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CURRENT REPORT
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Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
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Date of Report (Date of earliest event reported): April 28, 2011
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POLARIS INDUSTRIES INC.
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(Exact name of Registrant as specified in its charter)
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Minnesota
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1-11411
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41-1790959
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(State of Incorporation)
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(Commission File Number)
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(I.R.S. Employer Identification No.) |
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2100 Highway 55
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Medina, Minnesota 55340
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(Address of principal executive offices)
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(Zip Code)
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(763) 542-0500
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(Registrant’s telephone number, including area code)
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1.
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The following nominees were elected as Class II members of the Board of Directors of the Company for three-year terms ending in 2014:
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The terms of the following directors continued after the Annual Meeting: Robert L. Caulk, Annette K. Clayton, Bernd F. Kessler, Gregory R. Palen, John P. Wiehoff, and Scott W. Wine.
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2.
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The Amended and Restated 2007 Omnibus Incentive Plan was approved:
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Votes For
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Votes Against
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Abstentions
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Broker Non-Vote
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22,611,656
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3,753,622
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54,289
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4,235,504
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3.
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The material terms of the Amended Long Term Incentive Plan were approved:
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Votes For
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Votes Against
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Abstentions
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Broker Non-Vote
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25,669,478
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699,586
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50,503
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4,235,504
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4.
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The selection of Ernst & Young LLP as the Company’s independent registered public accounting firm for fiscal 2011 was ratified:
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Votes For
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Votes Against
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Abstentions
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Broker Non-Vote
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29,559,871
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1,051,468
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43,731
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0
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5.
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The compensation to the Company’s named executive officers was approved:
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Votes For
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Votes Against
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Abstentions
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Broker Non-Vote
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25,914,525
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445,950
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59,092
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4,235,504
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6.
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The shareholders voted as follows on the proposal to select the frequency of future votes to approve the compensation of the Company’s named executive officers:
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1 Year
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2 Years
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3 Years
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Abstentions
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Broker Non-Vote
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13,290,015
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336,140
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12,717,092
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76,320
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4,235,504
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10.1
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Polaris Industries Inc.
2007 Omnibus Incentive Plan (As Amended and Restated April 28, 2011), incorporated by reference to Annex A to the Company’s Proxy Statement for the 2011 Annual Meeting of Shareholders filed March 10, 2011
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10.2
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Polaris Industries Inc.
2007 Omnibus Incentive Plan (As Amended and Restated April 28, 2011) Nonqualified Stock Option Agreement form (Single Trigger)
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10.3
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Polaris Industries Inc.
2007 Omnibus Incentive Plan (As Amended and Restated April 28, 2011) Nonqualified Stock Option Agreement form (Double Trigger)
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10.4
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Polaris Industries Inc.
2007 Omnibus Incentive Plan (As Amended and Restated April 28, 2011) Performance Based Restricted Share Award Agreement form (Single Trigger)
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10.5
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Polaris Industries Inc.
2007 Omnibus Incentive Plan (As Amended and Restated April 28, 2011) Performance Based Restricted Share Award Agreement form (Double Trigger)
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10.6
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Polaris Industries Inc.
2007 Omnibus Incentive Plan (As Amended and Restated April 28, 2011) Restricted Stock Award Agreement
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| POLARIS INDUSTRIES INC. | |||
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/s/ Michael W. Malone | |
| Michael W. Malone | |||
| Vice President – Finance and | |||
| Chief Financial Officer | |||
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10.1
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Polaris Industries Inc.
2007 Omnibus Incentive Plan (As Amended and Restated April 28, 2011), incorporated by reference to Annex A to the Company’s Proxy Statement for the 2011 Annual Meeting of Shareholders filed March 10, 2011
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10.2
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Polaris Industries Inc.
2007 Omnibus Incentive Plan (As Amended and Restated April 28, 2011) Nonqualified Stock Option Agreement form (Single Trigger)
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10.3
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Polaris Industries Inc.
