▇▇▇▇ COMPANY
2000 EQUITY INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of this ____ day of
_______________, ____, by and between ▇▇▇▇ COMPANY, a Wisconsin corporation (the
"Company"), and ______________________________ (the "Optionee").
W I T N E S S E T H :
WHEREAS, the Company has adopted the ▇▇▇▇ Company 2000 Equity
Incentive Plan (the "Plan"), the terms of which, to the extent not stated
herein, are specifically incorporated by reference in this Agreement; and
WHEREAS, one of the purposes of the Plan is to permit the granting of
options to purchase shares of the Company's Common Stock, $.10 par value (the
"Common Stock"), to certain key employees of the Company and its affiliates; and
WHEREAS, the Optionee is now employed by the Company or an affiliate
of the Company in a key capacity, and the Company desires the Optionee to remain
in such employ, and to secure or increase his stock ownership in the Company in
order to increase his incentive and personal interest in the welfare 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. Grant of Option. Subject to the terms and conditions of the Plan
and this Agreement, the Company grants to the Optionee an option (the "Option")
to purchase from the Company all or any part of the aggregate amount of _______
shares of Common Stock (the "Optioned Shares"). The Option is intended to
constitute a non-qualified stock option and shall not be treated as an incentive
stock option within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended.
2. Option Price. The price to be paid for the Optioned Shares shall
be $______ per share, which has been determined by the Compensation and Benefits
Committee of the Board of Directors of the Company (the "Committee") to be not
less than 100% of the fair market value of such stock on the date of grant of
the Option.
3. Exercisability and Termination of Option. Except as provided
herein, the Option may be exercised only while the Optionee is an employee of
either the Company or an affiliate of the Company and only if the Optionee has
been continuously so employed since the date of grant of the Option. Subject to
Paragraph 6, the Option may be exercised by the Optionee in whole, or in part
from time to time, during the period beginning ______________, ____, and ending
_____________________, ____, but only in accordance with the following schedule:
Cumulative Percentage of Shares
Subject to Option Which May be Purchased
Elapsed Period of Time (which number of shares shall be rounded
After Date Option is Granted down to the nearest whole number)
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Less than One (1) Year 0%
One (1) Year 33-1/3%
Two (2) Years 66-2/3%
Three (3) Years 100%
provided, however, that notwithstanding the foregoing vesting schedule, the
Option shall become immediately exercisable in full following a Change of
Control of the Company (as such term is defined in the Plan).
4. Manner of Exercise and Payment. Subject to the provisions of
Paragraph 3 hereof, the Option may be exercised only by written notice to the
Company, served upon the Secretary of the Company at its office at West Bend,
Wisconsin, specifying the number of shares in respect to which the Option is
being exercised. Subject to the provisions of this Agreement, the notice of
exercise must be accompanied by full payment of the option price of the shares
being purchased (i) in cash or by certified check or bank draft; (ii) by
tendering previously acquired shares of Common Stock (valued at their "fair
market value" as determined in the manner provided below); or (iii) by any
combination of the means of payment set forth in subparagraphs (i) and (ii). For
purposes of this Paragraph 4, the "fair market value" of a share of Common Stock
shall be equal to the last per share sale price of such Common Stock as
reflected on The Nasdaq Stock Market on the trading day next preceding the date
of exercise; provided, however, that if the principal market for the shares of
Common Stock is then a national securities exchange, the "fair market value"
shall be the closing price per share for the Common Stock on the principal
securities exchange on which the Common Stock is traded on the trading date next
preceding the date of exercise, or, in either case above, if no trading occurred
on the trading date next preceding the exercise date, then the "fair market
value" per share of Common Stock shall be determined with reference to the next
preceding date on which the Common Stock was traded. For purposes of
subparagraphs (ii) and (iii)
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above, the term "previously acquired shares of Common Stock" shall only include
Common Stock owned by the Optionee for at least six months prior to the exercise
of the Option and shall not in any event include shares of Common Stock which
are being acquired pursuant to the exercise of the Option. No shares shall be
issued until full payment therefor has been made.
5. Nontransferability of the Option. The Option shall not be
assignable, alienable, saleable or transferable by the Optionee other than by
will or the laws of descent and distribution; provided, however, that the
Optionee shall be entitled, in the manner provided in Paragraph 9 hereof, to
designate a beneficiary to exercise his rights, and to receive any shares of
Common Stock issuable, with respect to the Option upon the death of the
Optionee. The Option may be exercised during the lifetime of the Optionee only
by the Optionee or, if permitted by applicable law, the Optionee's guardian or
legal representative.
6. Exercisability After Termination of Employment.
(a) Death or Disability; Retirement. In the event the Optionee
dies while he is in the employ of the Company or any affiliate or if his
employment is terminated by reason of his retirement on or after attaining age
62 or by reason of his disability, the Option, to the extent not theretofore
exercised, may be exercised in full as follows: (i) by the legal representative
of the Optionee (who for purposes of this Agreement may be the Optionee's
beneficiary as designated pursuant to Paragraph 9) at any time within twelve
months after the date of the Optionee's death while in the employ of the Company
or any affiliate; or (ii) by the Optionee or his legal representative or
guardian at any time within twelve months after the termination of the
Optionee's employment by reason of retirement on or after attaining age 62 or by
reason of his disability, but in no event under subparagraphs (i) or (ii) later
than ten years after the date of grant of the Option.
