Exhibit 10.1
BANTA CORPORATION
1995 EQUITY INCENTIVE PLAN
As Amended
Section 1. Purpose
The purpose of the Banta Corporation 1995 Equity Incentive Plan (the
"Plan") is to promote the best interests of Banta Corporation (together with any
successor thereto, the "Company") and its shareholders by providing key
employees of the Company and its Affiliates (as defined below) and members of
the Company's Board of Directors who are not employees of the Company or its
Affiliates with an opportunity to acquire a proprietary interest in the Company.
It is intended that the Plan will promote continuity of management and increased
incentive and personal interest in the welfare of the Company by those key
employees who are primarily responsible for shaping and carrying out the
long-range plans of the Company and securing the Company's continued growth and
financial success. In addition, by encouraging stock ownership by directors who
are not employees of the Company or its Affiliates, the Company seeks to attract
and retain on its Board of Directors persons of exceptional competence and to
provide a further incentive to serve as a director of the Company.
Section 2. Definitions
As used in the Plan, the following terms shall have the respective
meanings set forth below:
(a) "Affiliate" shall mean any entity that, directly or through one or
more intermediaries, is controlled by, controls, or is under common control
with, the Company.
(b) "Award" shall mean any Option, Stock Appreciation Right,
Restricted Stock or Performance Share 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) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
(e) "Commission" shall mean the United States Securities and Exchange
Commission or any successor agency.
(f) "Committee" shall mean a committee of the Board of Directors of
the Company designated by such Board to administer the Plan and composed of not
less than two directors, each of whom is a "non-employee director for purposes
of Section 16" within the meaning of Rule 16b-3 and each of whom is an "outside
director" within the meaning of Section 162(m)(4)(C) of the Code (or any
successor provision thereto).
(g) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
(h) "Excluded Items" shall mean any items which the Committee
determines shall be excluded in fixing Performance Goals, such as any gains or
losses from discontinued operations, any extraordinary gains or losses and the
effects of accounting changes.
(i) "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.
(j) "Incentive Stock Option" 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).
(k) "Key Employee" shall mean any officer or other key employee of the
Company or of any Affiliate who is responsible for or contributes to the
management, growth or profitability of the business of the Company or any
Affiliate as determined by the Committee.
(l) "Non-Employee Director" shall mean any member of the Company's
Board of Directors who is not an employee of the Company or of any Affiliate.
(m) "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
and shall mean any option granted to a Non-Employee Director under Section 6(b)
of the Plan.
(n) "Option" shall mean an Incentive Stock Option or a Non-Qualified
Stock Option.
(o) "Participating Key Employee" shall mean a Key Employee designated
to be granted an Award under the Plan.
(p) "Performance Goals" shall mean the following (in all cases after
excluding the impact of applicable Excluded Items):
(i) Return on equity for the Performance Period for the
Company on a consolidated basis.
(ii) Return on investment for the Performance Period (aa)
for the Company on a consolidated basis, (bb) for any one or more
Affiliates or divisions of the Company and/or (cc) for any other
business unit or units of the Company as defined by the Committee at
the time of selection.
(iii) Return on net assets for the Performance Period (aa)
for the Company on a consolidated basis, (bb) for any one or more
Affiliates or divisions of the Company and/or (cc) for any other
business unit or units of the Company as defined by the Committee at
the time of selection.
(iv) Economic value added (as defined by the Committee at
the time of selection) for the Performance Period (aa) for the Company
on a consolidated basis, (bb)
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for any one or more Affiliates or divisions of the Company and/or (cc)
for any other business unit or units of the Company as defined by the
Committee at the time of selection.
(v) Earnings from operations for the Performance Period (aa)
for the Company on a consolidated basis, (bb) for any one or more
Affiliates or divisions of the Company and/or (cc) for any other
business unit or units of the Company as defined by the Committee at
the time of selection.
(vi) Pre-tax profits for the Performance Period (aa) for the
Company on a consolidated basis, (bb) for any one or more Affiliates
or divisions of the Company and/or (cc) for any other business unit or
units of the Company as defined by the Committee at the time of
selection.
(vii) Net earnings for the Performance Period (aa) for the
Company on a consolidated basis, (bb) for any one or more Affiliates
or divisions of the Company and/or (cc) for any other business unit or
units of the Company as defined by the Committee at the time of
selection.
