Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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Gehl Company
(Exact name of registrant as specified in its charter)
Wisconsin 39-0300430
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
143 Water Street
West Bend, Wisconsin 53095
(Address of principal executive offices) (Zip Code)
Gehl Company 2000 Equity Incentive Plan
---------------------------------------
(Full title of plan)
Michael J. Mulcahy
Vice President, Secretary
and General Counsel Copy to:
Gehl Company
143 Water Street Jay O. Rothman
West Bend, Wisconsin 53095 Foley & Lardner
(262) 334-9461 777 East Wisconsin Avenue
(Name, address and telephone Milwaukee, Wisconsin 53202
number, including area
code, of agent for service)
CALCULATION OF REGISTRATION FEE
- --------------- ---------- -------------- -------------- ------------
Proposed
Proposed Maximum
Title of Amount Maximum Aggregate Amount of
Securities to to be Offering Price Offering Registration
be Registered Registered Per Share Price Fee
- --------------- ---------- -------------- -------------- ------------
Common Stock, 600,000
$.10 par value shares $18 5/32(1) $10,893,750(1) $2,876
- --------------- ---------- -------------- -------------- ------------
Preferred Share 600,000
Purchase Rights rights (2) (2) (2)
- --------------- ---------- -------------- -------------- ------------
(1) Estimated pursuant to Rule 457(c) under the Securities Act of 1933 solely
for the purpose of calculating the registration fee based on the average
of the high and low prices for Gehl Company Common Stock as reported on
The Nasdaq Stock Market on April 28, 2000.
(2) The value attributable to the Preferred Share Purchase Rights is reflected
in the market price of the Common Stock to which the rights are attached.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified in Part
I are not required to be filed with the Securities and Exchange Commission (the
"Commission") as part of this Form S-8 Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by Gehl Company (the
"Company") are hereby incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, which includes audited financial statements as of and for the
fiscal year ended December 31, 1999.
2. The description of the Company's Common Stock contained in Item 1
of the Company's Registration Statement on Form 8-A, dated November 13, 1989,
and any amendment or report filed for the purpose of updating such description.
3. The description of the Company's Preferred Share Purchase Rights
contained in Item 1 of the Company's Registration Statement on Form 8-A, dated
May 28, 1997, including any amendment or report filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
after the date of filing of this Registration Statement and prior to such time
as the Company files a post-effective amendment to this Registration Statement
which indicates that all securities offered hereby have been sold or which
deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
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Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and the Company's
By-laws, directors and officers of the Company are entitled to mandatory
indemnification from the Company against certain liabilities and expenses (i) to
the extent such officers or directors are successful in the defense of a
proceeding and (ii) in proceedings in which the director or officer is not
successful in defense thereof, unless it is determined that the director or
officer breached or failed to perform his or her duties to the Company and such
breach or failure constituted: (a) a willful failure to deal fairly with the
Company or its shareholders in connection with a matter in which the director or
officer had a material conflict of interest; (b) a violation of the criminal law
unless the director or officer had reasonable cause to believe his or her
conduct was lawful or had no reasonable cause to believe his or her conduct was
unlawful; (c) a transaction from which the director or officer derived an
improper personal profit; or (d) willful misconduct. It should be noted that the
Wisconsin Business Corporation Law specifically states that it is the public
policy of Wisconsin to require or permit indemnification in connection with a
proceeding involving securities regulation, as described therein, to the extent
required or permitted as described above. Additionally, under the Wisconsin
Business Corporation Law, directors of the Company are not subject to personal
liability to the Company, its shareholders or any person asserting rights on
behalf thereof for certain breaches or failures to perform any duty resulting
solely from their status as directors except in circumstances paralleling those
in subparagraphs (a) through (d) outlined above.
Expenses for the defense of any action for which indemnification may
be available may be advanced by the Company under certain circumstances.
The indemnification provided by the Wisconsin Business Corporation Law
and the Company's By-laws is not exclusive of any other rights to which a
director or officer may be entitled.
The Company maintains a liability policy for its directors and
officers as permitted by Wisconsin law which may extend to, among other things,
liability arising under the Securities Act of 1933, as amended.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit
No. Exhibit
- ------- -------
(4.1) Provisions of the Restated Articles of Incorporation of Gehl
Company defining the rights of holders of capital stock
(incorporated by reference to Exhibit 3.1 to Gehl Company's
Quarterly Report on Form 10-Q for the quarter ended June 28, 1997)
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<PAGE>
(4.2) Provisions of the By-laws of Gehl Company, as amended, defining
the rights of holders of capital stock (incorporated by reference
to Exhibit 3.3 to Gehl Company's Annual Report on Form 10-K for
the year ended December 31, 1998)
(4.3) Rights Agreement, dated as of May 28, 1997, between Gehl Company
and Firstar Bank, N.A. (as successor to Firstar Trust Company)
(incorporated by reference to Exhibit 4.1 to Gehl Company's
Registration Statement on Form 8-A, dated as of May 28, 1997)
(4.4) Gehl Company 2000 Equity Incentive Plan
(4.5) Form of Stock Option Agreement for key employees used in
conjunction with the Gehl Company 2000 Equity Incentive Plan
(4.6) Form of Stock Option Agreement for non-employee directors used in
conjunction with the Gehl Company 2000 Equity Incentive Plan
(5) Opinion of Foley & Lardner
(23.1) Consent of PricewaterhouseCoopers LLP
(23.2) Consent of Foley & Lardner (contained in Exhibit 5 hereto)
(24) Power of Attorney relating to subsequent amendments (included on
the signature page to this Registration Statement)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d)
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<PAGE>
of the Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered herein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of West Bend, State of Wisconsin, on May 2, 2000.
GEHL COMPANY
By: /s/ William D. Gehl
----------------------------------
William D. Gehl
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated. Each person whose signature appears below
constitutes and appoints William D. Gehl and Michael J. Mulcahy, and each of
them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact and
agent, full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully as he might or could do in person,
hereby ratifying and confirming all that each said attorney-in-fact and agent
may lawfully do or cause to be done by virtue hereof.
Signature Title Date
--------- ----- ----
Chairman of the Board,
/s/ William D. Gehl President, Chief Executive
- ------------------------- Officer and Director
William D. Gehl (Principal Executive Officer) May 2, 2000
/s/ Kenneth P. Hahn Vice President of Finance and
- ------------------------- Treasurer (Principal Financial
Kenneth P. Hahn and Accounting Officer) May 2, 2000
/s/ Nicholas C. Babson
- -------------------------
Nicholas C. Babson Director May 2, 2000
/s/ Thomas J. Boldt
- -------------------------
Thomas J. Boldt Director May 2, 2000
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/s/ Fred M. Butler
- -------------------------
Fred M. Butler Director May 2, 2000
/s/ John T. Byrnes
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John T. Byrnes Director May 2, 2000
/s/ Richard J. Fotsch
- -------------------------
Richard J. Fotsch Director May 2, 2000
/s/ William P. Killian
- -------------------------
William P. Killian Director May 2, 2000
/s/ John W. Splude
- -------------------------
John W. Splude Director May 2, 2000
/s/ Hermann Viets
- -------------------------
Hermann Viets Director May 2, 2000
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<PAGE>
EXHIBIT INDEX
GEHL COMPANY 2000 EQUITY INCENTIVE PLAN
Exhibit
No. Exhibit
- ------- -------
(4.1) Provisions of the Restated Articles of Incorporation of Gehl
Company defining the rights of holders of capital stock
(incorporated by reference to Exhibit 3.1 to Gehl Company's
Quarterly Report on Form 10-Q for the quarter ended June 28, 1997)
(4.2) Provisions of the By-laws of Gehl Company, as amended, defining
the rights of holders of capital stock (incorporated by reference
to Exhibit 3.3 to Gehl Company's Annual Report on Form 10-K for
the year ended December 31, 1998)
(4.3) Rights Agreement, dated as of May 28, 1997, between Gehl Company
and Firstar Bank, N.A. (as successor to Firstar Trust
Company)(incorporated by reference to Exhibit 4.1 to Gehl
Company's Registration Statement on Form 8-A, dated as of May 28,
1997)
(4.4) Gehl Company 2000 Equity Incentive Plan
(4.5) Form of Stock Option Agreement for key employees used in
conjunction with the Gehl Company 2000 Equity Incentive Plan
(4.6) Form of Stock Option Agreement for non-employee directors used in
conjunction with the Gehl Company 2000 Equity Incentive Plan
(5) Opinion of Foley & Lardner
(23.1) Consent of PricewaterhouseCoopers LLP
(23.2) Consent of Foley & Lardner (contained in Exhibit 5 hereto)
(24) Power of Attorney relating to subsequent amendments (included on
the signature page to this Registration Statement)
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GEHL COMPANY
2000 EQUITY INCENTIVE PLAN
Section 1. Purpose
The purpose of the Gehl Company 2000 Equity Incentive Plan (the
"Plan") is to promote the best interests of Gehl Company (together with any
successor thereto, the "Company") and its shareholders by providing key
employees of the Company and its Affiliates (as defined below) and members of
the Company's Board of Directors who are not employees of the Company or its
Affiliates with an opportunity to acquire a proprietary interest in the Company.
