a) shall be final. Except as otherwise provided
in Section 8(a)(1), any amounts due under this
Section 8(a) shall be paid to Participants within
30 days after such Change of Control.
(vii) Exclusion. The provisions of this
Section 8(a) shall not be applicable to any Award granted
to a Participant if any Change of Control results from such
Participants beneficial ownership (within the meaning of
Rule 13d-3
under the Securities and Exchange Act of 1934, as amended (the
Exchange Act)) of Shares or other Company
common stock or Company voting securities.
(b) Change of Control
Defined. A Change of
Control shall be deemed to have occurred if:
(i) there is an acquisition, in any one transaction or a
series of transactions, other than from the Company, by any
individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act), of
beneficial ownership (within the meaning of Rule 13(d)(3)
promulgated under the Exchange Act) of 50% or more of either the
then outstanding shares of Common Stock or the combined voting
power of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors, but
excluding, for this purpose, any such acquisition by the Company
or any of its subsidiaries, or any employee benefit plan (or
related trust) of the Company or its subsidiaries, or any
corporation with respect to which, following such acquisition,
more than 50% of the then outstanding shares of common stock of
such corporation and the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors is then beneficially
owned, directly or indirectly, by the individuals and entities
who were the beneficial owners, respectively, of the common
stock and voting securities of the Company immediately prior to
such acquisition in substantially the same proportion as their
ownership, immediately prior to such acquisition, of the then
outstanding shares of Common Stock or the combined voting power
of the then outstanding voting securities of the Company
entitled to vote generally in the election of directors, as the
case may be; or
(ii) individuals who, as of March 1, 2011, constitute
the Board (as of such date, the Incumbent
Board) cease for any reason to constitute at least a
majority of the Board, provided that any individual becoming a
director subsequent to March 1, 2011 whose election, or
nomination for election by the Companys stockholders, was
approved by a vote of at least a majority of the directors then
comprising the Incumbent Board shall be considered as though
such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office is in connection with an actual or
threatened election contest relating to the election of the
directors of the Company (as such terms are used in
Rule 14(a)(11) or Regulation 14A promulgated under the
Exchange Act); or
(iii) there occurs either (A) the consummation of a
reorganization, merger or consolidation, in each case, with
respect to which the individuals and entities who were the
respective beneficial owners of the common stock and voting
securities of the Company immediately prior to such
reorganization, merger or consolidation do not, following such
reorganization, merger or consolidation, beneficially own,
directly or indirectly, more than 50% of, respectively, the then
outstanding shares of common stock and the combined voting power
of the then outstanding voting securities entitled to vote
generally in the election of directors, as the case may be, of
the corporation resulting from such reorganization, merger or
consolidation, or (B) an approval by the stockholders of
the Company of a complete liquidation of dissolution of the
Company or of the sale or other disposition of all or
substantially all of the assets of the Company.
Section 9. Amendment
and Termination of the Plan.
Except to the extent prohibited by applicable law and unless
otherwise expressly provided in an Award Agreement or in the
Plan, the Board of Directors may amend, alter, suspend,
discontinue, or
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terminate the Plan, including without limitation any such action
to correct any defect, supply any omission or reconcile any
inconsistency in the Plan, without the consent of any
stockholder, Participant, other holder or beneficiary of an
Award, or Person; provided that any such amendment, alteration,
suspension, discontinuation, or termination that would impair
the rights of any Participant, or any other holder or
beneficiary of any Award heretofore granted shall not be
effective without the approval of the affected Participant(s);
and provided further, that, notwithstanding any other
provision of the Plan or any Award Agreement, without the
approval of the stockholders of the Company no such amendment,
alteration, suspension, discontinuation or termination shall be
made that would increase the total number of Shares available
for Awards under the Plan, except as provided in Section 4
hereof.
Section 10. General
Provisions
(a) No Rights to Awards. No
Employee, Participant or other Person shall have any claim to be
granted any Award under the Plan, and there is no obligation for
uniformity of treatment of Employees, Participants, or holders
or beneficiaries of Awards under the Plan. The terms and
conditions of Awards need not be the same with respect to each
recipient.
(b) Withholding. The Company or
any Affiliate shall be authorized to withhold from any Award
granted or any payment due or transfer made under any Award or
under the Plan the amount (in cash, Shares, other securities,
other Awards, or other property) of withholding taxes due in
respect of an Award, its exercise, or any payment or transfer
under such Award or under the Plan and to take such other action
as may be necessary in the opinion of the Company or Affiliate
to satisfy all obligations for the payment of such taxes.