(viii) Net earnings per Share for the Performance Period for
the Company on a consolidated basis.
(ix) Working capital as a percent of net sales for the
Performance Period (aa) for the Company on a consolidated basis, (bb)
for any one or more Affiliates or divisions of the Company and/or (cc)
for any other business unit or units of the Company as defined by the
Committee at the time of selection.
(x) Net cash provided by operating activities for the
Performance Period (aa) for the Company on a consolidated basis, (bb)
for any one or more Affiliates or divisions of the Company and/or (cc)
for any other business unit or units of the Company as defined by the
Committee at the time of selection.
(xi) Market price per Share for the Performance Period.
(xii) Total shareholder return for the Performance Period
for the Company on a consolidated basis.
(q) "Performance Period" shall mean, in relation to Performance
Shares, any period for which a Performance Goal or Goals have been established;
provided, however, that such period shall not be less than one year.
(r) "Performance Share" shall mean any right granted under Section
6(e) of the Plan that will be paid out as a Share (which, in specified
circumstances, may be a Share of Restricted Stock).
(s) "Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, or
government or political subdivision thereof.
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(t) "Released Securities" shall mean Shares of Restricted Stock with
respect to which all applicable restrictions have expired, lapsed, or been
waived.
(u) "Restricted Securities" shall mean Awards of Restricted Stock or
other Awards under which issued and outstanding Shares are held subject to
certain restrictions.
(v) "Restricted Stock" shall mean any Share granted under Section 6(d)
of the Plan or, in specified circumstances, a Share paid in connection with a
Performance Share under Section 6(e) of the Plan.
(w) "Rule 16b-3" shall mean Rule 16b-3 as promulgated by the
Commission under the Exchange Act, or any successor rule or regulation thereto.
(x) "Shares" shall mean shares of common stock of the Company, $.10
par value, and such other securities or property as may become subject to Awards
pursuant to an adjustment made under Section 4(b) of the Plan.
(y) "Stock Appreciation Right" shall mean any right granted under
Section 6(c) of the Plan.
Section 3. Administration
The Plan shall be administered by the Committee; provided, however,
that if at any time the Committee shall not be in existence, the functions of
the Committee as specified in the Plan shall be exercised by a committee
consisting of those members of the Board of Directors of the Company who qualify
as "non-employee directors for purposes of Section 16" under Rule 16b-3 and as
"outside directors" under Section 162(m)(4)(C) of the Code (or any successor
provision thereto). To the extent permitted by applicable law, the Committee may
delegate to one or more executive officers of the Company any or all of the
authority and responsibility of the Committee with respect to the Plan, other
than with respect to Persons who are subject to Section 16 of the Exchange Act.
To the extent the Committee has so delegated to one or more executive officers
the authority and responsibility of the Committee, all references to the
Committee herein shall include such officer or officers. Subject to the terms of
the Plan and without limitation by reason of enumeration, the Committee shall
have full power and authority to: (i) designate Participating Key Employees;
(ii) determine the type or types of Awards to be granted to each Participating
Key Employee under the Plan; (iii) 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 granted to Participating Key Employees;
(iv) determine the terms and conditions of any Award granted to a Participating
Key Employee; (v) determine whether, to what extent, and under what
circumstances Awards granted to Participating Key Employees may be settled or
exercised in cash, Shares, other securities, other Awards, or other property,
and the method or methods by which Awards may be settled, exercised, cancelled,
forfeited, or suspended; (vi) determine whether, to what extent, and under what
circumstances cash, Shares, other Awards, and other amounts payable with respect
to an Award granted to Participating Key Employees under the Plan shall be
deferred either automatically or at the election of the holder thereof or of the
Committee; (vii) interpret and administer the Plan and any instrument or
agreement relating to, or Award made under, the Plan (including, without
limitation, any Award Agreement); (viii) establish, amend, suspend, or waive
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such rules and regulations and appoint such agents as it shall deem appropriate
for the proper administration of the Plan; and (ix) make any other determination
and take any other action that the Committee deems necessary or desirable for
the administration of the Plan. Unless otherwise expressly provided in the Plan,
all designations, determinations, interpretations, and other decisions under or
with respect to the Plan or any Award 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 Participating Key
Employee, any Non-Employee Director, any holder or beneficiary of any Award, any
shareholder, and any employee of the Company or of any Affiliate.