It is intended that the Plan will promote continuity of management and increased
incentive and personal interest in the welfare of the Company by those key
employees who are primarily responsible for shaping and carrying out the
long-range plans of the Company and securing the Company's continued growth and
financial success. In addition, by encouraging stock ownership by directors who
are not employees of the Company or its Affiliates, the Company seeks to attract
and retain on its Board of Directors persons of exceptional competence and to
provide a further incentive to serve as a director of the Company.
Section 2. Definitions
As used in the Plan, the following terms shall have the respective
meanings set forth below:
(a) "Affiliate" shall mean any entity that, directly or through one
or more intermediaries, is controlled by, controls, or is under common control
with, the Company.
(b) "Award" shall mean any Option, Stock Appreciation Right,
Restricted Stock or Performance Share granted under the Plan.
(c) "Award Agreement" shall mean any written agreement, contract, or
other instrument or document evidencing any Award under the Plan.
(d) "Change of Control of the Company" shall mean any one of the
following events: (i) securities of the Company representing 25% or more of the
combined voting power of the Company's then outstanding voting securities are
acquired pursuant to a tender offer or exchange offer; (ii) the shareholders of
the Company approve a merger or consolidation of the Company with any other
Person as a result of which less than 50% of the outstanding voting securities
of the surviving or resulting Person would be owned by the former shareholders
of the Company (other than a shareholder who is an Affiliate of any party to
such consolidation or merger); (iii) the shareholders of the Company approve the
sale of substantially all of the Company's assets to a Person which is not a
wholly-owned subsidiary of the Company; (iv) any person becomes a beneficial
owner (as such term is defined in Rule 13d-3 of the Exchange Act (or any
successor provision thereto)), directly or indirectly, of securities of the
Company representing 25% or more of the combined voting power of the
<PAGE>
Company's then outstanding securities the effect of which (as determined by the
Board of Directors of the Company) is to take over control of the Company; or
(v) during any period of two consecutive years, individuals who, at the
beginning of such period, constituted the Board of Directors of the Company
cease, for any reason, to constitute at least a majority thereof, unless the
election or nomination for election of each new director was approved by the
vote of at least two-thirds of the directors of the Company then in office who
were directors of the Company at the beginning of the period.
(e) "Code" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
(f) "Commission" shall mean the United States Securities and Exchange
Commission or any successor agency.
(g) "Committee" shall mean a committee of the Board of Directors of
the Company designated by such Board to administer the Plan and comprised of not
less than two directors, each of whom is a "non-employee director" within the
meaning of Rule 16b-3 and each of whom is an "outside director" within the
meaning of Section 162(m)(4)(C) of the Code (or any successor provision
thereto).
(h) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
(i) "Excluded Items" shall mean any items which the Committee
determines shall be excluded in fixing Performance Goals, such as any gains or
losses from discontinued operations, any extraordinary gains or losses and the
effects of accounting changes.
(j) "Fair Market Value" shall mean, with respect to any property
(including, without limitation, any Shares or other securities), the fair market
value of such property determined by such methods or procedures as shall be
established from time to time by the Committee.
(k) "Incentive Stock Option" shall mean an option granted under
Section 6(a) of the Plan that is intended to meet the requirements of Section
422 of the Code (or any successor provision thereto).
(l) "Key Employee" shall mean any officer or other key employee of
the Company or of any Affiliate who is responsible for or contributes to the
management, growth or profitability of the business of the Company or any
Affiliate as determined by the Committee.
(m) "Non-Employee Director" shall mean any member of the Company's
Board of Directors who is not an employee of the Company or of any Affiliate.
(n) "Non-Qualified Stock Option" shall mean an option granted under
Section 6(a) of the Plan that is not intended to be an Incentive Stock Option
and shall mean any option granted to a Non-Employee Director under Section 6(b)
of the Plan.
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(o) "Option" shall mean an Incentive Stock Option or a Non-Qualified
Stock Option.
(p) "Participating Key Employee" shall mean a Key Employee designated
to be granted an Award under the Plan.
(q) "Performance Goals" shall mean the following (in all cases after
excluding the impact of applicable Excluded Items):
(i) Return on equity for the Performance Period for the
Company on a consolidated basis.
(ii) Return on investment for the Performance Period (aa) for
the Company on a consolidated basis, (bb) for any one or more Affiliates or
divisions of the Company and/or (cc) for any other business unit or units of the
Company as defined by the Committee at the time of selection.
(iii) Return on net assets for the Performance Period (aa) for
the Company on a consolidated basis, (bb) for any one or more Affiliates or
divisions of the Company and/or (cc) for any other business unit or units of the
Company as defined by the Committee at the time of selection.
(iv) Shareholder value added (as defined by the Committee at
the time of selection) for the Performance Period (aa) for the Company on a
consolidated basis, (bb) for any one or more Affiliates or divisions of the
Company and/or (cc) for any other business unit or units of the Company as
defined by the Committee at the time of selection.
(v) Earnings from operations for the Performance Period (aa)
for the Company on a consolidated basis, (bb) for any one or more Affiliates or
divisions of the Company and/or (cc) for any other business unit or units of the
Company as defined by the Committee at the time of selection.
(vi) Pre-tax profits for the Performance Period (aa) for the
Company on a consolidated basis, (bb) for any one or more Affiliates or
divisions of the Company and/or (cc) for any other business unit or units of the
Company as defined by the Committee at the time of selection.
(vii) Net earnings for the Performance Period (aa) for the
Company on a consolidated basis, (bb) for any one or more Affiliates or
divisions of the Company and/or (cc) for any other business unit or units of the
Company as defined by the Committee at the time of selection.
(viii) Net earnings per Share for the Performance Period for the
Company on a consolidated basis.
(ix) Working capital as a percent of net sales for the
Performance Period (aa) for the Company on a consolidated basis, (bb) for any
one or more Affiliates or divisions of
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the Company and/or (cc) for any other business unit or units of the Company as
defined by the Committee at the time of selection.
(x) Net cash provided by operating activities for the
Performance Period (aa) for the Company on a consolidated basis, (bb) for any
one or more Affiliates or divisions of the Company and/or (cc) for any other
business unit or units of the Company as defined by the Committee at the time of
selection.
(xi) Market price per Share for the Performance Period.
(xii) Total shareholder return for the Performance Period for
the Company on a consolidated basis.
(r) "Performance Period" shall mean, in relation to Performance
Shares, any period for which a Performance Goal or Goals have been established;
provided, however, that such period shall not be less than one year.
(s) "Performance Share" shall mean any right granted under Section
6(e) of the Plan that will be paid out as a Share (which, in specified
circumstances, may be a Share of Restricted Stock).
(t) "Person" shall mean any individual, corporation, partnership,
association, joint-stock company, trust, unincorporated organization, or
government or political subdivision thereof.
(u) "Released Securities" shall mean Shares of Restricted Stock with
respect to which all applicable restrictions have expired, lapsed, or been
waived.
(v) "Restricted Securities" shall mean Awards of Restricted Stock or
other Awards under which issued and outstanding Shares are held subject to
certain restrictions.
(w) "Restricted Stock" shall mean any Share granted under Section
6(d) of the Plan or, in specified circumstances, a Share paid in connection with
a Performance Share under Section 6(e) of the Plan.
(x) "Rule 16b-3" shall mean Rule 16b-3 as promulgated by the
Commission under the Exchange Act, or any successor rule or regulation thereto.
(y) "Shares" shall mean shares of common stock of the Company, $.10
par value, and such other securities or property as may become subject to Awards
pursuant to an adjustment made under Section 4(b) of the Plan.