2007 Omnibus Incentive Plan (As Amended and Restated April 28, 2011) Nonqualified Stock Option Agreement form (Double Trigger)
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10.4
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Polaris Industries Inc.
2007 Omnibus Incentive Plan (As Amended and Restated April 28, 2011) Performance Based Restricted Share Award Agreement form (Single Trigger)
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10.5
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Polaris Industries Inc.
2007 Omnibus Incentive Plan (As Amended and Restated April 28, 2011) Performance Based Restricted Share Award Agreement form (Double Trigger)
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10.6
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Polaris Industries Inc.
2007 Omnibus Incentive Plan (As Amended and Restated April 28, 2011) Restricted Stock Award Agreement
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| Participant: _________________ | SSN: _______________ |
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Number of shares of Common Stock subject to the Option:
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__________
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Grant Date:
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__________
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Option Price per share:
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$_________
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Vesting and Exercise Schedule:
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Date
_______________
_______________
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Portion of Shares as to
Which Option
Becomes Vested and Exercisable
50%
50%
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Expiration Date:
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Close of business on _____________
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Agreed:
_______________________________
Participant
Attachment: Option Terms and Conditions
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POLARIS INDUSTRIES INC.
Michael W. Malone
Vice President-Finance and Chief Financial Officer
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1.
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Nonqualified Stock Option
. This Option is
not
intended to be an “incentive stock option” within the meaning of Section 422 of the Internal Revenue Code and will be interpreted accordingly. The Option Price equals the Fair Market Value of a share of Common Stock as of the Grant Date.
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2.
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Vesting and Exercise Schedule
. Subject to Section 4 of this Agreement, this Option will vest and become exercisable as to the number of shares of Common Stock (“Shares”) and on the dates specified in the Vesting and Exercise Schedule on the cover page to this Agreement. The Vesting and Exercise Schedule is cumulative, meaning that to the extent the Option has not already been exercised and has not terminated, you or the person otherwise entitled to exercise the Option as provided in this Agreement may at any time purchase all or any portion of the Shares subject to the vested portion of the Option.
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Notwithstanding the foregoing, this Option will vest in full and become immediately exercisable upon a Change in Control of the Company that occurs during the term of this Option. Vesting and exercisability of this Option may also be accelerated during the term of the Option under the circumstances described in Section 6 of this Agreement, and at the discretion of the Committee in accordance with Section 3.2 of the Plan.
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3.
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Termination
. This Option will terminate and will no longer be exercisable on the earliest of:
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(a)
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The Expiration Date specified on the cover page of this Agreement;
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(b)
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Upon termination of your employment with or provision of services to the Company and its Affiliates for Cause;
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(c)
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Upon the expiration of any applicable period specified in Section 6 of this Agreement or Article 11 of the Plan during which this Option may be exercised after termination of your employment with or provision of services to the Company and its Affiliates; or
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(d)
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The date (if any) fixed for termination or cancellation of this Option pursuant to Article 11 of the Plan.
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4.
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Service Requirement
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Except as otherwise provided in Section 6 of this Agreement and Section 11.1(d) of the Plan, this Option may be exercised only while you continue to provide service to the Company or any Affiliate in the capacity of Employee, Nonemployee Director or Third-Party Service Provider, and only if you have continuously provided such service since the date this Option was granted.
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5.
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Exercise of Option
. Subject to Sections 6 and 7 of this Agreement, you may exercise the vested and exercisable portion of this Option in whole or in part by delivering a written or electronic notice of exercise to the Company or its designated agent (which written or electronic notice must be in a form approved by the Committee stating the number of Shares to be purchased, the method of payment of the aggregate Option Price and directions for the delivery of the Shares to be acquired, and must be signed or otherwise authenticated by the person exercising this Option), or by such other means as the Committee may approve. If you are not the person exercising this Option, the person exercising the Option must also submit appropriate proof of his or her right to exercise this Option.
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6.
