SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
(X) Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For Quarterly Period Ended March 30, 1997
or
( ) Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from _________________________
to _________________________
Commission File Number 0-17873
GIDDINGS & LEWIS, INC.
(Exact name of registrant as specified in its charter)
Wisconsin 39-1643189
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
142 Doty Street, Fond du Lac, Wisconsin 54935
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (414) 921-9400
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period
that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes _X_ No ___
Indicate the number of shares outstanding of each of the issuer's classes
of common stock, as of the latest practicable date.
Common Stock Outstanding as of March 30, 1997: 31,958,217 shares
<PAGE>
GIDDINGS & LEWIS, INC.
Form 10-Q Index
For Quarter Ended March 30, 1997
Page
PART I. Financial Information
Item 1. Condensed Consolidated Statements of Income 3
Condensed Consolidated Statements of Cash Flows 4
Condensed Consolidated Balance Sheets 5
Condensed Consolidated Statement of Changes in
Shareholders' Equity 6
Notes to Condensed Consolidated Financial
Statements 7 - 10
Item 2. Management's Discussion and Analysis of
Results of Operations and Financial
Condition 11 - 13
PART II. Other Information
Item 1. Legal Proceedings 14 - 15
Item 6. Exhibits and Reports on Form 8-K 16
Signatures 17
Exhibit Index 18
<PAGE>
GIDDINGS & LEWIS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(In Thousands Except Share and Per Share Data)
(Unaudited)
Three months ended
Mar. 30 Mar. 31
1997 1996
Sales $ 147,617 $ 192,420
Costs and expenses:
Cost of sales 107,875 149,725
Selling, general and administrative expenses 20,175 20,404
Depreciation and amortization 5,776 5,480
--------- --------
Total operating expenses 133,826 175,609
--------- --------
Operating income 13,791 16,811
Interest expense, net 1,691 2,254
Other expense/(income) 2 (108)
--------- --------
Income before provision for income taxes 12,098 14,665
Provision for income taxes 4,719 4,248
--------- --------
Net income $ 7,379 $ 10,417
========= ========
Per common share amounts:
Net income $ .22 $ .30
========= ========
Dividends declared $ .03 $ .03
========= ========
Average number of common shares outstanding 32,882,750 34,526,964
See accompanying notes.
<PAGE>
GIDDINGS & LEWIS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In Thousands - Unaudited)
Three months ended
March 30, March 31,
1997 1996
Operating activities:
Net income $ 7,379 $ 10,417
Adjustments to reconcile net income to
net cash provided (used) by operating
activities:
Depreciation and amortization 5,776 5,480
Net changes in working capital items 38,590 (18,784)
Other (4,555) 3,488
-------- --------
Net cash provided by operating activities 47,190 601
-------- --------
Investing activities:
Additions to property, plant, and equipment (3,124) (5,564)
Other (349) 164
-------- --------
Net cash used by investing activities (3,473) (5,400)
-------- --------
Financing activities:
Proceeds from draws on lines of credit 0 45,467
Repayments under lines of credit (15,930) (47,000)
Payment for repurchase of stock (22,820) 0
Proceeds from stock options exercised 7,152 0
Cash dividends (981) (1,038)
-------- --------
Net cash used by financing activities (32,579) (2,571)
-------- --------
Effect of exchange rate changes on cash (1,504) 245
-------- --------
Net increase (decrease) in cash and
cash equivalents 9,634 (7,125)
Cash and cash equivalents - beginning of period 71,658 14,216
-------- --------
Cash and cash equivalents - end of period $ 81,292 $ 7,091
======== ========
See accompanying notes.
<PAGE>
GIDDINGS & LEWIS, INC
CONDENSED CONSOLIDATED BALANCE SHEETS
(In Thousands-Unaudited)
Mar. 30, Dec. 31,
1997 1996
ASSETS
Current Assets:
Cash and cash equivalents $ 81,292 $ 71,658
Accounts receivable 226,785 280,985
Inventories 84,383 88,969
Deferred income taxes 29,048 29,048
Other current assets 4,864 3,951
--------- ---------
Total current assets 426,372 474,611
Fixed assets - net 116,361 118,484
Costs in excess of net acquired assets
and other intangible assets 183,435 185,276
Deferred income taxes 19,524 19,524
Other assets 16,020 13,505
--------- ---------
TOTAL ASSETS $ 761,712 $ 811,400
========= =========
LIABILITIES & SHAREHOLDERS' EQUITY
Current liabilities:
Notes payable $ 16,270 $ 34,226
Accounts payable 30,618 30,141
Accrued expenses and other liabilities 131,701 148,938
--------- ---------
Total current liabilities 178,589 213,305
Long-term debt
100,000
100,000
Long-term employee benefits and other
long-term liabilities 36,539 37,272
--------- ---------
Total liabilities 315,128 350,577
Contingencies 0 0
Shareholders' equity:
Common stock 3,515 3,462
Capital in excess of par 335,767 328,668
Retained earnings 150,570 144,172
Cumulative translation adjustment 4,691 6,755
-------- --------
494,543 483,057
Less:
Treasury Stock (41,459) (18,639)
Unamortized compensation expense (6,500) (3,595)
-------- --------
Total shareholders' equity 446,584 460,823
-------- --------
TOTAL LIABILITIES AND
SHAREHOLDERS' EQUITY $ 761,712 $ 811,400
========= =========
See accompanying notes.
<PAGE>
<TABLE>
GIDDINGS & LEWIS, INC.
CONDENSED CONSOLIDATED STATEMENT OF CHANGES IN SHAREHOLDERS' EQUITY
THREE MONTHS ENDED MARCH 30, 1997
(In Thousands Except Share Data)
<CAPTION>
Capital in Cumulative Treasury Unamortized Total
Common Stock Excess of Retained Translation Shares Compensation Shareholders'
Shares Amount Par Earnings Adjustment Purchased Expense Equity
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance,
December 31, 1996 34,622,855 $3,462 $328,668 $144,172 $6,755 ($18,639) ($3,595) $460,823
Net stock awards
and options 524,862 53 7,099 0 0 0 (3,315) 3,837
Tax benefit related to
vesting of stock
options 0 0
Net income 7,379 7,379
Amortization of
compensation
expense 410 410
Cash dividends (981) (981)
Translation
adjustment (2,064) (2,064)
Repurchase of
Common Stock 0 0 0 0 (22,820) 0 (22,820)
---------- ------ -------- --------- -------- -------- ------- --------
Balance,
March 30, 1997 35,147,717 $3,515 $335,767 $150,570 $4,691 $(41,459) ($6,500) $446,584
========== ====== ======== ========= ======= ======== ======= ========
See accompanying notes
</TABLE>
<PAGE>
GIDDINGS & LEWIS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
March 30, 1997
(Unaudited)
1. Basis of Presentation
The accompanying unaudited condensed consolidated financial statements
have been prepared in accordance with generally accepted accounting
principles for interim financial information and with the instructions
to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do
not include all of the information and footnotes required by generally
accepted accounting principles for complete financial statements. In
the opinion of management, all adjustments (consisting of normal
recurring accruals) considered necessary for a fair presentation have
been included. Due to the nature of a substantial portion of the
Company's business (i.e., long-term and complex contracts),
significant adjustments are sometimes required to reflect experience
and other factors. Such adjustments are recorded as changes in
estimates as part of the percentage-of-completion accounting in the
period they become known. Operating results for the three month
period ended March 30, 1997 are not necessarily indicative of the
results that may be expected for the year ending December 31, 1997.
For further information, refer to the consolidated financial
statements and footnotes thereto included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1996 and
Management's Discussion and Analysis of Results of Operations and
Financial Condition included herein.
The Company is organized into four major operating groups: Automation
Technology, Integrated Automation, Automation Measurement and Control,
and European Operations. The Automation Technology Group is
responsible for the manufacture of cellular and flexible manufacturing
systems, automated standalone machine tools, and machining centers,
tooling, fixtures, castings and remanufacturing. The Integrated
Automation Group produces flexible transfer lines, flexible machining
systems, and assembly automation systems. Programmable industrial
computers, servo systems, controls, and measurement products are
offered by the Automation Measurement and Control Group. The European
Operations Group offers most of the Company's product lines through
its sales, engineering, manufacturing, and service facilities in
England and Germany.
2. Inventories
March 30, December 31,
1997 1996
(in thousands)
Raw materials $ 42,397 $ 51,310
Work-in-process 31,162 26,356
Finished goods 10,824 11,303
---------- ----------
$ 84,383 $ 88,969
========== ==========
3. Contingencies
The Company is involved in various environmental matters, including
matters in which the Company and certain of its subsidiaries have
been named as potentially responsible parties under the Comprehensive
Environmental Response Compensation and Liability Act ("CERCLA").
One such matter is the Company's implementation of a Wisconsin
Department of Natural Resources ("WDNR") approved clean-up plan on a
nine acre parcel of land adjacent to its former West Allis, Wisconsin
manufacturing facility. The Company has completed the soil removal
portion of the plan and is currently engaged in limited groundwater
monitoring to support its application to the WDNR for site closure.
The Company has established accruals ($8.8 million and $9.1 million
at March 30, 1997 and December 31, 1996, respectively) for all
environmental contingencies of which management is currently aware in
accordance with generally accepted accounting principles. In
establishing these accruals, management considered (a) reports of
environmental consultants retained by the Company, (b) the costs
incurred to date by the Company at sites where clean-up is presently
ongoing and the estimated costs to complete the necessary remediation
work remaining at such sites, (c) the financial solvency, where
appropriate, of other parties that have been responsible for
effecting remediation at specified sites, and (d) the experience of
other parties who have been involved in the remediation of comparable
sites. The accruals recorded by the Company with respect to
environmental matters have not been reduced by potential insurance or
other recoveries and are not discounted. Although the Company has
and will continue to pursue such claims against insurance carriers
and other responsible parties, future potential recoveries remain
uncertain and, therefore, were not recorded as a reduction to the
estimated gross environmental liabilities. Based on the foregoing
and given current information, management believes that future costs
in excess of the amounts accrued on all presently known and
quantifiable environmental contingencies will not be material to the
Company's financial position or results of operations.
In another matter, a Michigan Department of Environmental Quality
("State") investigation into alleged environmental violations at the
Company's Menominee, Michigan facility resulted in the issuance of
criminal complaints against the Company and two of its employees in
November 1994. The complaints, filed in Menominee County, Michigan
district and circuit courts, generally focus on alleged releases of
hazardous substances and the alleged illegal treatment and disposal
of hazardous waste. In December 1996, the seven charges then pending
against the Company in circuit court were dismissed on the grounds
that, among other things, the statute under which the Company was
charged is unconstitutional. In February 1997, the Company and the
State reached a tentative agreement which was subsequently reduced to
a final written settlement and plea agreement and entered by the
court on April 3, 1997. The general parameters of the agreement are
as follows: (i) the State dismissed with prejudice and released the
Company from all charges and covenanted not to sue on any matters,
administrative, civil or criminal, raised in the criminal complaint
or investigation; (ii) the Company will reimburse the State's
investigation costs in the amount of $492,000; (iii) the Company pled
no contest (not admitting liability) to one misdemeanor charge; and
(iv) the circuit court decision holding the statute under which the
Company was charged unconstitutional was vacated. With this final
resolution, the cross appeals were dismissed. The three misdemeanor
counts against the two employees of the Company remain pending in
district court.
Also two civil lawsuits are pending against the Company in Menominee
County, Michigan district court which seek unspecified damages based
on allegations of improper disposal and emissions at the Menominee
facility. The Company remains committed to vigorously defending
itself against all suits, charges and allegations to the extent they
are not resolved on terms satisfactory to the Company. Information
presently available to the Company does not enable it to reasonably
quantify potential civil or criminal penalties or remediation costs,
if any, related to these civil lawsuits.
The Company is also involved in other litigation and proceedings,
including product liability claims. In the case of product
liability, the Company is partially self-insured and has accrued for
all claim exposure for which a loss is probable and reasonably
estimable. Based on current information, management believes that
future costs in excess of the amounts accrued for all such existing
litigation will not be material to the Company's financial position
or results of operations.
4. Stock Repurchase Program
On March 18, 1997, the Company announced that the Board of Directors
had authorized management to repurchase an additional 10% of the
Company's outstanding common stock. This is in addition to the 10%
of outstanding stock which the Board in July 1996 authorized to be
repurchased. As in the past, future repurchases, if any, are
expected to be made principally through open market transactions from
time to time as the share price and market conditions warrant and as
permitted by applicable law. The Company intends to fund any such
repurchases with cash from operations and additional short-term
borrowings. As of March 30, 1997, the Company had repurchased
3,129,500 shares at an aggregate purchase price of $41.5 million,
with 1,634,500 of those shares being purchased in the first quarter
of 1997 at an aggregate purchase price of $22.8 million.
5. Earnings Per Share
In February 1997, the Financial Accounting Standards Board issued
Statement No. 128, Earnings per Share, which is required to be
adopted on December 31, 1997. At that time, the Company will be
required to change the method currently used to compute earnings per
share and to restate all prior periods. Under the new requirements
for calculating basic earnings per share, the dilutive effect of
stock options will be excluded. The impact of Statement 128 on the
calculation of primary and fully diluted earnings per share for the
first quarter ended March 30, 1997 and March 31, 1996 is not expected
to be material.
6. Subsequent Event
On April 28, 1997, Harnischfeger Industries, Inc. commenced an
unsolicited tender offer for all outstanding shares of common stock
of the Company at $19 per share (See "Other Events" in Management's
Discussion and Analysis of Results of Operations and Financial
Condition).
GIDDINGS & LEWIS, INC.
Management's Discussion and Analysis of Results of Operations
and Financial Condition
Results of Operations for the First Three Months
of 1997 Compared to 1996
The following table sets forth the Company's bookings by operating group
in the period and consolidated backlog at period-end on a quarterly basis
for the period January 1, 1996 through March 30, 1997.
<TABLE>
<CAPTION>
Mar. 31, June 30, Sept. 29, Dec. 31, Mar. 30,
1996 1996 1996 1996 1997
(In Thousands)
Operating group:
<S> <C> <C> <C> <C> <C>
Automation
Technology $ 85,581 $ 66,088 $ 68,864 $ 68,047 $ 84,413
Integrated
Automation 35,365 49,040 24,237 24,466 22,505
European
Operations 35,848 15,425 42,693 12,661 8,602
Automation
Measurement
and Control 15,615 15,640 15,338 15,376 17,638
-------- -------- -------- -------- --------
Consolidated
bookings $172,409 $146,193 $151,132 $120,550 $133,158
======== ======== ======== ======== ========
Consolidated
backlog $365,953 $305,989 $272,379 $208,298 $192,992
======== ======== ======== ======== ========
</TABLE>
Bookings in the first three months of 1997 were $133.2 million compared to
bookings in the first three months of 1996 of $172.4 million. Automation
Technology bookings of $84.4 million in the first three months of 1997
decreased 1.4% from $85.6 million in the comparable period of 1996.
Integrated Automation bookings in the first three months totaled $22.5
million, a 36.4% decrease from the year earlier period of $35.4 million.
This decrease was due to the Company rebuilding its position with its
automotive customers. European Operations bookings decreased 76.0% from
$35.8 million in the first three months of 1996 to $8.6 million in the
first three months of 1997. The decrease was due to a sluggish automotive
market in Europe, which caused customer re-evaluation of build programs.
Automation Measurement and Control bookings of $17.6 million for the first
three months of 1997 increased 13.0% from the comparable 1996 period
bookings of $15.6 million.
Consolidated net sales in the first three months of 1997 totaled $147.6
million compared to $192.4 million in the year earlier period. This
decrease in net sales was due to the relatively low beginning backlog as
well as the actions the Company has taken to increase the selectivity in
the business booked. Net sales for Automation Technology of $67.4 million
decreased 29.7% from $95.8 million in the year earlier period. Integrated
Automation net sales of $37.0 million decreased 33.0% from $55.2 million
in the first quarter of 1996. European Operations sales in the first
three months of 1997 were $25.2 million, an increase of 6.6% from $23.7
million in the year earlier period. Automation Measurement and Control
net sales increased 1.7% to $18.0 million in the 1997 period compared to
$17.7 million in the 1996 period.
The consolidated gross margin percentage (before depreciation and
amortization) for the first three months of 1997 was 26.9% as compared to
22.2% for the comparable 1996 period. This increase was the result of
greater productivity, better pricing, and an improved mix of business.
Selling, general, and administrative expenses (before depreciation and
amortization) increased as a percentage of sales to 13.7% for the first
quarter of 1997 from 10.6% in the first quarter of 1996. Under
utilization of engineering resources because of lower bookings impacted
the 1997 first quarter.
Net interest expense for the first quarter of 1997 declined to $1.7
million as compared with $2.3 million in the first quarter of 1996 due to
reduced borrowings as a result of an improved cash position.
The provision for income taxes of $4.7 million for the first three months
of 1997 is based on the estimated annual effective tax rate of 39% for
1997. The provision for income taxes in the first three months of 1996
shows the non-recurring tax benefit of $1.2 million related to the
implementation of tax planning strategies to capture the benefit of
foreign losses. The Company's effective tax rate for the first three
months of 1996 was 29%.
Other Events
On April 28, 1997, Harnischfeger Industries, Inc. ("HII") commenced an
unsolicited tender offer (the "HII Offer") for all outstanding common
stock of the Company at $19 per share in cash. The Board of Directors of
the Company has unanimously recommended that shareholders do not tender
their shares pursuant to the HII Offer. The Company's position with
respect to the HII Offer is set forth in documents filed by the Company
with the Securities and Exchange Commission on May 8, 1997. See also Part
II, Item 1, "Legal Proceedings."
Liquidity and Capital Resources at March 30, 1997
On March 30, 1997, the Company had $81.3 million of cash and cash
equivalents on hand which was an increase of $9.6 million from the balance
on hand at the beginning of the year. For the first three months of 1997,
operating activities contributed $47.0 million of cash. Cash provided
from working capital changes totaled $38.6 million.
Investing activities used $3.5 million for the first three months which
included $3.1 million in capital expenditures. Financing activities used
cash of $32.4 million which included repurchase of stock of $22.8 million
and the repayment of $15.9 million under lines of credit. Offsetting these
amounts was $7.3 million provided from stock transactions including the
exercise of options under the Management Stock Purchase Program.
On March 18, 1997, the Company announced that the Board of Directors had
authorized management to repurchase an additional 10% of the Company's
outstanding common stock. This is in addition to the 10% of outstanding
stock that was authorized to be repurchased in July 1996. As in the
past, future repurchases, if any, are expected to be made principally
through open market transactions from time to time as the share price and
market conditions warrant and as permitted by applicable law. The Company
intends to fund any such repurchases with cash from operations and
additional short-term borrowings. The repurchase program is not expected
to materially impact the Company's liquidity. During the first quarter of
1997, the Company repurchased 1,634,500 shares at an aggregate purchase
price of $22.8 million.
The Company believes its cash flows from operations and funds available
under domestic and foreign credit agreements will be adequate to finance
capital expenditures and working capital requirements for the foreseeable
future.
<PAGE>
Part II - OTHER INFORMATION
Giddings & Lewis, Inc.
Form 10-Q
March 30, 1997
Item 1. Legal Proceedings
On April 25, 1997, HII and DSFA Corporation, a wholly owned
subsidiary of HII ("DSFA"), commenced an action in the United
States District Court for the Eastern District of Wisconsin against
the Company and certain of the Company's directors (the "HII
Action"). Harnischfeger Indus., Inc. v. Isles, et al., C.A. No.
97-C-0488. In the complaint, HII and DSFA allege, among other
things, that the defendants have violated the disclosure
requirements of the Securities Exchange Act of 1934, and the rules
and regulations promulgated by the Securities and Exchange Commission
thereunder, by making false or misleading statements, or omitting to
state facts required to be disclosed in order to prevent other
statements from being misleading, in connection with: (i) disclosures
in the Company's Proxy Statement for its 1997 Annual Meeting
describing the Company's Management Stock Purchase Program; (ii)
disclosures in such Proxy Statement concerning the number of nominees
the Company nominated for election at its April 30, 1997 Annual
Meeting and the provisions of the By-laws concerning board size and
composition; and (iii) disclosures in the Company's public filings
concerning the Rights Agreement, dated as of August 23, 1995 (the
"Rights Agreement"), between the Company and Firstar Trust Company,
as Rights Agent. In addition, HII and DSFA allege in the complaint
in the HII Action that the defendants are now violating, and threaten
to violate, their fiduciary duties to the Company's shareholders in
connection with the consideration of HII's acquisition proposal and
related matters. Among other things, HII and DSFA allege that,
under the circumstances present here, defendants have a fiduciary
duty to redeem the Rights issued pursuant to the Rights Agreement
and/or to cause them to be inapplicable to the HII Offer.
On May 6, 1997, a putative class action was filed against the
Company and certain of its directors in the Circuit Court of
Milwaukee County, Wisconsin, entitled Charles Miller, et al v.