(z) "Stock Appreciation Right" shall mean any right granted under
Section 6(c) of the Plan.
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Section 3. Administration
The Plan shall be administered by the Committee; provided, however,
that if at any time the Committee shall not be in existence, the functions of
the Committee as specified in the Plan shall be exercised by a committee
consisting of those members of the Board of Directors of the Company who qualify
as "non-employee directors" under Rule 16b-3 and as "outside directors" under
Section 162(m)(4)(C) of the Code (or any successor provision thereto). To the
extent permitted by applicable law, the Committee may delegate to one or more
executive officers of the Company any or all of the authority and responsibility
of the Committee with respect to the Plan, other than with respect to Persons
who are subject to Section 16 of the Exchange Act. To the extent the Committee
has so delegated to one or more executive officers the authority and
responsibility of the Committee, all references to the Committee herein shall
include such officer or officers. Subject to the terms of the Plan and without
limitation by reason of enumeration, the Committee shall have full power and
authority to: (i) designate Participating Key Employees; (ii) determine the type
or types of Awards to be granted to each Participating Key Employee under the
Plan; (iii) determine the number of Shares to be covered by (or with respect to
which payments, rights, or other matters are to be calculated in connection
with) Awards granted to Participating Key Employees; (iv) determine the terms
and conditions of any Award granted to a Participating Key Employee; (v)
determine whether, to what extent, and under what circumstances Awards granted
to Participating Key Employees may be settled or exercised in cash, Shares,
other securities, other Awards, or other property, and the method or methods by
which Awards may be settled, exercised, cancelled, forfeited, or suspended; (vi)
determine whether, to what extent, and under what circumstances cash, Shares,
other Awards, and other amounts payable with respect to an Award granted to
Participating Key Employees under the Plan shall be deferred either
automatically or at the election of the holder thereof or of the Committee;
(vii) interpret and administer the Plan and any instrument or agreement relating
to, or Award made under, the Plan (including, without limitation, any Award
Agreement); (viii) establish, amend, suspend, or waive such rules and
regulations and appoint such agents as it shall deem appropriate for the proper
administration of the Plan; and (ix) make any other determination and take any
other action that the Committee deems necessary or desirable for the
administration of the Plan. Unless otherwise expressly provided in the Plan, all
designations, determinations, interpretations, and other decisions under or with
respect to the Plan or any Award shall be within the sole discretion of the
Committee, may be made at any time, and shall be final, conclusive, and binding
upon all Persons, including the Company, any Affiliate, any Participating Key
Employee, any Non-Employee Director, any holder or beneficiary of any Award, any
shareholder, and any employee of the Company or of any Affiliate.
Notwithstanding the foregoing, Awards to Non-Employee Directors under the Plan
shall be automatic and the amount and terms of such Awards shall be determined
as provided in Section 6(b) of the Plan.
Section 4. Shares Available for Award
(a) Shares Available. Subject to adjustment as provided in Section
4(b):
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(i) Number of Shares Available. The number of Shares with
respect to which Awards may be granted under the Plan shall be 600,000. If,
after the effective date of the Plan, any Shares covered by an Award granted
under the Plan, or to which any Award relates, are forfeited or if an Award
otherwise terminates, expires or is cancelled prior to the delivery of all of
the Shares or of other consideration issuable or payable pursuant to such Award,
then the number of Shares counted against the number of Shares available under
the Plan in connection with the grant of such Award, to the extent of any such
forfeiture, termination, expiration or cancellation, shall again be available
for granting of additional Awards under the Plan.
(ii) Limitations on Awards to Individual Participants. During
any one calendar year, no Participating Key Employee shall be granted Awards
under the Plan that could result in such Participating Key Employee receiving
Options for more than 100,000 Shares, Stock Appreciation Rights with respect to
more than 100,000 Shares, more than 75,000 Shares of Restricted Stock and/or
more than 75,000 Performance Shares. Such number of Shares as specified in the
preceding sentence shall be subject to adjustment in accordance with the terms
of Section 4(b) hereof. In all cases, determinations under this Section 4(a)(ii)
shall be made in a manner that is consistent with the exemption for
performance-based compensation provided by Section 162(m) of the Code (or any
successor provision thereto) and any regulations promulgated thereunder.
(iii) Accounting for Awards. The number of Shares covered by an
Award under the Plan, or to which such Award relates, shall be counted on the
date of grant of such Award against the number of Shares available for granting
Awards under the Plan.
(iv) Sources of Shares Deliverable Under Awards. Any Shares
delivered pursuant to an Award may consist, in whole or in part, of authorized
and unissued Shares or of treasury Shares.
(b) Adjustments. In the event that the Committee shall determine that
any dividend or other distribution (whether in the form of cash, Shares, other
securities, or other property), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off, combination,
repurchase, or exchange of Shares or other securities of the Company, issuance
of warrants or other rights to purchase Shares or other securities of the
Company, or other similar corporate transaction or event affects the Shares such
that an adjustment is determined by the Committee to be appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits intended
to be made available under the Plan, then the Committee may, in such manner as
it may deem equitable, adjust any or all of (i) the number and type of Shares
subject to the Plan and which thereafter may be made the subject of Awards under
the Plan, (ii) the number and type of Shares subject to outstanding Awards, and
(iii) the grant, purchase, or exercise price with respect to any Award, or, if
deemed appropriate, make provision for a cash payment to the holder of an
outstanding Award; provided, however, in each case, that with respect to Awards
of Incentive Stock Options no such adjustment shall be authorized to the extent
that such authority would cause the Plan to violate Section 422(b) of the Code
(or any successor provision thereto); and provided further that the number of
Shares subject to any Award payable or denominated in
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Shares shall always be a whole number. Notwithstanding the foregoing,
Non-Qualified Stock Options subject to grant or previously granted to
Non-Employee Directors under Section 6(b) of the Plan at the time of any event
described in the preceding sentence shall be subject to only such adjustments as
shall be necessary to maintain the relative proportionate interest represented
thereby immediately prior to any such event and to preserve, without exceeding,
the value of such Options.
Section 5. Eligibility
Any Key Employee, including any executive officer or employee-director
of the Company or of any Affiliate, shall be eligible to be designated a
Participating Key Employee. All Non-Employee Directors shall receive Awards of
Non-Qualified Stock Options as provided in Section 6(b).
Section 6. Awards
(a) Option Awards to Key Employees. The Committee is hereby
authorized to grant Options to Key Employees with the terms and conditions as
set forth below and with such additional terms and conditions, in either case
not inconsistent with the provisions of the Plan, as the Committee shall
determine; provided, however, that no Option shall be granted in connection with
the cancellation of a previously granted Option under the Plan if the exercise
price of the later granted Option is less than the exercise price of the earlier
granted Option.
(i) Exercise Price. The exercise price per Share of an Option
granted pursuant to this Section 6(a) shall be determined by the Committee;
provided, however, that such exercise price shall not be less than 100% of the
Fair Market Value of a Share on the date of grant of such Option.
(ii) Option Term. The term of each Option shall be fixed by the
Committee; provided, however, that in no event shall the term of any Option
exceed a period of ten years from the date of its grant.
(iii) Exercisability and Method of Exercise. An Option shall
become exercisable in such manner (including, without limitation, accelerated
exercisability in the event of Change of Control of the Company) and within such
period or periods and in such installments or otherwise as shall be determined
by the Committee. Unless the Committee shall otherwise determine on or prior to
the date of grant of an Option, such Option may be exercised, in whole or in
part, from and after the date it was granted in accordance with the following
schedule:
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<PAGE>
Cumulative Percentage of Shares Subject
to Option Which May be Purchased
Elapsed Period of Time (which number of Shares shall be rounded
After Date Option is Granted down to the nearest whole number)
- ---------------------------- ----------------------------------------
Less than One (1) Year 0%
One (1) Year 33-1/3%
Two (2) Years 66-2/3%
Three (3) Years 100%
The Committee also shall determine the method or methods by which, and the form
or forms, including, without limitation, cash, Shares, other securities, other
Awards, or other property, or any combination thereof, having a Fair Market
Value on the exercise date equal to the relevant exercise price, in which
payment of the exercise price with respect to any Option may be made or deemed
to have been made. At the sole discretion of the Committee, the payment of the
exercise price with respect to any Option may be in the form of a promissory
note issued to the Company by a Participating Key Employee on such terms and
conditions as the Committee determines.