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Payment of Exercise Price
. When you submit your notice of exercise, you must include payment of the aggregate Option Price of the Shares being purchased through one or a combination of the following methods:
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(a)
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Cash or its equivalent (including a check payable to the order of the Company);
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(b)
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To the extent then permitted by the Committee, a broker-assisted cashless exercise in which you irrevocably instruct a broker to deliver proceeds of a sale of all or a portion of the Shares for which the Option is being exercised (or proceeds of a loan secured by such Shares) to the Company in payment of the purchase price of such Shares;
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(c)
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To the extent then permitted by the Committee, tendering to the Company (either by actual delivery or attestation) unencumbered Shares having an aggregate Fair Market Value on the date of exercise equal to the purchase price of the Shares for which the Option is being exercised; or
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(d)
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To the extent then permitted by the Committee, by a reduction in the number of Shares to be delivered to you upon exercise, such number of Shares to be withheld having an aggregate Fair Market Value on the date of exercise equal to the purchase price of the Shares for which the Option is being exercised.
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7.
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Withholding Taxes
. The Company will notify you of the amount of any federal, state or local withholding taxes that must be paid in connection with the exercise of the Option. The Company may deduct such amount from your regular salary payments or other compensation otherwise due and owing to you. If the full amount of the withholding taxes cannot be recovered in this manner, you must promptly remit the deficiency to the Company upon the receipt of the Company’s notice. If you wish to satisfy some or all of such withholding taxes by delivering Shares you already own or by having the Company retain a portion of the Shares being acquired upon exercise of the Option, you must make such a request in accordance with Section 19.2 of the Plan which shall be subject to approval by the Committee. Delivery of Shares upon exercise of this Option is subject to the satisfaction of applicable withholding tax obligations.
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8.
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Delivery of Shares
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As soon as practicable after the Company receives the notice of exercise and payment of the exercise price as provided above, and determined that all conditions to exercise, including Section 7 of this Agreement, have been satisfied, it will arrange for the delivery of the Shares being purchased in accordance with the delivery instructions related to such notice of exercise. The transfer of shares of Common Stock issuable upon the exercise of the Option may be effected on a noncertificated basis if permitted by applicable law and the rules of the stock exchange on which the Shares trade. The Company will pay any original issue or transfer taxes with respect to the issue or transfer of the Shares and all fees and expenses incurred by it in connection therewith. Notwithstanding anything to the contrary in this Agreement, the Company will not be required to issue or deliver any Shares prior to the completion of such registration or other qualification of such Shares under any state or federal law, rule or regulation as the Company may determine to be necessary or desirable.
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9.
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Termination of Employment or Other Service
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If your employment by or provision of services to the Company and any of its Affiliates (collectively referred to in this section as “employment”) terminates before the Expiration Date and before the Option has been exercised in full, the following rules apply:
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(a)
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If your employment terminates for any reason other than disability (within the meaning of Section 22(e)(3) of the Code) (“Disability”), death, or retirement on or after normal retirement age in accordance with the applicable retirement policy of the Company and its Affiliates, then any unvested portion of the Option shall terminate on the date your employment terminates and be of no further force and effect.
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(b)
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If your employment terminates for any reason other than Disability, death, or retirement on or after normal retirement age or early retirement in accordance with the applicable retirement policy of the Company and its Affiliates, then any vested portion of the Option that has not yet been exercised on the date of termination shall continue to be exercisable for a period of thirty (30) days after such date, but not after the Expiration Date.
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(c)
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If your employment terminates by reason of early retirement in accordance with the applicable retirement policy of the Company and its Affiliates, then any vested portion of the Option that has not yet been exercised on the date of termination shall continue to be exercisable for a period of three (3) years after such date, but not after the Expiration Date.
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(d)
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If your employment terminates by reason of your death, then (i) any unvested portion of the Option shall vest immediately and become exercisable in accordance with its terms during the period specified in clause (ii) of this Section 6(d); and (ii) the portion of the Option that has not yet been exercised shall continue to be exercisable for a period of one (1) year following the date of termination of employment, but not after the Expiration Date.