Giddings & Lewis, Inc. et al, No. 97 CV 003823 (the "Milwaukee
Action"). The complaint in the Milwaukee Action alleges, among
other things, that the director defendants breached their fiduciary
duties to the public shareholders of the Company by refusing to
consider the HII Offer, using their positions to thwart other
attempts to acquire the Company, and trying to entrench themselves
in their positions with the Company. As relief, the complaint
seeks, among other things: (i) a declaration that the action be
certified as a proper class action; (ii) injunctive relief
requiring that the director defendants cooperate fully with any
entity or person, including HII, having a bonafide interest in
proposing any transactions that would maximize shareholder value,
and take all appropriate steps to maximize shareholder value; and
(iii) damages, costs, and attorneys' fees.
On May 13, 1997, an action was filed (both individually and on a
derivative basis) against the Company and certain of its directors
in the United States District Court for the Eastern District of
Wisconsin (the "Eastern District Action"). Miller v. Isles, et al.,
C.A. No. 97-C-0561. The complaint in the Eastern District Action
alleges, among other things, that the director defendants breached
their fiduciary duties to the public shareholders of the Company
by refusing to consider the HII Offer, using their positions to
thwart other attempts to acquire the Company and trying to entrench
themselves in their positions with the Company. The complaint also
alleges that the defendant directors breached their fiduciary duties
and federal securities laws by failing to accurately disclose in
the Company's Proxy Statement for its 1997 Annual Meeting matters
relating to the Company's Management Stock Purchase Program and the
number of director nominees standing for election at such Annual
Meeting. As relief, the complaint in the Eastern District
Action seeks, among other things: (i) a determination that the
action is a proper derivative action; (ii) unspecified compensatory
damages for the breach by the defendant directors of their fiduciary
duties; (iii) injunctive relief requiring the defendants to take all
steps necessary to maximize shareholder value through a merger or
acquisition of the Company; (iv) injunctive relief requiring the
defendants to correct allegedly inaccurate disclosures in the
Company's Proxy Statement for its 1997 Annual Meeting and requiring
defendants to redeem the Rights outstanding under the Rights
Agreement; (v) injunctive relief prohibiting certain
amendments to the Company's Rights Agreement, charter or by-laws;
(vi) declaratory relief invalidating proxies solicited in connection
with the Company's 1997 Annual Meeting and invalidating actions
taken by the directors on or after April 30, 1997; and (vii) costs
and attorneys' fees.
The Company believes that the claims set forth in the above-
referenced actions are entirely without merit.
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
3.1 Amendment to By-laws effective as of the time of the 1997
Annual Meeting of Shareholders.
3.2 Amendment to By-laws adopted after the 1997 Annual
Meeting of Shareholders.
3.3 By-laws of Giddings & Lewis, Inc., as amended.
10.1 Form of Amended and Restated Key Executive Employment and
Severence Agreement [Incorporated by reference to Exhibit
2 to Giddings & Lewis, Inc.'s Solicitation/Recommendation
Statement on Schedule 14D-9, dated May 8, 1997.]
10.2 Management Stock Purchase Program as Amended and
Restated, dated April 30, 1997 [Incorporated by
reference to Exhibit 3 to Giddings & Lewis, Inc.'s
Solicitation/Recommendation Statement on Schedule 14D-9,
dated May 8, 1997.]
10.3 Form of Award Agreement, as amended, for use in
connection with the Giddings & Lewis, Inc. 1989 Stock
Option Plan.
10.4 Form of Award Agreement, as amended, for use in
connection with the Giddings & Lewis, Inc. 1989
Restricted Stock Plan.
10.5 Form of Restricted Stock Award Agreement, as amended, for
use in connection with the Giddings & Lewis, Inc. 1993
Stock and Incentive Plan.
10.6 Form of Stock Option Award Agreement for use in
connection with the Giddings & Lewis, Inc. 1993 Stock and
Incentive Plan.
10.7 Resolutions Authorizing Amendment of the Supplemental
Executive Retirement Plan, dated April 30, 1997
[Incorporated by reference to Exhibit 13 to Giddings &
Lewis, Inc.'s Solicitation/Recommendation Statement on
Schedule 14D-9, dated May 8, 1997.]
27 Financial Data Schedule (EDGAR Version only)
(b) Reports on Form 8-K
The Company filed no Current Reports on Form 8-K during the quarter
ended March 30, 1997.
<PAGE>
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Giddings & Lewis, Inc.
Date: May 14, 1997 /s/ Marvin L. Isles
Marvin L. Isles
Chairman and Chief Executive Officer
Date: May 14, 1997 /s/ Douglas E. Barnett
Douglas E. Barnett
Vice-President and Controller
(Principal Financial and
Accounting Officer)
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit Description
(a) Exhibits
3.1 Amendment to By-laws effective as of the
time of the 1997 Annual Meeting of
Shareholders.
3.2 Amendment to By-laws adopted after the
1997 Annual Meeting of Shareholders.
3.3 By-laws of Giddings & Lewis, Inc., as
amended.
10.1 Form of Amended and Restated Key
Executive Employment and Severence
Agreement [Incorporated by reference to
Exhibit 2 to Giddings & Lewis, Inc.'s
Solicitation/Recommendation Statement
on Schedule 14D-9, dated May 8, 1997.]
10.2 Management Stock Purchase Program as
Amended and Restated, dated April 30,
1997 [Incorporated by reference to
Exhibit 3 to Giddings & Lewis, Inc.'s
Solicitation/Recommendation Statement on
Schedule 14D-9, dated May 8, 1997.]
10.3 Form of Award Agreement, as amended, for
use in connection with the Giddings &
Lewis, Inc. 1989 Stock Option Plan.
10.4 Form of Award Agreement, as amended, for
use in connection with the Giddings &
Lewis, Inc. 1989 Restricted Stock Plan.
10.5 Form of Restricted Stock Award
Agreement, as amended, for use in
connection with the Giddings & Lewis,
Inc. 1993 Stock and Incentive Plan.
10.6 Form of Stock Option Award Agreement for
use in connection with the Giddings &
Lewis, Inc. 1993 Stock and Incentive
Plan.
10.7 Resolutions Authorizing Amendment of the
Supplemental Executive Retirement Plan,
dated April 30, 1997 [Incorporated by
reference to Exhibit 13 to Giddings &
Lewis, Inc.'s Solicitation/
Recommendation Statement on Schedule
14D-9, dated May 8, 1997.]
27 Financial Data Schedule (EDGAR Version only)
EXHIBIT 3.1
Giddings & Lewis, Inc.
Amendment to By-Laws
Section 3.01(b) of the By-laws was amended effective at the time
of the 1997 Annual Meeting of Shareholders to provide in its entirety as
follows:
(b) The number of directors of the Corporation shall be
six (6), divided into three (3) classes of two (2), two (2) and
two (2) directors, respectively. At each Annual Meeting the
successors to the class of directors whose term shall expire at
the time of such Annual Meeting shall be elected to hold office
until the third succeeding Annual Meeting, and until such
directors' successors are duly elected and, if necessary,
qualified or until there is a decease in the number of directors
that takes effect after the expiration of such directors' term.
EXHIBIT 3.2
Giddings & Lewis, Inc.
Amendment to By-Laws
Section 3.01(b) of the By-laws was amended following the 1997
Annual Meeting of Shareholders to provide in its entirety as follows:
(b) The number of directors of the Corporation shall be
seven (7), divided into three (3) classes of three (3), two (2)
and two (2) directors, respectively. At each Annual Meeting the
successors to the class of directors whose term shall expire at
the time of such Annual Meeting shall be elected to hold office
until the third succeeding Annual Meeting, and until such
directors' successors are duly elected and, if necessary,
qualified or until there is a decrease in the number of
directors that takes effect after the expiration of such
directors' term.
EXHIBIT 3.3
4/30/97
BY-LAWS
OF
GIDDINGS & LEWIS, INC.
(a Wisconsin corporation)
<PAGE>
ARTICLE I. OFFICES
1.01. Principal and Business Offices. The corporation may
have such principal and other business offices, either within or without
the State of Wisconsin, as the Board of Directors may designate or as the
business of the corporation may require from time to time.
1.02. Registered Office. The registered office of the
corporation required by the Wisconsin Business Corporation Law to be
maintained in the State of Wisconsin may be, but need not be, identical
with the principal office in the State of Wisconsin, and the address of
the registered office may be changed from time to time by the Board of
Directors or by the registered agent. The business office of the
registered agent of the corporation shall be identical to such registered
office.
ARTICLE II. SHAREHOLDERS
2.01. Annual Meeting. The annual meeting of the
shareholders (the "Annual Meeting") shall be held at 11:00 A.M. (local
time) on the last Wednesday in the month of April of each year, or at such
other time and date as may be fixed by resolution of the Board of
Directors. In fixing a meeting date for any Annual Meeting, the Board of
Directors may consider such factors as it deems relevant within the good
faith exercise of its business judgment.
2.02. Purposes of Annual Meeting. At each Annual Meeting,
the shareholders shall elect that number of directors equal to the number
of directors in the class whose term expires at the time of such meeting.
At any such Annual Meeting, only other business properly brought before
the meeting in accordance with Section 2.15 of these by-laws may be
transacted. If the election of directors shall not be held on the date
designated herein, or fixed as herein provided, for any Annual Meeting, or
any adjournment thereof, the Board of Directors shall cause the election
to be held at a special meeting of shareholders (a "Special Meeting") as
soon thereafter as is practicable.
2.03. Special Meetings.
(a) A Special Meeting may be called only by (i) the Chairman of
the Board, (ii) the President, (iii) the Secretary or (iv) the Board of
Directors and shall be called by the Chairman of the Board or the
President upon the demand, in accordance with this Section 2.03, of the
holders of record of shares representing at least 10% of all the votes
entitled to be cast on any issue proposed to be considered at the Special
Meeting.
(b) In order that the corporation may determine the
shareholders entitled to demand a Special Meeting, the Board of Directors
may fix a record date to determine the shareholders entitled to make such
a demand (the "Demand Record Date"). The Demand Record Date shall not
precede the date upon which the resolution fixing the Demand Record Date
is adopted by the Board of Directors and shall not be more than 10 days
after the date upon which the resolution fixing the Demand Record Date is
adopted by the Board of Directors. Any shareholder of record seeking to
have shareholders demand a Special Meeting shall, by sending written
notice to the Secretary of the corporation by hand or by certified or
registered mail, return receipt requested, request the Board of Directors
to fix a Demand Record Date. The Board of Directors shall promptly, but in
all events within 10 days after the date on which a valid request to fix a
Demand Record Date is received, adopt a resolution fixing the Demand
Record Date and shall make a public announcement of such Demand Record
Date. If no Demand Record Date has been fixed by the Board of Directors
within 10 days after the date on which such request is received by the
Secretary, the Demand Record Date shall be the 10th day after the first
date on which a valid written request to set a Demand Record Date is
received by the Secretary. To be valid, such written request shall set
forth the purpose or purposes for which the Special Meeting is to be held,
shall be signed by one or more shareholders of record (or their duly
authorized proxies or other representatives), shall bear the date of
signature of each such shareholder (or proxy or other representative) and
shall set forth all information about each such shareholder and about the
beneficial owner or owners, if any, on whose behalf the request is made
that would be required to be set forth in a shareholder's notice described
in paragraph (a) (ii) of Section 2.15 of these by-laws.
(c) In order for a shareholder or shareholders to demand a
Special Meeting, a written demand or demands for a Special Meeting by the
holders of record as of the Demand Record Date of shares representing at
least 10% of all the votes entitled to be cast on any issue proposed to be
considered at the Special Meeting must be delivered to the corporation.
To be valid, each written demand by a shareholder for a Special Meeting
shall set forth the specific purpose or purposes for which the Special
Meeting is to be held (which purpose or purposes shall be limited to the
purpose or purposes set forth in the written request to set a Demand
Record Date received by the corporation pursuant to paragraph (b) of this
Section 2.03), shall be signed by one or more persons who as of the Demand
Record Date are shareholders of record (or their duly authorized proxies
or other representatives), shall bear the date of signature of each such
shareholder (or proxy or other representative), and shall set forth the
name and address, as they appear in the corporation's books, of each
shareholder signing such demand and the class and number of shares of the
corporation which are owned of record and beneficially by each such
shareholder, shall be sent to the Secretary by hand or by certified or
registered mail, return receipt requested, and shall be received by the
Secretary within 70 days after the Demand Record Date.
(d) The corporation shall not be required to call a Special
Meeting upon shareholder demand unless, in addition to the documents
required by paragraph (c) of this Section 2.03, the Secretary receives a
written agreement signed by each Soliciting Shareholder (as defined
below), pursuant to which each Soliciting Shareholder, jointly and
severally, agrees to pay the corporation's costs of holding the Special
Meeting, including the costs of preparing and mailing proxy materials for
the corporation's own solicitation, provided that if each of the
resolutions introduced by any Soliciting Shareholder at such meeting is
adopted, and each of the individuals nominated by or on behalf of any
Soliciting Shareholder for election as a director at such meeting is
elected, then the Soliciting Shareholders shall not be required to pay
such costs. For purposes of this paragraph (d), the following terms shall
have the meanings set forth below:
(i) "Affiliate" of any Person (as defined herein) shall
mean any Person controlling, controlled by or under common control
with such first Person.
(ii) "Participant" shall have the meaning assigned to such
term in Rule 14a-11 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act").
(iii) "Person" shall mean any individual, firm,
corporation, partnership, joint venture, association, trust,
unincorporated organization or other entity.
(iv) "Proxy" shall have the meaning assigned to such term
in Rule 14a-1 promulgated under the Exchange Act.
(v) "Solicitation" shall have the meaning assigned to such
term in Rule 14a-11 promulgated under the Exchange Act.
(vi) "Soliciting Shareholder" shall mean, with respect to
any Special Meeting demanded by a shareholder or shareholders, any of
the following Persons:
(A) if the number of shareholders signing the
demand or demands of meeting delivered to the corporation
pursuant to paragraph (c) of this Section 2.03 is 10 or
fewer, each shareholder signing any such demand;
(B) if the number of shareholders signing the
demand or demands of meeting delivered to the corporation
pursuant to paragraph (c) of this Section 2.03 is more than
10, each Person who either (I) was a Participant in any
Solicitation of such demand or demands or (II) at the time
of the delivery to the corporation of the documents
described in paragraph (c) of this Section 2.03 had engaged
or intended to engage in any Solicitation of Proxies for
use at such Special Meeting (other than a Solicitation of
Proxies on behalf of the corporation); or
(C) any Affiliate of a Soliciting Shareholder,
if a majority of the directors then in office determine,
reasonably and in good faith, that such Affiliate should be
required to sign the written notice described in paragraph
(c) of this Section 2.03 and/or the written agreement
described in this paragraph (d) in order to prevent the
purposes of this Section 2.03 from being evaded.
(e) Except as provided in the following sentence, any Special
Meeting shall be held at such hour and day as may be designated by
whichever of the Chairman of the Board, the President, the Secretary or
the Board of Directors shall have called such meeting. In the case of any
Special Meeting called by the Chairman of the Board or the President upon
the demand of shareholders (a "Demand Special Meeting"), such meeting
shall be held at such hour and day as may be designated by the Board of
Directors; provided, however, that the date of any Demand Special Meeting
shall be not more than 70 days after the Meeting Record Date (as defined
in Section 2.06 hereof); and provided further that in the event that the
directors then in office fail to designate an hour and date for a Demand
Special Meeting within 10 days after the date that valid written demands
for such meeting by the holders of record as of the Demand Record Date of
shares representing at least 10% of all the votes entitled to be cast on
each issue proposed to be considered at the Special Meeting are delivered
to the corporation (the "Delivery Date"), then such meeting shall be held
at 2:00 P.M. local time on the 100th day after the Delivery Date or, if
such 100th day is not a Business Day (as defined below), on the first
preceding Business Day. In fixing a meeting date for any Special Meeting,
the Chairman of the Board, the President, the Secretary or the Board of
Directors may consider such factors as he or it deems relevant within the
good faith exercise of his or its business judgment, including, without
limitation, the nature of the action proposed to be taken, the facts and
circumstances surrounding any demand for such meeting, and any plan of the
Board of Directors to call an Annual Meeting or a Special Meeting for the
conduct of related business.
(f) The corporation may engage regionally or nationally
recognized independent inspectors of elections to act as an agent of the
corporation for the purpose of promptly performing a ministerial review of
the validity of any purported written demand or demands for a Special
Meeting received by the Secretary. For the purpose of permitting the
inspectors to perform such review, no purported demand shall be deemed to
have been delivered to the corporation until the earlier of (i) 5 Business
Days following receipt by the Secretary of such purported demand and (ii)
such date as the independent inspectors certify to the corporation that
the valid demands received by the Secretary represent at least 10% of all
the votes entitled to be cast on each issue proposed to be considered at
the Special Meeting. Nothing contained in this paragraph (f) shall in any
way be construed to suggest or imply that the Board of Directors or any
shareholder shall not be entitled to contest the validity of any demand,
whether during or after such 5 Business Day period, or to take any other
action (including, without limitation, the commencement, prosecution or
defense of any litigation with respect thereto).
(g) For purposes of these by-laws, "Business Day" shall mean
any day other than a Saturday, a Sunday or a day on which banking
institutions in the State of Wisconsin are authorized or obligated by law
or executive order to close.
2.04. Place of Meeting. The Board of Directors, the
Chairman of the Board, the President or the Secretary may designate any
place, either within or without the State of Wisconsin, as the place of
meeting for any Annual Meeting or for any Special Meeting, or for any
postponement thereof. If no designation is made, the place of meeting
shall be the principal office of the corporation in the State of
Wisconsin. Any meeting may be adjourned to reconvene at any place
designated by vote of the Board of Directors or by the Chairman of the
Board, the President or the Secretary.
2.05. Notice of Meeting. Written or printed notice stating
the place, day and hour of any Annual Meeting or Special Meeting shall be
delivered not less than 10 days (unless a longer period is required by the
Wisconsin Business Corporation Law) nor more than 70 days before the date
of such meeting, either personally or by mail, by or at the direction of
the Secretary to each shareholder of record entitled to vote at such
meeting and to other shareholders as may be required by the Wisconsin
Business Corporation Law. In the event of any Demand Special Meeting,
such notice of meeting shall be sent not more than 30 days after the
Delivery Date. If mailed, notice pursuant to this Section 2.05 shall be
deemed to be effective when deposited in the United States mail, addressed
to the shareholder at his address as it appears on the stock transfer
books of the corporation, with postage thereon prepaid. Unless otherwise
required by the Wisconsin Business Corporation Law or the articles of
incorporation of the corporation, a notice of an Annual Meeting need not
include a description of the purpose for which the meeting is called. In
the case of any Special Meeting, (a) the notice of meeting shall describe
any business that the Board of Directors shall have theretofore determined
to bring before the meeting and (b) in the case of a Demand Special
Meeting, the notice of meeting (i) shall describe any business set forth
in the statement of purpose of the demands received by the corporation in
accordance with Section 2.03 of these by-laws and (ii) shall contain all
of the information required in the notice received by the corporation in
accordance with Section 2.15(b) of these by-laws. If an Annual Meeting or
Special Meeting is adjourned to a different date, time or place, the
corporation shall not be required to give notice of the new date, time or
place if the new date, time or place is announced at the meeting before
adjournment; provided, however, that if a new Meeting Record Date for an
adjourned meeting is or must be fixed, the corporation shall give notice
of the adjourned meeting to persons who are shareholders as of the new
Meeting Record Date.
2.06. Fixing of Record Date. The Board of Directors may fix
in advance a date not less than 10 days and not more than 70 days prior to
the date of any Annual Meeting or Special Meeting as the record date for
the determination of shareholders entitled to notice of, or to vote at,
such meeting (the "Meeting Record Date"). In the case of any Demand
Special Meeting, (i) the Meeting Record Date shall be not later than the
30th day after the Delivery Date and (ii) if the Board of Directors fails
to fix the Meeting Record Date within 30 days after the Delivery Date,
then the close of business on such 30th day shall be the Meeting Record
Date. The shareholders of record on the Meeting Record Date shall be the
shareholders entitled to notice of and to vote at the meeting. Except as
provided by the Wisconsin Business Corporation Law for a court-ordered
adjournment, a determination of shareholders entitled to notice of and to
vote at any Annual Meeting or Special Meeting is effective for any
adjournment of such meeting unless the Board of Directors fixes a new
Meeting Record Date, which it shall do if the meeting is adjourned to a
date more than 120 days after the date fixed for the original meeting.
The Board of Directors may also fix in advance a date as the record date
for the purpose of determining shareholders entitled to take any other
action or determining shareholders for any other purpose. Such record
date shall be not more than 70 days prior to the date on which the
particular action, requiring such determination of shareholders, is to be
taken. The record date for determining shareholders entitled to a
distribution (other than a distribution involving a purchase, redemption
or other acquisition of the corporation's shares) or a share dividend is
the date on which the Board of Directors authorizes the distribution or
share dividend, as the case may be, unless the Board of Directors fixes a
different record date.