(iv) Incentive Stock Options. The terms of any Incentive Stock
Option granted under the Plan shall comply in all respects with the provisions
of Section 422 of the Code (or any successor provision thereto) and any
regulations promulgated thereunder. Notwithstanding any provision in the Plan to
the contrary, no Incentive Stock Option may be granted hereunder after the tenth
anniversary of the adoption of the Plan by the Board of Directors of the
Company.
(b) Non-Qualified Stock Option Awards to Non-Employee Directors.
(i) Eligibility. Each Non-Employee Director shall
automatically be granted Non-Qualified Stock Options under the Plan in the
manner set forth in this Section 6(b). A Non-Employee Director may hold more
than one Non-Qualified Stock Option.
(ii) Annual Option Grants to Non-Employee Directors. Each
Non-Employee Director (if he or she continues to serve in such capacity) shall,
on the day following the annual meeting of shareholders in each year during the
time the Plan is in effect, automatically be granted a Non-Qualified Stock
Option to purchase 2,000 Shares (which number of Shares shall be subject to
adjustment in the manner provided in Section 4(b) hereof).
(iii) Grant Limitation. Notwithstanding the provisions of
Section 6(b)(ii) hereof, Non-Qualified Stock Options shall be automatically
granted to Non-Employee Directors under the Plan only for so long as the Plan
remains in effect and a sufficient number of Shares are available hereunder for
the granting of such Options.
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<PAGE>
(iv) Exercise Price. The exercise price per Share for a
Non-Qualified Stock Option granted to a Non-Employee Director under the Plan
shall be equal to 100% of the "market value" of a Share on the date of grant of
such Option. The "market value" of a Share on the date of grant to the
Non-Employee Director shall be the last sale price per Share for the Shares on
The Nasdaq Stock Market on the trading date next preceding such grant date;
provided, however, that if the principal market for the Shares is then a
national securities exchange, the "market value" shall be the closing price per
Share for the Shares on the principal securities exchange on which the Shares
are traded on the trading date next preceding the date of grant, or, in either
case above, if no trading occurred on the trading date next preceding the date
on which the Non-Qualified Stock Option is granted, then the "market price" per
Share shall be determined with reference to the next preceding date on which the
Shares were traded.
(v) Exercisability of Options. Non-Qualified Stock Options
granted to Non-Employee Directors under the Plan shall become exercisable in
accordance with the following schedule:
Cumulative Percentage of Shares Subject
To Option Which May be Purchased
Elapsed Period of Time (which number of Shares shall be rounded
After Date Option is Granted down to the nearest whole number)
- ---------------------------- ----------------------------------------
Less than One (1) Year 0%
One (1) Year 33-1/3%
Two (2) Years 66-2/3%
Three (3) Years 100%
Notwithstanding the foregoing schedule, if a Non-Employee Director ceases to be
a director of the Company by reason of death, disability or retirement within
three (3) years after the date of grant or in the event of a Change of Control
of the Company within three (3) years after the date of grant, the Option shall
become immediately exercisable in full.
(vi) Termination of Options. Non-Qualified Stock Options
granted to Non-Employee Directors shall terminate on the earlier of:
(A) ten years after the date of grant; or
(B) twelve months after the Non-Employee Director ceases
to be a director of the Company for any reason,
including as a result of the Non-Employee Director's
death, disability or retirement.
(vii) Exercise of Options. A Non-Qualified Stock Option granted
to a Non-Employee Director may be exercised, subject to its terms and conditions
and the terms and conditions of the Plan, in full at any time or in part from
time to time by delivery to the Secretary of the Company at the Company's
principal office in West Bend, Wisconsin, of a
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<PAGE>
written notice of exercise specifying the number of shares with respect to which
the Option is being exercised. Any notice of exercise shall be accompanied by
full payment of the exercise price of the Shares being purchased (x) in cash or
its equivalent; (y) by tendering previously acquired Shares (valued at their
"market value" as determined in accordance with Section 6(b)(iv) as of the date
of exercise); or (z) by any combination of the means of payment set forth in
subparagraphs (x) and (y). For purposes of subparagraphs (y) and (z) above, the
term "previously acquired Shares" shall only include Shares owned by the
Non-Employee Director at least six months prior to the exercise of the Option
for which payment is being made and shall not include Shares which are being
acquired pursuant to the exercise of said Option. No shares will be issued until
full payment therefor has been made.
(c) Stock Appreciation Rights. The Committee is hereby authorized to
grant Stock Appreciation Rights to Key Employees. Non-Employee Directors are not
eligible to be granted Stock Appreciation Rights under the Plan. Subject to the
terms of the Plan and any applicable Award Agreement, a Stock Appreciation Right
granted under the Plan shall confer on the holder thereof a right to receive,
upon exercise thereof, the excess of (i) the Fair Market Value of one Share on
the date of exercise over (ii) the grant price of the Stock Appreciation Right
as specified by the Committee, which shall not be less than 100% of the Fair
Market Value of one Share on the date of grant of the Stock Appreciation Right.
Subject to the terms of the Plan, the grant price, term, methods of exercise,
methods of settlement (including whether the Participating Key Employee will be
paid in cash, Shares, other securities, other Awards, or other property, or any
combination thereof), and any other terms and conditions of any Stock
Appreciation Right shall be as determined by the Committee. The Committee may
impose such conditions or restrictions on the exercise of any Stock Appreciation
Right as it may deem appropriate.
(d) Restricted Stock Awards.
(i) Issuance. The Committee is hereby authorized to grant
Awards of Restricted Stock to Key Employees; provided, however, that the
aggregate number of Shares of Restricted Stock granted under the Plan to all
Participating Key Employees as a group shall not exceed 200,000 (such number of
Shares subject to adjustment in accordance with the terms of Section 4(b)
hereof). Non-Employee Directors are not eligible to be granted Restricted Stock
under the Plan.
(ii) Restrictions. Shares of Restricted Stock granted to
Participating Key Employees shall be subject to such restrictions as the
Committee may impose (including, without limitation, any limitation on the right
to vote a Share of Restricted Stock or the right to receive any dividend or
other right or property), which restrictions may lapse separately or in
combination at such time or times, in such installments or otherwise, as the
Committee may deem appropriate; provided, however, that, except as determined by
the Committee with respect to a number of Shares not exceeding 10% of the Shares
authorized for issuance under the Plan, the applicable period of restriction for
any Shares of Restricted Stock granted hereunder shall not be less than three
(3) years, subject to earlier vesting at the discretion of the Committee in the
event of death, disability or retirement of a Participating Key Employee or in
the event of a Change of Control of the Company.
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<PAGE>
(iii) Registration. Any Restricted Stock granted under the Plan
to a Participating Key Employee may be evidenced in such manner as the Committee
may deem appropriate, including, without limitation, book-entry registration or
issuance of a stock certificate or certificates. In the event any stock
certificate is issued in respect of Shares of Restricted Stock granted under the
Plan to a Participating Key Employee, such certificate shall be registered in
the name of the Participating Key Employee and shall bear an appropriate legend
(as determined by the Committee) referring to the terms, conditions, and
restrictions applicable to such Restricted Stock.
(iv) Payment of Restricted Stock. At the end of the applicable
restriction period relating to Restricted Stock granted to a Participating Key
Employee, one or more stock certificates for the appropriate number of Shares,
free of restrictions imposed under the Plan, shall be delivered to the
Participating Key Employee, or, if the Participating Key Employee received stock
certificates representing the Restricted Stock at the time of grant, the legends
placed on such certificates shall be removed.
(v) Forfeiture. Shares of Restricted Stock that do not vest
pursuant to their terms will be forfeited by the Participating Key Employee to
whom such Shares were granted.
(e) Performance Shares.
(i) Issuance. The Committee is hereby authorized to grant
Awards of Performance Shares to Participating Key Employees. Non-Employee
Directors are not eligible to be granted Performance Shares under the Plan.