(c) No Limit on Other Compensation
Agreements. Nothing contained in the Plan
shall prevent the Company or any Affiliate from adopting or
continuing in effect other or additional compensation
arrangements and such arrangements may be either generally
applicable or applicable only in specific cases.
(d) No Right to Employment. The
grant of an Award shall not be construed as giving a Participant
the right to be retained in the employ of the Company or any
Affiliate. Further, the Company or an Affiliate may at any time
dismiss a Participant from employment, free from any liability
or any claim under the Plan, unless otherwise expressly provided
in the Plan or in any Award Agreement.
(e) Governing Law. The validity,
construction, and effect of the Plan and any rules and
regulations relating to the Plan shall be determined in
accordance with the laws of the State of Delaware and applicable
Federal law.
(f) Severability. If any provision
of the Plan or any Award is or becomes or is deemed to be
invalid, illegal, or unenforceable in any jurisdiction, or as to
any Person or Award, or would disqualify the Plan or any Award
under any law deemed applicable by the Committee, such provision
shall be construed or deemed amended to conform to applicable
laws, or if it cannot be so construed or deemed amended without,
in the determination of the Committee, materially altering the
intent of the Plan or the Award, such provision shall be
stricken as to such jurisdiction, Person, or Award and the
remainder of the Plan and any such Award shall remain in full
force and effect.
(g) No Trust or
Fund Created. Neither the Plan nor any
Award shall create or be construed to create a trust or separate
fund of any kind or a fiduciary relationship between the Company
or any Affiliate and a Participant or any other Person. To the
extent that any Person acquires a right to receive payments from
the Company or any Affiliate pursuant to an Award, such right
shall be that of an unsecured general creditor of the Company or
any Affiliate.
(h) No Fractional Shares. No
fractional Share shall be issued or delivered pursuant to the
Plan or any Award, and the Committee shall determine whether
cash, other securities, or other property shall be paid or
transferred in lieu of any fractional Shares, or whether such
fractional Shares, or
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whether such fractional Shares or any rights thereto shall be
canceled, terminated, or otherwise eliminated.
(i) Headings. Headings are given
to the sections and subsections of the Plan solely as a
convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision thereof.
Section 11. Effective
Date of the Plan.
The Plan shall be effective as of the date of its first approval
by the stockholders of the Company.
Section 12. Term
of the Plan.
No Award shall be granted under the Plan after the tenth
anniversary of the effective date hereof. However, unless
otherwise expressly provided in the Plan or in an applicable
Award Agreement, any Award theretofore granted may extend beyond
such date, and the authority of the Committee hereunder to
amend, alter, adjust, suspend, discontinue, or terminate any
such Award, or to waive any conditions or rights under any such
Award, and the authority of the Board of Directors of the
Company to amend the Plan, shall extend beyond such date.
Section 13. Participants
Subject to Section 162(m).
(a) Applicability. The provisions
of this Section 13 shall be applicable to all Covered
Awards. Covered Awards shall be made subject to the achievement
of one or more preestablished Performance Goals, in accordance
with procedures to be established by the Committee from time to
time. Notwithstanding any provision of the Plan to the contrary,
the Committee shall not, other than upon a Change of Control,
have discretion to waive or amend such Performance Goals or to,
except as provided in Section 4(c), increase the number of
Shares subject to Covered Awards or the amount payable pursuant
to Covered Awards after the Performance Goals have been
established; provided, however, that the Committee may, in its
sole discretion, reduce the number of Shares subject to Covered
Awards or the amount which would otherwise be payable pursuant
to Covered Awards; and provided, further, that the provisions of
Section 8 shall override any contrary provision of this
Section 13.
(b) Certification. No shares shall
be delivered and no payment shall be made pursuant to a Covered
Award unless and until the Committee shall have certified in
writing that the applicable Performance Goals have been attained.
(c) Procedures. The Committee may
from time to time establish procedures pursuant to which Covered
Employees will be permitted or required to defer receipt of
amounts payable under Awards made under the Plan.
(d) Committee. Notwithstanding any
other provision of the Plan, for all purposes involving Covered
Awards, the Committee shall consist of at least two members of
the Board of Directors, each of whom is an outside
director within the meaning of Section 162(m).
