Exhibit 10.12
STOCK OPTION AGREEMENT
(NON-ISO)
THIS AGREEMENT, made this day of , 2 , by and between
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Graco Inc., a Minnesota corporation (the "Company") and (the "Employee").
WITNESSETH THAT:
WHEREAS, the Company pursuant to its Long-Term Stock Incentive Plan wishes
to grant this stock option to Employee;
NOW THEREFORE, in consideration of the premises and of the mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. Grant of Option
The Company hereby grants to Employee, the right and option
(hereinafter called the "option") to purchase all or any part of an
aggregate of shares of Common Stock of the Company, par
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value $1.00 per share, at the price of $ per share on the terms
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and conditions set forth herein.
2. Duration and Exercisability
A. This option may not be exercised by Employee until the expiration
of one (1) year from the date of grant, and this option shall in
all events terminate ten (10) years after the date of grant.
During the first year from the date of grant of this option, no
portion of this option may be exercised. Thereafter this option
shall become exercisable in four cumulative installments of 25%
as follows:
Total Portion of Option
Date Which is Exercisable
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One Year after Date of Grant 25%
Two Years after Date of Grant 50%
Three Years after Date of Grant 75%
Four Years after Date of Grant 100%
In the event that Employee does not purchase in any one year the
full number of shares of Common Stock of the Company to which
he/she is entitled under this option, he/she may, subject to the
terms and conditions of Section 3 hereof, purchase such shares of
Common Stock in any subsequent year during the term of this
option.
B. During the lifetime of the Employee, the option shall be
exercisable only by him/her and shall not be assignable or
transferable by him/her otherwise than by will or the laws of
descent and distribution.
3. Effect of Termination of Employment
A. In the event that Employee shall cease to be employed by the
Company or its subsidiaries for any reason other than his/her
gross and willful misconduct, death, retirement (as defined in
Section 3. D. below), or disability (as defined in Section 3. D.
below), Employee shall have the right to exercise the option at
any time within one month after such termination of employment to
the extent of the full number of shares he/she was entitled to
purchase under the option on the date of termination, subject to
the condition that no option shall be exercisable after the
expiration of the term of the option.
B. In the event that Employee shall cease to be employed by the
Company or its subsidiaries by reason of his/her gross and
willful misconduct during the course of his/her employment,
including but not limited to wrongful appropriation of Company
funds or the commission of a felony, the option shall be
terminated as of the date of the misconduct.
C. If the Employee shall die while in the employ of the Company or a
subsidiary or within one month after termination of employment
for any reason other than gross and willful misconduct and shall
not have fully exercised the option, all remaining shares shall
become immediately exercisable and such option may be exercised
at any time within twelve months after his/her death by the
executors or administrators of the Employee or by any person or
persons to whom the option is transferred by will or the
applicable laws of descent and distribution, and subject to the
condition that no option shall be exercisable after the
expiration of the term of the option.
D. If the Employee's termination of employment is due to retirement
(either after attaining age 55 with 10 years of service, or
attaining age 65), or due to disability within the meaning of the
provisions of the Graco Long-Term Disability Plan subject to the
conditions that no option shall be exercisable after the
expiration of the terms of the option, all remaining shares shall
become immediately exercisable and the option may be exercised by
the Employee at any time within three years of the Employee's
retirement, subject to the condition that no option shall be
exercisable after the expiration of the term of the option. In
the event of the death of the Employee within the three-year
period after retirement, the option may be exercised at any time
within twelve months after his/her death by the executors or
administrators of the Employee or by any person or persons to
whom the option is transferred by will or the applicable laws of
descent and distribution, to the extent of the full number of
shares he/she was entitled to purchase under the option on the
date of death, and subject to the condition that no option shall
be exercisable after the expiration of the term of the option.
E. Notwithstanding anything to the contrary contained in this
Section 3, if the Employee chooses to terminate his/her
employment by retirement (as defined in Section 3. D. above) and
has not given the Company written notice, by correspondence to
his/her immediate supervisor and the Chief Executive Officer, of
said intention to retire not less than six (6) months prior to
the date of his/her retirement, then in such event for purposes
of this Agreement said termination of employment shall be deemed
to be not a retirement but a termination subject to the
provisions of Section 3. A. above, provided, however, that in the
event that the Chief Executive Officer, in his/her sole
discretion and judgement, determines that termination of
employment by retirement of the Employee without six (6) months
prior written notice is in the best interests of the Company,
then such retirement shall be subject to Section 3. D. above.