2.07. Voting Records. After a Meeting Record Date has been
fixed, the corporation shall prepare a list of the names of all of the
shareholders entitled to notice of the meeting. The list shall be
arranged by class or series of shares, if any, and show the address of and
number of shares held by each shareholder. Such list shall be available
for inspection by any shareholder, beginning two business days after
notice of the meeting is given for which the list was prepared and
continuing to the date of the meeting, at the corporation's principal
office or at a place identified in the meeting notice in the city where
the meeting will be held. A shareholder or his agent may, on written
demand, inspect and, subject to the limitations imposed by the Wisconsin
Business Corporation Law, copy the list, during regular business hours and
at his expense, during the period that it is available for inspection
pursuant to this Section 2.07. The corporation shall make the
shareholders' list available at the meeting and any shareholder or his
agent or attorney may inspect the list at any time during the meeting or
any adjournment thereof. Refusal or failure to prepare or make available
the shareholders' list shall not affect the validity of any action taken
at a meeting of shareholders.
2.08. Quorum and Voting Requirements; Postponements;
Adjournments.
(a) Shares entitled to vote as a separate voting group may take
action on a matter at any Annual Meeting or Special Meeting only if a
quorum of those shares exists with respect to that matter. If the
corporation has only one class of stock outstanding, such class shall
constitute a separate voting group for purposes of this Section 2.08.
Except as otherwise provided in the articles of incorporation of the
corporation or the Wisconsin Business Corporation Law, a majority of the
votes entitled to be cast on the matter shall constitute a quorum of the
voting group for action on that matter. Once a share is represented for
any purpose at any Annual Meeting or Special Meeting, other than for the
purpose of objecting to holding the meeting or transacting business at the
meeting, it is considered present for purposes of determining whether a
quorum exists for the remainder of the meeting and for any adjournment of
that meeting unless a new Meeting Record Date is or must be set for the
adjourned meeting. If a quorum exists, except in the case of the election
of directors, action on a matter shall be approved if the votes cast
within the voting group favoring the action exceed the votes cast opposing
the action, unless the articles of incorporation of the corporation or the
Wisconsin Business Corporation Law requires a greater number of
affirmative votes. Unless otherwise provided in the articles of
incorporation of the corporation, each director to be elected shall be
elected by a plurality of the votes cast by the shares entitled to vote in
the election of directors at any Annual Meeting or Special Meeting at
which a quorum is present.
(b) The Board of Directors acting by resolution may postpone
and reschedule any previously scheduled Annual Meeting or Special Meeting;
provided, however, that a Demand Special Meeting shall not be postponed
beyond the 100th day following the Delivery Date. Any Annual Meeting or
Special Meeting may be adjourned from time to time, whether or not there
is a quorum, (i) at any time, upon a resolution of shareholders if the
votes cast in favor of such resolution by the holders of shares of each
voting group entitled to vote on any matter theretofore properly brought
before the meeting exceed the number of votes cast against such resolution
by the holders of shares of each such voting group or (ii) at any time
prior to the transaction of any business at such meeting, by the Chairman
of the Board or the President or pursuant to a resolution of the Board of
Directors. No notice of the time and place of adjourned meetings need be
given except as required by the Wisconsin Business Corporation Law. At
any adjourned meeting at which a quorum shall be present or represented,
any business may be transacted which might have been transacted at the
meeting as originally notified.
2.09. Conduct of Meeting. The Chairman of the Board, and in
his absence, the President, and in his absence, a Vice President in the
order provided under Section 4.07, and in their absence, any person chosen
by the shareholders present shall call any Annual Meeting or Special
Meeting to order and shall act as chairman of such meeting, and the
Secretary of the corporation shall act as secretary of all Annual Meetings
and Special Meetings, but, in the absence of the Secretary, the presiding
officer may appoint any other person to act as secretary of the meeting.
2.10. Proxies. At any Annual Meeting or Special Meeting, a
shareholder entitled to vote may vote in person or by proxy. A
shareholder may appoint a proxy to vote or otherwise act for the
shareholder by signing an appointment form, either personally or by his
attorney-in-fact. An appointment of proxy is effective when received by
the Secretary or other officer or agent of the corporation authorized to
tabulate votes. An appointment is valid for 11 months from the date of
its signing unless a different period is expressly provided in the
appointment form. Unless otherwise provided, a proxy may be revoked at
any time before it is voted, either by written notice filed with the
Secretary or the acting secretary of the meeting or by oral notice given
by the shareholder to the presiding officer during the meeting. The
presence of a shareholder who has filed his appointment of proxy shall not
of itself constitute a revocation. The Board of Directors shall have the
power and authority to make rules establishing presumptions as to the
validity and sufficiency of proxies.
2.11. Voting of Shares. (a) Each outstanding share shall be
entitled to one vote upon each matter submitted to a vote at an Annual
Meeting or Special Meeting, except to the extent that the voting rights of
the shares of any class or classes are enlarged, limited or denied by the
Wisconsin Business Corporation Law or the articles of incorporation of the
corporation.
(b) Shares held by another corporation, if a sufficient number
of shares entitled to elect a majority of the directors of such other
corporation is held directly or indirectly by this corporation, shall not
be entitled to vote at any Annual Meeting or Special Meeting, but shares
held in a fiduciary capacity may be voted.
2.12. Acceptance of Instruments Showing Shareholder Action.
If the name signed on a vote, consent, waiver or proxy appointment
corresponds to the name of a shareholder, the corporation, if acting in
good faith, may accept the vote, consent, waiver or proxy appointment and
give it effect as the act of a shareholder. If the name signed on a vote,
consent, waiver or proxy appointment does not correspond to the name of a
shareholder, the corporation may accept the vote, consent, waiver or proxy
appointment and give it effect as the act of the shareholder if any of the
following apply:
(a) The shareholder is an entity and the name signed purports
to be that of an officer or agent of the entity.
(b) The name purports to be that of a personal representative,
administrator, executor, guardian or conservator representing the
shareholder and, if the corporation requests, evidence of fiduciary status
acceptable to the corporation is presented with respect to the vote,
consent, waiver or proxy appointment.
(c) The name signed purports to be that of a receiver or
trustee in bankruptcy of the shareholder and, if the corporation requests,
evidence of this status acceptable to the corporation is presented with
respect to the vote, consent, waiver or proxy appointment.
(d) The name signed purports to be that of a pledgee,
beneficial owner, or attorney-in-fact of the shareholder and, if the
corporation requests, evidence acceptable to the corporation of the
signatory's authority to sign for the shareholder is presented with
respect to the vote, consent, waiver or proxy appointment.
(e) Two or more persons are the shareholder as co-tenants or
fiduciaries and the name signed purports to be the name of at least one of
the co-owners and the person signing appears to be acting on behalf of all
co-owners.
The corporation may reject a vote, consent, waiver or proxy
appointment if the Secretary or other officer or agent of the corporation
who is authorized to tabulate votes, acting in good faith, has reasonable
basis for doubt about the validity of the signature on it or about the
signatory' s authority to sign for the shareholder.
2.13. Waiver of Notice by Shareholders. A shareholder may
waive any notice required by the Wisconsin Business Corporation Law, the
articles of incorporation of the corporation or these by-laws before or
after the date and time stated in the notice. The waiver shall be in
writing and signed by the shareholder entitled to the notice, contain the
same information that would have been required in the notice under
applicable provisions of the Wisconsin Business Corporation Law (except
that the time and place of meeting need not be stated) and be delivered to
the corporation for inclusion in the corporate records. A shareholder's
attendance at any Annual Meeting or Special Meeting, in person or by
proxy, waives objection to all of the following: (a) lack of notice or
defective notice of the meeting, unless the shareholder at the beginning
of the meeting or promptly upon arrival objects to holding the meeting or
transacting business at the meeting; and (b) consideration of a particular
matter at the meeting that is not within the purpose described in the
meeting notice, unless the shareholder objects to considering the matter
when it is presented.
2.14. Unanimous Consent without Meeting. Any action
required or permitted by the articles of incorporation of the corporation
or these by-laws or any provision of the Wisconsin Business Corporation
Law to be taken at an Annual Meeting or Special Meeting may be taken
without a meeting if a consent in writing, setting forth the action so
taken, shall be signed by all of the shareholders entitled to vote with
respect to the subject matter thereof.
2.15. Notice of Shareholder Business and Nomination of
Directors.
(a) Annual Meetings.
(i) Nominations of persons for election to the Board of
Directors of the corporation and the proposal of business to be
considered by the shareholders may be made at an Annual Meeting (A)
pursuant to the corporation's notice of meeting, (B) by or at the
direction of the Board of Directors or (C) by any shareholder of the
corporation who is a shareholder of record at the time of giving of
notice provided for in this by-law and who is entitled to vote at the
meeting and complies with the notice procedures set forth in this
Section 2.15.
(ii) For nominations or other business to be properly
brought before an Annual Meeting by a shareholder pursuant to clause
(C) of paragraph (a)(i) of this Section 2.15, the shareholder must
have given timely notice thereof in writing to the Secretary of the
corporation. To be timely, a shareholder's notice shall be received
by the Secretary of the corporation at the principal offices of the
corporation not less than 60 days nor more than 90 days prior to the
last Wednesday in the month of April; provided, however, that in the
event that the date of the Annual Meeting is advanced by more than 30
days or delayed by more than 60 days from the last Wednesday in the
month of April, notice by the shareholder to be timely must be so
received not earlier than the 90th day prior to the date of such
Annual Meeting and not later than the close of business on the later
of (x) the 60th day prior to such Annual Meeting and (y) the 10th day
following the day on which public announcement of the date of such
meeting is first made. Such shareholder's notice shall be signed by
the shareholder of record who intends to make the nomination or
introduce the other business (or his duly authorized proxy or other
representative), shall bear the date of signature of such shareholder
(or proxy or other representative) and shall set forth: (A) the name
and address, as they appear on this corporation's books, of such
shareholder and the beneficial owner or owners, if any, on whose
behalf the nomination or proposal is made; (B) the class and number
of shares of the corporation which are beneficially owned by such
shareholder or beneficial owner or owners; (C) a representation that
such shareholder is a holder of record of shares of the corporation
entitled to vote at such meeting and intends to appear in person or
by proxy at the meeting to make the nomination or introduce the other
business specified in the notice; (D) in the case of any proposed
nomination for election or re-election as a director, (I) the name
and residence address of the person or persons to be nominated, (II)
a description of all arrangements or understandings between such
shareholder or beneficial owner or owners and each nominee and any
other person or persons (naming such person or persons) pursuant to
which the nomination is to be made by such shareholder, (III) such
other information regarding each nominee proposed by such shareholder
as would be required to be disclosed in solicitations of proxies for
elections of directors, or would be otherwise required to be
disclosed, in each case pursuant to Regulation 14A under the Exchange
Act, including any information that would be required to be included
in a proxy statement filed pursuant to Regulation 14A had the nominee
been nominated by the Board of Directors and (IV) the written consent
of each nominee to be named in a proxy statement and to serve as a
director of the corporation if so elected; and (E) in the case of any
other business that such shareholder proposes to bring before the
meeting, (I) a brief description of the business desired to be
brought before the meeting and, if such business includes a proposal
to amend these by-laws, the language of the proposed amendment, (II)
such shareholder's and beneficial owner's or owners' reasons for
conducting such business at the meeting and (III) any material
interest in such business of such shareholder and beneficial owner or
owners.
(iii) Notwithstanding anything in the second sentence
of paragraph (a)(ii) of this Section 2.15 to the contrary, in the
event that the number of directors to be elected to the Board of
Directors of the corporation is increased and there is no public
announcement naming all of the nominees for director or specifying
the size of the increased Board of Directors made by the corporation
at least 70 days prior to the last Wednesday in the month of April, a
shareholder's notice required by this Section 2.15 shall also be
considered timely, but only with respect to nominees for any new
positions created by such increase, if it shall be received by the
Secretary at the principal offices of the corporation not later than
the close of business on the 10th day following the day on which such
public announcement is first made by the corporation.
(b) Special Meetings. Only such business shall be conducted at
a Special Meeting as shall have been described in the notice of meeting
sent to shareholders pursuant to Section 2.05 of these by-laws.
Nominations of persons for election to the Board of Directors may be made
at a Special Meeting at which directors are to be elected pursuant to such
notice of meeting (i) by or at the direction of the Board of Directors or
(ii) by any shareholder of the corporation who (A) is a shareholder of
record at the time of giving of such notice of meeting, (B) is entitled to
vote at the meeting and (C) complies with the notice procedures set forth
in this Section 2.15. Any shareholder desiring to nominate persons for
election to the Board of Directors at such a Special Meeting shall cause a
written notice to be received by the Secretary of the corporation at the
principal offices of the corporation not earlier than 90 days prior to
such Special Meeting and not later than the close of business on the later
of (x) the 60th day prior to such Special Meeting and (y) the 10th day
following the day on which public announcement is first made of the date
of such Special Meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. Such written notice shall be
signed by the shareholder of record who intends to make the nomination (or
his duly authorized proxy or other representative), shall bear the date of
signature of such shareholder (or proxy or other representative) and shall
set forth: (A) the name and address, as they appear on the corporation's
books, of such shareholder and the beneficial owner or owners, if any, on
whose behalf the nomination is made; (B) the class and number of shares of
the corporation which are beneficially owned by such shareholder or
beneficial owner or owners; (C) a representation that such shareholder is
a holder of record of shares of the corporation entitled to vote at such
meeting and intends to appear in person or by proxy at the meeting to make
the nomination specified in the notice; (D) the name and residence address
of the person or persons to be nominated; (E) a description of all
arrangements or understandings between such shareholder or beneficial
owner or owners and each nominee and any other person or persons (naming
such person or persons) pursuant to which the nomination is to be made by
such shareholder; (F) such other information regarding each nominee
proposed by such shareholder as would be required to be disclosed in
solicitations of proxies for elections of directors, or would be otherwise
required to be disclosed, in each case pursuant to Regulation 14A under
the Exchange Act, including any information that would be required to be
included in a proxy statement filed pursuant to Regulation 14A had the
nominee been nominated by the Board of Directors; and (G) the written
consent of each nominee to be named in a proxy statement and to serve as a
director of the corporation if so elected.
(c) General.
(i) Only persons who are nominated in accordance with the
procedures set forth in this Section 2.15 shall be eligible to serve
as directors. Only such business shall be conducted at an Annual
Meeting or Special Meeting as shall have been brought before such
meeting in accordance with the procedures set forth in this Section
2.15. The chairman of the meeting shall have the power and duty to
determine whether a nomination or any business proposed to be brought
before the meeting was made in accordance with the procedures set
forth in this Section 2.15 and, if any proposed nomination or
business is not in compliance with this Section 2.15, to declare that
such defective proposal shall be disregarded.
(ii) For purposes of this Section 2.15, "public
announcement" shall mean disclosure in a press release reported by
the Dow Jones News Service, Associated Press or comparable national
news service or in a document publicly filed by the corporation with
the Securities and Exchange Commission pursuant to Section 13, 14 or
15(d) of the Exchange Act.
(iii) Notwithstanding the foregoing provisions of this
Section 2.15, a shareholder shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this Section
2.15. Nothing in this Section 2.15 shall be deemed to limit the
corporation's obligation to include shareholder proposals in its
proxy statement if such inclusion is required by Rule 14a-8 under the
Exchange Act.
ARTICLE III. BOARD OF DIRECTORS
3.01. General Powers; Number and Tenure. (a) All corporate
powers shall be exercised by or under the authority of, and the business
and affairs of the corporation shall be managed under the direction of,
its Board of Directors.
(b) The number of directors of the Corporation shall be seven
(7), divided into three (3) classes of three (3), two (2) and two (2)
directors, respectively. At each Annual Meeting the successors to the
class of directors whose term shall expire at the time of such Annual
Meeting shall be elected to hold office until the third succeeding Annual
Meeting, and until such directors' successors are duly elected and, if
necessary, qualified or until there is a decrease in the number of
directors that takes effect after the expiration of such directors' term.
(c) Notwithstanding the provisions of Section 3.01(b), the term
of a director who is an officer of the Company shall immediately cease at
any time that such director is no longer an officer of the Company. This
Section 3.01(c) shall be effective for directors standing for election or
reelection to the Board of Directors, as the case may be, after February
7, 1997.
3.02. Resignations and Qualifications. A director may
resign at any time by delivering written notice which complies with the
Wisconsin Business Corporation Law to the Chairman of the Board or to the
corporation. A director's resignation is effective when the notice is
delivered unless the notice specifies a later effective date. Directors
need not be residents of the State of Wisconsin or shareholders of the
corporation.
3.03. Regular Meetings. A regular meeting of the Board of
Directors shall be held without other notice than this by-law immediately
after the Annual Meeting, and each adjourned session thereof. The place
of such regular meeting shall be the same as the place of the Annual
Meeting which precedes it, or such other suitable place as may be
announced at such Annual Meeting. The Board of Directors may provide, by
resolution, the time and place, either within or without the State of
Wisconsin, for the holding of additional regular meetings without other
notice than such resolution.
3.04. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board,
the President, the Secretary or any two directors. The Chairman of the
Board, the President or the Secretary may fix any place, either within or
without the State of Wisconsin, as the place for holding any special
meeting of the Board of Directors, and, if no other place is fixed, the
place of the meeting shall be the principal office of the corporation in
the State of Wisconsin.
3.05. Notice; Waiver. Notice of each meeting of the Board
of Directors (unless otherwise provided in or pursuant to Section 3.03)
shall be given by written notice delivered or communicated in person, by
telegram, facsimile or other form of wire or wireless communication, or by
mail or private carrier to each director at his business address or such
other address as a director shall have designated in writing and filed
with the Secretary, in each case not less than 48 hours prior to the time
of the meeting. If mailed, such notice shall be deemed to be effective
when deposited in the United States mail so addressed, with postage
thereon prepaid. If notice be given by telegram, such notice shall be
deemed to be effective when the telegram is delivered to the telegraph
company. If notice is given by private carrier, such notice shall be
deemed to be effective when the notice is delivered to the private
carrier. Whenever any notice whatever is required to be given to any
director of the corporation under the articles of incorporation of the
corporation or these by-laws or any provision of the Wisconsin Business
Corporation Law, a waiver thereof in writing, signed at any time, whether
before or after the time of meeting, by the director entitled to such
notice, shall be deemed equivalent to the giving of such notice. The
corporation shall retain any such waiver as part of the permanent
corporate records. A director's attendance at or participation in a
meeting waives any required notice to him of the meeting unless the
director at the beginning of the meeting or promptly upon his arrival
objects to holding the meeting or transacting business at the meeting and
does not thereafter vote for or assent to action taken at the meeting.
Neither the business to be transacted at, nor the purpose of, any regular
or special meeting of the Board of Directors need be specified in the
notice or waiver of notice of such meeting.
3.06. Quorum. Except as otherwise provided by the Wisconsin
Business Corporation Law or by the articles of incorporation of the
corporation or these by-laws, a majority of the directors set forth in
Section 3.01 shall constitute a quorum for the transaction of business at
any meeting of the Board of Directors, but a majority of the directors
present (though less than such quorum) may adjourn the meeting from time
to time without further notice.
3.07. Manner of Acting. The act of the majority of the
directors present at a meeting at which a quorum is present shall be the
act of the Board of Directors, unless the act of a greater number is
required by the Wisconsin Business Corporation Law or by the articles of
incorporation of the corporation or these by-laws.
3.08. Conduct of Meetings. The Chairman of the Board, and
in his absence, the President, and in his absence, a Vice President in the
order provided under Section 4.07, and in their absence, any director
chosen by the directors present, shall call meetings of the Board of
Directors to order and shall act as chairman of the meeting. The
Secretary of the corporation shall act as secretary of all meetings of the
Board of Directors but in the absence of the Secretary, the presiding
officer may appoint any Assistant Secretary or any director or other
person present to act as secretary of the meeting. Minutes of any regular
or special meetings of the Board of Directors shall be prepared and
distributed to each director.
3.09. Compensation. The Board of Directors, irrespective of
any personal interest of any of its members, may establish reasonable
compensation of all directors for services to the corporation as
directors, officers or otherwise, or may delegate such authority to an
appropriate committee. The Board of Directors also shall have authority
to provide for or delegate authority to an appropriate committee to
provide for reasonable pensions, disability or death benefits, and other
benefits or payments, to directors, officers and employees and to their
estates, families, dependents or beneficiaries on account of prior
services rendered by such directors, officers and employees to the
corporation.
3.10. Presumption of Assent. A director of the corporation
who is present at a meeting of the Board of Directors or a committee
thereof of which he is a member at which action on any corporate matter is
taken shall be presumed to have assented to the action taken unless any of
the following occurs: (a) the director objects at the beginning of the
meeting or promptly upon his arrival to holding the meeting or transacting
business at the meeting; (b) the director's dissent or abstention from the
action taken is entered in the minutes of the meeting; or (c) the director
delivers written notice that complies with the Wisconsin Business
Corporation Law of his dissent or abstention to the presiding officer of
the meeting before its adjournment or to the corporation immediately after
adjournment of the meeting. Such right to dissent or abstain shall not
apply to a director who voted in favor of such action.