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(e)
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If your employment terminates by reason of your Disability or retirement on or after normal retirement age in accordance with the applicable retirement policy of the Company and its Affiliates, then (i) any unvested portion of the Option shall vest immediately and become exercisable during the period specified in clause (ii) of this Section 6(e); and (ii) the portion of the Option that has not yet been exercised shall continue to be exercisable for a period of three (3) years following the date of termination of employment, but not after the Expiration Date.
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11.
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Transfer of Option
. During your lifetime, only you (or your guardian or legal representative in the event of legal incapacity) may exercise this Option. You may not assign or transfer this Option other than by will or the laws of descent and distribution. Following any such transfer, this Option shall continue to be subject to the same terms and conditions that were applicable to this Option immediately prior to its transfer and may be exercised by such permitted transferee as and to the extent that this Option has become exercisable and has not terminated in accordance with the provisions of the Plan and this Agreement. Whenever you are referred to in any provision of this Agreement under circumstances where the provision should logically be construed to apply to any permitted transferee of the Option, such references will be deemed to include such person or persons.
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12.
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Compensation Recovery
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This Award and any shares or cash received in settlement thereof shall be subject to (i) the Company’s Policy Regarding Executive Incentive Compensation Recoupment as in effect from time to time, including any amendments or revisions thereto adopted by the Board or the Committee in response to the requirements of Section 10D of the Exchange Act and the rules promulgated by the Securities and Exchange Commission and the Nasdaq Stock Market thereunder; and (ii) forfeiture to or reimbursement of the Company under the circumstances and to the extent provided in Section 304 of the Sarbanes-Oxley Act of 2002 if you are one of the individuals expressly subject to such Section 304 or if you knowingly or grossly negligently engaged in the misconduct, or knowingly or grossly negligently failed to prevent the misconduct which resulted in material noncompliance by the Company with any financial reporting requirement under the securities laws and as a result of which the Company was required to prepare an accounting restatement.
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13.
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Governing Plan Document
. This Agreement and Option Award are subject to all the provisions of the Plan, and to all interpretations, rules and regulations which may, from time to time, be adopted and promulgated by the Committee pursuant to the Plan. If there is any conflict between the provisions of this Agreement and the Plan, the provisions of the Plan will govern.
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14.
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Binding Effect
. This Agreement will be binding in all respects on your heirs, representatives, successors and assigns, and on the successors and assigns of the Company.
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15.
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Notices
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Every notice or other communication relating to this Agreement shall be in writing and shall be mailed to or delivered to the party for whom it is intended at such address as may from time to time be designated by it in a notice mailed or delivered to the other party as herein provided; provided, however, that unless and until some other address be so designated, all notices or communications by you to the Company shall be mailed or delivered to the Company at its office at 2100 Highway 55, Medina, Minnesota 55340, and all notices or communications by the Company to you may be given to you personally or may be mailed to you at the address indicated in the Company's records as your most recent mailing address.
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16.
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Entire Agreement and Severability
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This Agreement and the Plan embody the entire understanding of the parties with respect to this Option Award, and supersede all other oral or written agreements or understandings between you and the Company regarding the subject matter hereof. Except as otherwise provided in Section 17.4 of the Plan, no change, alteration or modification hereof may adversely affect in any material way your rights under this Agreement without your prior written consent. If any provision of this Agreement or the application of any provision hereof is declared to be illegal, invalid, or otherwise unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby.
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| Participant: _________________ | SSN: _______________ |
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Number of shares of Common Stock subject to the Option:
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__________
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Grant Date:
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__________
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Option Price per share:
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$_________
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Vesting and Exercise Schedule:
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Date
_______________
_______________
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Portion of Shares as to
Which Option
Becomes Vested and Exercisable
50%
50%
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Expiration Date:
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Close of business on _____________
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Agreed:
____________________________
Participant
Attachment: Option Terms and Conditions
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POLARIS INDUSTRIES INC.
