EXHIBIT 10.10
KOHL'S CORPORATION
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2003 LONG-TERM COMPENSATION PLAN
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1. Purpose
The purpose of the Plan is to allow the Company to attract and retain key
employees and directors of the Company and its subsidiaries and to provide
motivation to these individuals to put forth maximum efforts toward the
continued growth, profitability, and success of the Company and its Subsidiaries
by providing incentives through the ownership and performance of the Company's
Common Stock. Toward this objective, the Committee may grant various
equity-based Awards to Participants on the terms and subject to the conditions
set forth in the Plan. These Awards will provide Participants with a proprietary
interest in the growth and performance of the Company.
2. Definitions
2.1. "Award" means any form of stock option, stock appreciation right,
Stock Award, performance unit, performance shares or other incentive award
granted under the Plan, whether singly, in combination, or in tandem, to a
Participant by the Committee pursuant to such terms, conditions, restrictions,
and/or limitations, if any, as the Committee may establish by the Award
Agreement or otherwise.
2.2. "Award Agreement" means a written agreement between the Company and a
Participant that establishes the terms, conditions, restrictions, and/or
limitations applicable to an Award in addition to those established by this Plan
and by the Committee's exercise of its administrative powers.
2.3. "Board" means the Board of Directors of the Company.
2.4. "Cause" means termination of employment or service as a director upon:
(1) a Participant's repeated failure to perform his or her duties in a
competent, diligent and satisfactory manner as determined by the Company's Chief
Executive Officer in his reasonable judgment, (2) insubordination, (3) a
Participant's commission of any material act of dishonesty or disloyalty
involving the Company or a Subsidiary, (4) a Participant's chronic absence from
work other than by reason of a serious health condition, (5) a Participant's
commission of a crime which substantially relates to the circumstances of his or
her position with the Company or a Subsidiary or which has material adverse
effect on the Company or a Subsidiary, or (6) the willful engaging by a
Participant in conduct which is demonstrably and materially injurious to the
Company or a Subsidiary.
2.5. "Change of Control" shall have the meaning set forth in Paragraph 18
below.
2.6. "Code" means the Internal Revenue Code of 1986, as amended from time
to time.
2.7. "Committee" means the Compensation Committee of the Board, or such
other committee of directors designated by the Board, authorized to administer
the Plan under Paragraph 3 hereof. Membership of the Committee shall consist of
not less than two (2) independent directors and shall otherwise comply with the
requirements of the rules and regulations of the Securities and Exchange
Commission, the stock exchange on which the Company's Common Stock is traded,
Rule 16b-3 of the Exchange Act and Code Section 162(m).
2.8. "Common Stock" means $.01 par value common shares of the Company.
2.9. "Company" means Kohl's Corporation, a Wisconsin corporation.
2.10. "Disability" means the inability of a Participant to perform his or
her normal duties as a full-time employee of the Company or a Subsidiary for a
continuous period of ninety (90) days by reason of physical or mental illness or
incapacity. If there is any dispute as to whether the termination of the
Participant's employment was due to his or her physical or mental illness or
incapacity, such question shall be submitted to a licensed physician for the
purpose of making such determination. An examination of the Participant shall be
made within thirty (30) days after written notice by the Committee or the
Participant by a licensed physician selected by the Committee. The Participant
shall submit to such examination and provide such information as such physician
may request and the determination of such physician as to the question of the
Participant's physical or mental condition shall be binding and conclusive on
all parties concerned for purposes of this Plan. The disability shall be deemed
to be continuing unless the Participant performs his or her regular duties for
his or her employer for a continuous period of ninety (90) days.
2.11. "Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
2.12. "Market Value" of Common Stock shall mean the closing sale price of
Common Stock on the New York Stock Exchange - Composite Transactions, the
American Stock Exchange - Composite Transactions or other national or regional
exchange, or the mean of the closing bid and asked prices in the
over-the-counter market, as reported by the National Association of Securities
Dealers Automatic Quotation System ("NASDAQ").
