EXHIBIT 10.3
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
STOCK OPTION AWARD AGREEMENT
As Amended
THIS AGREEMENT is made and entered into as of the date set forth
on the signature page hereof by and between ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC., a
Wisconsin corporation with its principal offices at Fond du Lac, Wisconsin
(the "Company"), and the employee of the Company whose signature is set
forth on the signature page hereof (the "Key Employee").
W I T N E S S E T H :
WHEREAS, the Company has adopted the 1989 Stock Option Plan (the
"Plan") to permit options for shares of the Company's common stock, $.10
par value per share (the "Stock"), to be awarded to certain key employees
of the Company and any subsidiary (collectively, "Participating Company");
and
WHEREAS, the Key Employee is a key employee of a Participating
Company, and the Company desires him to remain in such employ and to
further an opportunity for his stock ownership in the Company in order to
increase his proprietary interest in the success of the Company;
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, the parties hereby mutually
covenant and agree as follows:
1. Award of Option. (a) Subject to the terms and conditions
set forth herein, the Company hereby awards the Key Employee an option
(the "Option") to purchase the number of shares of Stock set forth on the
signature page hereof (the "Option Stock") at the purchase price per share
set forth on the signature page hereof. The Option will become
exercisable in three (3) stages as follows: (i) one-third of the shares
of Option Stock shall be subject to exercise on the Initial Exercise Date,
which shall be the first anniversary of the Grant Date set forth on the
signature page hereof, (ii) the second one-third of the shares of Option
Stock shall be subject to exercise on the second anniversary of the Grant
Date, and (iii) the final one-third of the shares of Option Stock shall be
subject to exercise on the third anniversary of the Grant Date. No part
of the Option shall be exercisable prior to the Initial Exercise Date set
forth on the signature page hereof or after the Expiration Date set forth
thereon, except that (i) other than in the event of death or Total
Disability (as hereafter defined) of the Key Employee to which the
following limitation shall not apply if so determined by the Committee,
the Option shall not be exercisable until six months after the Grant Date
set forth on the signature page hereof, and (ii) other than as provided
herein, the Option shall not be exercisable after the termination of the
Key Employee's employment with all Participating Companies. Absence of
the Key Employee on leave approved by a duly elected officer of the
Company, other than the Key Employee, shall not be considered a
termination of employment during the period of such leave. The Option may
be exercised in whole or in part (but no exercise shall be for fewer than
50 shares of Stock or all of the shares then subject to the Option, if
fewer) by notice in writing to the Company. The aggregate purchase price
for the Stock for which the Option is exercised shall be paid to the
Company at the time of exercise in cash, Stock registered in the name of
the Key Employee, or by a combination thereof, all as provided on the
signature page hereof. Unless otherwise provided on the signature page
hereof, the Option shall not be an Incentive Stock Option for purposes of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
(b) If the purchase price may be paid wholly or partly in Stock,
any Stock tendered in payment thereof shall be free of all adverse claims
and duly endorsed in blank by the Key Employee or accompanied by stock
powers duly endorsed in blank. Stock tendered shall be valued at Fair
Market Value on the date on which the Option is exercised. As used
herein, "Fair Market Value" means the per share closing price on the date
in question in the principal market in which the Stock is then traded or,
if no sales of Stock have taken place on such date, the closing price on
the most recent date on which selling prices were quoted; provided,
however, that for any Option that is not an Incentive Stock Option, the
Committee (as defined herein) in its discretion, may elect to determine
Fair Market Value with respect to such Stock, based on the average of the
closing prices, as of the date of determination and a period of up to nine
trading days immediately preceding such date. If such proviso is to be
applicable, the signature page hereof sets forth the number of trading
days in such period.
2. Option Not Transferrable. The Option is not transferrable
other than by will or by the laws of descent and distribution. During the
lifetime of the Key Employee, the Option may be exercised only by him.
3. Securities Law Restrictions. The Key Employee agrees and
acknowledges with respect to any Option Stock that has not been registered
under the Securities Act of 1933, as amended (the "Act"), that (i) he will
not sell or otherwise dispose of such Stock except pursuant to an
effective registration statement under the Act and any applicable state
securities laws, or in a transaction which, in the opinion of counsel for
the Company, is exempt from such registration, and (ii) a legend will be
placed on the certificates for the Option Stock to such effect.