Michael W. Malone
Vice President-Finance and Chief Financial Officer
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1.
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Nonqualified Stock Option
. This Option is
not
intended to be an “incentive stock option” within the meaning of Section 422 of the Internal Revenue Code and will be interpreted accordingly. The Option Price equals the Fair Market Value of a share of Common Stock as of the Grant Date.
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2.
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Vesting and Exercise Schedule
. Subject to Section 4 of this Agreement, this Option will vest and become exercisable as to the number of shares of Common Stock (“Shares”) and on the dates specified in the Vesting and Exercise Schedule on the cover page to this Agreement. The Vesting and Exercise Schedule is cumulative, meaning that to the extent the Option has not already been exercised and has not terminated, you or the person otherwise entitled to exercise the Option as provided in this Agreement may at any time purchase all or any portion of the Shares subject to the vested portion of the Option.
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Vesting and exercisability of this Option may be accelerated during the term of the Option under the circumstances described in Section 6 of this Agreement and Article 11 of the Plan, and at the discretion of the Committee in accordance with Section 3.2 of the Plan.
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3.
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Termination
. This Option will terminate and will no longer be exercisable on the earliest of:
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(a)
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The Expiration Date specified on the cover page of this Agreement;
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(b)
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Upon termination of your employment with or provision of services to the Company and its Affiliates for Cause;
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(c)
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Upon the expiration of any applicable period specified in Section 6 of this Agreement or Article 11 of the Plan during which this Option may be exercised after termination of your employment with or provision of services to the Company and its Affiliates; or
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(d)
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The date (if any) fixed for termination or cancellation of this Option pursuant to Article 11 of the Plan.
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4.
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Service Requirement
.
Except as otherwise provided in Section 6 of this Agreement and Section 11.1(d) of the Plan, this Option may be exercised only while you continue to provide service to the Company or any Affiliate in the capacity of Employee, Nonemployee Director or Third-Party Service Provider, and only if you have continuously provided such service since the date this Option was granted.
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5.
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Exercise of Option
. Subject to Sections 6 and 7 of this Agreement, you may exercise the vested and exercisable portion of this Option in whole or in part by delivering a written or electronic notice of exercise to the Company or its designated agent (which written or electronic notice must be in a form approved by the Committee stating the number of Shares to be purchased, the method of payment of the aggregate Option Price and directions for the delivery of the Shares to be acquired, and must be signed or otherwise authenticated by the person exercising this Option), or by such other means as the Committee may approve. If you are not the person exercising this Option, the person exercising the Option must also submit appropriate proof of his or her right to exercise this Option.
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6.
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Payment of Exercise Price
. When you submit your notice of exercise, you must include payment of the aggregate Option Price of the Shares being purchased through one or a combination of the following methods:
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|
|
(a)
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Cash or its equivalent (including a check payable to the order of the Company);
|
|
|
(b)
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To the extent then permitted by the Committee, a broker-assisted cashless exercise in which you irrevocably instruct a broker to deliver proceeds of a sale of all or a portion of the Shares for which the Option is being exercised (or proceeds of a loan secured by such Shares) to the Company in payment of the purchase price of such Shares;
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(c)
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To the extent then permitted by the Committee, tendering to the Company (either by actual delivery or attestation) unencumbered Shares having an aggregate Fair Market Value on the date of exercise equal to the purchase price of the Shares for which the Option is being exercised; or
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(d)
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To the extent then permitted by the Committee, by a reduction in the number of Shares to be delivered to you upon exercise, such number of Shares to be withheld having an aggregate Fair Market Value on the date of exercise equal to the purchase price of the Shares for which the Option is being exercised.
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7.