4. Manner of Exercise
A. The option can be exercised only by Employee or other proper
party within the option period delivering written notice to the
Company at its principal office in Minneapolis, Minnesota,
stating the number of shares as to which the option is being
exercised and, except as provided in Section 4. C., accompanied
by payment-in-full of the option price for all shares designated
in the notice.
B. The Employee may, at Employee's election, pay the option price
either by check (bank check, certified check, or personal check)
or by delivering to the Company for cancellation shares of Common
Stock of the Company which have been held by the Employee for not
less than six (6) months with a fair market value equal to the
option price. For these purposes, the fair market value of the
Company's Common Stock shall be the closing price of the Common
Stock on the date of exercise on the New York Stock Exchange (the
"NYSE") or on the principal national securities exchange on which
such shares are traded if the shares are not then traded on the
NYSE. If there is not a quotation available for such day, then
the closing price on the next preceding day for which such a
quotation exists shall be determinative of fair market value. If
the shares are not then traded on an exchange, the fair market
value shall be the average of the closing bid and asked prices of
the Common Stock as reported by the National Association of
Securities Dealers Automated Quotation System. If the Common
Stock is not then traded on NASDAQ or on an exchange, then the
fair market value shall be determined in such manner as the
Company shall deem reasonable.
C. The Employee may, with the consent of the Company, pay the option
price by arranging for the immediate sale of some or all of the
shares issued upon exercise of the option by a securities dealer
and the payment to the Company by the securities dealer of the
option exercise price.
5. Payment of Withholding Taxes
Upon exercise of any portion of this option, Employee shall pay to the
Company an amount sufficient to satisfy any federal, state, or local
withholding tax requirements which arise as a result of the exercise
of the option or provide the Company with satisfactory indemnification
for such payment. If the Committee, as defined in the Company's Long
Term Stock Incentive Plan, has in its discretion determined that the
Employee may do so, such amount may be paid by the Employee by
delivering to the Company for cancellation shares of Common Stock of
the Company with a fair market value equal to the minimum amount of
such withholding tax requirement by (i) electing to have the Company
withhold common shares otherwise to be delivered with a fair market
value equal to the amount of such tax obligation, or (ii) electing to
surrender to the Company previously owned common shares with a fair
market value equal to the amount of such minimum tax obligation.
6. Change of Control
A. Notwithstanding Section 2(a) hereof, the entire option shall
become immediately and fully exercisable on the day following a
"Change of Control" and shall remain fully exercisable until
either exercised or expiring by its terms. A "Change of Control"
means:
(1) acquisition by any individual, entity, or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act
of 1934), (a "Person"), of beneficial ownership (within the
meaning of Rule 13d-3 under the 1934 Act) which results in
the beneficial ownership by such Person of 25% or more of
either
(a) the then outstanding shares of Common Stock of the
Company (the "Outstanding Company Common Stock") or
(b) the combined voting power of the then outstanding
voting securities of the Company entitled to vote
generally in the election of directors (the
"Outstanding Company Voting Securities");
provided, however, that the following acquisitions will
not result in a Change of Control:
(i) an acquisition directly from the Company,
(ii) an acquisition by the Company,
(iii) an acquisition by an employee benefit plan (or
related trust) sponsored or maintained by the
Company or any corporation controlled by the
Company,
(iv) an acquisition by any Person who is deemed to
have beneficial ownership of the Company common
stock or other Company voting securities owned by
the Trust Under the Will of Clarissa L.Gray
("Trust Person"), provided that such acquisition
does not result in the beneficial ownership by
such Person of 32% or more of either the
Outstanding Company Common Stock or the Out-
standing Company Voting Securities, and provided
further that for purposes of this Section 6, a
Trust Person shall not be deemed to have
beneficial ownership of the Company common stock
or other Company voting securities owned by The
Graco Foundation or any employee benefit plan of
the Company, including, without limitations, the
Graco Employee Retirement Plan and the Graco
Employee Stock Ownership Plan,
(v) an acquisition by the Employee or any group that
includes the Employee, or
(vi) an acquisition by any corporation pursuant to a
transaction that complies with clauses (a), (b),
and (c) of subsection (4) below; and
provided, further, that if any Person's beneficial
ownership of the Outstanding Company Common Stock or
Outstanding Company Voting Securities is 25% or more
as a result of a transaction described in clause (i) or
(ii) above, and such Person subsequently acquires
beneficial ownership of additional Outstanding Company
Common Stock or Outstanding Company Voting Securities
as a result of a transaction other than that described
in clause (i) or (ii) above,such subsequent acquisition
will be treated as an acquisition that causes such
Person to own 25% or more of the Outstanding Company
Common Stock or Outstanding Company Voting Securities
and be deemed a Change of Control; and provided
further, that in the event any acquisition or other