3.11. Committees. The Board of Directors by resolution
adopted by the affirmative vote of a majority of the number of directors
set forth in Section 3.01 may create one or more committees, appoint
members of the Board of Directors to serve on the committees and designate
other members of the Board of Directors to serve as alternates. Alternate
members of a committee shall take the place of any absent member or
members at any meeting of such committee upon request of the Chairman of
the Board or the President or upon request of the chairman of such
meeting. Each committee shall have two or more members who shall, unless
otherwise provided by the Board of Directors, serve at the pleasure of the
Board of Directors. A committee may be authorized to exercise the
authority of the Board of Directors, except that a committee may not do
any of the following: (a) authorize distributions; (b) approve or propose
to shareholders action that the Wisconsin Business Corporation Law
requires to be approved by shareholders; (c) fill vacancies on the Board
of Directors or, unless the Board of Directors provides by resolution that
vacancies on a committee shall be filled by the affirmative vote of the
remaining committee members, on any Board committee; (d) amend the
articles of incorporation of the corporation; (e) adopt, amend or repeal
by-laws; (f) approve a plan of merger not requiring shareholder approval;
(g) authorize or approve reacquisition of shares, except according to a
formula or method prescribed by the Board of Directors; and (h) authorize
or approve the issuance or sale or contract for sale of shares, or
determine the designation and relative rights, preferences and limitations
of a class or series of shares, except that the Board of Directors may
authorize a committee to do so within limits prescribed by the Board of
Directors. Unless otherwise provided by the Board of Directors in
creating the committee, a committee may employ counsel, accountants and
other consultants to assist it in the exercise of its authority.
3.12. Telephonic Meetings. Except as herein provided and
notwithstanding any place set forth in the notice of the meeting or these
by-laws, members of the Board of Directors (and any committee thereof) may
participate in regular or special meetings by, or through the use of, any
means of communication by which all participants may simultaneously hear
each other, such as by conference telephone. If a meeting is conducted by
such means, then at the commencement of such meeting the presiding officer
shall inform the participating directors that a meeting is taking place at
which official business may be transacted. Any participant in a meeting by
such means shall be deemed present in person at such meeting. If action
is to be taken at any meeting held by such means on any of the following:
(a) a plan of merger or share exchange; (b) a sale, lease, exchange or
other disposition of substantial property or assets' of the corporation;
(c) a voluntary dissolution or the revocation of voluntary dissolution
proceedings; or (d) a filing for bankruptcy, then the identity of each
director participating in such meeting must be verified by the disclosure
at such meeting by each such director of each such director's social
security number to the secretary of the meeting before a vote may be taken
on any of the foregoing matters. For purposes of the preceding clause
(b), the phrase "sale, lease, exchange or other disposition of substantial
property or assets" shall mean any sale, lease, exchange or other
disposition of property or assets of the corporation having a net book
value equal to 10% or more of the net book value of the total assets of
the corporation on and as of the close of the fiscal year last ended prior
to the date of such meeting and as to which financial statements of the
corporation have been prepared. Notwithstanding the foregoing, no action
may be taken at any meeting held by such means on any particular matter
which the presiding officer determines, in his sole discretion, to be
inappropriate under the circumstances for action at a meeting held by such
means. Such determination shall be made and announced in advance of such
meeting.
3.13. Unanimous Consent without Meeting. Any action
required or permitted by the articles of incorporation of the corporation
or these by-laws or any provision of the Wisconsin Business Corporation
Law to be taken by the Board of Directors (or any committee thereof) at a
meeting may be taken without a meeting if a consent in writing, setting
forth the action so taken, shall be signed by all members of the Board of
Directors or of the committee, as the case may be, then in office. Such
action shall be effective when the last director or committee member signs
the consent, unless the consent specifies a different effective date.
ARTICLE IV. OFFICERS
4.01. Number. The principal officers of the corporation
shall be a Chairman of the Board, a President, any number of Vice
Presidents, a Secretary, and a Treasurer, each of whom shall be elected by
the Board of Directors. Such other officers and assistant officers as may
be deemed necessary may be elected or appointed by the Board of Directors.
The Board of Directors may also authorize any duly appointed officer to
appoint one or more officers or assistant officers. Any two or more
offices may be held by the same person.
4.02. Election and Term of Office. The officers of the
corporation to be elected by the Board of Directors shall be elected
annually by the Board of Directors at the first meeting of the Board of
Directors held after each Annual Meeting. If the election of officers
shall not be held at such meeting, such election shall be held as soon
thereafter as conveniently may be. Each officer shall hold office until
his successor shall have been duly elected or until his prior death,
resignation or removal.
4.03. Removal. The Board of Directors may remove any
officer and, unless restricted by the Board of Directors or these by-laws,
an officer may remove any officer or assistant officer appointed by that
officer, at any time, with or without cause and notwithstanding the
contract rights, if any, of the officer removed. Election or appointment
shall not of itself create contract rights.
4.04. Resignations and Vacancies. An officer may resign at
any time by delivering notice to the corporation that complies with the
Wisconsin Business Corporation Law. The resignation shall be effective
when the notice is delivered, unless the notice specifies a later
effective date and the corporation accepts the later effective date. A
vacancy in any principal office because of death, resignation, removal,
disqualification or otherwise, shall be filled by the Board of Directors
for the unexpired portion of the term. If a resignation of an officer is
effective at a later date as contemplated by this Section 4.04, the Board
of Directors may fill the pending vacancy before the effective date if the
Board provides that the successor may not take office until the effective
date.
4.05. Chairman of the Board. The Chairman of the Board
shall be elected from the membership of the Board of Directors. The
Chairman of the Board shall preside at all Annual Meetings and Special
Meetings and at all meetings of the Board of Directors. The Chairman of
the Board shall be the principal executive officer of the corporation and,
subject to the control of the Board of Directors, shall in general
supervise and control all of the business and affairs of the corporation.
He shall have authority, subject to such rules as may be prescribed by the
Board of Directors, to appoint such agents and employees of the
corporation as he shall deem necessary, to prescribe their powers, duties
and compensation, and to delegate authority to them. Such agents and
employees shall hold office at the discretion of the Chairman of the
Board. He shall have authority to sign, execute and acknowledge, on
behalf of the corporation, all deeds, mortgages, bonds, stock
certificates, contracts, leases, reports and all other documents or
instruments necessary or proper to be executed in the course of the
corporation's regular business, or which shall be authorized by resolution
of the Board of Directors; and, except as otherwise provided by law or the
Board of Directors, he may authorize any officer or agent of the
corporation to sign, execute and acknowledge such documents or instruments
in his place and stead.
4.06. President. The President shall be the chief operating
officer of the Company. In general he shall perform all duties incident
to the office of chief operating officer and such other duties as may be
prescribed by the Board of Directors from time to time. Except where by
law the signature of the Chairman of the Board of the corporation is
required, the President shall possess the same power and authority as the
Chairman of the Board to sign, execute and acknowledge, on behalf of the
corporation, all deeds, mortgages, bonds, stock certificates, contracts,
leases, reports and all other documents or instruments and shall have such
additional power to sign, execute and acknowledge, on behalf of the
corporation, as may be authorized by resolution of the Board of Directors.
During the absence or disability of the Chairman of the Board, or while
that office is vacant, the President shall exercise the powers and
discharge the duties of the Chairman of the Board as the principal
executive officer of the Company.
4.07. The Vice Presidents. In the absence of the President
or in the event of his death, inability or refusal to act, or in the event
for any reason it shall be impracticable for the President to act
personally, the Vice President (or in the event there be more than one
Vice President, the Vice Presidents in the order designated by the Board
of Directors, or in the absence of any designation, then in the order of
their election) shall perform the duties of the President, and, when so
acting, shall have all the powers of and be subject to all the
restrictions upon the President. Any Vice President may sign, with the
Secretary or Assistant Secretary, certificates for shares of the
corporation and shall perform such other duties and have such authority as
from time to time may be delegated or assigned to him by the Chairman of
the Board, the President or the Board of Directors. The execution of any
instrument of the corporation by any Vice President shall be conclusive
evidence, as to third parties, of his authority to act in the stead of the
President.
4.08. The Secretary. The Secretary shall: (a) keep the
minutes of Annual Meetings and Special Meetings and of meetings of the
Board of Directors in one or more books provided for that purpose
(including records of actions taken without a meeting); (b) see that all
notices are duly given in accordance with the provisions of these by-laws
or as required by the Wisconsin Business Corporation Law; (c) be custodian
of the corporate records and of the seal of the corporation and see that
the seal of the corporation is affixed to all documents the execution of
which on behalf of the corporation under its seal is duly authorized; (d)
maintain a record of the shareholders of the corporation, in the form that
permits preparation of a list of the names and addresses of all
shareholders, by class or series of shares and showing the number and
class or series of shares held by each shareholder; (e) sign with the
Chairman of the Board, the President, or a Vice President, certificates
for shares of the corporation, the issuance of which shall have been
authorized by resolution of the Board of Directors; (f) have general
charge of the stock transfer books of the corporation; and (g) in general
perform all duties incident to the office of Secretary and have such other
duties and exercise such authority as from time to time may be delegated
or assigned to him by the President or by the Board of Directors.
4.09. The Treasurer. The Treasurer shall: (a) have charge
and custody of and be responsible for all funds and securities of the
corporation; (b) maintain appropriate accounting records; (c) receive and
give receipts for moneys due and payable to the corporation from any
source whatsoever, and deposit all such moneys in the name of the
corporation in such banks, trust companies or other depositaries as shall
be selected in accordance with the provisions of Section 5.04; and (d) in
general perform all of the duties incident to the office of Treasurer and
have such other duties and exercise such other authority as from time to
time may be delegated or assigned to him by the President or by the Board
of Directors. If required by the Board of Directors, the Treasurer shall
give a bond for the faithful discharge of his duties in such sum and with
such surety or sureties as the Board of Directors shall determine.
4.10. Assistant Secretaries and Assistant Treasurers. There
shall be such number of Assistant Secretaries and Assistant Treasurers as
the Board of Directors may from time to time authorize. The Assistant
Secretaries may sign with the Chairman of the Board, the President or a
Vice President certificates for shares of the corporation the issuance of
which shall have been authorized by a resolution of the Board of
Directors. The Assistant Treasurers shall respectively, if required by
the Board of Directors, give bonds for the faithful discharge of their
duties in such sums and with such sureties as the Board of Directors shall
determine. The Assistant Secretaries and Assistant Treasurers, in
general, shall perform such duties and have such authority as shall from
time to time be delegated or assigned to them by the Secretary or the
Treasurer, respectively, or by the President or the Board of Directors.
4.11. Other Assistants and Acting Officers. The Board of
Directors shall have the power to appoint, or to authorize any duly
appointed officer of the corporation to appoint, any person to act as
assistant to any officer, or as agent for the corporation in his stead, or
to perform the duties of such officer whenever for any reason it is
impracticable for such officer to act personally, and such assistant or
acting officer or other agent so appointed by the Board of Directors or
the appointing officer shall have the power to perform all the duties of
the office to which he is so appointed to be an assistant, or as to which
he is so appointed to act, except as such power may be otherwise defined
or restricted by the Board of Directors or the appointing officer.
4.12. Salaries. The salaries of the principal officers
shall be fixed from time to time by the Board of Directors or by a duly
authorized committee thereof, and no officer shall be prevented from
receiving such salary by reason of the fact that he is also a director of
the corporation.
ARTICLE V. CONTRACTS, LOANS, CHECKS
AND DEPOSITS; SPECIAL CORPORATE ACTS
5.01. Contracts. The Board of Directors may authorize any
officer or officers, agent or agents, to enter into any contract or
execute or deliver any instrument in the name of and on behalf of the
corporation, and such authorization may be general or confined to specific
instances. In the absence of other designation, all deeds, mortgages and
instruments of assignment or pledge made by the corporation shall be
executed in the name of the corporation by the Chairman of the Board, the
President or one of the Vice Presidents and by the Secretary, an Assistant
Secretary, the Treasurer or an Assistant Treasurer; the Secretary or an
Assistant Secretary, when necessary or required, shall affix the corporate
seal thereto; and when so executed no other party to such instrument or
any third party shall be required to make any inquiry into the authority
of the signing officer or officers.
5.02. Loans. No indebtedness for borrowed money shall be
contracted on behalf of the corporation and no evidences of such
indebtedness shall be issued in its name unless authorized by or under the
authority of a resolution of the Board of Directors. Such authorization
may be general or confined to specific instances.
5.03. Checks, Drafts, etc. All checks, drafts or other
orders for the payment of money, notes or other evidences of indebtedness
issued in the name of the corporation, shall be signed by such officer or
officers, agent or agents of the corporation and in such manner as shall
from time to time be determined by or under the authority of a resolution
of the Board of Directors.
5.04. Deposits. All funds of the corporation not otherwise
employed shall be deposited from time to time to the credit of the
corporation in such banks, trust companies or other depositaries as may be
selected by or under the authority of a resolution of the Board of
Directors.
5.05. Voting of Securities Owned by this Corporation.
Subject always to the specific directions of the Board of Directors, (a)
any shares or other securities issued by any other corporation and owned
or controlled by this corporation may be voted at any meeting of security
holders of such other corporation by the Chairman of the Board of this
corporation if he be present, or in his absence by the President of this
corporation if he be present, or in his absence by any Vice President of
this corporation who may be present, and (b) whenever, in the judgment of
the Chairman of the Board, or in his absence, of the President, or in his
absence, of any Vice President, it is desirable for this corporation to
execute a proxy or written consent in respect to any shares or other
securities issued by any other corporation and owned by this corporation,
such proxy or consent shall be executed in the name of this corporation by
the Chairman of the Board, the President or one of the Vice Presidents of
this corporation, without necessity of any authorization by the Board of
Directors, affixation of corporate seal or countersignature or attestation
by another officer. Any person or persons designated in the manner above
stated as the proxy or proxies of this corporation shall have full right,
power and authority to vote the shares or other securities issued by such
other corporation and owned by this corporation the same as such shares or
other securities might be voted by this corporation.
5.06. No Nominee Procedures. The corporation has not
established, and nothing in these by-laws shall be deemed to establish,
any procedure by which a beneficial owner of the corporation's shares that
are registered in the name of a nominee is recognized by the corporation
as the shareholder under Section 180.0723 of the Wisconsin Business
Corporation Law.
ARTICLE VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01. Certificates for Shares. Certificates representing
shares of the corporation shall be in such form, consistent with the
Wisconsin Business Corporation Law, as shall be determined by the Board of
Directors. Such certificates shall be signed by the Chairman of the
Board, the President or a Vice President and by the Secretary or an
Assistant Secretary. All certificates for shares shall be consecutively
numbered or otherwise identified. The name and address of the person to
whom the shares represented thereby are issued, with the number of shares
and date of issue, shall be entered on the stock transfer books of the
corporation. All certificates surrendered to the corporation for transfer
shall be cancelled and no new certificate shall be issued until the former
certificate for a like number of shares shall have been surrendered and
cancelled, except as provided in Section 6.06.
6.02. Facsimile Signatures and Seal. The seal of the
corporation on any certificates for shares may be a facsimile. The
signature of the Chairman of the Board, President or Vice President and
the Secretary or Assistant Secretary upon a certificate may be facsimiles
if the certificate is manually signed on behalf of a transfer agent, or a
registrar, other than the corporation itself or an employee of the
corporation.
6.03. Signature by Former Officers. In case any officer,
who has signed or whose facsimile signature has been placed upon any
certificate for shares, shall have ceased to be such officer before such
certificate is issued, it may be issued by the corporation with the same
effect as if he were such officer at the date of its issue.
6.04. Transfer of Shares. Prior to due presentment of a
certificate for shares for registration of transfer the corporation may
treat the registered owner of such shares as the person exclusively
entitled to vote, to receive notifications and otherwise to have and
exercise all the rights and power of an owner. Where a certificate for
shares is presented to the corporation with a request to register for
transfer, the corporation shall not be liable to the owner or any other
person suffering loss as a result of such registration of transfer if (a)
there were on or with the certificate the necessary endorsements, and (b)
the corporation had no duty to inquire into adverse claims or has
discharged any such duty. The corporation may require reasonable
assurance that said endorsements are genuine and effective and compliance
with such other regulations as may be prescribed by or under the authority
of the Board of Directors.
6.05. Restrictions on Transfer. The face or reverse side of
each certificate representing shares shall bear a conspicuous notation of
any restriction imposed by the corporation upon the transfer of such
shares.
6.06. Lost, Destroyed or Stolen Certificates. The Board of
Directors may direct a new certificate or certificates to be issued in
place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate
of stock to be lost, stolen or destroyed. When authorizing such issue of
a new certificate or certificates, the Board of Directors may, in its
discretion and as a condition precedent to the issuance thereof, require
the person requesting such new certificate or certificates, or his or her
legal representative, to give the corporation a bond in such sum as it may
direct as indemnity against any claim that may be made against the
corporation with respect to the certificate alleged to have been lost,
stolen or destroyed.
6.07. Consideration for Shares. The Board of Directors may
authorize shares to be issued for consideration consisting of any tangible
or intangible property or benefit to the corporation, including cash,
promissory notes, services performed, contracts for services to be
performed or other securities of the corporation. Before the corporation
issues shares, the Board of Directors shall determine that the
consideration received or to be received for the shares to be issued is
adequate. In the absence of a resolution adopted by the Board of
Directors expressly determining that the consideration received or to be
received is adequate, Board approval of the issuance of the shares shall
be deemed to constitute such a determination. The determination of the
Board of Directors is conclusive insofar as the adequacy of consideration
for the issuance of shares relates to whether the shares are validly
issued, fully paid and nonassessable. The corporation may place in escrow
shares issued in whole or in part for a contract for future services or
benefits, a promissory note, or other property to be issued in the future,
or make other arrangements to restrict the transfer of the shares, and may
credit distributions in respect of the shares against their purchase
price, until the services are performed, the benefits or property are
received or the promissory note is paid. If the services are not
performed, the benefits or property are not received or the promissory
note is not paid, the corporation may cancel, in whole or in part, the
shares escrowed or restricted and the distributions credited.
6.08. Stock Regulations. The Board of Directors shall have
the power and authority to make all such further rules and regulations not
inconsistent with the statutes of the State of Wisconsin as it may deem
expedient concerning the issue, transfer and registration of certificates
representing shares of the corporation.
ARTICLE VII. SEAL
7.01. The Board of Directors may provide a corporate seal in
an appropriate form.
ARTICLE VIII. FISCAL YEAR
8.01. The fiscal year of the corporation shall be as fixed
by resolution of the Board of Directors.
ARTICLE IX. INDEMNIFICATION
9.01. Certain Definitions. All capitalized terms used in
this Article IX and not otherwise hereinafter defined in this Section 9.01
shall have the meaning set forth in Section 180.0850 of the Statute. The
following terms (including any plural forms thereof) used in this Article
IX shall be defined as follows:
(a) "Affiliate" shall include, without limitation, any
corporation, partnership, joint venture, employee benefit plan, trust or
other enterprise that directly or indirectly through one or more
intermediaries, controls or is controlled by, or is under common control
with, the Corporation.
(b) "Authority" shall mean the entity selected by the Director
or Officer to determine his or her right to indemnification pursuant to
Section 9.04.
(c) "Board" shall mean the entire then elected and serving
Board of Directors of the Corporation, including all members thereof who
are Parties to the subject Proceeding or any related Proceeding.
(d) "Breach of Duty" shall mean the Director or Officer
breached or failed to perform his or her duties to the Corporation and his
or her breach of or failure to perform those duties is determined, in
accordance with Section 9.04, to constitute misconduct under Section
180.0851(2)(a) 1, 2, 3 or 4 of the Statute.
(e) "Corporation," as used herein and as defined in the Statute
and incorporated by reference into the definitions of certain other
capitalized terms used herein, shall mean this Corporation, including,
without limitation, any successor corporation or entity to this
Corporation by way of merger, consolidation or acquisition of all or
substantially all of the capital stock or assets of this Corporation.
(f) "Director or Officer" shall have the meaning set forth in
the Statute; provided, that, for purposes of this Article IX, it shall be
conclusively presumed that any Director or Officer serving as a director,
officer, partner, trustee, member of any governing or decision-making
committee, employee or agent of an Affiliate shall be so serving at the
request of the Corporation.
(g) "Disinterested Quorum" shall mean a quorum of the Board who
are not Parties to the subject Proceeding or any related Proceeding.
(h) "Party" shall have the meaning set forth in the Statute;
provided, that, for purposes of this Article IX, the term "Party" shall
also include any Director or Officer or employee who is or was a witness
in a Proceeding at a time when he or she has not otherwise been formally
named a Party thereto.