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Withholding Taxes
. The Company will notify you of the amount of any federal, state or local withholding taxes that must be paid in connection with the exercise of the Option. The Company may deduct such amount from your regular salary payments or other compensation otherwise due and owing to you. If the full amount of the withholding taxes cannot be recovered in this manner, you must promptly remit the deficiency to the Company upon the receipt of the Company’s notice. If you wish to satisfy some or all of such withholding taxes by delivering Shares you already own or by having the Company retain a portion of the Shares being acquired upon exercise of the Option, you must make such a request in accordance with Section 19.2 of the Plan which shall be subject to approval by the Committee. Delivery of Shares upon exercise of this Option is subject to the satisfaction of applicable withholding tax obligations.
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8.
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Delivery of Shares
.
As soon as practicable after the Company receives the notice of exercise and payment of the exercise price as provided above, and determined that all conditions to exercise, including Section 7 of this Agreement, have been satisfied, it will arrange for the delivery of the Shares being purchased in accordance with the delivery instructions related to such notice of exercise. The transfer of shares of Common Stock issuable upon the exercise of the Option may be effected on a noncertificated basis if permitted by applicable law and the rules of the stock exchange on which the Shares trade. The Company will pay any original issue or transfer taxes with respect to the issue or transfer of the Shares and all fees and expenses incurred by it in connection therewith. Notwithstanding anything to the contrary in this Agreement, the Company will not be required to issue or deliver any Shares prior to the completion of such registration or other qualification of such Shares under any state or federal law, rule or regulation as the Company may determine to be necessary or desirable.
|
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9.
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Termination of Employment or Other Service
.
If your employment by or provision of services to the Company and its Affiliates (collectively referred to in this section as “employment”) terminates before the Expiration Date and before the Option has been exercised in full, the following rules apply:
|
|
|
(a)
|
If your employment terminates for any reason other than disability (within the meaning of Section 22(e)(3) of the Code) (“Disability”), death, or retirement on or after normal retirement age in accordance with the applicable retirement policy of the Company and its Affiliates, then any unvested portion of the Option shall terminate on the date your employment terminates and be of no further force and effect.
|
|
|
(b)
|
If your employment terminates for any reason other than Disability, death, or retirement on or after normal retirement age or early retirement in accordance with the applicable retirement policy of the Company and its Affiliates, then any vested portion of the Option that has not yet been exercised on the date of termination shall continue to be exercisable for a period of thirty (30) days after such date, but not after the Expiration Date.
|
|
|
(c)
|
If your employment terminates by reason of early retirement in accordance with the applicable retirement policy of the Company and its Affiliates, then any vested portion of the Option that has not yet been exercised on the date of termination shall continue to be exercisable for a period of three (3) years after such date, but not after the Expiration Date.
|
|
|
(d)
|
If your employment terminates by reason of your death, then (i) any unvested portion of the Option shall vest immediately and become exercisable in accordance with its terms during the period specified in clause (ii) of this Section 6(d); and (ii) the portion of the Option that has not yet been exercised shall continue to be exercisable for a period of one (1) year following the date of termination of employment, but not after the Expiration Date.
|
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|
|
|
(e)
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If your employment terminates by reason of your Disability or retirement on or after normal retirement age in accordance with the applicable retirement policy of the Company and its Affiliates, then (i) any unvested portion of the Option shall vest immediately and become exercisable during the period specified in clause (ii) of this Section 6(e); and (ii) the portion of the Option that has not yet been exercised shall continue to be exercisable for a period of three (3) years following the date of termination of employment, but not after the Expiration Date.
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11.
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Change in Control
.
In the event a Change in Control of the Company occurs during the term of this Option, this Option Award shall be dealt with as provided in Article 11 of the Plan.
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12.
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Transfer of Option
. During your lifetime, only you (or your guardian or legal representative in the event of legal incapacity) may exercise this Option. You may not assign or transfer this Option other than by will or the laws of descent and distribution. Following any such transfer, this Option shall continue to be subject to the same terms and conditions that were applicable to this Option immediately prior to its transfer and may be exercised by such permitted transferee as and to the extent that this Option has become exercisable and has not terminated in accordance with the provisions of the Plan and this Agreement. Whenever you are referred to in any provision of this Agreement under circumstances where the provision should logically be construed to apply to any permitted transferee of the Option, such references will be deemed to include such person or persons.
|
|
13.
|
Compensation Recovery
.