transaction occurs which results in the beneficial
ownership of 32% or more of either the Outstanding
Company Common Stock or the Outstanding Company Voting
Securities by any Trust Person, the Incumbent Board may
by majority vote increase the threshold beneficial
ownership percentage to a percentage above 32% for any
Trust Person; or
(2) Individuals who, as of the date hereof, constitute the Board
of Directors of the Company (the "Incumbent Board") cease
for any reason to constitute at least a majority of said
Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or
nomination for election by the Company's shareholders, was
approved by a vote of at least a majority of the directors
then comprising the Incumbent Board will be considered as
though such individual were a member of the Incumbent Board,
but excluding, for this purpose, any such individual whose
initial membership on the Board occurs as a result of an
actual or threatened election contest with respect to the
election or removal of directors or other actual or
threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board; or
(3) The commencement or announcement of an intention to make a
tender offer or exchange offer, the consummation of which
would result in the beneficial ownership by a Person of 25%
or more of the Outstanding Company Common Stock or
Outstanding Company Voting Securities; or
(4) The approval by the shareholders of the Company of a
reorganization, merger, consolidation, or statutory exchange
of Outstanding Company Common Stock or Outstanding Company
Voting Securities or sale or other disposition of all or
substantially all of the assets of the Company ("Business
Combination") or, if consummation of such Business
Combination is subject, at the time of such approval by
stockholders, to the consent of any government or
governmental agency, the obtaining of such consent (either
explicitly or implicitly by consummation) excluding,
however, such a Business combination pursuant to which
(a) all or substantially all of the individuals and
entities who were the beneficial owners of the
Outstanding Company Common Stock or Outstanding Company
Voting Securities immediately prior to such Business
Combination beneficially own, directly or indirectly,
more than 80% 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 Business
Combination (including, without limitation, a
corporation that as a result of such transaction owns
the Company or all or substantially all of the
Company's assets either directly or through one or more
subsidiaries) in substantially the same proportions as
their ownership, immediately prior to such Business
Combination of the Outstanding Company Common Stock or
Outstanding Company Voting Securities,
(b) no Person [excluding any employee benefit plan (or
related trust) of the Company or such corporation
resulting from such Business Combination] beneficially
owns, directly or indirectly, 25% or more of the then
outstanding shares of common stock of the corporation
resulting from such Business Combination or the
combined voting power of the then outstanding voting
securities of such corporation except to the extent
that such ownership existed prior to the Business
Combination, and
(c) at least a majority of the members of the board of
directors of the corporation resulting from such
Business Combination were members of the Incumbent
Board at the time of the execution of the initial
Agreement, or of the action of the Board, providing for
such Business Combination; or
(5) approval by the stockholders of the Company of a complete
liquidation or dissolution of the Company.
B. A Change of Control shall not be deemed to have occurred with
respect to an Employee if:
(1) the acquisition of the 25% or greater interest referred to
in subparagraph A.(1) of this Section 6 is by a group,
acting in concert, that includes the Employee or
(2) if at least 25% of the then outstanding common stock or
combined voting power of the then outstanding Company voting
securities (or voting equity interests) of the surviving
corporation or of any corporation (or other entity)
acquiring all or substantially all of the assets of the
Company shall be beneficially owned, directly or indirectly,
immediately after a reorganization, merger, consolidation,
statutory share exchange, disposition of assets, liquidation
or dissolution referred to in subsections (4) or (5) of this
section by a group, acting in concert, that includes that
Employee.
7. Adjustments
If there shall be any change in the number or character of the Common
Stock of the Company through merger, consolidation, reorganization,
recapitalization, dividend in the form of stock (of whatever amount),
stock split or other change in the corporate structure of the Company,
and all or any portion of the option shall then be unexercised and not
yet expired, appropriate adjustments in the outstanding option shall
be made by the Company, in order to prevent dilution or enlargement of
option rights. Such adjustments shall include, where appropriate,
changes in the number of shares of Common Stock and the price per
share subject to the outstanding option.
8. Miscellaneous
A. This option is issued pursuant to the Company's Long-Term
Incentive Stock Plan and is subject to its terms. A copy of the
Plan has been given to the Employee. The terms of the Plan are
also available for inspection during business hours at the
principal offices of the Company.
B. This Agreement shall not confer on Employee any right with
respect to continuance of employment by the Company or any of its
subsidiaries, nor will it interfere in any way with the right of
the Company to terminate such employment at any time. Employee
shall have none of the rights of a shareholder with respect to
shares subject to this option until such shares shall have been
issued to him/her upon exercise of this option.