Section 14. Code
§409A Compliance.
To the extent any Award hereunder provides for a deferral of
compensation (within the meaning of Code §409A and related
regulations), the material terms of the deferral, to the extent
required under Treasury Regulation §1.409A-1(c)(3) to
establish a deferred compensation plan, shall be set forth in
the written Award documentation (including by incorporation by
reference, if applicable) prior to the effective date of such
Award. Such provisions may include a requirement that if any
payment or acceleration of a payment is made upon a change of
control, the definition of change of control for purposes of
such award also complies with the requirements of Treasury
Regulation §1.409A-3(i)(5).
In addition, whenever it is provided in this Plan or in any
Award made hereunder that a payment or delivery is to be made
promptly after a given event, such payment or
delivery shall be made within 10 days of the event and the
recipient shall have no right to designate the taxable year of
payment or delivery.
Effective as of June , 2011.
A-13
ANNUAL MEETING OF STOCKHOLDERS OF
CAS MEDICAL SYSTEMS, INC
June 8, 2011
NOTICE OF INTERNET AVAILABILITY OF PROXY MATERIAL:
The Notice of Meeting, proxy statement and proxy card
are available at www.casmed.com
Please sign, date and mail
your proxy card in the
envelope provided as soon
as possible.
Please detach along perforated line and mail in the envelope provided.
20730300000000000000 9 060811
THE BOARD OF DIRECTORS RECOMMENDS A VOTE FOR THE ELECTION OF DIRECTORS AND FOR PROPOSALS 2 AND
3.
PLEASE SIGN, DATE AND RETURN PROMPTLY IN THE ENCLOSED ENVELOPE. PLEASE MARK YOUR VOTE IN BLUE OR
BLACK INK AS SHOWN HERE
1. Election of Directors.
FOR ALL NOMINEES
WITHHOLD AUTHORITY
FOR ALL NOMINEES
FOR ALL EXCEPT
(See instructions below)
NOMINEES:
Jerome Baron
Lawrence S. Burstein
Evan Jones
Thomas M. Patton
Gregory P. Rainey
Louis P. Scheps
Kenneth R. Weisshaar
INSTRUCTION: To withhold authority to vote for any individual nominee(s), mark FOR ALL EXCEPT
and fill in the circle next to each nominee you wish to withhold, as shown here:
To change the address on your account, please check the box at right and
indicate your new address in the address space above. Please note that
changes to the registered name(s) on the account may not be submitted via
this method
2. Approval of the CAS Medical Systems, Inc. 2011 Equity
Incentive Plan.
FOR AGAINST ABSTAIN
3. To ratify the selection of J. H. Cohn LLP as independent
auditors for the Companys fiscal year ending December
31, 2011.
To transact such other business as may properly come before the
annual meeting.
This proxy, when properly executed, will be voted in the manner
directed by the undersigned stockholder. If no direction is made, this
proxy will be voted FOR proposals 1, 2 and 3. Please sign exactly as
name appears on the left.
PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD
PROMPTLY USING THE ENCLOSED ENVELOPE.
Signature of Stockholder Date: Signature of Stockholder Date:
Note: Please sign exactly as your name or names appear on this Proxy. When shares are held jointly,
each holder should sign. When signing as executor, administrator, attorney, trustee or guardian,
please give full
title as such. If the signer is a corporation, please sign full corporate name by duly authorized
officer, giving full title as such. If signer is a partnership, please sign in partnership name by
authorized person. |
CAS MEDICAL SYSTEMS, INC.
44 East Industrial Road, Branford, Connecticut 06405
This Proxy is Solicited on Behalf of the Board of Directors
The undersigned hereby appoints Louis P. Scheps and Thomas M. Patton, and each of them, as the true
and lawful attorneys, agents and proxies of the undersigned, each with full power of substitution,
to represent and vote all shares of common stock of CAS Medical Systems, Inc. held of record by the
undersigned on April 20, 2011 at the Annual Meeting of Stockholders to be held
on June 8, 2011 and at any adjournment thereof, as specified on the reverse side of this proxy card
and in their discretion upon such other matters as may properly come before such Annual Meeting and
at any adjournment thereof. Any and all proxies heretofore given are hereby revoked.
(Continued and to be signed on the reverse side)14475 |