This Award and any shares or cash received in settlement thereof shall be subject to (i) the Company’s Policy Regarding Executive Incentive Compensation Recoupment as in effect from time to time, including any amendments or revisions thereto adopted by the Board or the Committee in response to the requirements of Section 10D of the Exchange Act and the rules promulgated by the Securities and Exchange Commission and the Nasdaq Stock Market thereunder; and (ii) forfeiture to or reimbursement of the Company under the circumstances and to the extent provided in Section 304 of the Sarbanes-Oxley Act of 2002 if you are one of the individuals expressly subject to such Section 304 or if you knowingly or grossly negligently engaged in the misconduct, or knowingly or grossly negligently failed to prevent the misconduct which resulted in material noncompliance by the Company with any financial reporting requirement under the securities laws and as a result of which the Company was required to prepare an accounting restatement.
|
|
14.
|
Governing Plan Document
. This Agreement and Option Award are subject to all the provisions of the Plan, and to all interpretations, rules and regulations which may, from time to time, be adopted and promulgated by the Committee pursuant to the Plan. If there is any conflict between the provisions of this Agreement and the Plan, the provisions of the Plan will govern.
|
|
15.
|
Binding Effect
. This Agreement will be binding in all respects on your heirs, representatives, successors and assigns, and on the successors and assigns of the Company.
|
|
16.
|
Notices
.
Every notice or other communication relating to this Agreement shall be in writing and shall be mailed to or delivered to the party for whom it is intended at such address as may from time to time be designated by it in a notice mailed or delivered to the other party as herein provided; provided, however, that unless and until some other address be so designated, all notices or communications by you to the Company shall be mailed or delivered to the Company at its office at 2100 Highway 55, Medina, Minnesota 55340, and all notices or communications by the Company to you may be given to you personally or may be mailed to you at the address indicated in the Company's records as your most recent mailing address.
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|
17.
|
Entire Agreement and Severability
.
This Agreement and the Plan embody the entire understanding of the parties with respect to this Option Award, and supersede all other oral or written agreements or understandings between you and the Company regarding the subject matter hereof. Except as otherwise provided in Section 17.4 of the Plan, no change, alteration or modification hereof may adversely affect in any material way your rights under this Agreement without your prior written consent. If any provision of this Agreement or the application of any provision hereof is declared to be illegal, invalid, or otherwise unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby.
|
|
Participant: _____________________
|
SSN:_________________ |
|
Number of Performance Based Restricted Shares Granted:
|
_____________
|
|
Grant Date:
|
_____________
|
|
Initial Vesting Date:
Final Vesting Date:
|
_______________, if Initial Performance Goals satisfied
_______________, if Final Performance Goals satisfied
|
|
Initial Performance Period:
Final Performance Period:
|
Fiscal year _____
Fiscal year _____
|
|
Initial Performance Goals:
Final Performance Goal:
|
For the Initial Performance Period:
·
Operating Income Margin ______
·
Net Income $___________
For the Final Performance Period:
·
Operating Income Margin ______
·
Net Income $___________
|
|
Agreed:
__________________________
Participant
Attachment: Award Terms and Conditions
|
POLARIS INDUSTRIES INC.
Michael W. Malone
Vice President-Finance and Chief Financial Officer
|
|
1.
|
Award of Restricted Shares
.
The Company hereby confirms the grant to you, as of the Grant Date, of the number of Performance Based Restricted Shares identified on the cover page of this Agreement (the "Restricted Shares"), subject to the terms and conditions of this Agreement and the Plan.
|
|
2.
|
Stock Certificate Legend
.