(b) Voluntary Termination; Termination for Cause. In the event
the Optionee voluntarily terminates his employment with the Company and any
affiliates or if his employment is terminated for Cause (as hereinafter
defined), the Option, to the extent not theretofore exercised, shall immediately
terminate upon such termination of employment. For purposes of this Agreement,
the term Cause shall mean any termination of the Optionee by action of the Board
of Directors of the Company because of the failure of the Optionee to fulfill
his obligations with the Company or any affiliate thereof or because of serious
willful misconduct by the Optionee in respect of his obligations with the
Company or any affiliate thereof which would cause a substantial and
demonstrable detriment to the Company, as, for example, the commission by the
Optionee of a felony or the perpetration by the Optionee of a common-law fraud
against the Company or any affiliate thereof, or any major material action
(i.e., not procedural or operational differences) taken against the expressed
directive of the Board of Directors of
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the Company.
(c) Other. In the event that the Optionee is discharged or leaves
the employ of the Company and its affiliates for any reason (other than the
death or disability of the Optionee, the retirement of the Optionee on or after
attaining age 62, the Optionee's voluntary termination of his employment or the
termination of the Optionee for Cause), the Option, to the extent not
theretofore exercised but then permitted under the percentage limitations of
Paragraph 3 hereof, may be exercised by the Optionee or by his legal
representative or guardian at any time within three months after the date of
termination of employment upon the tender to the Company, in cash or its
equivalent, of the full purchase price, but in no event later than ten years
after the date of grant of the Option.
7. Tax Withholding. The Company may deduct and withhold from any cash
otherwise payable to the Optionee (whether payable as salary, bonus or other
compensation) such amount as may be required for the purpose of satisfying the
Company's obligation to withhold Federal, state or local taxes. Further, in the
event the amount so withheld is insufficient for such purpose, the Company may
require that the Optionee pay to the Company upon its demand or otherwise make
arrangements satisfactory to the Company for payment of such amount as may be
requested by the Company in order to satisfy its obligation to withhold any such
taxes.
The Optionee shall be permitted to satisfy the Company's tax
withholding requirements by making a written election (in accordance with such
rules and regulations and in such form as the Committee may determine) to have
the Company withhold shares of Common Stock otherwise issuable to the Optionee
(the "Withholding Election") or to deliver to the Company shares of Common Stock
(the "Delivery Election") in each case having a fair market value on the date
income is recognized (the "Tax Date") pursuant to the exercise of the Option
equal to the minimum amount required to be withheld. If a Delivery Election is
in effect at the time of the exercise of the Option, the Optionee shall deliver
the shares of Common Stock subject to such Delivery Election on, or as soon as
practicable after, the Tax Date. If the number of shares of Common Stock
withheld or delivered to satisfy withholding tax requirements shall include a
fractional share, the number of shares withheld or delivered shall be reduced to
the next lower whole number and the Optionee shall deliver cash in lieu of such
fractional share, or otherwise make arrangements satisfactory to the Company for
payment of such amount. A Withholding Election or Delivery Election must be
received by the Secretary of the Company on or prior to the Tax Date.
8. Capital Adjustments Affecting the Common Stock. The number of
Optioned Shares subject hereto and the related per share exercise price shall be
subject to adjustment in accordance with Section 4(b) of the Plan.
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9. Designation of Beneficiary.
(a) The person whose name appears on the signature page hereof
after the caption "Beneficiary" or any successor designated by the Optionee in
accordance herewith (the person who is the Optionee's beneficiary at the time of
his death is herein referred to as the "Beneficiary") shall be entitled to
exercise the Option, to the extent it is exercisable, after the death of the
Optionee. The Optionee 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
Optionee'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 the Optionee's death, or if no designated Beneficiary survives the Optionee
or if such designation conflicts with law, the Optionee's estate acting through
his legal representative shall be entitled to exercise the Option, to the extent
it is exercisable after the death of the Optionee. 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
Optioned Shares, 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.
10. Transfer Restriction. The shares to be acquired upon exercise of
the Option may not be sold or offered for sale except pursuant to an effective
registration statement under the Securities Act of 1933, as amended, or in a
transaction which, in the opinion of counsel for the Company, is exempt from the
registration provisions of said Act.
11. Status of Optionee. The Optionee shall not be deemed for any
purposes to be a shareholder of the Company with respect to any of the Optioned
Shares except to the extent that the Option shall have been exercised with
respect thereto, the shares shall have been fully paid, and a stock certificate
issued therefor. Neither the Plan nor the Option shall confer upon the Optionee
any right to continue in the employ of the Company, nor to interfere in any way
with the right of the Company to terminate the employment of the Optionee at any
time.
12. Powers of the Company Not Affected. The existence of the Option
shall not affect in any way the right or power of the Company or its
shareholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issuance of
bonds, debentures, preferred or prior preference stock ahead of or affecting the
Common Stock or the rights thereof, or dissolution or liquidation
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of the Company, or any sale or transfer of all or any part of the Company's
assets or business or any other corporate act or proceeding, whether of a
similar character or otherwise.
13. Interpretation by Committee. As a condition of the granting of the
Option, the Optionee agrees, for himself and his legal representatives or
guardians, that this Agreement shall be interpreted by the Committee and that
any interpretation by the Committee of the terms of this Agreement and any
determination made by the Committee pursuant to this Agreement shall be final,
binding and conclusive.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officers, and the Optionee has hereunto affixed
his hand as of the day and year first above written.
▇▇▇▇ COMPANY
By:
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Attest:
-----------------------------------
, Optionee
--------------------------------
Beneficiary:
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Address of Beneficiary:
-------------------
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Beneficiary's Tax Identification/
Social Security No.:
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scb/options/agree2
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