(ii) Performance Goals and Other Terms. The Committee shall
determine the Performance Period, the Performance Goal or Goals (and the
performance level or levels related thereto) to be achieved during any
Performance Period, the proportion of payments, if any, to be made for
performance between the minimum and full performance levels for any Performance
Goal and, if applicable, the relative percentage weighting given to each of the
selected Performance Goals, the restrictions applicable to Shares of Restricted
Stock received upon payment of Performance Shares if Performance Shares are paid
in such manner, and any other terms, conditions and rights relating to a grant
of Performance Shares. The Committee shall have sole discretion to alter the
selected Performance Goals set forth in Section 2(q), subject to shareholder
approval, to the extent required to qualify the Award for the performance-based
exemption provided by Section 162(m) of the Code (or any successor provision
thereto). Notwithstanding the foregoing, in the event the Committee determines
it is advisable to grant Performance Shares which do not qualify for the
performance-based exemption under Section 162(m) of the Code (or any successor
provision thereto), the Committee may make such grants without satisfying the
requirements thereof.
(iii) Rights and Benefits During the Performance Period. The
Committee may provide that, during a Performance Period, a Participating Key
Employee shall be paid cash amounts, with respect to each Performance Share held
by such Participating Key Employee, in the same manner, at the same time, and in
the same amount paid, as a cash
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<PAGE>
dividend on a Share. Participating Key Employees shall have no voting rights
with respect to Performance Shares held by them during the applicable
Performance Period.
(iv) Payment of Performance Shares. As soon as is reasonably
practicable following the end of the applicable Performance Period, and subject
to the Committee certifying in writing as to the satisfaction of the requisite
Performance Goal or Goals if such certification is required in order to qualify
the Award for the performance-based exemption provided by Section 162(m) of the
Code (or any successor provision thereto), one or more certificates representing
the number of Shares equal to the number of Performance Shares payable shall be
registered in the name of and delivered to the Participating Key Employee;
provided, however, that any Shares of Restricted Stock payable in connection
with Performance Shares shall, pending the expiration, lapse, or waiver of the
applicable restrictions, be evidenced in the manner as set forth in Section
6(d)(iii) hereof.
(f) General.
(i) No Consideration for Awards. Awards shall be granted to
Participating Key Employees without the requirement of cash consideration unless
otherwise determined by the Committee. Awards of Non-Qualified Stock Options
granted to Non-Employee Directors under Section 6(b) of the Plan shall be
granted for no cash consideration unless otherwise required by law.
(ii) Award Agreements. Each Award granted under the Plan shall
be evidenced by an Award Agreement in such form (consistent with the terms of
the Plan) as shall have been approved by the Committee.
(iii) Awards May Be Granted Separately or Together. Awards to
Participating Key Employees under the Plan may be granted either alone or in
addition to, in tandem with, or in substitution for any other Award or any award
granted under any other plan of the Company or any Affiliate. Awards granted in
addition to or in tandem with other Awards, or in addition to or in tandem with
awards granted under any other plan of the Company or any Affiliate, may be
granted either at the same time as or at a different time from the grant of such
other Awards or awards.
(iv) Forms of Payment Under Awards. Subject to the terms of the
Plan and of any applicable Award Agreement, payments or transfers to be made by
the Company or an Affiliate upon the grant, exercise, or payment of an Award to
a Participating Key Employee may be made in such form or forms as the Committee
shall determine, and may be made in a single payment or transfer, in
installments, or on a deferred basis, in each case in accordance with rules and
procedures established by the Committee. Such rules and procedures may include,
without limitation, provisions for the payment or crediting of interest on
installment or deferred payments.
(v) Limits on Transfer of Awards. Except as otherwise provided
by the Committee, no Award (other than Released Securities), and no right under
any such Award, shall be assignable, alienable, salable, or transferable by a
Participating Key Employee or a
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<PAGE>
Non-Employee Director otherwise than by will or by the laws of descent and
distribution (or, in the case of an Award of Restricted Securities, to the
Company); provided, however, that a Participating Key Employee at the discretion
of the Committee may, and a Non-Employee Director shall, be entitled, in the
manner established by the Committee, to designate a beneficiary or beneficiaries
to exercise his or her rights, and to receive any property distributable, with
respect to any Award upon the death of the Participating Key Employee or the
Non-Employee Director, as the case may be. Except as otherwise provided by the
Committee, each Award, and each right under any Award, shall be exercisable,
during the lifetime of the Participating Key Employee or the Non-Employee
Director, only by such individual or, if permissible under applicable law, by
such individual's guardian or legal representative. Except as otherwise provided
by the Committee, no Award (other than Released Securities), and no right under
any such Award, may be pledged, alienated, attached, or otherwise encumbered,
and any purported pledge, alienation, attachment, or encumbrance thereof shall
be void and unenforceable against the Company or any Affiliate.
(vi) Term of Awards. Except as otherwise provided in the Plan,
the term of each Award shall be for such period as may be determined by the
Committee but the expiration date of an Award shall be not later than ten years
after the date such Award is granted.
(vii) Share Certificates; Representation. In addition to the
restrictions imposed pursuant to Section 6(d) and Section 6(e) hereof, all
certificates for Shares delivered under the Plan pursuant to any Award or the
exercise thereof shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the Plan or the rules,
regulations, and other requirements of the Commission, any stock exchange or
other market upon which such Shares are then listed or traded, and any
applicable federal or state securities laws, and the Committee may cause a
legend or legends to be put on any such certificates to make appropriate
reference to such restrictions. The Committee may require each Participating Key
Employee, Non-Employee Director or other Person who acquires Shares under the
Plan by means of an Award originally made to a Participating Key Employee or a
Non-Employee Director to represent to the Company in writing that such
Participating Key Employee, Non-Employee Director or other Person is acquiring
the Shares without a view to the distribution thereof.
Section 7. Amendment and Termination of the Plan; Correction of Defects and
Omissions
(a) Amendments to and Termination of the Plan. The Board of Directors
of the Company may at any time amend, alter, suspend, discontinue, or terminate
the Plan; provided, however, that shareholder approval of any amendment of the
Plan shall also be obtained: (i) if such amendment (A) increases the number of
Shares with respect to which Awards may be granted under the Plan (other than
increases related to adjustments made as provided in Section 4(b) hereof), (B)
expands the class of persons eligible to participate under the Plan, or (C)
otherwise increases in any material respect the benefits payable under the Plan;
or (ii) if otherwise required by (A) the Code or any rules promulgated
thereunder (in order to allow for Incentive Stock Options to be granted under
the Plan), or (B) the quotation or listing
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<PAGE>
requirements of the Nasdaq Stock Market or any principal securities exchange or
market on which the Shares are then traded (in order to maintain the quotation
or listing of the Shares thereon). Termination, amendment or modification of the
Plan shall not affect the rights of Participating Key Employees or Non-Employee
Directors with respect to Awards previously granted to them, and all unexpired
Awards shall continue in force and effect after termination of the Plan except
as they may lapse or be terminated by their own terms and conditions.
(b) Correction of Defects, Omissions and Inconsistencies. The
Committee may correct any defect, supply any omission, or reconcile any
inconsistency in any Award or Award Agreement in the manner and to the extent it
shall deem desirable to carry the Plan into effect.
Section 8. General Provisions
(a) No Rights to Awards. No Key Employee, Participating Key Employee
or other Person (other than a Non-Employee Director to the extent provided in
Section 6(b) of the Plan) shall have any claim to be granted an Award under the
Plan, and there is no obligation for uniformity of treatment of Key Employees,
Participating Key Employees, or holders or beneficiaries of Awards under the
Plan. The terms and conditions of Awards need not be the same with respect to
each Participating Key Employee.
(b) Withholding. No later than the date as to which an amount first
becomes includible in the gross income of a Participating Key Employee for
federal income tax purposes with respect to any Award under the Plan, the
Participating Key Employee shall pay to the Company, or make arrangements
satisfactory to the Company regarding the payment of, any federal, state, local
or foreign taxes of any kind required by law to be withheld with respect to such
amount. Unless otherwise determined by the Committee, withholding obligations
arising with respect to Awards to Participating Key Employees under the Plan may
be settled with Shares other than Restricted Securities, including Shares that
are part of, or are received upon exercise of, the Award that gives rise to the
withholding requirement. The obligations of the Company under the Plan shall be
conditional on such payment or arrangements, and the Company and any Affiliate
shall, to the extent permitted by law, have the right to deduct any such taxes
from any payment otherwise due to the Participating Key Employee. The Committee
may establish such procedures as it deems appropriate for the settling of
withholding obligations with Shares.
(c) No Limit on Other Compensation Arrangements. Nothing contained in
the Plan shall prevent the Company or any Affiliate from adopting or continuing
in effect other or additional compensation arrangements, and such arrangements
may be either generally applicable or applicable only in specific cases.