4. Exercise of Option After Termination of Employment Due to
Death, Retirement or Total Disability. (a) If the Key Employee's
employment with all Participating Companies is terminated because of
death, Retirement or Total Disability (as such terms are defined below) on
or after the Initial Exercise Date, the Key Employee or, in the case of
his death, his Beneficiary (as defined herein) shall be entitled to
exercise the Option (but only to the extent the Option was exercisable
immediately prior to the death, Retirement or Total Disability of the Key
Employee) until the Expiration Date. If such a termination of employment
occurs prior to the date on which the Option is fully exercisable, the Key
Employee, or in the case of his death, his Beneficiary, shall be entitled
to exercise the Option to such additional extent, if any, as the Committee
may determine.
(b) As used herein, (i) "Retirement" means termination of
employment with all Participating Companies on or after age 62 after
completion of an aggregate of ten years of service with the Company and/or
any Participating Company, except that if the Key Employee's employment is
terminated for Cause (as hereinafter defined) or because of death or Total
Disability, such termination shall be not "Retirement" for purposes
hereof, and (ii) "Total Disability" means the complete and permanent
inability of a Key Employee to perform all of his duties under the terms
of his employment with any Participating Company, as determined by the
Compensation Committee of the Company's Board of Directors or any
successor to such Committee which administers the Plan, or if no such
Committee has been appointed, by the Board of Directors of the Company
(collectively, the "Committee") upon the basis of such evidence, including
independent medical reports and data, as the Committee deems appropriate
or necessary.
5. Exercise of Option After Termination of Employment Other
Than for Cause, Death, Retirement or Total Disability. If the Key
Employee's employment with the Company is terminated on or after the
Initial Exercise Date for any reason other than Cause (as defined below),
death, Retirement or Total Disability, the Key Employee shall be entitled
to exercise the Option (but only to the extent the Option was exercisable
immediately prior to such termination) until three months after such
termination of employment. If such a termination of employment occurs
prior to the date on which the Option is fully exercisable, the Key
Employee shall be entitled to exercise the Option during such three-month
period to such additional extent, if any, as the Committee may determine.
As used herein, "Cause" means, as determined by the Committee, the Key
Employee's failure to perform his duties or intentional dishonest or
illegal conduct in connection with his performance of services for any
Participating Company.
6. Beneficiary. (a) The person whose name appears on the
signature page hereof after the caption "Beneficiary" or any successor
designated by the Key Employee in accordance herewith (the person who is
the Key Employee's Beneficiary at the time of his death herein referred to
as the "Beneficiary") shall be entitled to exercise the Option, to the
extent it is exercisable, after the death of the Key Employee. The Key
Employee may from time to time revoke or change his Beneficiary without
the consent of any prior Beneficiary by filing a new designation with the
Committee. The last such designation received by the Committee shall be
controlling; provided, however, that no designation, or change or
revocation thereof, shall be effective unless received by the Committee
prior to the Key Employee's death, and in no event shall any designation
be effective as of a date prior to such receipt.
(b) If no such Beneficiary designation is in effect at the time
of a Key Employee's death, or if no designated Beneficiary survives the
Key Employee or if such designation conflicts with law, the Key Employee's
estate shall be entitled to exercise the Option, to the extent it is
exercisable after the death of the Key Employee. If the Committee is in
doubt as to the right of any person to exercise the Option, the Company
may refuse to recognize such exercise, without liability for any interest
or dividends on the Option Stock, until the Committee determines the
person entitled to exercise the Option, or the Company may apply to any
court of appropriate jurisdiction and such application shall be a complete
discharge of the liability of the Company therefor.
7. No Rights As Stockholder. The Key Employee shall have no
rights as a holder of the Option Stock until the issuance of a certificate
for the Option Stock.
8. Tax Withholding. (a) It shall be a condition of the
obligation of the Company to issue Option Stock to the Key Employee or the
Beneficiary, and the Key Employee agrees, that the Key Employee shall pay
to the Company upon its demand, such amount as may be requested by the
Company for the purpose of satisfying its liability to withhold federal,
state, or local income or other taxes incurred by reason of the exercise
of the Option.