2.13. "Participant" means an employee or member of the Board of Directors
of the Company or a Subsidiary chosen by the Committee to receive an Award under
this Plan.
2.14. "Plan" means the Kohl's Corporation 2003 Long Term Compensation Plan.
2.15. "Retirement" means a Participant's termination of employment or
service as a director other than for Cause after the later to occur of (a)
attainment of age sixty (60); or (b) service with the Company and/or a
Subsidiary for a continuous period of ten (10) years.
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2.16. "Rule 16b-3" means Rule 16b-3 promulgated by the Securities and
Exchange Commission under Section 16 of the Exchange Act, as it may be amended
from time to time, and any successor rule.
2.17. "Stock Award" means an award granted pursuant to Paragraph 10 hereof
in the form of shares of Common Stock, restricted shares of Common Stock, and/or
Units of Common Stock.
2.18. "Subsidiary" means a corporation or other business entity in which
the Company directly or indirectly has a significant ownership interest, as
determined by the Committee, in the Committee's sole discretion.
2.19. "Unit" means a bookkeeping entry used by the Company to record and
account for the grant of the following Awards until such time as the Award is
paid, cancelled, forfeited or terminated, as the case may be: Units of Common
Stock, performance units, and performance shares which are expressed in terms of
Units of Common Stock.
3. Administration
The Plan shall be administered by the Committee. Subject to the terms of
the Plan, the Committee shall have the authority to: (a) interpret the Plan; (b)
establish such rules and regulations as it deems necessary for the proper
operation and administration of the Plan; (c) select Participants to receive
Awards under the Plan; (d) determine the form of an Award, whether a stock
option, stock appreciation right, Stock Award, performance unit, performance
share, or other incentive award established by the Committee in accordance with
the Plan, the number of shares or Units subject to the Award, all the terms,
conditions, restrictions and/or limitations, if any, of an Award, including the
time and conditions of exercise or vesting, and the terms of any Award
Agreement; (e) determine whether Awards will be granted singly, in combination
or in tandem; (f) determine the performance goals, if any, which will be
applicable to the Award; (g) grant waivers of Plan terms, conditions,
restrictions, and limitations; (h) accelerate the vesting, exercise, or payment
of an Award or the performance period of an Award when such action or actions
would be in the best interest of the Company; and (i) take any and all other
action it deems necessary or advisable for the proper operation or
administration of the Plan. In addition, in order to enable Participants who are
foreign nationals or are employed outside the United States or both to receive
Awards under the Plan, the Committee may adopt such amendments, procedures,
regulations, subplans and the like as are necessary or advisable, in the opinion
of the Committee, to effectuate the purposes of the Plan.
The Committee shall also have the authority to grant Awards in replacement
of Awards previously granted under this Plan or any other executive compensation
plan of the Company or a Subsidiary.
All determinations of the Committee shall be made by a majority of its
members, and its determinations shall be final, binding and conclusive on the
Company, Participants and any persons claiming an interest through a
Participant. The Committee, in its discretion, may delegate
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its authority and duties under the Plan to the Chief Executive Officer and/or to
other senior officers of the Company under such conditions and/or limitations as
the Committee may establish; provided, however, that only the Committee may
select and grant Awards to Participants who are subject to Section 16 of the
Exchange Act.
4. Eligibility
Any employee or member of the Board of Directors of the Company or a
Subsidiary chosen by the Committee shall be eligible to receive an Award.