Notwithstanding the foregoing, Awards to Non-Employee Directors under the Plan
shall be automatic and the amount and terms of such Awards shall be determined
as provided in Section 6(b) of the Plan.
Section 4. Shares Available for Award
(a) Shares Available. Subject to adjustment as provided in Section
4(b):
(i) Number of Shares Available. The number of Shares with
respect to which Awards may be granted under the Plan shall be
2,500,000. If, after the effective date of the Plan, any Shares
covered by an Award granted under the Plan, or to which any Award
relates, are forfeited or if an Award otherwise terminates, expires or
is cancelled prior to the delivery of all of the Shares or of other
consideration issuable or payable pursuant to such Award, then the
number of Shares counted against the number of Shares available under
the Plan in connection with the grant of such Award, to the extent of
any such forfeiture, termination, expiration or cancellation, shall
again be available for granting of additional Awards under the Plan.
(ii) Limitations on Awards to Individual Participants. No
Participating Key Employee shall be granted, during any calendar year,
Options for more than 150,000 Shares, Stock Appreciation Rights with
respect to more than 50,000 Shares, more than 25,000 Shares of
Restricted Stock and/or more than 50,000 Performance Shares under the
Plan. Such number of Shares as specified in the preceding sentence
shall be subject to adjustment in accordance with the terms of Section
4(b) hereof. In all cases, determinations under this Section 4(a)(ii)
shall be made in a manner that is consistent with the exemption for
performance-based compensation provided by Section 162(m) of the Code
(or any successor provision thereto) and any regulations promulgated
thereunder.
(iii) Accounting for Awards. The number of Shares covered by
an Award under the Plan, or to which such Award relates, shall be
counted on the date of grant of such Award against the number of
Shares available for granting Awards under the Plan.
(iv) Sources of Shares Deliverable Under Awards. Any Shares
delivered pursuant to an Award may consist, in whole or in part, of
authorized and unissued Shares or of treasury Shares.
(b) Adjustments. In the event that the Committee shall determine that
any dividend or other distribution (whether in the form of cash, Shares, other
securities, or other
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property), recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, split-up, spin-off, combination, repurchase, or exchange
of Shares or other securities of the Company, issuance of warrants or other
rights to purchase Shares or other securities of the Company, or other similar
corporate transaction or event affects the Shares 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, then the Committee may, in such manner as it may deem equitable,
adjust any or all of (i) the number and type of Shares subject to the Plan and
which thereafter may be made the subject of Awards under the Plan, (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 deemed
appropriate, make provision for a cash payment to the holder of an outstanding
Award; provided, however, in each case, that with respect to Awards of Incentive
Stock Options no such adjustment shall be authorized to the extent that such
authority would cause the Plan to violate Section 422(b) of the Code (or any
successor provision thereto); and provided further that the number of Shares
subject to any Award payable or denominated in Shares shall always be a whole
number. Notwithstanding the foregoing, Non-Qualified Stock Options subject to
grant or previously granted to Non-Employee Directors under Section 6(b) of the
Plan at the time of any event described in the preceding sentence shall be
subject to only such adjustments as shall be necessary to maintain the relative
proportionate interest represented thereby immediately prior to any such event
and to preserve, without exceeding, the value of such Options.
Section 5. Eligibility
Any Key Employee, including any executive officer or employee-director
of the Company or of any Affiliate, shall be eligible to be designated a
Participating Key Employee. All Non-Employee Directors shall receive Awards of
Non-Qualified Stock Options as provided in Section 6(b).
Section 6. Awards
(a) Option Awards to Key Employees. The Committee is hereby authorized
to grant Options to Key Employees with the terms and conditions as set forth
below and with such additional terms and conditions, in either case not
inconsistent with the provisions of the Plan, as the Committee shall determine.
(i) Exercise Price. The exercise price per Share of an
Option granted pursuant to this Section 6(a) shall be determined by
the Committee; provided, however, that such exercise price shall not
be less than 100% of the Fair Market Value of a Share on the date of
grant of such Option.
(ii) Option Term. The term of each Option shall be fixed by
the Committee; provided, however, that in no event shall the term of
any Incentive Stock Option exceed a period of ten years from the date
of its grant.
(iii) Exercisability and Method of Exercise. An Option shall
become exercisable in such manner and within such period or periods
and in such installments or otherwise as shall be determined by the
Committee. The Committee also shall determine
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the method or methods by which, and the form or forms, including,
without limitation, cash, Shares, other securities, 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 to any Option may be made
or deemed to have been made.