(d) Rights and Status of Recipients of Awards. The grant of an Award
shall not be construed as giving a Participating Key Employee the right to be
retained in the employ of the Company or any Affiliate. Further, the Company or
any Affiliate may at any time dismiss a Participating Key Employee from
employment, free from any liability, or any claim under the Plan, unless
otherwise expressly provided in the Plan or in any Award Agreement. The
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<PAGE>
grant of an Award to a Non-Employee Director pursuant to Section 6(b) of the
Plan shall confer no right on such Non-Employee Director to continue as a
director of the Company. Except for rights accorded under the Plan and under any
applicable Award Agreement, Participating Key Employees and Non-Employee
Directors shall have no rights as holders of Shares as a result of the granting
of Awards hereunder.
(e) Unfunded Status of the Plan. Unless otherwise determined by the
Committee, the Plan shall be unfunded and shall not create (or be construed to
create) a trust or a separate fund or funds. The Plan shall not establish any
fiduciary relationship between the Company and any Participating Key Employee,
any Non-Employee Director or other Person. To the extent any Person holds any
right by virtue of a grant under the Plan, such right (unless otherwise
determined by the Committee) shall be no greater than the right of an unsecured
general creditor of the Company.
(f) Governing Law. The validity, construction and effect of the Plan
and any rules and regulations relating to the Plan shall be determined in
accordance with the laws of the State of Wisconsin and applicable federal law.
(g) Severability. If any provision of the Plan or any Award Agreement
or any Award is or becomes or is deemed to be invalid, illegal, or unenforceable
in any jurisdiction, or as to any Person or Award, or would disqualify the Plan,
any Award Agreement or any Award under any law deemed applicable by the
Committee, such provision shall be construed or deemed amended to conform to
applicable laws, or if it cannot be so construed or deemed amended without, in
the determination of the Committee, materially altering the intent of the Plan,
any Award Agreement or the Award, such provision shall be stricken as to such
jurisdiction, Person, or Award, and the remainder of the Plan, any such Award
Agreement and any such Award shall remain in full force and effect.
(h) No Fractional Shares. No fractional Shares or other securities
shall be issued or delivered pursuant to the Plan, any Award Agreement or any
Award, and the Committee shall determine (except as otherwise provided in the
Plan) whether cash, other securities, or other property shall be paid or
transferred in lieu of any fractional Shares or other securities, or whether
such fractional Shares or other securities or any rights thereto shall be
canceled, terminated, or otherwise eliminated.
(i) Headings. Headings are given to the Sections and subsections of
the Plan solely as a convenience to facilitate reference. Such headings shall
not be deemed in any way material or relevant to the construction or
interpretation of the Plan or any provision thereof.
Section 9. Effective Date of the Plan
The Plan shall be effective on the date of adoption of the Plan by the
Board of Directors of the Company provided that the Plan is approved by the
shareholders of the Company within twelve months following the date of adoption
of the Plan by the Board of Directors. All Awards granted prior to shareholder
approval of the Plan shall be subject to such approval and shall not be
exercisable until after such approval.
-15-
GEHL COMPANY
2000 EQUITY INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT, made and entered into as of this ____ day of
_______________, ____, by and between GEHL COMPANY, a Wisconsin corporation (the
"Company"), and ______________________________ (the "Optionee").
W I T N E S S E T H :
WHEREAS, the Company has adopted the Gehl Company 2000 Equity
Incentive Plan (the "Plan"), the terms of which, to the extent not stated
herein, are specifically incorporated by reference in this Agreement; and
WHEREAS, one of the purposes of the Plan is to permit the granting of
options to purchase shares of the Company's Common Stock, $.10 par value (the
"Common Stock"), to certain key employees of the Company and its affiliates; and
WHEREAS, the Optionee is now employed by the Company or an affiliate
of the Company in a key capacity, and the Company desires the Optionee to remain
in such employ, and to secure or increase his stock ownership in the Company in
order to increase his incentive and personal interest in the welfare of the
Company.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements herein set forth, the parties hereby mutually covenant and agree
as follows:
1. Grant of Option. Subject to the terms and conditions of the Plan
and this Agreement, the Company grants to the Optionee an option (the "Option")
to purchase from the Company all or any part of the aggregate amount of _______
shares of Common Stock (the "Optioned Shares"). The Option is intended to
constitute a non-qualified stock option and shall not be treated as an incentive
stock option within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended.
2. Option Price. The price to be paid for the Optioned Shares shall
be $______ per share, which has been determined by the Compensation and Benefits
Committee of the Board of Directors of the Company (the "Committee") to be not
less than 100% of the fair market value of such stock on the date of grant of
the Option.
<PAGE>
3. Exercisability and Termination of Option. Except as provided
herein, the Option may be exercised only while the Optionee is an employee of
either the Company or an affiliate of the Company and only if the Optionee has
been continuously so employed since the date of grant of the Option. Subject to
Paragraph 6, the Option may be exercised by the Optionee in whole, or in part
from time to time, during the period beginning ______________, ____, and ending
_____________________, ____, but only in accordance with the following schedule:
Cumulative Percentage of Shares
Subject to Option Which May be Purchased
Elapsed Period of Time (which number of shares shall be rounded
After Date Option is Granted down to the nearest whole number)
- ---------------------------- ----------------------------------------
Less than One (1) Year 0%
One (1) Year 33-1/3%
Two (2) Years 66-2/3%
Three (3) Years 100%
provided, however, that notwithstanding the foregoing vesting schedule, the
Option shall become immediately exercisable in full following a Change of
Control of the Company (as such term is defined in the Plan).
4. Manner of Exercise and Payment. Subject to the provisions of
Paragraph 3 hereof, the Option may be exercised only by written notice to the
Company, served upon the Secretary of the Company at its office at West Bend,
Wisconsin, specifying the number of shares in respect to which the Option is
being exercised. Subject to the provisions of this Agreement, the notice of
exercise must be accompanied by full payment of the option price of the shares
being purchased (i) in cash or by certified check or bank draft; (ii) by
tendering previously acquired shares of Common Stock (valued at their "fair
market value" as determined in the manner provided below); or (iii) by any
combination of the means of payment set forth in subparagraphs (i) and (ii). For
purposes of this Paragraph 4, the "fair market value" of a share of Common Stock
shall be equal to the last per share sale price of such Common Stock as
reflected on The Nasdaq Stock Market on the trading day next preceding the date
of exercise; provided, however, that if the principal market for the shares of
Common Stock is then a national securities exchange, the "fair market value"
shall be the closing price per share for the Common Stock on the principal
securities exchange on which the Common Stock is traded on the trading date next
preceding the date of exercise, or, in either case above, if no trading occurred
on the trading date next preceding the exercise date, then the "fair market
value" per share of Common Stock shall be determined with reference to the next
preceding date on which the Common Stock was traded. For purposes of
subparagraphs (ii) and (iii)
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<PAGE>
above, the term "previously acquired shares of Common Stock" shall only include
Common Stock owned by the Optionee for at least six months prior to the exercise
of the Option and shall not in any event include shares of Common Stock which
are being acquired pursuant to the exercise of the Option. No shares shall be
issued until full payment therefor has been made.
5. Nontransferability of the Option. The Option shall not be
assignable, alienable, saleable or transferable by the Optionee other than by
will or the laws of descent and distribution; provided, however, that the
Optionee shall be entitled, in the manner provided in Paragraph 9 hereof, to
designate a beneficiary to exercise his rights, and to receive any shares of
Common Stock issuable, with respect to the Option upon the death of the
Optionee. The Option may be exercised during the lifetime of the Optionee only
by the Optionee or, if permitted by applicable law, the Optionee's guardian or
legal representative.
6. Exercisability After Termination of Employment.
(a) Death or Disability; Retirement. In the event the Optionee
dies while he is in the employ of the Company or any affiliate or if his
employment is terminated by reason of his retirement on or after attaining age
62 or by reason of his disability, the Option, to the extent not theretofore
exercised, may be exercised in full as follows: (i) by the legal representative
of the Optionee (who for purposes of this Agreement may be the Optionee's
beneficiary as designated pursuant to Paragraph 9) at any time within twelve
months after the date of the Optionee's death while in the employ of the Company
or any affiliate; or (ii) by the Optionee or his legal representative or
guardian at any time within twelve months after the termination of the
Optionee's employment by reason of retirement on or after attaining age 62 or by
reason of his disability, but in no event under subparagraphs (i) or (ii) later
than ten years after the date of grant of the Option.