5. Shares Available
The aggregate number of shares of Common Stock which may be issued under
the Plan pursuant to the exercise or grant of Awards shall not exceed 15,000,000
shares of Common Stock, subject to adjustment as provided in Paragraph 20
hereof, all of which may be incentive stock options. Shares of Common Stock
issued hereunder may be treasury shares or authorized but unissued shares, or a
combination of the two. In no event (a) shall the aggregate number of shares
subject to Awards granted under the Plan that are not stock options or stock
appreciation rights, as set forth in Paragraphs 8 and 9 hereof respectively,
exceed 7,500,000 shares (subject to adjustment as provided in Paragraph 20
hereof), (b) shall any Participant be eligible to receive options or SARs, as
defined in Paragraph 9, below, for more than 1,500,000 shares during any
twelve-month period (subject to adjustment as provided in Paragraph 20 hereof),
or (c) shall any one Participant be eligible to receive an aggregate amount of
Awards, other than options or SARs, in an amount in excess of $2,500,000
(valuing the shares of Common Stock at their Market Value and other Awards at
their fair market value as determined by the Committee in its sole discretion,
on the business day immediately preceding the date of grant) during any
twelve-month period. For purposes of determining the maximum number of shares
available for issuance under the Plan, (i) any shares which are used in
settlement of tax withholding obligations with respect to an Award shall be
deemed not to have been issued, (ii) if any option is exercised by tendering
shares of Common Stock, either actually or by attestation, to the Company as
full or partial payment for such exercise under this Plan, only the number of
shares issued net of the shares tendered shall be deemed issued, and (iii) any
shares which have been issued as Stock Awards or performance shares, as set
forth in Paragraph 12 hereof, which are forfeited to the Company shall be
treated, following such forfeiture, as shares which have not been issued.
6. Term
The Plan shall become effective as of the date of its approval by the
Company's shareholders. Awards shall not be granted pursuant to the Plan after
March 1, 2013.
7. Participation
The Committee shall select, from time to time, those Participants who, in
the opinion of the Committee, can further the Plan's purposes. Once a
Participant is so selected, the Committee shall determine the type or types of
Awards to be made to the Participant and shall establish in
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the related Award Agreements the terms, conditions, restrictions and/or
limitations, if any, applicable to the Awards in addition to those set forth in
this Plan and the administrative rules and regulations issued by the Committee.
Notwithstanding the foregoing, the term of Awards granted pursuant to the Plan
shall not exceed fifteen (15) years, with the exception of incentive stock
options, where the term shall not exceed ten (10) years (five (5) years in the
case of a greater than 10% shareholder).
8. Stock Options
(a) Grants. Awards may be granted in the form of stock options. These stock
options may be incentive stock options within the meaning of Section 422 of the
Code or nonqualified stock options (i.e., stock options which are not incentive
stock options), or a combination of both.
(b) Terms and Conditions of Options. An option shall be exercisable in
whole or in such installments and at such times as may be determined by the
Committee. The price at which a share of Common Stock may be purchased upon
exercise of a stock option shall be established by the Committee, but shall be
no less than 100% of the Market Value of a share of Common Stock, as determined
by the Committee, on the date of grant. The exercise price of a stock option
shall not be reduced by the Committee other than pursuant to Paragraph 20
hereof, without the consent of the Company's shareholders.
(c) Restrictions Relating to Incentive Stock Options. Stock options issued
in the form of incentive stock options shall, in addition to being subject to
all applicable terms, conditions, restrictions and/or limitations established by
the Committee, comply with Section 422 of the Code. Further, the per share
option price of an incentive stock option shall not be less than 100% (or 110%
in the case of a greater than 10% shareholder) of the fair market value of a
share of Common Stock, as determined by the Committee, on the date of the grant.
Also, each option shall expire not later than ten years (or five years in the
case of a 10% or more shareholder) from its date of grant. All or any portion of
an option designated as an incentive stock option which does not meet the
requirements of Section 422 of the Code, including those set forth herein, will
be treated as a nonqualified stock option.
(d) Additional Terms and Conditions. The Committee may, by way of the Award
Agreement or otherwise, establish such other terms, conditions, restrictions
and/or limitations, if any, of any stock option Award, provided they are not
inconsistent with the Plan.
