Exhibit 10.36
GIBRALTAR PACKAGING GROUP, INC.
STOCK APPRECIATION RIGHTS AGREEMENT
This Stock Appreciation Rights Agreement (this "Agreement") is entered
into as of the 15th day of January, 1999, by and between Gibraltar Packaging
Group, Inc., a Delaware corporation (the "Company"), and Xxxx X. Xxxxx
("Grantee").
RECITALS:
WHEREAS, the Company has adopted the 1998 Stock Appreciation Rights Plan
(the "Plan"), which is administered by the Compensation Committee of the
Company's Board of Directors;
WHEREAS, this Agreement is governed by the Plan and all capitalized terms
used in this Agreement and not otherwise defined have the meanings assigned to
them in the Plan;
WHEREAS, Grantee is an officer or key employee of the Company or one of
its subsidiaries;
WHEREAS, the Company believes that it would advance the interests of the
Company to grant Share Units to Grantee pursuant to the Plan; and
WHEREAS, Grantee desires to obtain the Share Units;
NOW, THEREFORE, the parties agree as follows:
1. Grant of Share Units. The Company hereby grants One Hundred Fifty
Thousand (150,000) Share Units to Grantee subject to all of the terms and
conditions contained in this Agreement and the Plan.
2. Vesting and Maturity Date.
a. Except as provided in ss.2(b) below, the Share Units shall vest as
follows:
i. 20% upon execution of this Agreement;
ii. 20% on the last Saturday to occur in June of each of 1999,
2000, 2001, and 2002; provided, that Grantee is an active
employee of the Company or one of its subsidiaries on each
such anniversary; and
iii. Prior to the last Saturday to occur in June 2002, upon the
termination of Grantee's employment with the Company for any
reason other then Cause, Grantee shall vest in a pro-rata
number of shares that would have vested on the next
anniversary, which shall be based on the ratio of the number
of days Grantee is employed by the Company in the fiscal year
divided by 360, notwithstanding the forgoing, if there is a
Change in Control within one (1) year following the
termination of Grantee's employment with the Company by the
Company, the Grantee shall be vested in all Share Units.
b. The Share Units shall become immediately fully vested upon the
occurrence of a Change in Control.
c. The Maturity Date of the Units shall be as follows:
i. If there shall be a Change in Control, the Maturity Date shall
be the date upon which such Change in Control occurs;
ii. Grantee's employment with the Company is terminated for any
reason other then Cause prior to the last Saturday to occur in
June 2002, the Maturity Date shall be one year after the date
of such If termination; and
iii. In all other cases the Maturity Date shall be June 30, 2003.
3. Initial Value. The Initial Value of the Share Units shall be as follows:
a. Seventy-Five Thousand Share Units shall be valued at $2.25 each; and
b. Seventy-Five Thousand Share Units shall be valued at $3.00 each.
4. Payment of Unit Value. The Company shall pay to Grantee the Unit Value as
follows:
a. If a Change in Control has occurred while Grantee is employed by the
Company or within one year following the termination of Grantee's
employment to other then Cause, the Unit Value shall be paid in full
upon the date upon which such Change in Control occurs;
b. In all other cases the Unit Value shall be paid in three equal
annual payments, starting upon the Maturity Date, and upon the first
and second yearly anniversary of such Maturity Date, with interest
to be paid at the prime rate and such other terms as the Committee
deems appropriate in its sole discretion.
5. Maturity Value. The Maturity Value of the Units shall be based upon the
closing price per share of the Common Stock on the NASDAQ national market
system, or such other national securities exchange or association on which
the Stock is then listed (the "Exchange"), as follows:
a. If there shall be a Change in Control, the average closing price for
the 30 day period immediately prior to the date of such Change in
Control;
b. If Grantee's employment with the Company is terminated by the
Company for any reason other then Cause, the average closing price
for the 30 day period immediately prior to the date of the later of
either (i) June 30, 2000, or (ii) the one year anniversary of the
date of such termination;
c. If Grantee's employment with the Company is terminated by the
Grantee, the average closing price for the 30 day period immediately
prior to the date the date of such termination; or
d. In all other cases, the average of the closing price for the three
month period from and including April 1, 2003 to and including June
30, 2003.
6. Representations and Warranties of Grantee. Grantee represents and warrants
that:
a. Grantee is aware that no federal or state agency has made any
finding or determination as to the fairness for public or private
investment in, nor any recommendation or endorsement of, the Units;
and
b. Grantee is aware that the Units are not registered under the
securities or "blue sky" laws of any state or jurisdiction (the
"Blue Sky Laws") as of the date of this Agreement, and the Company
is under no obligation to cause the Units to be registered under the
Securities Act of 1933, as amended (the "Act"), or the Blue Sky
Laws;
7. Transferability. The Units may not be transferred by Grantee other than by
will or the laws of descent and distribution and during the Grantee's
lifetime may be exercised only by Grantee.
8. Miscellaneous.
a. The headings and other captions in this Agreement are for
convenience of reference only and shall not be used in interpreting,
construing or enforcing any of the provisions of this Agreement.
b. No change or modification of this Agreement shall be valid unless
the same is in writing and signed by the Company and Grantee.
c. No waiver of any provision of this Agreement shall be valid unless
in writing and signed by the person against whom it is sought to be
enforced. The failure of any party at any time to insist upon strict
performance of any condition, promise, agreement or understanding
set forth herein shall not be construed as a waiver or
relinquishment of the right to insist upon strict performance of the
same or other condition, promise, agreement or understanding at a
future time.
d. The provisions of this Agreement relate solely to granting of the
Share Units to Grantee pursuant to the Plan as of the date hereof
and do not address or relate to any conditions of Grantee's
employment with the Company. Nothing in this Agreement or the Plan
shall confer upon Grantee any right or entitlement with respect to
continuation of employment by the Company nor interfere in any way
with the right or power of the Company to terminate Grantee's
employment at any time, with or without cause.
e. This Agreement and the Plan set forth all of the agreements,
warranties and/or representations between the parties hereto with
respect to the Units, and there are no other promises, agreements,
conditions, understandings, warranties or representations, oral or
written, express or implied, between them with respect to the Units
other than as set forth herein and therein. Any and all prior
agreements with respect to the Units are hereby revoked.
f. This Agreement shall be construed and enforced in accordance with
the laws of the State of Ohio.
g. This Agreement may be executed in any number of counterparts, each
of which, when executed, shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized officer and Grantee has signed this Agreement, all as of
the date first written above.
GIBRALTAR PACKAGING GROUP, INC.
By: /s/ Xxxxxx X. Xxxx
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Its: Chairman
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GRANTEE
/s/ Xxxx X. Xxxxx
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XXXX X. XXXXX
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