(i) "Proceeding" shall have the meaning set forth in the
Statute; provided, that, in accordance with Section 180.0859 of the
Statute and for purposes of this Article IX, the term "Proceeding" shall
also include all Proceedings (i) brought under (in whole or in part) the
Securities Act of 1933, as amended, the Exchange Act, their respective
state counterparts, and/or any rule or regulation promulgated under any of
the foregoing; (ii) brought before an Authority or otherwise to enforce
rights hereunder; (iii) any appeal from a Proceeding; and (iv) any
Proceeding in which the Director or Officer is a plaintiff or petitioner
because he or she is a Director or Officer; provided, however, that any
such Proceeding under this subsection (iv) must be authorized by a
majority vote of a Disinterested Quorum.
(j) "Statute" shall mean Sections 180.0850 through 180.0859,
inclusive, of the Wisconsin Business Corporation Law, Chapter 180 of the
Wisconsin Statutes, as the same shall then be in effect, including any
amendments thereto, but, in the case of any such amendment, only to the
extent such amendment permits or requires the Corporation to provide
broader indemnification rights than the Statute permitted or required the
Corporation to provide prior to such amendment.
9.02. Mandatory Indemnification. To the fullest extent
permitted or required by the Statute, the Corporation shall indemnify a
Director or Officer against all Liabilities incurred by or on behalf of
such Director or Officer in connection with a Proceeding in which the
Director or Officer is a Party because he or she is a Director or Officer.
9.03. Procedural Requirements.
(a) A Director or Officer who seeks indemnification under
Section 9.02 shall make a written request therefor to the Corporation.
Subject to Section 9.03(b), within 60 days of the Corporation's receipt of
such request, the Corporation shall pay or reimburse the Director or
Officer for the entire amount of Liabilities incurred by the Director or
Officer in connection with the subject Proceeding (net of any Expenses
previously advanced pursuant to Section 9.05).
(b) No indemnification shall be required to be paid by the
Corporation pursuant to Section 9.02 if, within such 60-day period, (i) a
Disinterested Quorum, by a majority vote thereof, determines that the
Director or Officer requesting indemnification engaged in misconduct
constituting a Breach of Duty or (ii) a Disinterested Quorum cannot be
obtained.
(c) In either case of nonpayment pursuant to Section 9.03(b),
the Board shall immediately authorize by resolution that an Authority, as
provided in Section 9.04, determine whether the Director's or Officer's
conduct constituted a Breach of Duty and, therefore, whether
indemnification should be denied hereunder.
(d) (i) If the Board does not authorize an Authority to
determine the Director's or Officer's right to indemnification hereunder
within such 60-day period and/or (ii) if indemnification of the requested
amount of Liabilities is paid by the Corporation, then it shall be
conclusively presumed for all purposes that a Disinterested Quorum has
affirmatively determined that the Director or Officer did not engage in
misconduct constituting a Breach of Duty and, in the case of subsection
(i) above (but not subsection (ii)), indemnification by the Corporation of
the requested amount of Liabilities shall be paid to the Director or
Officer immediately.
9.04. Determination of Indemnification.
(a) If the Board authorizes an Authority to determine a
Director's or Officer's right to indemnification pursuant to Section 9.03,
then the Director or Officer requesting indemnification shall have the
absolute discretionary authority to select one of the following as such
Authority:
(i) An independent legal counsel; provided, that such
counsel shall be mutually selected by such Director or Officer and by
a majority vote of a Disinterested Quorum or, if a Disinterested
Quorum cannot be obtained, then by a majority vote of the Board;
(ii) A panel of three arbitrators selected from the panels
of arbitrators of the American Arbitration Association in Wisconsin;
provided, that (A) one arbitrator shall be selected by such Director
or Officer, the second arbitrator shall be selected by a majority
vote of a Disinterested Quorum or, if a Disinterested Quorum cannot
be obtained, then by a majority vote of the Board, and the third
arbitrator shall be selected by the two previously selected
arbitrators, and (B) in all other respects, such panel shall be
governed by the American Arbitration Association's then existing
Commercial Arbitration Rules; or
(iii) A court pursuant to and in accordance with
Section 180.0854 of the Statute.
(b) In any such determination by the selected Authority there
shall exist a rebuttable presumption that the Director's or Officer's
conduct did not constitute a Breach of Duty and that indemnification
against the requested amount of Liabilities is required. The burden of
rebutting such a presumption by clear and convincing evidence shall be on
the Corporation or such other party asserting that such indemnification
should not be allowed.
(c) The Authority shall make its determination within 60 days
of being selected and shall submit a written opinion of its conclusion
simultaneously to both the Corporation and the Director or Officer.
(d) If the Authority determines that indemnification is
required hereunder, the Corporation shall pay the entire requested amount
of Liabilities (net of any Expenses previously advanced pursuant to
Section 9.05), including interest thereon at a reasonable rate, as
determined by the Authority, within 10 days of receipt of the Authority's
opinion; provided, that, if it is determined by the Authority that a
Director or Officer is entitled to indemnification against Liabilities'
incurred in connection with some claims, issues or matters, but not as to
other claims, issues or matters, involved in the subject Proceeding, the
Corporation shall be required to pay (as set forth above) only the amount
of such requested Liabilities as the Authority shall deem appropriate in
light of all of the circumstances of such Proceeding.
(e) The determination by the Authority that indemnification is
required hereunder shall be binding upon the Corporation regardless of any
prior determination that the Director or Officer engaged in a Breach of
Duty.
(f) All Expenses incurred in the determination process under
this Section 9.04 by either the Corporation or the Director or Officer,
including, without limitation, all Expenses of the selected Authority,
shall be paid by the Corporation.
9.05. Mandatory Allowance of Expenses.
(a) The Corporation shall pay or reimburse from time to time or
at any time, within 10 days after the receipt of the Director's or
Officer's written request therefor, the reasonable Expenses of the
Director or Officer as such Expenses are incurred; provided, the following
conditions are satisfied:
(i) The Director or Officer furnishes to the Corporation
an executed written certificate affirming his or her good faith
belief that he or she has not engaged in misconduct which constitutes
a Breach of Duty; and
(ii) The Director or Officer furnishes to the Corporation
an unsecured executed written agreement to repay any advances made
under this Section 9.05 if it is ultimately determined by an
Authority that he or she is not entitled to be indemnified by the
Corporation for such Expenses pursuant to Section 9.04.
(b) If the Director or Officer must repay any previously
advanced Expenses pursuant to this Section 9.05, such Director or Officer
shall not be required to pay interest on such amounts.
9.06. Indemnification and Allowance of Expenses of Certain
Others.
(a) The Board may, in its sole and absolute discretion as it
deems appropriate, pursuant to a majority vote thereof, indemnify a
director or officer of an Affiliate (who is not otherwise serving as a
Director or Officer) against all Liabilities, and shall advance the
reasonable Expenses, incurred by such director or officer in a Proceeding
to the same extent hereunder as if such director or officer incurred such
Liabilities because he or she was a Director or Officer, if such director
or officer is a Party thereto because he or she is or was a director or
officer of the Affiliate.
(b) The Corporation shall indemnify an employee who is not a
Director or Officer, to the extent he or she has been successful on the
merits or otherwise in defense of a Proceeding, for all Expenses incurred
in the Proceeding if the employee was a Party because he or she was an
employee of the Corporation.
(c) The Board may, in its sole and absolute discretion as it
deems appropriate, pursuant to a majority vote thereof, indemnify (to the
extent not otherwise provided in Section 9.06(b) hereof) against
Liabilities incurred by, and/or provide for the allowance of reasonable
Expenses of, an employee or authorized agent of the Corporation acting
within the scope of his or her duties as such and who is not otherwise a
Director or Officer.
9.07. Insurance. The Corporation may purchase and maintain
insurance on behalf of a Director or Officer or any individual who is or
was an employee or authorized agent of the Corporation against any
Liability asserted against or incurred by such individual in his or her
capacity as such or arising from his or her status as such, regardless of
whether the Corporation is required or permitted to indemnify against any
such Liability under this Article IX.
9.08. Notice to the Corporation. A Director, Officer or
employee shall promptly notify the Corporation in writing when he or she
has actual knowledge of a Proceeding which may result in a claim of
indemnification against Liabilities or allowance of Expenses hereunder,
but the failure to do so shall not relieve the Corporation of any
liability to the Director, Officer or employee hereunder unless the
Corporation shall have been irreparably prejudiced by such failure (as
determined, in the case of Directors or Officers, by an Authority selected
pursuant to Section 9.04(a)).
9.09. Severability. If any provision of this Article IX
shall be deemed invalid or inoperative, or if a court of competent
jurisdiction determines that any of the provisions of this Article IX
contravene public policy, this Article IX shall be construed so that the
remaining provisions shall not be affected, but shall remain in full force
and effect, and any such provisions which are invalid or inoperative or
which contravene public policy shall be deemed, without further action or
deed by or on behalf of the Corporation, to be modified, amended and/or
limited, but only to the extent necessary to render the same valid and
enforceable; it being understood that it is the Corporation's intention to
provide the Directors and Officers with the broadest possible protection
against personal liability allowable under the Statute.
9.10. Nonexclusivity of Article IX. The rights of a
Director, Officer or employee (or any other person) granted under this
Article IX shall not be deemed exclusive of any other rights to
indemnification against Liabilities or allowance of Expenses which the
Director, Officer or employee (or such other person) may be entitled to
under any written agreement, Board resolution, vote of shareholders of the
Corporation or otherwise, including, without limitation, under the
Statute. Nothing contained in this Article IX shall be deemed to limit
the Corporation's obligations to indemnify against Liabilities or allow
Expenses to a Director, Officer or employee under the Statute.
9.11. Contractual Nature of Article IX; Repeal or Limitation
of Rights. This Article IX shall be deemed to be a contract between the
Corporation and each Director, Officer and employee of the Corporation and
any repeal or other limitation of this Article IX or any repeal or
limitation of the Statute or any other applicable law shall not limit any
rights of indemnification against Liabilities or allowance of Expenses
then existing or arising out of events, acts or omissions occurring prior
to such repeal or limitation, including, without limitation, the right to
indemnification against Liabilities or allowance of Expenses for
Proceedings commenced after such repeal or limitation to enforce this
Article IX with regard to acts, omissions or events arising prior to such
repeal or limitation.
ARTICLE X. AMENDMENTS
10.01. By Shareholders. Except as otherwise provided by the
articles of incorporation of the corporation and these by-laws, the by-
laws of the corporation may be altered, amended or repealed and new by-
laws may be adopted by the shareholders at any Annual Meeting or Special
Meeting at which a quorum is in attendance.
10.02. By Directors. Except as otherwise provided in the
articles of incorporation of the corporation and these by-laws, the by-
laws of the corporation may also be altered, amended or repealed and new
by-laws may be adopted by the Board of Directors by affirmative vote of a
majority of the number of directors present at any meeting at which a
quorum is in attendance; provided, however, that the shareholders in
altering, adopting, amending or repealing a particular by-law may provide
therein that the Board of Directors may not amend, repeal or readopt that
by-law.
10.03. Implied Amendments. Any action taken or authorized by
the shareholders or by the Board of Directors, which would be inconsistent
with the by-laws then in effect but is taken or authorized by affirmative
vote of not less than the number of shares or the number of directors
required to amend the by-laws so that the by-laws would be consistent with
such action, shall be given the same effect as though the by-laws had been
temporarily amended or suspended so far, but only so far, as is necessary
to permit the specific action so taken or authorized.
EXHIBIT 10.3
GIDDINGS & LEWIS, INC.
STOCK OPTION AWARD AGREEMENT
As Amended
THIS AGREEMENT is made and entered into as of the date set forth
on the signature page hereof by and between GIDDINGS & LEWIS, INC., a
Wisconsin corporation with its principal offices at Fond du Lac, Wisconsin
(the "Company"), and the employee of the Company whose signature is set
forth on the signature page hereof (the "Key Employee").
W I T N E S S E T H :
WHEREAS, the Company has adopted the 1989 Stock Option Plan (the
"Plan") to permit options for shares of the Company's common stock, $.10
par value per share (the "Stock"), to be awarded to certain key employees
of the Company and any subsidiary (collectively, "Participating Company");
and
WHEREAS, the Key Employee is a key employee of a Participating
Company, and the Company desires him to remain in such employ and to
further an opportunity for his stock ownership in the Company in order to
increase his proprietary interest in the success of the Company;
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, the parties hereby mutually
covenant and agree as follows:
1. Award of Option. (a) Subject to the terms and conditions
set forth herein, the Company hereby awards the Key Employee an option
(the "Option") to purchase the number of shares of Stock set forth on the
signature page hereof (the "Option Stock") at the purchase price per share
set forth on the signature page hereof. The Option will become
exercisable in three (3) stages as follows: (i) one-third of the shares
of Option Stock shall be subject to exercise on the Initial Exercise Date,
which shall be the first anniversary of the Grant Date set forth on the
signature page hereof, (ii) the second one-third of the shares of Option
Stock shall be subject to exercise on the second anniversary of the Grant
Date, and (iii) the final one-third of the shares of Option Stock shall be
subject to exercise on the third anniversary of the Grant Date. No part
of the Option shall be exercisable prior to the Initial Exercise Date set
forth on the signature page hereof or after the Expiration Date set forth
thereon, except that (i) other than in the event of death or Total
Disability (as hereafter defined) of the Key Employee to which the
following limitation shall not apply if so determined by the Committee,
the Option shall not be exercisable until six months after the Grant Date
set forth on the signature page hereof, and (ii) other than as provided
herein, the Option shall not be exercisable after the termination of the
Key Employee's employment with all Participating Companies. Absence of
the Key Employee on leave approved by a duly elected officer of the
Company, other than the Key Employee, shall not be considered a
termination of employment during the period of such leave. The Option may
be exercised in whole or in part (but no exercise shall be for fewer than
50 shares of Stock or all of the shares then subject to the Option, if
fewer) by notice in writing to the Company. The aggregate purchase price
for the Stock for which the Option is exercised shall be paid to the
Company at the time of exercise in cash, Stock registered in the name of
the Key Employee, or by a combination thereof, all as provided on the
signature page hereof. Unless otherwise provided on the signature page
hereof, the Option shall not be an Incentive Stock Option for purposes of
Section 422 of the Internal Revenue Code of 1986, as amended (the "Code").
(b) If the purchase price may be paid wholly or partly in Stock,
any Stock tendered in payment thereof shall be free of all adverse claims
and duly endorsed in blank by the Key Employee or accompanied by stock
powers duly endorsed in blank. Stock tendered shall be valued at Fair
Market Value on the date on which the Option is exercised. As used
herein, "Fair Market Value" means the per share closing price on the date
in question in the principal market in which the Stock is then traded or,
if no sales of Stock have taken place on such date, the closing price on
the most recent date on which selling prices were quoted; provided,
however, that for any Option that is not an Incentive Stock Option, the
Committee (as defined herein) in its discretion, may elect to determine
Fair Market Value with respect to such Stock, based on the average of the
closing prices, as of the date of determination and a period of up to nine
trading days immediately preceding such date. If such proviso is to be
applicable, the signature page hereof sets forth the number of trading
days in such period.
2. Option Not Transferrable. The Option is not transferrable
other than by will or by the laws of descent and distribution. During the
lifetime of the Key Employee, the Option may be exercised only by him.
3. Securities Law Restrictions. The Key Employee agrees and
acknowledges with respect to any Option Stock that has not been registered
under the Securities Act of 1933, as amended (the "Act"), that (i) he will
not sell or otherwise dispose of such Stock except pursuant to an
effective registration statement under the Act and any applicable state
securities laws, or in a transaction which, in the opinion of counsel for
the Company, is exempt from such registration, and (ii) a legend will be
placed on the certificates for the Option Stock to such effect.
4. Exercise of Option After Termination of Employment Due to
Death, Retirement or Total Disability. (a) If the Key Employee's
employment with all Participating Companies is terminated because of
death, Retirement or Total Disability (as such terms are defined below) on
or after the Initial Exercise Date, the Key Employee or, in the case of
his death, his Beneficiary (as defined herein) shall be entitled to
exercise the Option (but only to the extent the Option was exercisable
immediately prior to the death, Retirement or Total Disability of the Key
Employee) until the Expiration Date. If such a termination of employment
occurs prior to the date on which the Option is fully exercisable, the Key
Employee, or in the case of his death, his Beneficiary, shall be entitled
to exercise the Option to such additional extent, if any, as the Committee
may determine.
(b) As used herein, (i) "Retirement" means termination of
employment with all Participating Companies on or after age 62 after
completion of an aggregate of ten years of service with the Company and/or
any Participating Company, except that if the Key Employee's employment is
terminated for Cause (as hereinafter defined) or because of death or Total
Disability, such termination shall be not "Retirement" for purposes
hereof, and (ii) "Total Disability" means the complete and permanent
inability of a Key Employee to perform all of his duties under the terms
of his employment with any Participating Company, as determined by the
Compensation Committee of the Company's Board of Directors or any
successor to such Committee which administers the Plan, or if no such
Committee has been appointed, by the Board of Directors of the Company
(collectively, the "Committee") upon the basis of such evidence, including
independent medical reports and data, as the Committee deems appropriate
or necessary.
5. Exercise of Option After Termination of Employment Other
Than for Cause, Death, Retirement or Total Disability. If the Key
Employee's employment with the Company is terminated on or after the
Initial Exercise Date for any reason other than Cause (as defined below),
death, Retirement or Total Disability, the Key Employee shall be entitled
to exercise the Option (but only to the extent the Option was exercisable
immediately prior to such termination) until three months after such
termination of employment. If such a termination of employment occurs
prior to the date on which the Option is fully exercisable, the Key
Employee shall be entitled to exercise the Option during such three-month
period to such additional extent, if any, as the Committee may determine.
As used herein, "Cause" means, as determined by the Committee, the Key
Employee's failure to perform his duties or intentional dishonest or
illegal conduct in connection with his performance of services for any
Participating Company.
6. Beneficiary. (a) The person whose name appears on the
signature page hereof after the caption "Beneficiary" or any successor
designated by the Key Employee in accordance herewith (the person who is
the Key Employee's Beneficiary at the time of his death herein referred to
as the "Beneficiary") shall be entitled to exercise the Option, to the
extent it is exercisable, after the death of the Key Employee. The Key
Employee may from time to time revoke or change his Beneficiary without
the consent of any prior Beneficiary by filing a new designation with the
Committee. The last such designation received by the Committee shall be
controlling; provided, however, that no designation, or change or
revocation thereof, shall be effective unless received by the Committee
prior to the Key Employee's death, and in no event shall any designation
be effective as of a date prior to such receipt.
(b) If no such Beneficiary designation is in effect at the time
of a Key Employee's death, or if no designated Beneficiary survives the
Key Employee or if such designation conflicts with law, the Key Employee's
estate shall be entitled to exercise the Option, to the extent it is
exercisable after the death of the Key Employee. If the Committee is in
doubt as to the right of any person to exercise the Option, the Company
may refuse to recognize such exercise, without liability for any interest
or dividends on the Option Stock, until the Committee determines the
person entitled to exercise the Option, or the Company may apply to any
court of appropriate jurisdiction and such application shall be a complete
discharge of the liability of the Company therefor.
7. No Rights As Stockholder. The Key Employee shall have no
rights as a holder of the Option Stock until the issuance of a certificate
for the Option Stock.
8. Tax Withholding. (a) It shall be a condition of the
obligation of the Company to issue Option Stock to the Key Employee or the
Beneficiary, and the Key Employee agrees, that the Key Employee shall pay
to the Company upon its demand, such amount as may be requested by the
Company for the purpose of satisfying its liability to withhold federal,
state, or local income or other taxes incurred by reason of the exercise
of the Option.
(b) If the Option is not an Incentive Stock Option, the Key
Employee may elect to have the Company withhold that number of shares of
Option Stock otherwise issuable to the Key Employee upon exercise of the
Option or to deliver to the Company a number of shares of Stock, in each
case, having a Fair Market Value on the Tax Date (as defined below) equal
to the minimum amount required to be withheld as a result of such
exercise. The election must be made in writing and, if the Key Employee
is an Insider (as defined below), (i) delivered to the Company either six
months or more prior to the Tax Date or during a ten day period beginning
on the third day following the release of the Company's quarterly or
annual summary statement of sales and earnings which occurs prior to the
Tax Date and (ii) shall not be effective until at least six months after
the Grant Date, provided, however, that the restriction in clause (ii)
shall not apply in the event death or Total Disability of the Key Employee
occurs prior to the expiration of such six month period. If the Key
Employee is not an Insider, the election must be delivered to the Company
prior to the Tax Date. If the Key Employee is an Insider, the full number
of shares of Option Stock issuable on exercise of the Option may be issued
to the Key Employee, and in such event the Key Employee shall be
unconditionally obligated to tender back to the Company, as soon as
practicable after the Tax Date, a number of shares of Stock having a Fair
Market Value on the Tax Date equal to the minimum amount required to be
withheld. If the number of shares so determined shall include a
fractional share, the Key Employee shall deliver cash in lieu of such
fractional share. All elections shall be made in a form approved by the
Committee and shall be subject to disapproval, in whole or in part, by the
Committee. As used herein, (i) "Tax Date" means the date on which the Key
Employee must include in his gross income for federal income tax purposes
the fair market value of the Option Stock over the purchase price therefor
and (ii) "Insider" means an officer or director of the Company or a
beneficial owner of more than 10% of the Stock.