(e) Exercise Payment. At the election of the Committee, upon exercise, the
option price of a stock option may be paid in cash, shares of Common Stock
either directly or by attestation, a combination of the foregoing, or such other
consideration as the Committee may deem appropriate. The Committee shall
establish appropriate methods for accepting Common Stock and may impose such
conditions as it deems appropriate on the use of such Common Stock to exercise a
stock option.
9. Stock Appreciation Rights
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(a) Grants. Awards may be granted in the form of stock appreciation rights
("SARs"). A SAR may be granted in tandem with all or a portion of a related
stock option under the Plan (a "Tandem SAR"), or may be granted separately (a
"Freestanding SAR"). A Tandem SAR may be granted either at the time of the grant
of the related stock option or any time thereafter during the term of the stock
option. SARs shall entitle the recipient to receive a payment equal to the
appreciation in Market Value of a stated number of shares of Common Stock from
the exercise price to the Market Value on the date of exercise. In the case of
SARs granted in tandem with stock options granted prior to the grant of such
SARs, the appreciation in value is from the option price of such related stock
option to the Market Value on the date of exercise.
(b) Terms and Conditions of Tandem SARs. A Tandem SAR shall be exercisable
to the extent, and only to the extent, that the related stock option is
exercisable, and the "exercise price" of such a SAR (the base from which the
value of the SAR is measured at its exercise) shall be the option price under
the related stock option. If a related stock option is exercised as to some or
all of the shares covered by the Award, the related Tandem SAR, if any, shall be
cancelled automatically to the extent of the number of shares covered by the
stock option exercise. Upon exercise of a Tandem SAR as to some or all of the
shares covered by the Award, the related stock option shall be cancelled
automatically to the extent of the number of shares covered by such exercise,
and such shares shall again be eligible for grant in accordance with Paragraph 5
hereof, except to the extent any shares of Common Stock are issued to settle the
SAR.
(c) Terms and Conditions of Freestanding SARs. A Freestanding SAR shall be
exercisable in whole or in such installments and at such times as may be
determined by the Committee.
(d) Deemed Exercise. The Committee may provide that a SAR shall be deemed
to be exercised at the close of business on the scheduled expiration date of
such SAR, if at such time the SAR by its terms remains exercisable and, if so
exercised, would result in a payment to the holder of such SAR.
(e) Additional Terms-and Conditions. The Committee may, by way of the Award
Agreement or otherwise, determine such other terms, conditions, restrictions
and/or limitations, if any, of any SAR Award, provided they are not inconsistent
with the Plan.
10. Stock Awards
(a) Grants. Awards may be granted in the form of Stock Awards. Stock Awards
shall be awarded in such numbers and at such times during the term of the Plan
as the Committee shall determine.
(b) Award Restrictions. Stock Awards shall be subject to such terms,
conditions, restrictions, and/or limitations, if any, as the Committee deems
appropriate including, but not by way of limitation, performance goal
requirements, restrictions on transferability and continued
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employment. The Committee may modify or accelerate the delivery of a Stock Award
under such circumstances as it deems appropriate.
(c) Rights as Shareholders. During the period in which any restricted
shares of Common Stock are subject to the restrictions imposed under Paragraph
10(b), the Committee may, in its discretion, grant to the Participants to whom
such restricted shares have been awarded all or any of the rights of a
shareholder with respect to such shares, including, but not by way of
limitation, the right to vote such shares and to receive dividends.
(d) Evidence of Award. Any Stock Award granted under the Plan may be
evidenced in such manner as the Committee deems appropriate, including, without
limitation, book-entry registration or issuance of a stock certificate or
certificates.
11. Performance Units
(a) Grants. Awards may be granted in the form of performance units.
Performance units, as that term is used in this Plan, shall refer to Units
valued by reference to designated criteria established by the Committee, other
than Common Stock.