(iv) 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 thereunder. Notwithstanding
any provision in the Plan to the contrary, no Incentive Stock Option
may be granted hereunder after December 6, 2004.
(b) Non-Qualified Stock Option Awards to Non-Employee Directors.
(i) Eligibility. Each Non-Employee Director shall
automatically be granted Non-Qualified Stock Options under the Plan in
the manner set forth in this Section 6(b). A Non-Employee Director may
hold more than one Non-Qualified Stock Option, but only on the terms
and subject to any restrictions set forth herein.
(ii) Grant of Options to Newly-Elected Non-Employee
Directors. Any Person who is first elected as a Non-Employee Director
after the effective date of the Plan shall, on the date of such
election, automatically be granted a Non-Qualified Stock Option to
purchase 4,500 Shares (which number of Shares shall be subject to
adjustment in the manner provided in Section 4(b) hereof).
(iii) Annual Option Grants to Non-Employee Directors. Each
Non-Employee Director (if he or she continues to serve in such
capacity) shall, on the day following the annual meeting of
shareholders in each year during the time the Plan is in effect,
automatically be granted a Non-Qualified Stock Option to purchase
1,500 Shares (which number of Shares shall be subject to adjustment in
the manner provided in Section 4(b) hereof); provided, however, that a
Person who is first elected as a Non-Employee Director on the date of
an annual meeting of shareholders and who receives on that date a
Non-Qualified Stock Option pursuant to Section 6(b)(ii) hereof shall
not be eligible to begin to receive grants pursuant to this Section
6(b)(iii) until the day following the next succeeding annual meeting
of shareholders.
(iv) Grant Limitation. Notwithstanding the provisions of
Sections 6(b)(ii) and 6(b)(iii) hereof, Non-Qualified Stock Options
shall be automatically granted to Non-Employee Directors under the
Plan only for so long as the Plan remains in effect and a sufficient
number of Shares are available hereunder for the granting of such
Options.
(v) Exercise Price. The exercise price per Share for a
Non-Qualified Stock Option granted to a Non-Employee Director under
the Plan shall be equal to 100% of the "market value" of a Share on
the date of grant of such Option. The "market value" of a Share on the
date of grant to the Non-Employee Director shall be the closing price
per Share for the Shares on the New York Stock Exchange on the trading
date next preceding the date of grant, or if no trading occurred on
the trading date next preceding the date on
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which the Non-Qualified Stock Option is granted, then the "market
value" per Share shall be determined with reference to the next
preceding date on which the Shares were traded.
(vi) Exercisability and Termination of Options.
Non-Qualified Stock Options granted to Non-Employee Directors under
the Plan shall become exercisable six months following the date of
grant; provided, however, that if a Non-Employee Director ceases to be
a director of the Company by reason of death, disability or retirement
within six months after the date of grant, the Option shall become
immediately exercisable in full. Non-Qualified Stock Options granted
to Non-Employee Directors shall terminate on the earlier of:
(A) ten years after the date of grant; or
(B) twelve months after the Non-Employee Director
ceases to be a director of the Company for any reason,
including as a result of the Non-Employee Director's death,
disability or retirement.
(vii) Exercise of Options. A Non-Qualified Stock Option
granted to a Non-Employee Director may be exercised, subject to its
terms and conditions and the terms and conditions of the Plan, in full
at any time or in part from time to time by delivery to the Secretary
of the Company at the Company's principal office in Menasha,
Wisconsin, of a written notice of exercise specifying the number of
shares with respect to which the Option is being exercised. Any notice
of exercise shall be accompanied by full payment of the exercise price
of the Shares being purchased (x) in cash or its equivalent; (y) by
tendering previously acquired Shares (valued at their "market value"
[as determined in accordance with Section 6(b)(v)] as of the date of
exercise); or (z) by any combination of the means of payment set forth
in subparagraphs (x) and (y). For purposes of subparagraphs (y) and
(z) above, the term "previously acquired Shares" shall only include
Shares owned by the Non-Employee Director prior to the exercise of the
Option for which payment is being made and shall not include Shares
which are being acquired pursuant to the exercise of said Option. No
shares will be issued until full payment therefor has been made.