(b) If the Option is not an Incentive Stock Option, the Key
Employee may elect to have the Company withhold that number of shares of
Option Stock otherwise issuable to the Key Employee upon exercise of the
Option or to deliver to the Company a number of shares of Stock, in each
case, having a Fair Market Value on the Tax Date (as defined below) equal
to the minimum amount required to be withheld as a result of such
exercise. The election must be made in writing and, if the Key Employee
is an Insider (as defined below), (i) delivered to the Company either six
months or more prior to the Tax Date or during a ten day period beginning
on the third day following the release of the Company's quarterly or
annual summary statement of sales and earnings which occurs prior to the
Tax Date and (ii) shall not be effective until at least six months after
the Grant Date, provided, however, that the restriction in clause (ii)
shall not apply in the event death or Total Disability of the Key Employee
occurs prior to the expiration of such six month period. If the Key
Employee is not an Insider, the election must be delivered to the Company
prior to the Tax Date. If the Key Employee is an Insider, the full number
of shares of Option Stock issuable on exercise of the Option may be issued
to the Key Employee, and in such event the Key Employee shall be
unconditionally obligated to tender back to the Company, as soon as
practicable after the Tax Date, a number of shares of Stock having a Fair
Market Value on the Tax Date equal to the minimum amount required to be
withheld. If the number of shares so determined shall include a
fractional share, the Key Employee shall deliver cash in lieu of such
fractional share. All elections shall be made in a form approved by the
Committee and shall be subject to disapproval, in whole or in part, by the
Committee. As used herein, (i) "Tax Date" means the date on which the Key
Employee must include in his gross income for federal income tax purposes
the fair market value of the Option Stock over the purchase price therefor
and (ii) "Insider" means an officer or director of the Company or a
beneficial owner of more than 10% of the Stock.
9. Adjustments in Event of Change in Stock. In the event of
any reclassification, subdivision or combination of shares of Stock,
merger or consolidation of the Company or sale by the Company of all or a
portion of its assets, or other event which could, in the judgment of the
Committee, distort the implementation of the Plan or the realization of
its objectives, the Committee may make such adjustments in the number or
kind of shares of Option Stock issuable on exercise of the Option, or in
the terms, conditions or restrictions of this Agreement, including the
purchase price, as the Committee deems equitable.
10. Powers of Company Not Affected. The existence of the
Option shall not affect in any way the right or power of the Company or
its stockholders to make or authorize any combination, subdivision or
reclassification of the Stock or any reorganization, merger,
consolidation, business combination, exchange of shares, or other change
in the Company's capital structure or its business, or any issue of bonds,
debentures or stock having rights or preferences equal, superior or
affecting the Option Stock or the rights thereof, or dissolution or
liquidation of the Company, or any sale or transfer of all or any part of
its assets or business, or any other corporate act or proceeding, whether
of a similar character or otherwise. Nothing in this Agreement shall
confer upon the Key Employee any right to continue in the employment of
any Participating Company or interfere with or limit in any way the right
of any Participating Company to terminate the Key Employee's employment at
any time.
11. Interpretation by Committee. The Key Employee agrees that
any dispute or disagreement which may arise in connection with this
Agreement shall be resolved by the Committee, in its sole discretion, and
that any interpretation by the Committee of the terms of this Agreement or
the Plan and any determination made by the Committee under this Agreement
or the Plan may be made in the sole discretion of the Committee and shall
be final, binding, and conclusive. Any such determination need not be
uniform and may be made differently among Key Employees awarded Option
Stock.
12. Miscellaneous. (a) This Agreement shall be governed and
construed in accordance with the laws of the State of Wisconsin applicable
to contracts made and to be performed therein between residents thereof.
(b) This Agreement may not be amended or modified except by the
written consent of the parties hereto.
(c) The captions of this Agreement are inserted for convenience
of reference only and shall not be taken into account in construing this
Agreement.
(d) Any notice, filing or delivery hereunder shall be given to
the Key Employee at either his usual work location or his home address as
indicated in the records of the Company, and shall be given to the
Committee or the Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: Secretary. All such notices shall be given by first
class mail, postage prepaid, or by personal delivery.
(e) This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns and shall be binding
upon and, subject to Paragraph 2, inure to the benefit of the Key
Employee, the Beneficiary and the personal representative(s) and heirs of
the Key Employee.