9. Adjustments in Event of Change in Stock. In the event of
any reclassification, subdivision or combination of shares of Stock,
merger or consolidation of the Company or sale by the Company of all or a
portion of its assets, or other event which could, in the judgment of the
Committee, distort the implementation of the Plan or the realization of
its objectives, the Committee may make such adjustments in the number or
kind of shares of Option Stock issuable on exercise of the Option, or in
the terms, conditions or restrictions of this Agreement, including the
purchase price, as the Committee deems equitable.
10. Powers of Company Not Affected. The existence of the
Option shall not affect in any way the right or power of the Company or
its stockholders to make or authorize any combination, subdivision or
reclassification of the Stock or any reorganization, merger,
consolidation, business combination, exchange of shares, or other change
in the Company's capital structure or its business, or any issue of bonds,
debentures or stock having rights or preferences equal, superior or
affecting the Option Stock or the rights thereof, or dissolution or
liquidation of the Company, or any sale or transfer of all or any part of
its assets or business, or any other corporate act or proceeding, whether
of a similar character or otherwise. Nothing in this Agreement shall
confer upon the Key Employee any right to continue in the employment of
any Participating Company or interfere with or limit in any way the right
of any Participating Company to terminate the Key Employee's employment at
any time.
11. Interpretation by Committee. The Key Employee agrees that
any dispute or disagreement which may arise in connection with this
Agreement shall be resolved by the Committee, in its sole discretion, and
that any interpretation by the Committee of the terms of this Agreement or
the Plan and any determination made by the Committee under this Agreement
or the Plan may be made in the sole discretion of the Committee and shall
be final, binding, and conclusive. Any such determination need not be
uniform and may be made differently among Key Employees awarded Option
Stock.
12. Miscellaneous. (a) This Agreement shall be governed and
construed in accordance with the laws of the State of Wisconsin applicable
to contracts made and to be performed therein between residents thereof.
(b) This Agreement may not be amended or modified except by the
written consent of the parties hereto.
(c) The captions of this Agreement are inserted for convenience
of reference only and shall not be taken into account in construing this
Agreement.
(d) Any notice, filing or delivery hereunder shall be given to
the Key Employee at either his usual work location or his home address as
indicated in the records of the Company, and shall be given to the
Committee or the Company at 142 Doty Street, Fond du Lac, Wisconsin
54935, Attention: Secretary. All such notices shall be given by first
class mail, postage prepaid, or by personal delivery.
(e) This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns and shall be binding
upon and, subject to Paragraph 2, inure to the benefit of the Key
Employee, the Beneficiary and the personal representative(s) and heirs of
the Key Employee.
13. Change of Control. (a) Notwithstanding any other
provision to the contrary contained in this Agreement, if a Change in
Control of the Company (as defined below) occurs prior to the Expiration
Date, the Option (to the extent not previously exercised or terminated)
shall immediately and automatically become exercisable as of the date of
the Change in Control of the Company.
(b) The following terms shall have the following meanings when
used in this Paragraph 13:
(i) The term "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
(ii) The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations of the Exchange Act.
(iii) A Person (as defined herein) shall be deemed to
be the "Beneficial Owner" of any securities:
(A) which such Person or any of such Person's
Affiliates or Associates has the right to acquire (whether
such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion rights,
exchange rights, rights, warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, (x) securities
tendered pursuant to a tender or exchange offer made by or
on behalf of such Person or any of such Person's Affiliates
or Associates until such tendered securities are accepted
for purchase, or (y) securities issuable upon exercise of
Rights issued pursuant to the terms of the Company's Rights
Agreement with Firstar Trust Company, dated as of
August 23, 1995, as amended from time to time (the "Rights
Agreement") (or any successor to such Rights Agreement), at
any time before the issuance of such securities;
(B) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to vote or dispose of or has "beneficial ownership"
of (as determined pursuant to Rule 13d-3 of the General
Rules and Regulations under the Exchange Act), including
pursuant to any agreement, arrangement or understanding;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security
under this subparagraph (B) as a result of an agreement,
arrangement or understanding to vote such security if the
agreement, arrangement or understanding: (x) arises solely
from a revocable proxy or consent given to such Person in
response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules
and regulations under the Exchange Act and (y) is not also
then reportable on a Schedule 13D under the Exchange Act
(or any comparable or successor report); or
(C) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding for the purpose of
acquiring, holding, voting (except pursuant to a revocable
proxy as described in subparagraph (B) above) or disposing
of any voting securities of the Company.
(iv) A "Change in Control of the Company" shall mean a
change in control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Exchange Act. Without limiting the
inclusiveness of the definition in the preceding sentence, a
Change in Control of the Company shall be deemed to have
occurred if:
(A) any Person (other than any employee benefit plan
of the Company or any Participating Company, any entity
holding securities of the Company for or pursuant to the
terms of any such plan or any trustee, administrator or
fiduciary of such plan) is or becomes the Beneficial Owner
of securities of the Company representing at least 30% of
the combined voting power of the Company's then outstanding
securities;
(B) a Section 11(a)(ii) Event shall have occurred
under the Rights Agreement (or a similar event shall have
occurred under any successor to such Rights Agreement) at
any time any Rights are issued and outstanding thereunder;
(C) one-third or more of the members of the Company's
Board of Directors are not Continuing Directors (as
hereafter defined);
(D) there shall be consummated (x) any consolidation
or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which
shares of Stock would be converted into cash, securities or
other property, other than a merger of the Company in which
the holders of the Stock immediately prior to the merger
have the same proportionate ownership of common stock of
the surviving corporation immediately after the merger, or
(y) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company; or
(E) the shareholders of the Company approve any bid
or proposal for the liquidation or dissolution of the
Company.
(v) The term "Continuing Director" shall mean any member
of the Board of Directors of the Company who was a member of
such Board on the Grant Date, and any successor of a Continuing
Director who is recommended to succeed a Continuing Director by
a majority of the Continuing Directors then on such Board.
(vi) The term "Person" shall mean any individual, firm,
partnership, corporation or other entity, including any
successor (by merger or otherwise) of such entity, or a group of
any of the foregoing acting in concert."
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer and its corporate seal hereunto
affixed, and the Key Employee has hereunto affixed his hand and seal, all
on the day and year set forth below.
GIDDINGS & LEWIS, INC.
(CORPORATE SEAL) By: _______________________________________________
Title:
_______________________________________ (Seal)
Key Employee:
No. of Shares of Option Stock:
Incentive Stock Option:
Purchase Price per Share:
Payment of Purchase Price:
Number of Days to Determine Fair Market Value:
Date of Agreement:
Grant Date:
Initial Exercise Date:
Expiration Date:
Beneficiary: _____________________________________
Address of Beneficiary:
__________________________________________________
__________________________________________________
Beneficiary Tax Identification
No._______________________________________________
EXHIBIT 10.4
GIDDINGS & LEWIS, INC.
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT is made and entered into as of the date set forth
on the signature page hereof by and between GIDDINGS & LEWIS, INC., a
Wisconsin corporation with its principal offices at Fond du Lac, Wisconsin
(the "Company"), and the employee of the Company whose signature is set
forth on the signature page hereof (the "Key Employee").
W I T N E S S E T H :
WHEREAS, the Company has adopted the 1989 Restricted Stock Plan
(the "Plan") to permit shares of the Company's common stock, $.10 par
value per share (the "Stock"), to be awarded to certain key employees of
the Company and any subsidiary (collectively, "Participating Company");
and
WHEREAS, the Key Employee is a key employee of a Participating
Company, and the Company desires him to remain in such employ and to
further an opportunity for his stock ownership in the Company in order to
increase his proprietary interest in the success of the Company;
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, the parties hereby mutually
covenant and agree as follows:
1. Award of Restricted Stock. (a) Subject to the terms and
conditions set forth herein, the Company hereby awards the Key Employee
the number of shares of Stock set forth on the signature page hereof (the
"Restricted Stock") at the purchase price per share set forth on the
signature page hereof. The aggregate purchase price for the Restricted
Stock shall be paid to the Company at the time this Agreement is executed
by the Key Employee in cash, Stock registered in the name of the Key
Employee, or by a combination thereof, all as provided on the signature
page hereof.
(b) If the purchase price may be paid wholly or partly in Stock,
any Stock tendered in payment thereof shall be free of all adverse claims
and duly endorsed in blank by the Key Employee or accompanied by stock
powers duly endorsed in blank. Stock tendered shall be valued at Fair
Market Value on the Grant Date set forth on the signature page hereof. As
used herein, "Fair Market Value" means the per share closing price on the
date in question in the principal market in which the Stock is then traded
or, if no sales of Stock have taken place on such date, the closing price
on the most recent date on which selling prices were quoted; provided,
however, that the Committee (as defined herein) in its discretion, may
elect to determine Fair Market Value with respect to such Stock, based on
the average of the closing prices, as of the date of determination and a
period of up to nine trading days immediately preceding such date. If
such proviso is to be applicable, the signature page hereof sets forth the
number of trading days in such period.
2. Restrictions. Except as otherwise provided herein, the
Restricted Stock may not be sold, transferred or otherwise alienated or
hypothecated until the date set forth on the signature page hereof (the
"Release Date").
3. Escrow. Certificates for shares of Restricted Stock shall
be issued as soon as practicable in the name of the Key Employee but shall
be held in escrow by the Company, as escrow agent. Upon issuance of such
certificates, (i) the Company shall give the Key Employee a receipt for
the Restricted Stock held in escrow which will state that the Company
holds such Stock in escrow for the account of the Key Employee, subject to
the terms of this Agreement, and (ii) the Key Employee shall give the
Company a stock power for such Stock duly endorsed in blank which will be
held in escrow for use in the event such Stock is forfeited in whole or in
part. Unless theretofore forfeited as provided herein, Restricted Stock
shall cease to be held in escrow and certificates for such Stock shall be
delivered to the Key Employee, or in the case of his death, to his
Beneficiary (as hereinafter defined) on the Release Date or upon any other
termination of the restrictions imposed by Paragraph 2 hereof.
4. Transfer After Release Date; Securities Law Restrictions.
Except as otherwise provided herein, Restricted Stock shall become free of
the restrictions of Paragraph 2 and be freely transferable by the Key
Employee on the Release Date. Notwithstanding the foregoing or anything
to the contrary herein, the Key Employee agrees and acknowledges with
respect to any Restricted Stock that has not been registered under the
Securities Act of 1933, as amended (the "Act") (i) he will not sell or
otherwise dispose of such Stock except pursuant to an effective
registration statement under the Act and any applicable state securities
laws, or in a transaction which, in the opinion of counsel for the
Company, is exempt from such registration, and (ii) a legend will be
placed on the certificates for the Restricted Stock to such effect.
5. Termination of Employment Due to Death, Retirement or Total
Disability. (a) If the Key Employee's employment with all Participating
Companies is terminated because of death, Retirement or Total Disability
(as such terms are defined below) prior to the Release Date, the
restrictions of Paragraph 2 applicable to that portion of the Restricted
Stock determined below shall terminate on the date of death or the
effective date of the Retirement or Total Disability (such date herein
referred to as the "Effective Date") and such Restricted Stock shall be
free of such restrictions and, except as otherwise provided in Paragraph 4
hereof, freely transferable. The remaining Restricted Stock shall be
forfeited to the Company on the Effective Date unless, in the case of
death or Total Disability, the Committee determines, on such terms and
conditions, if any, as the Committee may impose, that all or a portion of
such remaining Restricted Stock shall be released to the Key Employee or
his Beneficiary and the restrictions of Paragraph 2 applicable thereto
shall terminate.
(b) The portion of the Restricted Stock for which such
restrictions terminate without action by the Committee is equal to the
number of shares of Restricted Stock awarded hereunder multiplied by a
fraction, the numerator of which is the number of years, including
fractions of a year, in the period from the Grant Date to the Effective
Date, and the denominator of which is the number of years, including
fractions of a year, if any, in the period from the Grant Date to the
Release Date. Fractions of a year shall be computed by the number of days
in the period divided by 365. No fractional share resulting from such
computation shall be issued and in lieu thereof, a cash payment shall be
made equal to such fractional share (computed to two decimal places)
multiplied by the Fair Market Value on the Effective Date.
(c) As used herein, (i) "Retirement" means termination of
employment with all Participating Companies on or after age 62 after
completion of an aggregate of ten years of service with the Company and/or
any Participating Company, except that if the Key Employee's employment is
terminated for Cause (as hereinafter defined) or because of death or Total
Disability, such termination shall not be "Retirement" for purposes
hereof, and (ii) "Total Disability" means the complete and permanent
inability of a Key Employee to perform all of his duties under the terms
of his employment with any Participating Company, as determined by the
Compensation Committee of the Company's Board of Directors or any
successor to such Committee which administers the Plan, or if no such
Committee has been appointed, by the Board of Directors of the Company
(collectively, the "Committee") upon the basis of such evidence, including
independent medical reports and data, as the Committee deems appropriate
or necessary.
6. Termination of Employment for Cause. If the Key Employee's
employment with any Participating Company is terminated for Cause (as
defined below) prior to the Release Date, all Restricted Stock shall be
forfeited to the Company on the date on which such termination of
employment occurs. As used herein, "Cause" means, as determined by the
Committee, the Key Employee's failure to perform his duties or intentional
dishonest or illegal conduct in connection with his performance of
services for any Participating Company.
7. Termination of Employment Other Than for Cause, Death,
Retirement or Total Disability. If the Key Employee's employment with the
Company is terminated prior to the Release Date for any reason other than
Cause, death, Retirement or Total Disability, all Restricted Stock shall
be forfeited to the Company on the date of such termination unless the
Committee determines, on such terms and conditions, if any, as the
Committee may impose, that all or a portion of the Restricted Stock shall
be released to the Key Employee and the restrictions of Paragraph 2
applicable thereto shall terminate. Absence of the Key Employee on leave
approved by a duly elected officer of the Company, other than the Key
Employee, shall not be considered a termination of employment during the
period of such leave.
8. Beneficiary. (a) The person whose name appears on the
signature page hereof after the caption "Beneficiary" or any successor
designated by the Key Employee in accordance herewith (the person who is
the Key Employee's Beneficiary at the time of his death herein referred to
as the "Beneficiary") shall be entitled to receive such portion, if any,
of the Restricted Stock to be released to the Beneficiary under Paragraphs
3 and 5 as a result of the death of the Key Employee. The Key Employee
may from time to time revoke or change his Beneficiary without the consent
of any prior Beneficiary by filing a new designation with the Committee.
The last such designation received by the Committee shall be controlling;
provided, however, that no designation, or change or revocation thereof,
shall be effective unless received by the Committee prior to the Key
Employee's death, and in no event shall any designation be effective as of
a date prior to such receipt.
(b) If no such Beneficiary designation is in effect at the time
of a Key Employee's death, or if no designated Beneficiary survives the
Key Employee or if such designation conflicts with law, the Key Employee's
estate shall be entitled to receive the portion, if any, of the Restricted
Stock to be released from the restrictions of Paragraph 2 upon the death
of the Key Employee. If the Committee is in doubt as to the right of any
person to receive such Restricted Stock, the Company may retain such
Stock, without liability for any interest thereon, until the Committee
determines the person entitled thereto, or the Company may deliver such
Restricted Stock to any court of appropriate jurisdiction and such
delivery shall be a complete discharge of the liability of the Company
therefor.
9. Certificate Legend. In addition to any legends placed on
certificates for Restricted Stock under Paragraph 4 hereof, each
certificate for shares of Restricted Stock shall bear the following
legend:
"The sale or other transfer of the shares of stock represented
by this certificate, whether voluntary, or by operation of law,
is subject to certain restrictions set forth in the Giddings &
Lewis, Inc. 1989 Restricted Stock Plan and a Restricted Stock
Award Agreement between Giddings & Lewis, Inc. and the
registered owner hereof. A copy of such Plan and such Agreement
may be obtained from the Secretary of Giddings & Lewis, Inc."
When the restrictions imposed by Paragraph 2 hereof terminate, the Key
Employee shall be entitled to have the foregoing legend removed from the
certificates representing such Stock.
10. Voting Rights; Dividends and Other Distributions. (a) While
the Restricted Stock is subject to restrictions under Paragraph 2 and
prior to any forfeiture thereof, the Key Employee may exercise full voting
rights for the Restricted Stock registered in his name and held in escrow
hereunder.
(b) While the Restricted Stock is subject to the restrictions
under Paragraph 2 and prior to any forfeiture thereof, the Key Employee
shall be entitled to receive all dividends and other distributions paid
with respect to the Restricted Stock. If any such dividends or
distributions are paid in Stock, such shares shall be subject to the same
restrictions as the shares of Restricted Stock with respect to which they
were paid, including the requirement that Restricted Stock be held in
escrow pursuant to Paragraph 3 hereof.
(c) Subject to the provisions of this Agreement, the Key
Employee shall have, with respect to the Restricted Stock, all other
rights of holders of Stock.
11. Tax Withholding. (a) It shall be a condition of the
obligation of the Company to issue or release from escrow Restricted Stock
to the Key Employee or the Beneficiary, and the Key Employee agrees, that
the Key Employee shall pay to the Company upon its demand, such amount as
may be requested by the Company for the purpose of satisfying its
liability to withhold federal, state, or local income or other taxes
incurred by reason of the award of the Restricted Stock or as a result of
the termination of the restrictions on such Stock hereunder.
(b) If the Key Employee does not make an election under Section
83(b) of the Internal Revenue Code of 1986, as amended, with respect to
the Restricted Stock awarded hereunder, the Key Employee may satisfy the
Company's withholding tax requirements by electing to have the Company
withhold that number of shares of Restricted Stock otherwise deliverable
to the Key Employee from escrow hereunder or to deliver to the Company a
number of shares of Stock, in each case, having a Fair Market Value on the
Tax Date (as defined below) equal to the minimum amount required to be
withheld as a result of the termination of the restrictions on such
Restricted Stock. The election must be made in writing and, if the Key
Employee is an Insider (as defined below), (i) delivered to the Company
either six months or more prior to the Tax Date or during a ten day period
beginning on the third day following the release of the Company's
quarterly or annual summary statement of sales and earnings which occurs
prior to the Tax Date and (ii) shall not be effective until at least six
months after the Grant Date, provided, however, that the restriction in
clause (ii) shall not apply in the event death or Total Disability of the
Key Employee occurs prior to the expiration of such six month period. If
the Key Employee is not an Insider, the election must be delivered to the
Company prior to the Tax Date. If the Key Employee is an Insider, the
full number of shares of Restricted Stock deliverable may be released to
the Key Employee, and in such event the Key Employee shall be
unconditionally obligated to tender back to the Company, as soon as
practicable after the Tax Date, a number of shares of Stock having a Fair
Market Value on the Tax Date equal to the minimum amount required to be
withheld. If the number of shares so determined shall include a
fractional share, the Key Employee shall deliver cash in lieu of such
fractional share. All elections shall be made in a form approved by the
Committee and shall be subject to disapproval, in whole or in part, by the
Committee. As used herein, (i) "Tax Date" means the date on which the Key
Employee must include in his gross income for federal income tax purposes
the fair market value of the Restricted Stock over the purchase price
therefor and (ii) "Insider" means an officer or director of the Company or
a beneficial owner of more than 10% of the Stock.
12. Adjustments in Event of Change in Stock. In the event of
any reclassification, subdivision or combination of shares of Stock,
merger or consolidation of the Company or sale by the Company of all or a
portion of its assets, or other event which could, in the judgment of the
Committee, distort the implementation of the Plan or the realization of
its objectives, the Committee may make such adjustments in the shares of
Restricted Stock subject to this Agreement, or in the terms, conditions or
restrictions of this Agreement as the Committee deems equitable.
13. Powers of Company Not Affected. The existence of the
Restricted Stock shall not affect in any way the right or power of the
Company or its stockholders to make or authorize any combination,
subdivision or reclassification of the Stock or any reorganization,
merger, consolidation, business combination, exchange of shares, or other
change in the Company's capital structure or its business, or any issue of
bonds, debentures or stock having rights or preferences equal, superior or
affecting the Restricted Stock or the rights thereof, or dissolution or
liquidation of the Company, or any sale or transfer of all or any part of
its assets or business, or any other corporate act or proceeding, whether
of a similar character or otherwise. Nothing in this Agreement shall
confer upon the Key Employee any right to continue in the employment of
any Participating Company or interfere with or limit in any way the right
of any Participating Company to terminate the Key Employee's employment at
any time.