(c) Stock Appreciation Rights. The Committee is hereby authorized to
grant Stock Appreciation Rights to Key Employees. Non-Employee Directors are not
eligible to be granted Stock Appreciation Rights under the Plan. Subject to the
terms of the Plan and any applicable Award Agreement, a Stock Appreciation Right
granted under the Plan shall confer on the holder thereof a right to receive,
upon exercise thereof, the excess of (i) the Fair Market Value of one Share on
the date of exercise over (ii) the grant price of the Stock Appreciation Right
as specified by the Committee, which shall not be less than 100% of the Fair
Market Value of one Share on the date of grant of the Stock Appreciation Right.
Subject to the terms of the Plan, the grant price, term, methods of exercise,
methods of settlement (including whether the Participating Key Employee will be
paid in cash, Shares, other securities, other Awards, or other property, or any
combination thereof), and any other terms and conditions of any Stock
Appreciation Right shall be as determined by the Committee. The Committee may
impose such conditions or restrictions on the exercise of any Stock Appreciation
Right as it may deem appropriate.
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(d) Restricted Stock Awards.
(i) Issuance. The Committee is hereby authorized to grant
Awards of Restricted Stock to Key Employees; provided, however, that
the aggregate number of Shares of Restricted Stock granted under the
Plan to all Participating Key Employees as a group shall not exceed
225,000 (such number of Shares subject to adjustment in accordance
with the terms of Section 4(b) hereof). Non-Employee Directors are not
eligible to be granted Restricted Stock under the Plan.
(ii) Restrictions. Shares of Restricted Stock granted to
Participating Key Employees shall be subject to such restrictions as
the Committee may impose (including, without limitation, any
limitation on the right to vote a Share of Restricted Stock or the
right to receive any dividend or other right or property), which
restrictions may lapse separately or in combination at such time or
times, in such installments or otherwise, as the Committee may deem
appropriate.
(iii) Registration. Any Restricted Stock granted under the
Plan to a Participating Key Employee 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 to a
Participating Key Employee, such certificate shall be registered in
the name of the Participating Key Employee and shall bear an
appropriate legend (as determined by the Committee) referring to the
terms, conditions, and restrictions applicable to such Restricted
Stock.
(iv) Payment of Restricted Stock. At the end of the
applicable restriction period relating to Restricted Stock granted to
a Participating Key Employee, one or more stock certificates for the
appropriate number of Shares, free of restrictions imposed under the
Plan, shall be delivered to the Participating Key Employee, or, if the
Participating Key Employee received stock certificates representing
the Restricted Stock at the time of grant, the legends placed on such
certificates shall be removed.
(v) Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment of a Participating Key
Employee (as determined under criteria established by the Committee)
for any reason during the applicable restriction period, all Shares of
Restricted Stock still subject to restriction shall be forfeited by
the Participating Key Employee; provided, however, that the Committee
may, when it finds that a waiver would be in the best interests of the
Company, waive in whole or in part any or all remaining restrictions
with respect to Shares of Restricted Stock held by a Participating Key
Employee.
(e) Performance Shares.
(i) Issuance. The Committee is hereby authorized to grant
Awards of Performance Shares to Participating Key Employees.
Non-Employee Directors are not eligible to be granted Performance
Shares under the Plan.
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(ii) Performance Goals and Other Terms. The Committee shall
determine the Performance Period, the Performance Goal or Goals (and
the performance level or levels related thereto) to be achieved during
any Performance Period, the proportion of payments, if any, to be made
for performance between the minimum and full performance levels for
any Performance Goal and, if applicable, the relative percentage
weighting given to each of the selected Performance Goals, the
restrictions applicable to Shares of Restricted Stock received upon
payment of Performance Shares if Performance Shares are paid in such
manner, and any other terms, conditions and rights relating to a grant
of Performance Shares. The Committee shall have sole discretion to
alter the selected Performance Goals set forth in Section 2(p),
subject to shareholder approval, to the extent required to qualify the
Award for the performance-based exemption provided by Section 162(m)
of the Code (or any successor provision thereto). Notwithstanding the
foregoing, in the event the Committee determines it is advisable to
grant Performance Shares which do not qualify for the
performance-based exemption under Section 162(m) of the Code (or any
successor provision thereto), the Committee may make such grants
without satisfying the requirements thereof.