13. Change of Control. (a) Notwithstanding any other
provision to the contrary contained in this Agreement, if a Change in
Control of the Company (as defined below) occurs prior to the Expiration
Date, the Option (to the extent not previously exercised or terminated)
shall immediately and automatically become exercisable as of the date of
the Change in Control of the Company.
(b) The following terms shall have the following meanings when
used in this Paragraph 13:
(i) The term "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
(ii) The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations of the Exchange Act.
(iii) A Person (as defined herein) shall be deemed to
be the "Beneficial Owner" of any securities:
(A) which such Person or any of such Person's
Affiliates or Associates has the right to acquire (whether
such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion rights,
exchange rights, rights, warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, (x) securities
tendered pursuant to a tender or exchange offer made by or
on behalf of such Person or any of such Person's Affiliates
or Associates until such tendered securities are accepted
for purchase, or (y) securities issuable upon exercise of
Rights issued pursuant to the terms of the Company's Rights
Agreement with Firstar Trust Company, dated as of
August 23, 1995, as amended from time to time (the "Rights
Agreement") (or any successor to such Rights Agreement), at
any time before the issuance of such securities;
(B) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to vote or dispose of or has "beneficial ownership"
of (as determined pursuant to Rule 13d-3 of the General
Rules and Regulations under the Exchange Act), including
pursuant to any agreement, arrangement or understanding;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security
under this subparagraph (B) as a result of an agreement,
arrangement or understanding to vote such security if the
agreement, arrangement or understanding: (x) arises solely
from a revocable proxy or consent given to such Person in
response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules
and regulations under the Exchange Act and (y) is not also
then reportable on a Schedule 13D under the Exchange Act
(or any comparable or successor report); or
(C) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding for the purpose of
acquiring, holding, voting (except pursuant to a revocable
proxy as described in subparagraph (B) above) or disposing
of any voting securities of the Company.
(iv) A "Change in Control of the Company" shall mean a
change in control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Exchange Act. Without limiting the
inclusiveness of the definition in the preceding sentence, a
Change in Control of the Company shall be deemed to have
occurred if:
(A) any Person (other than any employee benefit plan
of the Company or any Participating Company, any entity
holding securities of the Company for or pursuant to the
terms of any such plan or any trustee, administrator or
fiduciary of such plan) is or becomes the Beneficial Owner
of securities of the Company representing at least 30% of
the combined voting power of the Company's then outstanding
securities;
(B) a Section 11(a)(ii) Event shall have occurred
under the Rights Agreement (or a similar event shall have
occurred under any successor to such Rights Agreement) at
any time any Rights are issued and outstanding thereunder;
(C) one-third or more of the members of the Company's
Board of Directors are not Continuing Directors (as
hereafter defined);
(D) there shall be consummated (x) any consolidation
or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which
shares of Stock would be converted into cash, securities or
other property, other than a merger of the Company in which
the holders of the Stock immediately prior to the merger
have the same proportionate ownership of common stock of
the surviving corporation immediately after the merger, or
(y) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company; or
(E) the shareholders of the Company approve any bid
or proposal for the liquidation or dissolution of the
Company.
(v) The term "Continuing Director" shall mean any member
of the Board of Directors of the Company who was a member of
such Board on the Grant Date, and any successor of a Continuing
Director who is recommended to succeed a Continuing Director by
a majority of the Continuing Directors then on such Board.
(vi) The term "Person" shall mean any individual, firm,
partnership, corporation or other entity, including any
successor (by merger or otherwise) of such entity, or a group of
any of the foregoing acting in concert."
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer and its corporate seal hereunto
affixed, and the Key Employee has hereunto affixed his hand and seal, all
on the day and year set forth below.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, INC.
(CORPORATE SEAL) By: _______________________________________________
Title:
_______________________________________ (Seal)
Key Employee:
No. of Shares of Option Stock:
Incentive Stock Option:
Purchase Price per Share:
Payment of Purchase Price:
Number of Days to Determine Fair Market Value:
Date of Agreement:
Grant Date:
Initial Exercise Date:
Expiration Date:
Beneficiary: _____________________________________
Address of Beneficiary:
__________________________________________________
__________________________________________________
Beneficiary Tax Identification
No._______________________________________________