(b) Voluntary Termination; Termination for Cause. In the event
the Optionee voluntarily terminates his employment with the Company and any
affiliates or if his employment is terminated for Cause (as hereinafter
defined), the Option, to the extent not theretofore exercised, shall immediately
terminate upon such termination of employment. For purposes of this Agreement,
the term Cause shall mean any termination of the Optionee by action of the Board
of Directors of the Company because of the failure of the Optionee to fulfill
his obligations with the Company or any affiliate thereof or because of serious
willful misconduct by the Optionee in respect of his obligations with the
Company or any affiliate thereof which would cause a substantial and
demonstrable detriment to the Company, as, for example, the commission by the
Optionee of a felony or the perpetration by the Optionee of a common-law fraud
against the Company or any affiliate thereof, or any major material action
(i.e., not procedural or operational differences) taken against the expressed
directive of the Board of Directors of
-3-
<PAGE>
the Company.
(c) Other. In the event that the Optionee is discharged or leaves
the employ of the Company and its affiliates for any reason (other than the
death or disability of the Optionee, the retirement of the Optionee on or after
attaining age 62, the Optionee's voluntary termination of his employment or the
termination of the Optionee for Cause), the Option, to the extent not
theretofore exercised but then permitted under the percentage limitations of
Paragraph 3 hereof, may be exercised by the Optionee or by his legal
representative or guardian at any time within three months after the date of
termination of employment upon the tender to the Company, in cash or its
equivalent, of the full purchase price, but in no event later than ten years
after the date of grant of the Option.
7. Tax Withholding. The Company may deduct and withhold from any cash
otherwise payable to the Optionee (whether payable as salary, bonus or other
compensation) such amount as may be required for the purpose of satisfying the
Company's obligation to withhold Federal, state or local taxes. Further, in the
event the amount so withheld is insufficient for such purpose, the Company may
require that the Optionee pay to the Company upon its demand or otherwise make
arrangements satisfactory to the Company for payment of such amount as may be
requested by the Company in order to satisfy its obligation to withhold any such
taxes.
The Optionee shall be permitted to satisfy the Company's tax
withholding requirements by making a written election (in accordance with such
rules and regulations and in such form as the Committee may determine) to have
the Company withhold shares of Common Stock otherwise issuable to the Optionee
(the "Withholding Election") or to deliver to the Company shares of Common Stock
(the "Delivery Election") in each case having a fair market value on the date
income is recognized (the "Tax Date") pursuant to the exercise of the Option
equal to the minimum amount required to be withheld. If a Delivery Election is
in effect at the time of the exercise of the Option, the Optionee shall deliver
the shares of Common Stock subject to such Delivery Election on, or as soon as
practicable after, the Tax Date. If the number of shares of Common Stock
withheld or delivered to satisfy withholding tax requirements shall include a
fractional share, the number of shares withheld or delivered shall be reduced to
the next lower whole number and the Optionee shall deliver cash in lieu of such
fractional share, or otherwise make arrangements satisfactory to the Company for
payment of such amount. A Withholding Election or Delivery Election must be
received by the Secretary of the Company on or prior to the Tax Date.
8. Capital Adjustments Affecting the Common Stock. The number of
Optioned Shares subject hereto and the related per share exercise price shall be
subject to adjustment in accordance with Section 4(b) of the Plan.
-4-
<PAGE>
9. Designation of Beneficiary.
(a) The person whose name appears on the signature page hereof
after the caption "Beneficiary" or any successor designated by the Optionee in
accordance herewith (the person who is the Optionee's beneficiary at the time of
his death is herein referred to as the "Beneficiary") shall be entitled to
exercise the Option, to the extent it is exercisable, after the death of the
Optionee. The Optionee may from time to time revoke or change his beneficiary
without the consent of any prior beneficiary by filing a new designation with
the Committee. The last such designation received by the Committee shall be
controlling; provided, however, that no designation, or change or revocation
thereof, shall be effective unless received by the Committee prior to the
Optionee's death, and in no event shall any designation be effective as of a
date prior to such receipt.
(b) If no such Beneficiary designation is in effect at the time
of the Optionee's death, or if no designated Beneficiary survives the Optionee
or if such designation conflicts with law, the Optionee's estate acting through
his legal representative shall be entitled to exercise the Option, to the extent
it is exercisable after the death of the Optionee. If the Committee is in doubt
as to the right of any person to exercise the Option, the Company may refuse to
recognize such exercise, without liability for any interest or dividends on the
Optioned Shares, until the Committee determines the person entitled to exercise
the Option, or the Company may apply to any court of appropriate jurisdiction
and such application shall be a complete discharge of the liability of the
Company therefor.
10. Transfer Restriction. The shares to be acquired upon exercise of
the Option may not be sold or offered for sale except pursuant to an effective
registration statement under the Securities Act of 1933, as amended, or in a
transaction which, in the opinion of counsel for the Company, is exempt from the
registration provisions of said Act.
11. Status of Optionee. The Optionee shall not be deemed for any
purposes to be a shareholder of the Company with respect to any of the Optioned
Shares except to the extent that the Option shall have been exercised with
respect thereto, the shares shall have been fully paid, and a stock certificate
issued therefor. Neither the Plan nor the Option shall confer upon the Optionee
any right to continue in the employ of the Company, nor to interfere in any way
with the right of the Company to terminate the employment of the Optionee at any
time.
12. Powers of the Company Not Affected. The existence of the Option
shall not affect in any way the right or power of the Company or its
shareholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issuance of
bonds, debentures, preferred or prior preference stock ahead of or affecting the
Common Stock or the rights thereof, or dissolution or liquidation
-5-
<PAGE>
of the Company, or any sale or transfer of all or any part of the Company's
assets or business or any other corporate act or proceeding, whether of a
similar character or otherwise.
13. Interpretation by Committee. As a condition of the granting of the
Option, the Optionee agrees, for himself and his legal representatives or
guardians, that this Agreement shall be interpreted by the Committee and that
any interpretation by the Committee of the terms of this Agreement and any
determination made by the Committee pursuant to this Agreement shall be final,
binding and conclusive.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officers, and the Optionee has hereunto affixed
his hand as of the day and year first above written.
GEHL COMPANY
By:
---------------------------------------
Attest:
-----------------------------------
, Optionee
--------------------------------
Beneficiary:
------------------------------
Address of Beneficiary:
-------------------
------------------------------------------
Beneficiary's Tax Identification/
Social Security No.:
----------------------
scb/options/agree2
-6-
GEHL COMPANY
2000 EQUITY INCENTIVE PLAN
STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
THIS AGREEMENT, dated as of this _____ day of ________________, ____,
by and between Gehl Company, a Wisconsin corporation (the "Company"), and
_________________ (the "Optionee").
W I T N E S S E T H :
WHEREAS, the Company has adopted the Gehl Company 2000 Equity
Incentive Plan (the "Plan"), the terms of which, to the extent not stated
herein, are specifically incorporated by reference in this Agreement; and
WHEREAS, the Plan authorizes the automatic grant of options to
purchase shares of the Company's Common Stock, $.10 par value (the "Common
Stock"), to members of the Company's Board of Directors who are not employees of
the Company or any affiliate of the Company (a "Non-Employee Director"); and
WHEREAS, the Optionee is now a Non-Employee Director, and the Company
desires him to continue as a member of the Company's Board of Directors and to
secure or increase his stock ownership in the Company as an added incentive for
him to continue his association with the Company.
NOW, THEREFORE, in consideration of the premises and of the covenants
and agreements herein set forth, the parties hereby mutually covenant and agree
as follows:
1. Grant of Option. Subject to the terms and conditions of the Plan
and this Agreement, the Company hereby grants to the Optionee an option (the
"Option") to purchase from the Company all or any part of the aggregate amount
of 2,000 shares of Common Stock (the "Optioned Shares"). The Option is intended
to constitute a non-qualified stock option and shall not be treated as an
incentive stock option within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended, or any successor provision thereto.
2. Option Price. The per share exercise price to be paid for the
Optioned Shares shall be $_____.