(b) Performance Criteria. Performance units shall be contingent on the
attainment during a performance period of certain performance goals. The length
of the performance period, the performance goals to be achieved during the
performance period, and the measure of whether and to what degree such goals
have been attained shall be conclusively determined by the Committee in the
exercise of its absolute discretion. Performance goals may be revised by the
Committee, at such times as it deems appropriate during the performance period,
in order to take into consideration any unforeseen events or changes in
circumstances.
(c) Additional Terms and Conditions. The Committee may, by way of the Award
Agreement or otherwise, determine such other terms, conditions, restrictions,
and/or limitations, if any, of any Award of performance units, provided they are
not inconsistent with the Plan.
12. Performance Shares
(a) Grants. Awards may be granted in the form of performance shares.
Performance shares, as that term is used in this Plan, shall refer to shares of
Common Stock or Units which are expressed in terms of Common Stock.
(b) Performance Criteria. Performance shares shall be contingent upon the
attainment during a performance period of certain performance goals. The length
of the performance period, the performance goals to be achieved during the
performance period, and the measure of whether and to what degree such goals
have been attained shall be conclusively determined by the Committee in the
exercise of its absolute discretion. Performance goals may be revised by the
Committee, at such times as it deems appropriate during the performance period,
in order to take into consideration any unforeseen events or changes in
circumstances.
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(c) Additional Terms and Conditions. The Committee may, by way of the Award
Agreement or otherwise, determine such other terms, conditions, restrictions
and/or limitations, if any, of any Award of performance shares, provided they
are not inconsistent with the Plan.
13. Performance Goals
Notwithstanding any other provision hereof, the Committee may establish
performance goals in connection with the grant of any Award hereunder.
Performance goals established by the Committee may be based upon the performance
of the Market Value of the Common Stock in relation to its historical
performance and the performance of applicable market indices and market peer
groups, Company sales figures, cash flow, return on equity, and/or either
pre-tax or after-tax profit levels of the Company; and the Committee may, in its
discretion, determine whether an Award will be paid under any one or more of the
performance goals. Such performance goals shall be set by the Committee so as to
comply with the performance-based compensation provisions under Code 162(m), and
may be (but need not be) different for each performance period. The Committee
may set different goals for different Participants and for different Awards, and
performance goals may include standards for minimum attainment, target
attainment, and maximum attainment. In all cases, however, performance goals
shall include a minimum performance standard below which no part of the relevant
Award will be earned. After the end of a performance period, the Committee shall
certify in writing prior to payment of the Award that the relevant performance
goals and any other material terms of the Award were in fact satisfied.
14. Payment of Awards
At the discretion of the Committee, payment of Awards may be made in cash,
Common stock, a combination of cash and Common Stock, or any other form of
property as the Committee shall determine, other than stock options and Stock
Awards, which shall be made in Common Stock. In addition, payment of Awards may
include such terms, conditions, restrictions and/or limitations, if any, as the
Committee deems appropriate, including, in the case of Awards paid in the form
of Common Stock, restrictions on transfer and forfeiture provisions. Further,
payment of Awards may be made in the form of a lump sum or installments, as
determined by the Committee.
15. Dividends and Dividend Equivalents
If an Award is granted in the form of a Stock Award, stock option, or
performance share, or in the form of any other stock-based grant, the Committee
may choose, at the time of the grant of the award or any time thereafter up to
the time of the Award's payment, to include as part of such Award an entitlement
to receive dividends or dividend equivalents, subject to such terms, conditions,
restrictions, and/or limitations, if any, as the Committee may establish.
Dividends and dividend equivalents shall be paid in such form and manner (i.e.,
lump sum or installments), and at such time as the Committee shall determine.
All dividends or dividend equivalents which are not paid currently may, at the
Committee's discretion, accrue interest, be reinvested into additional shares of
Common Stock or, in the case of dividends or dividend equivalents credited
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in connection with performance shares, be credited as additional performance
shares and paid to the Participant if and when, and to the extent that, payment
is made pursuant to such Award.