(iii) Rights and Benefits During the Performance Period. The
Committee may provide that, during a Performance Period, a
Participating Key Employee shall be paid cash amounts, with respect to
each Performance Share held by such Participating Key Employee, in the
same manner, at the same time, and in the same amount paid, as a cash
dividend on a Share. Participating Key Employees shall have no voting
rights with respect to Performance Shares held by them.
(iv) Payment of Performance Shares. As soon as is reasonably
practicable following the end of the applicable Performance Period,
and subject to the Committee certifying in writing as to the
satisfaction of the requisite Performance Goal or Goals if such
certification is required in order to qualify the Award for the
performance-based exemption provided by Section 162(m) of the Code (or
any successor provision thereto), one or more certificates
representing the number of Shares equal to the number of Performance
Shares payable shall be registered in the name of and delivered to the
Participating Key Employee; provided, however, that any Shares of
Restricted Stock payable in connection with Performance Shares shall,
pending the expiration, lapse, or waiver of the applicable
restrictions, be evidenced in the manner as set forth in Section
6(d)(iii) hereof.
(f) General.
(i) No Consideration for Awards. Awards shall be granted to
Participating Key Employees for no cash consideration unless otherwise
determined by the Committee. Awards of Non-Qualified Stock Options
granted to Non-Employee Directors under Section 6(b) of the Plan shall
be granted for no cash consideration unless otherwise required by law.
(ii) Award Agreements. Each Award granted under the Plan
shall be evidenced by an Award Agreement in such form (consistent with
the terms of the Plan) as shall have been approved by the Committee.
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(iii) Awards May Be Granted Separately or Together. Awards
to Participating Key Employees under the Plan may 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.
(iv) 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 to a Participating Key Employee may be made in
such form or forms as the Committee shall determine, 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
interest on installment or deferred payments.
(v) Limits on Transfer of Awards. No Award (other than
Released Securities), and no right under any such Award, shall be
assignable, alienable, saleable, or transferable by a Participating
Key Employee or a Non-Employee Director otherwise than by will or by
the laws of descent and distribution (or, in the case of an Award of
Restricted Securities, to the Company); provided, however, that a
Participating Key Employee at the discretion of the Committee may, and
a Non-Employee Director shall, be entitled, in the manner established
by the Committee, to designate a beneficiary or beneficiaries to
exercise his or her rights, and to receive any property distributable,
with respect to any Award upon the death of the Participating Key
Employee or the Non-Employee Director, as the case may be. Each Award,
and each right under any Award, shall be exercisable, during the
lifetime of the Participating Key Employee or the Non-Employee
Director, only by such individual or, if permissible under applicable
law, by such individual's guardian or legal representative. No Award
(other than Released Securities), and no right under any such Award,
may be pledged, alienated, attached, or otherwise encumbered, and any
purported pledge, alienation, attachment, or encumbrance thereof shall
be void and unenforceable against the Company or any Affiliate.
(vi) Term of Awards. Except as otherwise provided in the
Plan, the term of each Award shall be for such period as may be
determined by the Committee.
(vii) Share Certificates; Representation. In addition to the
restrictions imposed pursuant to Section 6(d) and Section 6(e) hereof,
all certificates for Shares 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 Commission, any stock exchange or other market upon which such
Shares are then listed or traded, 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. The Committee may require each Participating Key
Employee, Non-Employee Director or other Person who acquires Shares
under the Plan by means of an Award originally made to a
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Participating Key Employee or a Non-Employee Director to represent to
the Company in writing that such Participating Key Employee,
Non-Employee Director or other Person is acquiring the Shares without
a view to the distribution thereof.
Section 7. Amendment and Termination of the Plan; Correction of Defects and
Omissions
(a) Amendments to and Termination of the Plan. The Board of Directors
of the Company may at any time amend, alter, suspend, discontinue, or terminate
the Plan; provided, however, that the provisions of Section 6(b) of the Plan
shall not be amended more than once every six months, other than to comport with
changes in the Code, the Employee Retirement Income Security Act of 1974, as
amended, or the rules promulgated thereunder; and provided further that
shareholder approval of any amendment of the Plan shall also be obtained (i) if
such amendment (A) increases the number of Shares with respect to which Awards
may be granted under the Plan (other than increases related to adjustments made
as provided in Section 4(b) hereof), (B) expands the class of persons eligible
to participate under the Plan or (C) otherwise increases in any material respect
the benefits payable under the Plan; or (ii) if otherwise required by: (A) the
Code or any rules promulgated thereunder (in order to allow for Incentive Stock
Options to be granted under the Plan), or (B) the listing requirements of the
New York Stock Exchange or any principal securities exchange or market on which
the Shares are then traded (in order to maintain the listing of the Shares
thereon). Termination of the Plan shall not affect the rights of Participating
Key Employees or Non-Employee Directors with respect to Awards previously
granted to them, and all unexpired Awards shall continue in force and effect
after termination of the Plan except as they may lapse or be terminated by their
own terms and conditions.