14. Interpretation by Committee. The Key Employee agrees that
any dispute or disagreement which may arise in connection with this
Agreement shall be resolved by the Committee, in its sole discretion, and
that any interpretation by the Committee of the terms of this Agreement or
the Plan and any determination made by the Committee under this Agreement
or the Plan may be made in the sole discretion of the Committee and shall
be final, binding, and conclusive. Any such determination need not be
uniform and may be made differently among Key Employees awarded Restricted
Stock.
15. Miscellaneous. (a) This Agreement shall be governed and
construed in accordance with the laws of the State of Wisconsin applicable
to contracts made and to be performed therein between residents thereof.
(b) This Agreement may not be amended or modified except by the
written consent of the parties hereto.
(c) The captions of this Agreement are inserted for convenience
of reference only and shall not be taken into account in construing this
Agreement.
(d) Any notice, filing or delivery hereunder or with respect to
Restricted Stock shall be given to the Key Employee at either his usual
work location or his home address as indicated in the records of the
Company, and shall be given to the Committee or the Company at 142 Doty
Street, Fond du Lac, 54935, Attention: Secretary. All such notices shall
be given by first class mail, postage pre-paid, or by personal delivery.
(e) This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns and shall be binding
upon and inure to the benefit of the Key Employee, the Beneficiary and the
personal representative(s) and heirs of the Key Employee, except that the
Key Employee may not transfer any interest in any Restricted Stock prior
to the release of the restrictions imposed by Paragraph 2.
16. Change of Control. (a) Notwithstanding any other
provision to the contrary contained in this Agreement, effective upon a
Change in Control of the Company (as defined below), the restrictions
imposed upon the Restricted Stock (except for any such shares which were
previously forfeited to the Company) by Paragraph 2 of this Agreement
shall immediately be deemed to have lapsed and the Release Date shall be
deemed to have occurred as of the date of the Change in Control of the
Company with respect to such Restricted Stock.
(b) The following terms shall have the following meanings when
used in this Paragraph 16:
(i) The term "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
(ii) The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations of the Exchange Act.
(iii) A Person (as defined herein) shall be deemed to
be the "Beneficial Owner" of any securities:
(A) which such Person or any of such Person's
Affiliates or Associates has the right to acquire (whether
such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion rights,
exchange rights, rights, warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, (x) securities
tendered pursuant to a tender or exchange offer made by or
on behalf of such Person or any of such Person's Affiliates
or Associates until such tendered securities are accepted
for purchase, or (y) securities issuable upon exercise of
Rights issued pursuant to the terms of the Company's Rights
Agreement with Firstar Trust Company, dated as of
August 23, 1995, as amended from time to time (the "Rights
Agreement") (or any successor to such Rights Agreement), at
any time before the issuance of such securities;
(B) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to vote or dispose of or has "beneficial ownership"
of (as determined pursuant to Rule 13d-3 of the General
Rules and Regulations under the Exchange Act), including
pursuant to any agreement, arrangement or understanding;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security
under this subparagraph (B) as a result of an agreement,
arrangement or understanding to vote such security if the
agreement, arrangement or understanding: (x) arises solely
from a revocable proxy or consent given to such Person in
response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules
and regulations under the Exchange Act and (y) is not also
then reportable on a Schedule 13D under the Exchange Act
(or any comparable or successor report); or
(C) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding for the purpose of
acquiring, holding, voting (except pursuant to a revocable
proxy as described in subparagraph (B) above) or disposing
of any voting securities of the Company.
(iv) A "Change in Control of the Company" shall mean a
change in control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Exchange Act. Without limiting the
inclusiveness of the definition in the preceding sentence, a
Change in Control of the Company shall be deemed to have
occurred if:
(A) any Person (other than any employee benefit plan
of the Company or any Participating Company, any entity
holding securities of the Company for or pursuant to the
terms of any such plan or any trustee, administrator or
fiduciary of such plan) is or becomes the Beneficial Owner
of securities of the Company representing at least 30% of
the combined voting power of the Company's then outstanding
securities;
(B) a Section 11(a)(ii) Event shall have occurred
under the Rights Agreement (or a similar event shall have
occurred under any successor to such Rights Agreement) at
any time any Rights are issued and outstanding thereunder;
(C) one-third or more of the members of the Company's
Board of Directors are not Continuing Directors (as
hereafter defined);
(D) there shall be consummated (x) any consolidation
or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which
shares of Stock would be converted into cash, securities or
other property, other than a merger of the Company in which
the holders of the Stock immediately prior to the merger
have the same proportionate ownership of common stock of
the surviving corporation immediately after the merger, or
(y) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company; or
(E) the shareholders of the Company approve any bid
or proposal for the liquidation or dissolution of the
Company.
(v) The term "Continuing Director" shall mean any member
of the Board of Directors of the Company who was a member of
such Board on the Grant Date, and any successor of a Continuing
Director who is recommended to succeed a Continuing Director by
a majority of the Continuing Directors then on such Board.
(vi) The term "Person" shall mean any individual, firm,
partnership, corporation or other entity, including any
successor (by merger or otherwise) of such entity, or a group of
any of the foregoing acting in concert."
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer and its corporate seal hereunto
affixed, and the Key Employee has hereunto affixed his hand and seal, all
on the day and year set forth below.
GIDDINGS & LEWIS, INC.
(CORPORATE SEAL) By:_________________________________________
Title:
_____________________________________ (Seal)
Key Employee:
No. of Shares of Restricted Stock:
Purchase Price per Share:
Payment of Purchase Price:
Number of Days to Determine Fair Market
Value:
Not Applicable
Date of Agreement:
Grant Date:
Release Date:
Beneficiary:______________________________
Address of Beneficiary:
__________________________________________
__________________________________________
Beneficiary Tax Identification
No. ______________________________________
EXHIBIT 10.5
GIDDINGS & LEWIS, INC.
1993 STOCK AND INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT is made and entered into as of the date set forth
on the signature page hereof by and between GIDDINGS & LEWIS, INC., a
Wisconsin corporation with its principal offices at Fond du Lac, Wisconsin
(the "Company"), and the employee of the Company whose signature is set
forth on the signature page hereof (the "Key Employee").
W I T N E S S E T H :
WHEREAS, the Company has adopted the 1993 Stock and Incentive
Plan (the "Plan") to permit shares of the Company's common stock, $.10 par
value per share (the "Stock"), to be awarded to certain key employees of
the Company and any affiliates (collectively, "Participating Company");
and
WHEREAS, the Key Employee is a key employee of a Participating
Company, and the Company desires him to remain in such employ and to
further an opportunity for his stock ownership in the Company in order to
increase his proprietary interest in the success of the Company;
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, the parties hereby mutually
covenant and agree as follows:
1. Award of Restricted Stock. Subject to the terms and conditions set
forth herein, the Company hereby awards the Key Employee the number of
shares of Stock set forth on the signature page hereof (the "Restricted
Stock").
2. Restrictions.
(a) Except as otherwise provided herein, the Restricted Stock
may not be sold, transferred or otherwise alienated or hypothecated until
the date set forth on the signature page hereof (the "Release Date");
provided, however, that the Restricted Stock, or an applicable portion
thereof, shall be forfeited to the Company on the Release Date to the
extent certain Company performance goals, as set forth on the attached
Schedule A, are not met.
3. Escrow. Certificates for shares of Restricted Stock shall be issued
as soon as practicable in the name of the Key Employee but shall be held
in escrow by the Company, as escrow agent. Upon issuance of such
certificates, (i) the Company shall give the Key Employee a receipt for
the Restricted Stock held in escrow which will state that the Company
holds such Stock in escrow for the account of the Key Employee, subject to
the terms of this Agreement, and (ii) the Key Employee shall give the
Company a stock power for such Stock duly endorsed in blank which will be
held in escrow for use in the event such Stock is forfeited in whole or in
part. Unless theretofore forfeited as provided herein, Restricted Stock
shall cease to be held in escrow and certificates for such Stock shall be
delivered to the Key Employee, or in the case of his death, to his
Beneficiary (as hereinafter defined) on the Release Date or upon any other
termination of the restrictions imposed by Paragraph 2 hereof.
4. Transfer After Release Date; Securities Law Restrictions. Except as
otherwise provided herein, Restricted Stock shall become free of the
restrictions of Paragraph 2 and be freely transferable by the Key Employee
on the Release Date subject to applicable limitations under Federal and
State securities laws.
5. Termination of Employment Due to Death, Retirement or Total
Disability.
(a) If the Key Employee's employment with all Participating
Companies is terminated because of death, Retirement or Total Disability
(as such terms are defined below) prior to the Release Date, the
restrictions of Paragraph 2 applicable to that portion of the Restricted
Stock determined in Paragraph 5(b) below shall terminate on the Release
Date without action by the Committee and notwithstanding such death,
Retirement or Total Disability. The shares of Restricted Stock so
released shall be free of the restrictions set forth in Paragraph 2 hereof
and, except as otherwise provided in Paragraph 4 hereof, freely
transferable.
(b) The number of shares of the Restricted Stock for which the
Paragraph 2 restrictions will terminate on the Release Date in accordance
with Paragraph 5(a) hereof shall be the number of shares on which the
restrictions would have terminated on the Release Date pursuant to
Schedule A had the Key Employee remained employed multiplied by a
fraction, the numerator of which is the number of years, including
fractions of a year, in the period from the Grant Date to the date on
which the Key Employee's employment terminates as a result of death,
Retirement, or Total Disability, and the denominator of which is the
number of years, including fractions of a year, if any, in the period from
the Grant Date to the Release Date. For purposes of this computation,
fractions of a year shall be computed by the number of days in the period
divided by 365. No fractional share resulting from such computation shall
be issued and in lieu thereof, a cash payment shall be made equal to such
fractional share (computed to two decimal places) multiplied by the Fair
Market Value on the Release Date. As used herein, "Fair Market Value"
means the per share closing price on the date in question in the principal
market in which the Stock is then traded or, if no sales of Stock have
taken place on such date, the closing price on the most recent date on
which selling prices were quoted.
(c) As used herein, (i) "Retirement" means termination of
employment with all Participating Companies on or after age 62 after
completion of an aggregate of ten years of service with the Company and/or
any Participating Company, except that if the Key Employee's employment is
terminated for Cause (as hereinafter defined) or because of death or Total
Disability, such termination shall not be "Retirement" for purposes
hereof, and (ii) "Total Disability" means the complete and permanent
inability of a Key Employee to perform all of his duties under the terms
of his employment with any Participating Company, as determined by the
Compensation Committee of the Company's Board of Directors or any
successor to such Committee which administers the Plan, or if no such
Committee has been appointed, by the Board of Directors of the Company
(collectively, the "Committee") upon the basis of such evidence, including
independent medical reports and data, as the Committee deems appropriate
or necessary.
6. Termination of Employment for Cause. If the Key Employee's
employment with any Participating Company is terminated for Cause (as
defined below) prior to the Release Date, all Restricted Stock shall be
forfeited to the Company on the date on which such termination of
employment occurs. As used herein, "Cause" means, as determined by the
Committee, the Key Employee's failure to substantially perform the
material duties of the Key Employee's employment.
7. Termination of Employment Other Than for Cause, Death, Retirement,
Total Disability or Change in Control.
(a) If the Key Employee's employment with the Company is
terminated by Key Employee prior to the Release Date, all Restricted Stock
shall be forfeited to the Company on the date of such termination unless
the Committee determines, on such terms and conditions, if any, as the
Committee may impose, that all or a portion of the Restricted Stock shall
be released to the Key Employee and the restrictions of Paragraph 2
applicable thereto shall terminate. Absence of the Key Employee on leave
approved by an executive officer of the Company shall not be considered a
termination of employment by Key Employee during the period of such leave.
(b) If the Key Employee's employment with the Company is
terminated prior to the Release Date for any reason other than Cause,
death, Retirement, Total Disability or as described in Paragraph 7(a)
above, the restrictions of Paragraph 2 applicable to that portion of the
Restricted Stock determined in Paragraph 7(c) below shall terminate on the
Release Date without action by the Committee on the date of such
termination of employment and such Restricted Stock shall be free of such
restrictions and, except as otherwise provided in Paragraph 4 hereof,
freely transferable.
(c) The number of shares of the Restricted Stock for which the
Paragraph 2 restrictions will terminate in accordance with Paragraph 7(b)
hereof shall be the number of shares on which the restrictions would have
terminated on the Release Date pursuant to Schedule A had the Key Employee
remained employed multiplied by a fraction, the numerator of which is the
number of years, including fractions of a year, in the period from the
Grant Date to the date on which the Key Employee's employment terminated
in the manner as contemplated in Paragraph 7(b) hereof, and the
denominator of which is the number of years, including fractions of a
year, if any, in the period from the Grant Date to the Release Date. For
purposes of this computation, fractions of a year shall be computed by the
number of days in the period divided by 365. No fractional share
resulting from such computation shall be issued an in lieu thereof, a cash
payment shall be made equal to such fractional share (computed to two
decimal places) multiplied by the Fair Market Value on the Release Date.
As used herein, "Fair Market Value" means the per share closing price on
the date in question in the principal market in which the Stock is then
traded or, if no sales of Stock have taken place on such date, the closing
price on the most recent date on which selling prices were quoted.
8. Termination for Change of Control of the Company
(a) If there occurs prior to the Release Date a Change in
Control of the Company (as defined below) the restrictions of Paragraph 2
applicable to the number of shares listed opposite the "Target" earnings
per share on Schedule A hereto (except for any such shares which were
previously forfeited to the Company) shall terminate without action by the
Committee on the date of such Change in Control of the Company and such
Restricted Stock shall be free of such restrictions and, except as provided
in Paragraph 4 hereof, freely transferable.
(b) As used herein, "Change in Control of the Company" shall
mean a change in control of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A promulgated
under the Securities Exchange Act of 1934, as amended. Without limiting
inclusiveness of the definition in the preceding sentence, a Change in
Control of the Company shall be deemed to have occurred if:
(i) any person (other than any employee benefit plan of the
Company or any subsidiary of the Company, any entity holding securities of
the Company for or pursuant to the terms of any such plan or any trustee,
administrator or fiduciary of such a plan) is or becomes the beneficial
owner of securities of the Company representing at least 30% of the
combined voting power of the Company's then outstanding securities;
(ii) a Section 11(a) (ii) Event shall have occurred under
that certain "Rights Agreement" dated as of August 23, 1995 between the
Company and Firstar Trust Company as amended (or a similar event shall
have occurred under any successor to such Rights Agreement) at any time
any "Rights" as defined therein are issued and outstanding thereunder;
(iii) one-third or more of the members of the Board are
not Continuing Directors (as defined below);
(iv) there shall be consummated (x) any consolidation or
merger of the Company in which the Company is not the continuing or
surviving corporation or pursuant to which shares of Stock would be
converted into cash, securities or other property, other than a merger of
the Company in which the holders of Stock immediately prior to the merger
have the same proportionate ownership of common stock of the surviving
corporation immediately after the merger, or (y) any sale, lease, exchange
or other transfer (in one transaction or a series of related transactions)
of all, or substantially all, of the assets of the Company; or
(v) the shareholders of the Company approve any plan or
proposal for the liquidation or dissolution of the Company.
(c) As used herein, "Continuing Director" means any member of
the Board of Directors of the Company who was a member of such Board on
the Grant Date, and any successor of a Continuing Director who is
recommended to succeed a Continuing Director by a majority of the
Continuing Directors then on such Board.
9. Beneficiary.
(a) The person whose name appears on the signature page hereof
after the caption "Beneficiary" or any successor designated by the Key
Employee in accordance herewith (the person who is the Key Employee's
Beneficiary at the time of his death herein referred to as the
"Beneficiary") shall be entitled to receive such portion, if any, of the
Restricted Stock to be released to the Beneficiary under Paragraphs 3 and
5 as a result of the death of the Key Employee. The Key Employee may from
time to time revoke or change his Beneficiary without the consent of any
prior Beneficiary by filing a new designation with the Committee. The last
such designation received by the Committee shall be controlling; provided,
however, that no designation, or change or revocation thereof, shall be
effective unless received by the Committee prior to the Key Employee's
death, and in no event shall any designation be effective as of a date
prior to such receipt.
(b) If no such Beneficiary designation is in effect at the time
of a Key Employee's death, or if no designated Beneficiary survives the
Key Employee or if such designation conflicts with law, the Key Employee's
estate shall be entitled to receive the portion, if any, of the Restricted
Stock to be released from the restrictions of Paragraph 2 upon the death
of the Key Employee. If the Committee is in doubt as to the right of any
person to receive such Restricted Stock, the Company may retain such
Stock, without liability for any interest thereon, until the Committee
determines the person entitled thereto, or the Company may deliver such
Restricted Stock to any court of appropriate jurisdiction and such
delivery shall be a complete discharge of the liability of the Company
therefor.
10. Certificate Legend. Each certificate for shares of
Restricted Stock shall bear the following legend:
"The sale or other transfer of the shares of stock represented
by this certificate, whether voluntary, or by operation of law, is subject
to certain restrictions set forth in the Giddings & Lewis, Inc. 1993 Stock
and Incentive Plan and a Restricted Stock Award Agreement between Giddings
& Lewis, Inc. and the registered owner hereof. A copy of such Plan and
such Agreement may be obtained from the Secretary of Giddings & Lewis,
Inc."
When the restrictions imposed by Paragraph 2 hereof terminate, the Key
Employee shall be entitled to have the foregoing legend removed from the
certificates representing such Stock.
11. Voting Rights; Dividends and Other Distributions. (a) While
the Restricted Stock is subject to restrictions under Paragraph 2 and
prior to any forfeiture thereof, the Key Employee may exercise full voting
rights for the Restricted Stock registered in his name and held in escrow
hereunder.
(b) While the Restricted Stock is subject to the restrictions
under Paragraph 2 and prior to any forfeiture thereof, the Key Employee
shall be entitled to receive all dividends and other distributions paid
with respect to the Restricted Stock. If any such dividends or
distributions are paid in Stock, such shares shall be subject to the same
restrictions as the share of Restricted Stock with respect to which they
were paid, including the requirement that the Restricted Stock be held in
escrow pursuant to Paragraph 3 hereof.
(c) Subject to the provisions of this Agreement, the Key
Employee shall have, with respect to the Restricted Stock, all other
rights of holders of Stock.
12. Tax Withholding. (a) It shall be a condition of the
obligation of the Company to issue or release from escrow Restricted Stock
to the Key Employee or the Beneficiary, and the Key Employee agrees, that
the Key Employee shall pay to the Company upon its demand, such amount as
may be requested by the Company for the purpose of satisfying its
liability to withhold federal, state, or local income or other taxes
incurred by reason of the award of the Restricted Stock or as a result of
the termination of the restrictions on such Stock hereunder.
(b) If the Key Employee does not make an election under Section
83(b) of the Internal Revenue Code of 1986, as amended, with respect to
the Restricted Stock awarded hereunder, the Key Employee may satisfy the
Company's withholding tax requirements by electing to have the Company
withhold that number of shares of Restricted Stock otherwise deliverable
to the Key Employee from escrow hereunder or to deliver to the Company a
number of shares of Stock, in each case, having a Fair Market Value on the
Tax Date (as defined below) equal to the minimum amount required to be
withheld as a result of the termination of the restrictions on such
Restricted Stock. The election must be made in writing and, if the Key
Employee is an Insider (as defined below), (i) delivered to the Company
either six months or more prior to the Tax Date or during a ten business
day period beginning on the third business day following the release of
the Company's quarterly or annual summary statement of sales and earnings
which occurs prior to the Tax Date and (ii) shall not be effective until
at least six months after the Grant Date, provided, however, that the
restriction in clause (ii) shall not apply in the event death or Total
Disability of the Key Employee occurs prior to the expiration of such six
month period. If the Key Employee is not an Insider, the election must be
delivered to the Company prior to the Tax Date. If the number of shares
so determined shall include a fractional share, the Key Employee shall
deliver cash in lieu of such fractional share. All elections shall be
made in a form approved by the Committee and shall be subject to
disapproval, in whole or in part, by the Committee. As used herein, (i)
"Tax Date" means the date on which the Key Employee must include in his
gross income for federal income tax purposes the fair market value of the
Restricted Stock over the purchase price therefor and (ii) "Insider" means
an executive officer or a director of the Company or a beneficial owner of
more than 10% of the Stock.
13. Adjustments . The number of Shares of Restricted Stock
awarded under this Agreement shall be adjusted to reflect any stock
dividend, stock split or similar transaction affecting the Stock. In the
event that the Company issues additional Stock before the Release Date, an
equitable adjustment will be made to eliminate any dilutive effect that
the issuance of such Stock may have on the Company's earnings per share
and the calculation of the Restricted Stock to be released upon
termination of the restrictions imposed by Paragraph 2 hereof. The
Committee may make other adjustments to this Agreement as it deems
equitable in the event that any corporate transaction or other event
affects the shares of Stock such that an adjustment is appropriate to
confer the benefits intended by the Plan or this Agreement.