16. Deferral of Awards
At the discretion of the Committee, payment of a Stock Award, performance
share, performance unit, dividend, dividend equivalent, or any portion thereof
may be deferred by a Participant until such time as the Committee may establish.
All such deferrals shall be accomplished by the delivery of a written,
irrevocable election by the Participant prior to such time payment would
otherwise be made, on a form provided by the Company. Further, all deferrals
shall be made in accordance with administrative guidelines established by the
Committee to ensure that such deferrals comply with all applicable requirements
of the Code and its regulations. Deferred payments shall be paid in a lump sum
or installments, as determined by the Committee. The Committee may also credit
interest, at such rates to be determined by the Committee, on cash payments that
are deferred and credit dividends or dividend equivalents on deferred payments
denominated in the form of Common Stock.
17. Termination of Service
If a Participant's service with the Company or a Subsidiary terminates for
a reason other than death, Disability, Retirement, or any approved reason, all
unexercised, unearned, and/or unpaid Awards, including, but not by way of
limitation, Awards earned, but not yet paid, all unpaid dividends and dividend
equivalents, and all interest accrued on the foregoing shall be cancelled or
forfeited, as the case may be, unless the Participant's Award Agreement
provides, or the Committee determines, otherwise. The Committee shall have the
authority to promulgate rules and regulations to (a) determine what events
constitute Disability, Retirement, or termination for an approved reason for
purposes of the Plan, and (b) determine the treatment of a Participant under the
Plan in the event of the Participant's death, Disability, Retirement, or
termination for an approved reason.
18. Change of Control
(a) Impact. In the event of a Change of Control (as defined below), the
following acceleration and valuation provisions shall apply:
(i) All Awards outstanding on the date such Change of Control is
determined to have occurred shall become immediately vested and fully
exercisable and, if there were performance goals, that such
performance goals had been attained at the target level or the
equivalent thereof;
(ii) All Awards which are not paid in Common Stock will be cashed out
at the "Change of Control Price" (as defined below) reduced by the
exercise price, if any, applicable to such Awards; and
(iii) The Committee may, in its discretion, make such other provision
relating to any Award, any unpaid dividend or dividend equivalent and
all interest accrued
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thereon, any performance goal, or any Award deferred under Paragraph
16 hereof which the Committee may deem equitable, including, but not
limited to, adjusting the terms of an Award to reflect the Change of
Control or causing the Award to be assumed, or new rights to be
substituted therefor, by another entity.
(b) Definitions.
(i) "Change of Control" means the occurrence of (1) the acquisition
(other than from the Company) by any person, entity, or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act),
other than the Company, a subsidiary of the Company, or any employee
benefit plan or plans sponsored by the Company or any subsidiary of
the Company, directly or indirectly, of beneficial ownership (within
the meaning of Exchange Act Rule 13d-3) of 33% or more of the then
outstanding shares of common stock of the Company or voting securities
representing 33% or more of the combined voting power of the Company's
then outstanding voting securities ordinarily entitled to vote in the
election of directors unless the Incumbent Board (as defined below),
before such acquisition or within 30 days thereafter, deems such
acquisition not to be a Change of Control; or (2) individuals who, as
of the date this Plan is adopted by the Board, constitute the Board
(as of such date, the "Incumbent Board") ceasing for any reason to
constitute at least a majority of such Board; provided, however, that
any person becoming a director subsequent to the date this Plan is
adopted by the Board whose election, or nomination for election by the
shareholders of the Company, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
for purposes of the Plan, considered as though such person were a
member of the Incumbent Board but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest which was (or, if
threatened, would have been) subject to Exchange Act Rule 14a-12(c);
or (3) the consummation of any merger, consolidation or share exchange
of the Company with any other corporation, other than a merger,
consolidation or share exchange which results in more than 60% of the
outstanding shares of the common stock, and voting securities
representing more than 60% of the combined voting power of then
outstanding voting securities entitled to vote generally in the
election of directors, of the surviving, consolidated or resulting
corporation being then beneficially owned, directly or indirectly, by
the persons who were the Company's shareholders immediately prior to
such transaction in substantially the same proportions as their
ownership, immediately prior to such transaction, of the Company's
then outstanding Common Stock or then outstanding voting securities,
as the case may be; or (4) the consummation of any liquidation or
dissolution of the Company or a sale or other disposition of all or
substantially all of the assets of the Company.