(b) Correction of Defects, Omissions and Inconsistencies. The
Committee may correct any defect, supply any omission, or reconcile any
inconsistency in any Award or Award Agreement in the manner and to the extent it
shall deem desirable to carry the Plan into effect.
Section 8. General Provisions
(a) No Rights to Awards. No Key Employee, Participating Key Employee
or other Person (other than a Non-Employee Director to the extent provided in
Section 6(b) of the Plan) shall have any claim to be granted any Award under the
Plan, and there is no obligation for uniformity of treatment of Key Employees,
Participating Key Employees, or holders or beneficiaries of Awards under the
Plan. The terms and conditions of Awards need not be the same with respect to
each Participating Key Employee.
(b) Withholding. No later than the date as of which an amount first
becomes includible in the gross income of a Participating Key Employee for
federal income tax purposes with respect to any Award under the Plan, the
Participating Key Employee shall pay to the Company, or make arrangements
satisfactory to the Company regarding the payment of, any federal, state, local
or foreign taxes of any kind required by law to be withheld with respect to such
amount. Unless otherwise determined by the Committee, withholding obligations
arising with respect to Awards to Participating Key Employees under the Plan may
be settled with Shares (other than Restricted Securities), including Shares that
are part of, or are received upon exercise of, the Award that gives rise to the
withholding requirement. The obligations of the Company under the
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Plan shall be conditional on such payment or arrangements, and the Company and
any Affiliate shall, to the extent permitted by law, have the right to deduct
any such taxes from any payment otherwise due to the Participating Key Employee.
The Committee may establish such procedures as it deems appropriate for the
settling of withholding obligations with Shares, including, without limitation,
the establishment of such procedures as may be necessary to satisfy the
requirements of Rule 16b-3.
(c) No Limit on Other Compensation Arrangements. 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) Rights and Status of Recipients of Awards. The grant of an Award
shall not be construed as giving a Participating Key Employee the right to be
retained in the employ of the Company or any Affiliate. Further, the Company or
any Affiliate may at any time dismiss a Participating Key Employee from
employment, free from any liability, or any claim under the Plan, unless
otherwise expressly provided in the Plan or in any Award Agreement. The grant of
an Award to a Non-Employee Director pursuant to Section 6(b) of the Plan shall
confer no right on such Non-Employee Director to continue as a director of the
Company. Except for rights accorded under the Plan and under any applicable
Award Agreement, Participating Key Employees and Non-Employee Directors shall
have no rights as holders of Shares as a result of the granting of Awards
hereunder.
(e) Unfunded Status of the Plan. Unless otherwise determined by the
Committee, the Plan shall be unfunded and shall not create (or be construed to
create) a trust or a separate fund or funds. The Plan shall not establish any
fiduciary relationship between the Company and any Participating Key Employee,
any Non-Employee Director or other Person. To the extent any Person holds any
right by virtue of a grant under the Plan, such right (unless otherwise
determined by the Committee) shall be no greater than the right of an unsecured
general creditor of the Company.
(f) 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 Wisconsin and applicable federal law.
(g) Severability. If any provision of the Plan or any Award Agreement
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,
any Award Agreement 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,
any Award Agreement or the Award, such provision shall be stricken as to such
jurisdiction, Person, or Award, and the remainder of the Plan, any such Award
Agreement and any such Award shall remain in full force and effect.
(h) No Fractional Shares. No fractional Shares or other securities
shall be issued or delivered pursuant to the Plan, any Award Agreement or any
Award, and the Committee
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shall determine (except as otherwise provided in the Plan) whether cash, other
securities, or other property shall be paid or transferred in lieu of any
fractional Shares or other securities, or whether such fractional Shares or
other securities 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 9. Effective Date of the Plan
The Plan originally became effective on April 26, 1995.
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