<PAGE>
3. Exercisability and Termination of Option. The Option may be
exercised by the Optionee only in accordance with the following schedule:
Cumulative Percentage of Shares Subject
to Option Which May be Purchased
Elapsed Period of Time (which number of shares shall be rounded
After Date Option is Granted down to the nearest whole number)
- ---------------------------- ----------------------------------------
Less than One (1) Year 0%
One (1) Year 33-1/3%
Two (2) Years 66-2/3%
Three (3) Years 100%
Notwithstanding the foregoing schedule, if the Optionee ceases to be a director
of the Company by reason of death, disability or retirement prior to
______________, ____, or in the event of a Change of Control of the Company (as
defined in the Plan) prior to ______________, ____, the Option shall become
immediately exercisable in full. The Option shall terminate on the earlier of:
(i) _______________, ____; or (ii) twelve months after the Optionee ceases to be
a director of the Company for any reason, including as a result of the
Optionee's death, disability or retirement.
4. Manner of Exercise and Payment. Subject to the provisions of
Paragraph 3 hereof and the Plan, the Option may be exercised in full at any time
or in part from time to time by delivery to the Secretary of the Company at the
Company's principal office in West Bend, Wisconsin, of a written notice of
exercise specifying the number of shares with respect to which the Option is
being exercised. The notice of exercise must be accompanied by payment in full
of the exercise price of the shares being purchased: (i) in cash or its
equivalent; (ii) by tendering previously acquired shares of Common Stock (valued
at their "market value" as of the date of exercise, as determined in the manner
provided in Section 6(b)(iv) of the Plan); or (iii) by any combination of the
means of payment set forth in subparagraphs (i) and (ii). For purposes of
subparagraphs (ii) and (iii) above, the term "previously acquired shares of
Common Stock" shall only include shares of Common Stock owned by the Optionee at
least six months prior to the exercise of the Option for which payment is being
made and shall not in any event include shares of Common Stock which are being
acquired pursuant to the exercise of the Option. No shares shall be issued until
full payment therefor has been made.
5. Nontransferability of the Option. The Option shall not be
transferable by the Optionee other than by will or the laws of descent and
distribution; provided, however, that the Optionee shall be entitled, in the
manner provided in Paragraph 6 hereof, to designate a beneficiary to exercise
his rights, and to receive any shares of Common Stock issuable, with respect to
the Option upon the death of the Optionee. The Option may be exercised during
the lifetime of the Optionee only by the Optionee or, if permitted by applicable
law, the Optionee's guardian or legal
-2-
<PAGE>
representative.
6. Designation of Beneficiary.
(a) The person whose name appears on the signature page hereof
after the caption "Beneficiary" or any successor designated by the Optionee in
accordance herewith (the person who is the Optionee's beneficiary at the time of
his death herein referred to as the "Beneficiary") shall be entitled to exercise
the Option, to the extent it is exercisable, after the death of the Optionee.
The Optionee may from time to time revoke or change his Beneficiary without the
consent of any prior Beneficiary by filing a new designation with the
Compensation and Benefits Committee of the Board of Directors of the Company or
such other committee of the Board which shall have been designated to administer
the Plan (the "Committee"). The last such designation received by the Committee
shall be controlling; provided, however, that no designation, or change or
revocation thereof, shall be effective unless received by the Committee prior to
the Optionee's death, and in no event shall any designation be effective as of a
date prior to such receipt.
(b) If no such Beneficiary designation is in effect at the time
of the Optionee's death, or if no designated Beneficiary survives the Optionee
or if such designation conflicts with law, the Optionee's estate shall be
entitled to exercise the Option, to the extent it is exercisable after the death
of the Optionee. If the Committee is in doubt as to the right of any person to
exercise the Option, the Company may refuse to recognize such exercise, without
liability for any interest or dividends on the Optioned Shares, until the
Committee determines the person entitled to exercise the Option, or the Company
may apply to any court of appropriate jurisdiction and such application shall be
a complete discharge of the liability of the Company therefor.
7. Capital Adjustments Affecting the Common Stock. The number of
Optioned Shares subject hereto and the related per share exercise price shall be
subject to adjustment in accordance with Section 4(b) of the Plan.
8. Transfer Restrictions. The shares to be acquired upon exercise of
the Option may not be sold or otherwise disposed of except pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
or in a transaction which, in the opinion of counsel for the Company, is exempt
from registration under said Act.
9. Status of Optionee. The Optionee shall have no rights as a
shareholder with respect to shares covered by the Option until the date of
issuance of stock certificates to the Optionee and only after such shares are
fully paid. The Option shall not confer upon the Optionee the right to continue
as a director of the Company.
-3-
<PAGE>
10. Interpretation by Committee. As a condition of the granting of the
Option, the Optionee agrees, for himself and his personal representatives, that
this Agreement shall be interpreted by the Committee and that, subject to the
express terms of the Plan, any interpretation by the Committee of the terms of
this Agreement and any determination made by the Committee pursuant to this
Agreement shall be final, binding and conclusive.
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed by its duly authorized officers, and the Optionee has hereunto affixed
his hand as to the day and year first above written.
GEHL COMPANY
By:
---------------------------------------
Attest:
-----------------------------------
, Optionee
--------------------------------
Beneficiary:
------------------------------
Address of Beneficiary:
-------------------
------------------------------------------
Beneficiary's Tax Identification/
Social Security No.:
----------------------
scb/options/diragre2
-4-
FOLEY & LARDNER
CHICAGO FIRSTAR CENTER SACRAMENTO
DENVER 777 EAST WISCONSIN AVENUE SAN DIEGO
JACKSONVILLE MILWAUKEE, WISCONSIN 53202-5367 SAN FRANCISCO
LOS ANGELES TELEPHONE (414) 271-2400 TALLAHASSEE
MADISON FACSIMILE (414) 297-4900 TAMPA
MILWAUKEE WASHINGTON, D.C.
ORLANDO WEST PALM BEACH
EMAIL ADDRESS CLIENT/MATTER NUMBER
[email protected] 034400/0101
May 2, 2000
Gehl Company
143 Water Street
West Bend, Wisconsin 53095
Re: Gehl Company 2000 Equity Incentive Plan
Gentlemen:
We have acted as counsel for Gehl Company, a Wisconsin corporation
(the "Company"), in conjunction with the preparation of a Form S-8 Registration
Statement (the "Registration Statement") to be filed by the Company with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act"), relating to 600,000 additional shares of the Company's
Common Stock, $.10 par value (the "Common Stock"), and the associated rights
(the "Rights"), which may be issued pursuant to the Gehl Company 2000 Equity
Incentive Plan (the "Plan"). The terms of the Rights issuable under the Plan are
set forth in that certain Rights Agreement (the "Rights Agreement"), dated as of
May 27, 1997, between the Company and Firstar Bank, N.A. (as successor to
Firstar Trust Company).
We have examined: (a) the Plan; (b) signed copies of the Registration
Statement; (c) the Company's Restated Articles of Incorporation and By-laws, as
amended to date; (d) the Rights Agreement; (e) resolutions of the Company's
Board of Directors relating to the Plan and the issuance of shares of Common
Stock and Rights thereunder; and (f) such other documents and records as we have
deemed necessary to enable us to render this opinion.
<PAGE>
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the laws of
the State of Wisconsin.
2. The shares of Common Stock, when issued by the Company in the
manner and for the consideration contemplated by the Plan, will be legally
issued, fully paid and nonassessable and no personal liability will attach to
the ownership thereof, except for debts owing to employees of the Company for
services performed, but not exceeding six months' service in any one case, as
provided in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law and
as such section and its predecessors have been judicially interpreted.
3. The Rights subject to the Registration Statement, when issued
pursuant to the terms of the Rights Agreement, will be validly issued.
We consent to the use of this opinion as an exhibit to the
Registration Statement. In giving our consent, we do not admit that we are
"experts" within the meaning of Section 11 of the Securities Act or within the
category of persons whose consent is required by Section 7 of the Securities
Act.
Very truly yours,
/s/ Foley & Lardner
FOLEY & LARDNER
Exhibit 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 10, 2000 relating to the
financial statements, which appears in the 1999 Annual Report to Shareholders of
Gehl Company, which is incorporated by reference in Gehl Company's Annual Report
on Form 10-K for the year ended December 31, 1999. We also consent to the
incorporation by reference of our report dated February 10, 2000 relating to the
financial statement schedule, which appears in such Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
- ---------------------------------------
PricewaterhouseCoopers LLP
Milwaukee, Wisconsin
April 27, 2000