(ii) "Change of Control Price" means, as determined by the Committee,
(1) the highest Market Value at any time within the 60-day period
immediately preceding
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the date of determination of the Change of Control Price by the
Committee, (2) the highest price paid or offered per share of Common
Stock, as determined by the Committee, in any bona fide transaction or
bona fide offer related to the Change of Control of the Company at any
time within such 60-day period, or (3) some lower price as the
Committee, in its discretion, determines to be a reasonable estimate
of the fair market value of a share of Common Stock.
19. Nonassignability
No Awards or any other payment under the Plan shall be subject in any
manner to alienation, anticipation, sale, transfer (except by will or the laws
of descent and distribution or pursuant to a qualified domestic relations order
as defined in the Code), assignment, pledge, or encumbrance, and during the
lifetime of the Participant, only the Participant may exercise rights under the
Plan. Following the death of the Participant, such individual, trust or estate
who or which by designation of the Participant or operation of law succeeds to
the rights of the Participant under the Plan upon the Participant's death, may
exercise the Participant's rights to the extent they are exercisable under the
Plan following the death of the Participant. All beneficiary designations shall
be made in such form and subject to such limitations as may from time to time be
acceptable to the Committee and delivered to and accepted by the Committee.
20. Adjustment Provisions
If there is any change in the number of outstanding shares of Common Stock
through the declaration of stock dividends, stock splits or the like, the number
of shares available for Awards, the shares subject to any Award and the option
prices or exercise prices of Awards shall be automatically adjusted. If there is
any change in the number of outstanding shares of Common Stock through any
change in the capital of the Company, or through any other transaction referred
to in Section 424(a) of the Code, the Committee shall make appropriate
adjustments in the maximum number of shares of Common Stock which may be issued
under the Plan and any adjustments and/or modifications to outstanding Awards as
it deems appropriate. In the event of any other change in the capital structure
or in the Common Stock of the Company, or in the event of a merger,
consolidation, combination or exchange of shares, or the like, as a result of
which Common Stock is changed into another class, or securities of another
person, cash or other property, the exercise price, consideration to be
received, and other terms of an Award shall be adjusted as deemed equitable by
the Committee, in its sole discretion. The Committee shall have authority to
provide for, in appropriate cases upon the effectiveness of the transaction, (a)
waiver, in whole or in part, of remaining restrictions for vesting or earning,
and (b) the conversion of outstanding Awards into cash or other property to be
received in the transactions immediately or over the periods the Award would
have vested or been earned. Any adjustment, waiver, conversion or the like
carried out by the Committee under this Paragraph shall be conclusive and
binding for all purposes of the Plan. Notwithstanding the foregoing, any
increase in the number of shares of Common Stock subject to the Plan shall, if
required under Rule 16b-3 or Code Section 162(m), be subject to approval of the
Company's shareholders.
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21. Withholding Taxes
The Company shall be entitled to deduct from any payment under the Plan,
regardless of the form of such payment, the amount of all applicable income and
employment taxes required by law to be withheld with respect to such payment or
may require the Participant to pay to it such tax prior to and as a condition of
the making of such payment. In no event shall the Company withhold, or allow the
Participant to pay more than the minimum amount required by law. In accordance
with any applicable administrative guidelines it establishes, the Committee may
allow a Participant to pay the amount of taxes required by law to be withheld
from an Award by withholding from any payment of Common Stock due as a result of
such Award, or by permitting the Participant to deliver to the Company, shares
of Common Stock having a fair market value, as determined by the Committee,
equal to the amount of such required withholding taxes.