14. Powers of Company Not Affected. The existence of the
Restricted Stock shall not affect in any way the right or power of the
Company or its shareholders to make or authorize any combination,
subdivision or reclassification of the Stock or any reorganization,
merger, consolidation, business combination, exchange of shares, or other
change in the Company's capital structure or its business, or any issue of
bonds, debentures or stock having rights or preferences equal, superior or
affecting the Restricted Stock or the rights thereof, or dissolution or
liquidation of the Company, or any sale or transfer of all or any part of
its assets or business, or any other corporate act or proceeding, whether
of a similar character or otherwise. Nothing in this Agreement shall
confer upon the Key Employee any right to continue in the employment of
any Participating Company or interfere with or limit in any way the right
of any Participating Company to terminate the Key Employee's employment at
any time.
15. Interpretation by Committee. The Key Employee agrees that
any dispute or disagreement which may arise in connection with this
Agreement shall be resolved by the Committee, in its sole discretion, and
that any interpretation by the Committee of the terms of this Agreement or
the Plan and any determination made by the Committee under this Agreement
or the Plan may be made in the sole discretion of the Committee and shall
be final, binding, and conclusive. Any such determination need not be
uniform and may be made differently among Key Employees awarded Restricted
Stock.
16. Miscellaneous. (a) This Agreement shall be governed and
construed in accordance with the laws of the State of Wisconsin applicable
to contracts made and to be performed therein between residents thereof.
(b) This Agreement may not be amended or modified except by the
written consent of the parties hereto.
(c) The captions of this Agreement are inserted for convenience
of reference only and shall not be taken into account in construing this
Agreement.
(d) Any notice, filing or delivery hereunder or with respect to
Restricted Stock shall be given to the Key Employee at either his usual
work location or his home address as indicated in the records of the
Company, and shall be given to the Committee or the Company at 142 Doty
Street, Fond du Lac, 54935, Attention: Secretary. All such notices shall
be given by first class mail, postage pre-paid, or by personal delivery.
(e) This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns and shall be binding
upon and inure to the benefit of the Key Employee, the Beneficiary and the
personal representative(s) and heirs of the Key Employee, except that the
Key Employee may not transfer any interest in any Restricted Stock prior
to the release of the restrictions imposed by Paragraph 2.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer and its corporate seal hereunto
affixed, and the Key Employee has hereunto affixed his hand and seal, all
on the day and year set forth below.
GIDDINGS & LEWIS, INC.
By:
_______________________________________(SEAL)
Key Employee:
No. of Shares of Restricted Stock:
(Performance Based Maximum
as set forth on Schedule A)
Date of Agreement:
Grant Date:
Release Date:
Beneficiary:_______________________________
Address of Beneficiary:
___________________________________________
___________________________________________
Beneficiary Tax Identification No.
EXHIBIT 10.6
GIDDINGS & LEWIS, INC.
1993 STOCK AND INCENTIVE PLAN
STOCK OPTION AWARD AGREEMENT
THIS AGREEMENT is made and entered into as of the date set forth
on the signature page hereof by and between GIDDINGS & LEWIS, INC., a
Wisconsin corporation with its principal offices at Fond du Lac, Wisconsin
(the "Company"), and the employee of the Company whose signature is set
forth on the signature page hereof (the "Participating Key Employee").
W I T N E S S E T H :
WHEREAS, the Company has in effect the Giddings & Lewis, Inc.
1993 Stock and Incentive Plan (the "Plan") which provides for, among other
things, the granting of options to purchase shares of the Company's common
stock, $.10 par value per share (the "Stock"), to selected key employees
of the Company or any Affiliate (as such term is defined in the Plan)
(collectively, "Participating Companies"); and
WHEREAS, the Participating Key Employee is a key employee of a
Participating Company, and the Company desires him to remain in such
employ and to further an opportunity for his Stock ownership in order to
increase his proprietary interest in the success of the Company;
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, the parties hereby mutually
covenant and agree as follows:
1. Award of Option. (a) Subject to the terms and conditions
set forth herein, the Company hereby awards the Participating Key Employee
an option (the "Option") to purchase the number of shares of Stock set
forth on the signature page hereof (the "Option Stock") at the purchase
price per share set forth on the signature page hereof. The Option will
become exercisable in _____ (__) stages as follows: (i) ________ of the
shares of Option Stock shall be subject to exercise on the Initial
Exercise Date, which shall be the ________ anniversary of the Grant Date
set forth on the signature page hereof, (ii) _____________ of the shares
of Option Stock shall be subject to exercise on the __________ anniversary
of the Grant Date, and (iii) ________ of the shares of Option Stock shall
be subject to exercise on the ___________ anniversary of the Grant Date;
provided, however, that the Option shall become exercisable in full
immediately upon a Change in Control of the Company (as defined herein).
Other than upon the occurrence of a Change in Control of the Company, no
part of the Option shall be exercisable prior to the Initial Exercise Date
set forth on the signature page hereof, and no part of the Option shall in
any event be exercisable after the Expiration Date set forth thereon.
Notwithstanding the Expiration Date, the Option, except as provided
herein, shall not be exercisable after the termination of the
Participating Key Employee's employment with all Participating Companies.
Absence of the Participating Key Employee on leave approved by a duly
elected officer of the Company, other than the Participating Key Employee,
shall not be considered a termination of employment during the period of
such leave.
(b) For purposes of Paragraph 1 of this Agreement, the
following terms shall have the meanings set forth below:
(i) The term "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
(ii) The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations of the Exchange Act.
(iii) A Person (as defined herein) shall be deemed to
be the "Beneficial Owner" of any securities:
(A) which such Person or any of such Person's
Affiliates or Associates has the right to acquire (whether
such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion rights,
exchange rights, rights, warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, (x) securities
tendered pursuant to a tender or exchange offer made by or
on behalf of such Person or any of such Person's Affiliates
or Associates until such tendered securities are accepted
for purchase, or (y) securities issuable upon exercise of
Rights issued pursuant to the terms of the Company's Rights
Agreement with Firstar Trust Company, dated as of August
23, 1995, as amended from time to time (the "Rights
Agreement") (or any successor to such Rights Agreement), at
any time before the issuance of such securities;
(B) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to vote or dispose of or has "beneficial ownership"
of (as determined pursuant to Rule 13d-3 of the General
Rules and Regulations under the Exchange Act), including
pursuant to any agreement, arrangement or understanding;
provided, however, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security
under this subparagraph (B) as a result of an agreement,
arrangement or understanding to vote such security if the
agreement, arrangement or understanding: (x) arises solely
from a revocable proxy or consent given to such Person in
response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules
and regulations under the Exchange Act and (y) is not also
then reportable on a Schedule 13D under the Exchange Act
(or any comparable or successor report); or
(C) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding for the purpose of
acquiring, holding, voting (except pursuant to a revocable
proxy as described in subparagraph (B) above) or disposing
of any voting securities of the Company.
(iv) A "Change in Control of the Company" shall mean a
change in control of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Exchange Act. Without limiting the
inclusiveness of the definition in the preceding sentence, a
Change in Control of the Company shall be deemed to have
occurred if:
(A) any Person (other than any employee benefit plan
of the Company or any Participating Company, any entity
holding securities of the Company for or pursuant to the
terms of any such plan or any trustee, administrator or
fiduciary of such plan) is or becomes the Beneficial Owner
of securities of the Company representing at least 30% of
the combined voting power of the Company's then outstanding
securities;
(B) a Section 11(a)(ii) Event shall have occurred
under the Rights Agreement (or a similar event shall have
occurred under any successor to such Rights Agreement) at
any time any Rights are issued and outstanding thereunder;
(C) one-third or more of the members of the Company's
Board of Directors are not Continuing Directors (as
hereafter defined);
(D) there shall be consummated (x) any consolidation
or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which
shares of Stock would be converted into cash, securities or
other property, other than a merger of the Company in which
the holders of the Stock immediately prior to the merger
have the same proportionate ownership of common stock of
the surviving corporation immediately after the merger, or
(y) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company; or
(E) the shareholders of the Company approve any bid
or proposal for the liquidation or dissolution of the
Company.
(v) The term "Continuing Director" shall mean any member
of the Board of Directors of the Company who was a member of
such Board on the Grant Date, and any successor of a Continuing
Director who is recommended to succeed a Continuing Director by
a majority of the Continuing Directors then on such Board.
(vi) The term "Person" shall mean any individual, firm,
partnership, corporation or other entity, including any
successor (by merger or otherwise) of such entity, or a group of
any of the foregoing acting in concert.
(c) The Option may be exercised in whole or in part (but no
exercise shall be for fewer than 50 shares of Stock or all of the shares
then subject to the Option, if fewer) by notice in writing to the Company.
The aggregate purchase price for the Stock for which the Option is
exercised shall be paid to the Company at the time of exercise in cash,
Stock registered in the name of the Participating Key Employee, or by a
combination thereof, all as provided on the signature page hereof. Unless
otherwise provided on the signature page hereof, the Option shall not be
an Incentive Stock Option for purposes of Section 422 of the Internal
Revenue Code of 1986, as amended.
(d) If the purchase price may be paid wholly or partly in
Stock, any Stock tendered in payment thereof shall be free of all adverse
claims and duly endorsed in blank by the Participating Key Employee or
accompanied by stock powers duly endorsed in blank. Stock tendered shall
be valued at Fair Market Value on the date on which the Option is
exercised. As used herein, "Fair Market Value" means the per share
closing price on the date in question in the principal market in which the
Stock is then traded or, if no sales of Stock have taken place on such
date, the closing price on the most recent date on which selling prices
were quoted; provided, however, that for any Option that is not an
Incentive Stock Option, the Committee, in its discretion, may elect to
determine Fair Market Value with respect to such Stock based on the
average of the closing prices, as of the date of determination and a
period of up to nine trading days immediately preceding such date. If
such proviso is to be applicable, the signature page hereof sets forth the
number of trading days in such period.
2. Option Not Transferrable. The Option is not transferrable
other than by will or by the laws of descent and distribution. During the
lifetime of the Participating Key Employee, the Option may be exercised
only by such individual or, if permitted by applicable law, by such
individual's guardian or legal representative.
3. Securities Law Restrictions. The Participating Key
Employee agrees and acknowledges with respect to any Option Stock that has
not been registered under the Securities Act of 1933, as amended (the
"Act"), that (i) he will not sell or otherwise dispose of such Stock
except pursuant to an effective registration statement under the Act and
any applicable state securities laws, or in a transaction which, in the
opinion of counsel for the Company, is exempt from such registration, and
(ii) a legend will be placed on the certificates for the Option Stock to
such effect.
4. Exercise of Option After Termination of Employment Due to
Death, Retirement or Total Disability. (a) If the Participating Key
Employee's employment with all Participating Companies is terminated
because of death, Retirement or Total Disability (as such terms are
defined below) on or after the Initial Exercise Date (or, as the case may
be, following a Change in Control of the Company), the Participating Key
Employee or, in the case of his death, his Beneficiary (as defined herein)
shall be entitled to exercise the Option (but only to the extent the
Option was exercisable immediately prior to the death, Retirement or Total
Disability of the Participating Key Employee) until twelve months (three
months in the case of an Incentive Stock Option) after such termination of
employment, but in no event after the Expiration Date. If such a
termination of employment occurs prior to the date on which the Option is
fully exercisable, the Participating Key Employee, or in the case of his
death, his Beneficiary, shall be entitled to exercise the Option to such
additional extent, if any, as the Committee may determine.
(b) As used herein, (i) "Retirement" means termination of
employment with all Participating Companies on or after age 62 after
completion of an aggregate of ten years of service with the Company and/or
any Participating Company, except that if the Participating Key Employee's
employment is terminated for Cause (as hereinafter defined) or because of
death or Total Disability, such termination shall be not "Retirement" for
purposes hereof, and (ii) "Total Disability" means the complete and
permanent inability of a Participating Key Employee to perform all of his
duties under the terms of his employment with any Participating Company, as
determined by the Compensation Committee of the Company's Board of Directors
or any successor to such Committee which administers the Plan, or if no such
Committee has been appointed, by those members of the Board of Directors
of the Company as specified in the Plan (collectively, the "Committee")
upon the basis of such evidence, including independent medical reports and
data, as the Committee deems appropriate or necessary.
5. Exercise of Option After Termination of Employment Other
Than for Cause, Death, Retirement or Total Disability; Expiration of
Option in Connection with a Termination for Cause. If the Participating
Key Employee's employment with the Company is terminated on or after the
Initial Exercise Date (or, as the case may be, following a Change of
Control of the Company) for any reason other than Cause (as defined
herein), death, Retirement or Total Disability, the Participating Key
Employee shall be entitled to exercise the Option (but only to the extent
the Option was exercisable immediately prior to such termination) until
three months after such termination of employment, but in no event after
the Expiration Date. If such a termination of employment occurs prior to
the date on which the Option is fully exercisable, the Participating Key
Employee shall be entitled to exercise the Option during such three-month
period to such additional extent, if any, as the Committee may determine.
If the Participating Key Employee's employment with any Participating
Company is terminated for Cause, the Participating Key Employee's rights
with respect to the Option shall expire as of the time of such
termination. As used herein, "Cause" means, as determined by the
Committee, the Participating Key Employee's failure to perform his duties
or intentional dishonest or illegal conduct in connection with his
performance of services for any Participating Company.
6. Beneficiary. (a) The person whose name appears on the
signature page hereof after the caption "Beneficiary" or any successor
designated by the Participating Key Employee in accordance herewith (the
person who is the Participating Key Employee's Beneficiary at the time of
his death is herein referred to as the "Beneficiary") shall be entitled to
exercise the Option, to the extent it is exercisable, after the death of
the Participating Key Employee. The Participating Key Employee may from
time to time revoke or change his Beneficiary without the consent of any
prior Beneficiary by filing a new designation with the Committee. The
last such designation received by the Committee shall be controlling;
provided, however, that no designation, or change or revocation thereof
shall be effective unless received by the Committee prior to the
Participating Key Employee's death, and in no event shall any designation
be effective as of a date prior to such receipt.
(b) If no such Beneficiary designation is in effect at the time
of a Participating Key Employee's death, or if no designated Beneficiary
survives the Participating Key Employee or if such designation conflicts
with law, the Participating Key Employee's estate shall be entitled to
exercise the Option, to the extent it is exercisable after the death of
the Participating Key Employee. If the Committee is in doubt as to the
right of any person to exercise the Option, the Company may refuse to
recognize such exercise, without liability for any interest or dividends
on the Option Stock, until the Committee determines the person entitled to
exercise the Option, or the Company may apply to any court of appropriate
jurisdiction and such application shall be a complete discharge of the
liability of the Company therefor.
7. No Rights As Shareholder. The Participating Key Employee
shall have no rights as a holder of the Option Stock until the issuance of
a certificate for the Option Stock.
8. Tax Withholding. (a) It shall be a condition of the
obligation of the Company to issue Option Stock to the Participating Key
Employee or the Beneficiary, and the Participating Key Employee agrees,
that the Participating Key Employee shall pay to the Company upon its
demand, such amount as may be requested by the Company for the purpose of
satisfying the Company's liability to withhold federal, state, or local
income or other taxes incurred by reason of the exercise of the Option.
(b) If the Option is not an Incentive Stock Option, the
Participating Key Employee may elect to have the Company withhold that
number of shares of Option Stock otherwise issuable to the Participating
Key Employee upon exercise of the Option or to deliver to the Company a
number of other shares of Stock, in each case, having a Fair Market Value
on the Tax Date (as defined herein) equal to the minimum amount required
to be withheld as a result of such exercise. If the number of shares so
determined shall include a fractional share, the Participating Key Employee
shall deliver cash in lieu of such fractional share. The election must be
made in writing and, if the Participating Key Employee is an Insider
(as defined herein), (i) delivered to the Company prior to the Tax Date
with respect to an election to deliver shares to the Company or, with
respect to an election to have shares withheld, delivered to the Company
either six months or more prior to the Tax Date or during a ten business
day period beginning on the third business day following the release of the
Company's quarterly or annual summary statement of sales and earnings which
period shall include the Tax Date and (ii) shall not be effective until at
least six months after the Grant Date, provided, however, that the
restriction in clause (ii) shall not apply in the event death or Total
Disability of the Participating Key Employee occurs prior to the expiration
of such six month period. If the Participating Key Employee is not an
Insider, the election must be delivered to the Company prior to the Tax
Date. All elections shall be made in a form approved by the Committee and
shall be subject to disapproval, in whole or in part, by the Committee.
As used herein, (i) "Tax Date" means the date on which the Participating
Key Employee must include in his gross income for federal income tax
purposes the fair market value of the Option Stock over the purchase price
therefore and (ii) "Insider" means an executive officer or director of the
Company or a beneficial owner of more than 10% of the Stock.
9. Adjustments in Event of Change in Stock. The Committee may
take such action in response to changes in shares of Stock as are
contemplated by Section 4(b) of the Plan.
10. Powers of Company Not Affected. The existence of the
Option shall not affect in any way the right or power of the Company or
its shareholders to make or authorize any combination, subdivision or
reclassification of the Stock or any reorganization, merger,
consolidation, business combination, exchange of shares, or other change
in the Company's capital structure or its business, or any issue of bonds,
debentures or stock having rights or preferences equal, superior or
affecting the Option Stock or the rights thereof, or dissolution or
liquidation of the Company, or any sale or transfer of all or any part of
its assets or business, or any other corporate act or proceeding, whether
of a similar character or otherwise. Nothing in this Agreement shall
confer upon the Participating Key Employee any right to continue in the
employment of any Participating Company or interfere with or limit in any
way the right of any Participating Company to terminate the Participating
Key Employee's employment at any time.
11. Interpretation by Committee. The Participating Key
Employee agrees that any dispute or disagreement which may arise in
connection with this Agreement shall be resolved by the Committee, in its
sole discretion, and that, subject to the express terms of the Plan, any
interpretation by the Committee of the terms of this Agreement or the Plan
and any determination made by the Committee under this Agreement or the
Plan may be made in the sole discretion of the Committee and shall be
final, binding, and conclusive. Any such determination need not be
uniform and may be made differently among Participating Key Employees
awarded Option Stock.
12. Miscellaneous. (a) This Agreement shall be governed and
construed in accordance with the laws of the State of Wisconsin applicable
to contracts made and to be performed therein between residents thereof.
(b) This Agreement may not be amended or modified except by the
written consent of the parties hereto.
(c) The captions of this Agreement are inserted for convenience
of reference only and shall not be taken into account in construing this
Agreement.
(d) Any notice, filing or delivery hereunder shall be given to
the Participating Key Employee at either his usual work location or his
home address as indicated in the records of the Company, and shall be
given to the Committee or the Company at 142 Doty Street, Fond du Lac,
Wisconsin 54935, Attention: Secretary. All such notices shall be given
by first class mail, postage prepaid, or by personal delivery.
(e) This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns and shall be binding
upon and, subject to Paragraph 2, inure to the benefit of the
Participating Key Employee, the Beneficiary and the personal
representative(s) and heirs of the Participating Key Employee.
(f) This Agreement is subject in all respects to the terms and
conditions of the Plan.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer and its corporate seal hereunto
affixed, and the Participating Key Employee has hereunto affixed his hand
and seal, all on the day and year set forth below.
GIDDINGS & LEWIS, INC.
(CORPORATE SEAL) By:_____________________________________________
Title:
_________________________________________(Seal)
Participating Key Employee:
No. of Shares of Option Stock:
Incentive Stock Option:
Purchase Price per Share:
Payment of Purchase Price:
Number of Days to Determine Fair Market Value:
Date of Agreement:
Grant Date:
Initial Exercise Date:
Expiration Date:
Beneficiary:_________________________________________
Address of Beneficiary:
________________________________________________
________________________________________________
Beneficiary Tax Identification No. __________________
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THE SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM GIDDINGS &
LEWIS' CONSOLIDATED BALANCE SHEET AT MARCH 30, 1997 AND CONSOLIDATED STATEMENT
OF OPERATIONS FOR THE THREE MONTHS ENDED MARCH 30, 1997 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-START> JAN-01-1997
<PERIOD-END> MAR-30-1997
<CASH> 81,292
<SECURITIES> 0
<RECEIVABLES> 228,850
<ALLOWANCES> 2,065
<INVENTORY> 84,383
<CURRENT-ASSETS> 426,372
<PP&E> 235,360
<DEPRECIATION> 118,999
<TOTAL-ASSETS> 761,712
<CURRENT-LIABILITIES> 178,589
<BONDS> 100,000
3,515
0
<COMMON> 0
<OTHER-SE> 443,069
<TOTAL-LIABILITY-AND-EQUITY> 761,712
<SALES> 147,617
<TOTAL-REVENUES> 147,617
<CGS> 107,875
<TOTAL-COSTS> 107,875
<OTHER-EXPENSES> 5,776
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,691
<INCOME-PRETAX> 12,098
<INCOME-TAX> 4,719
<INCOME-CONTINUING> 7,379
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 7,379
<EPS-PRIMARY> .22
<EPS-DILUTED> .22
</TABLE>