C. The Company shall at all times during the term of the option
reserve and keep available such number of shares as will be
sufficient to satisfy the requirements of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
GRACO INC.
By:
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Its Chief Executive Officer
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Employee
Long Term Stock Incentive Plan
Schedule Identifying Non-ISO Stock Option Agreements Executed and
Material Details in which Executed Agreements Differ from Agreement Copy Filed
Current as of December 28, 2001
DATE NAME SHARES PRICE
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*December 17, 1992 Dale Johnson 4,050 $ 4.59
*December 17, 1992 Charles Rescorla 6,075 $ 4.59
*May 2, 1994 David Koch 22,370 $ 6.70
*May 2, 1994 Robert Mattison 3,672 $ 6.70
*December 15, 1994 Dale Johnson 6,750 $ 5.59
*December 15, 1994 Robert Mattison 10,125 $ 5.59
*December 15, 1994 Patrick McHale 10,125 $ 5.59
*December 15, 1994 Charles Rescorla 16,875 $ 5.59
*February 23, 1995 David Lowe 16,875 $ 7.00
*March 1, 1995 David Koch 22,370 $ 6.96
*March 1, 1995 Robert Mattison 3,672 $ 6.96
*March 1, 1996 James Graner 11,250 $ 8.89
*March 1, 1996 Robert Mattison 2,460 $ 8.89
*February 28, 1997 James Graner 11,250 $13.83
*February 28, 1997 Dale Johnson 6,750 $13.83
*February 28, 1997 David Lowe 22,500 $13.83
*February 28, 1997 Robert Mattison 11,250 $13.83
*February 28, 1997 Charles Rescorla 6,750 $13.83
*February 28, 1997 Mark Sheahan 6,750 $13.83
*February 18, 1998 Fred Sutter 6,000 $19.71
*February 18, 1998 Patrick McHale 4,500 $19.71
*February 27, 1998 James Graner 7,500 $19.67
*February 27, 1998 Dale Johnson 15,000 $19.67
*February 27, 1998 David Lowe 7,500 $19.67
*February 27, 1998 Robert Mattison 7,500 $19.67
*February 27, 1998 Charles Rescorla 7,500 $19.67
*February 27, 1998 Mark Sheahan 5,250 $19.67
*February 22, 1999 James Graner 7,500 $14.33
*February 22, 1999 Dale Johnson 15,000 $14.33
*February 22, 1999 David Lowe 11,250 $14.33
*February 22, 1999 Robert Mattison 7,500 $14.33
*February 22, 1999 Charles Rescorla 11,250 $14.33
*February 22, 1999 Mark Sheahan 7,500 $14.33
*February 22, 1999 Fred Sutter 7,500 $14.33
*February 9, 2000 Dale Johnson 30,000 $20.46
*February 23, 2000 James Graner 7,500 $20.46
*February 23, 2000 David Lowe** 11,250 $20.46
*February 23, 2000 Robert Mattison 7,500 $20.46
*February 23, 2000 Patrick McHale 11,250 $20.46
*February 23, 2000 Charles Rescorla 11,250 $20.46
*February 23, 2000 Mark Sheahan 7,500 $20.46
*February 23, 2000 Fred Sutter 11,250 $20.46
*October 23, 2000 Stephen Bauman 7,500 $22.33
February 22, 2001 George Aristides 40,000 $26.35
February 22, 2001 George Aristides 60,000 $26.35
February 22, 2001 Stephen Bauman 5,000 $26.35
February 22, 2001 James Graner 5,000 $26.35
February 22, 2001 Dale Johnson 20,000 $26.35
February 22, 2001 David Lowe** 7,500 $26.35
February 22, 2001 Robert Mattison 5,000 $26.35
February 22, 2001 Patrick McHale 7,500 $26.35
February 22, 2001 Charles Rescorla 10,000 $26.35
February 22, 2001 Mark Sheahan 5,000 $26.35
February 22, 2001 Fred Sutter 7,500 $26.35
April 19, 2001 Robert Mattison 5,000 $27.85
April 19, 2001 Mark Sheahan 5,000 $27.85
* Share data has been adjusted to reflect stock splits.
**The stock option becomes exercisable in one installment, three years after the
date of the grant
NOTE:
(1) All options granted prior to 2000 become exercisable in four equal annual
installments, commencing two years after the date of the grant. Options
granted in 2000 and later become exercisable in four equal annual
installments, commencing one year after the date of the grant.
(2) Option agreements prior to 1999 did not contain Section 3. E.