22. Noncompetition Provision
Unless the Award Agreement specifies otherwise, a Participant shall forfeit
all unexercised, unearned, and/or unpaid Awards, including, but not by way of
limitation, Awards earned but not yet paid, all unpaid dividends and dividend
equivalents, and all interest, if any, accrued on the foregoing if, (a) in the
opinion of the Committee, the Participant, at any time during the period of
Participant's employment and for one (1) year thereafter, without the written
consent of the Company, engages directly or indirectly in any manner or capacity
as principal, agent, partner, officer, director, employee, or otherwise, in any
business or activity competitive with the business conducted by the Company or
any Subsidiary, in the geographic area in which the Company does business; or
(b) the Participant performs any act or engages in any activity which in the
opinion of the Chief Executive Officer of the Company is inimical to the best
interests of the Company. In addition, the Committee may, in its discretion,
condition the deferral of any Award, dividend, or dividend equivalent under
Paragraph 16 hereof on a Participant's compliance with the terms of this
Paragraph 22, and cause such a Participant to forfeit any payment which is so
deferred if the Participant fails to comply with the terms hereof.
23. Amendments to Awards
The Committee may at any time unilaterally amend or terminate and cash out
any unexercised or unpaid Award, whether earned or unearned, including, but not
by way of limitation, Awards earned but not yet paid, and/or substitute another
Award of the same or different type, to the extent it deems appropriate;
provided, however, that any amendment to (but not termination of) an outstanding
Award which, in the opinion of the Committee, is materially adverse to the
Participant, or any amendment or termination which, in the opinion of the
Committee, may subject the Participant to liability under Section 16 of the
Exchange Act, shall require the Participant's consent.
24. Regulatory Approvals and Listings
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Notwithstanding anything contained in this Plan to the contrary, the
Company shall have no obligation to issue or deliver certificates of Common
Stock evidencing Stock Awards or any other Award resulting in the payment of
Common Stock prior to (a) the obtaining of any approval from any governmental
agency which the Company shall, in its sole discretion, determine to be
necessary or advisable, (b) the admission of such shares to listing on the stock
exchange on which the Common Stock may be listed, and (c) the completion of any
registration or other qualification of said shares under any state or federal
law or ruling of any governmental body which the Company shall, in its sole
discretion, determine to be necessary or advisable.
25. No Rights to Continued Service or Grants
Participation in the Plan shall not give any Participant any right to
remain in the employ of the Company or any Subsidiary or to continue as a
director of the Company or any Subsidiary. The Company or, in the case of
service with a Subsidiary, the Subsidiary, reserves the right to terminate any
Participant at any time. Further, the adoption of this Plan shall not be deemed
to give any Participant or any other person any right to be selected as a
Participant or to be granted an Award or additional Awards.
26. Amendment
The Board may suspend or terminate the Plan at any time, but the
termination or suspension shall not, without the consent of a Participant,
adversely affect the rights of such Participant under an outstanding Award then
held by the Participant, except to the extent permitted by Paragraph 23. In
addition, the Board may, from time to time, amend the Plan in any manner, but
may not without shareholder approval adopt any amendment that requires
shareholder approval under Rule 16b-3, Code Section 162(m), or any other
applicable provision of securities and/or tax law.
27. Governing Law
The Plan shall be governed by and construed in accordance with the laws of
the State of Wisconsin without regard to its conflicts of law provisions.
28. No Right, Title, or Interest in Company Assets
No Participant shall have any right in any fund or in any specific asset of
the Company by reason of being a Participant under this Plan, nor any rights as
a shareholder as a result of participation in the Plan until the date of
issuance of a stock certificate in the Participant's name, and, in the case of
restricted shares of Common Stock, such rights are granted to the Participant
under Paragraph 10(c) hereof. To the extent any person acquires a right to
receive payments from the Company under this Plan, such rights shall be no
greater than the rights of an unsecured creditor of the Company.
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