As soon as practicable after the Grant Date, the Company shall cause one or more stock certificates representing the Restricted Shares to be registered in your name. Such stock certificate(s) shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under applicable federal or state securities laws, and may bear a legend making appropriate reference to such restrictions. In addition, each certificate representing the Restricted Shares shall bear the following legend (the "Agreement Legend"):
|
|
|
“The shares of stock represented by this Certificate are subject to the restrictions on sale and transfer, whether voluntarily, involuntarily or by operation of law, and the forfeiture conditions set forth in the Polaris Industries Inc. 2007 Omnibus Incentive Plan and in the associated Performance Based Restricted Share Award Agreement entered into between the registered owner and Polaris Industries Inc. Copies of such Agreement are on file in the offices of Polaris Industries Inc., 2100 Highway 55, Medina, Minnesota 55340.”
|
|
3.
|
Escrow and Delivery of Shares
.
Until the Restricted Shares vest as provided in Section 5 of this Agreement, the certificate(s) representing the Restricted Shares shall be held in custody by the Secretary of the Company. Simultaneously with the execution and delivery of this Agreement, you shall deliver to the Company one or more stock powers endorsed in blank relating to the Restricted Shares. Upon vesting of all or any portion of the Restricted Shares, the Company shall deliver or cause to be delivered to you a certificate or certificates without the Agreement Legend for those Shares that have vested, subject to Sections 6, 7 and 9 of this Agreement. Upon forfeiture of all or any portion of the Restricted Shares in accordance with Sections 6 or 9 of this Agreement, the certificate(s) representing the forfeited Restricted Shares shall be canceled.
|
|
|
(a)
|
Beginning on the Grant Date, you shall have all rights and privileges of a stockholder of the Company with respect to the Restricted Shares except as follows (the “Restrictions”):
|
|
|
(i)
|
Dividends and other distributions paid with respect to Restricted Shares before they vest shall be disposed of in accordance with Section 4(c);
|
|
|
(ii)
|
None of the Restricted Shares may be sold, transferred, assigned, pledged or otherwise encumbered or disposed of before they vest other than by will or the laws of descent and distribution; and
|
|
|
(iii)
|
All or a portion of the Restricted Shares may be forfeited in accordance with Section 6.
|
|
|
(b)
|
Any attempt to dispose of Restricted Shares in a manner contrary to the Restrictions shall be null, void and ineffective. If and when the Restricted Shares vest in accordance with the terms of this Agreement and the Restrictions lapse, such Shares shall no longer be considered Restricted Shares for purposes of this Agreement.
|
|
|
(c)
|
You hereby irrevocably and unconditionally assign to the Company any and all cash and non-cash dividends and other distributions paid with respect to the Restricted Shares before they vest; provided, however, that any Shares distributed as a dividend or otherwise with respect to the Restricted Shares before they vest shall not be subject to such assignment, shall be considered additional Restricted Shares subject to the same Restrictions as the underlying Restricted Shares and shall be held as prescribed in Section 3.
|
|
5.
|
Vesting of Restricted Shares
.
Subject to Sections 6 and 9 of this Agreement, the Restricted Shares shall vest and the Restrictions shall lapse as provided in this Section 5.
|
|
|
(a)
|
All of the Restricted Shares shall vest as of the Initial Vesting Date if the Company’s Operating Income Margin and Net Income (as defined below) for the Initial Performance Period are equal to or greater than the Initial Performance Goals set forth on cover page of this Agreement.
|
|
|
(b)
|
If the Restricted Shares do not vest as a result of achievement of the Initial Performance Goals in accordance with Section 5(a), all of the Restricted Shares shall vest as of the Final Vesting Date if the Company’s Operating Income Margin and Net Income for the Final Performance Period are equal to or greater than the Final Performance Goals set forth on the cover page of this Agreement.
|
|
|
(c)
|
If a Change in Control of the Company occurs while you continue to be employed by the Company or any of its Affiliates and before the Final Vesting Date, all of the unvested Restricted Shares shall immediately vest.
|
|
|
(d)
|
For purposes of this Agreement, (i) “Sales,” “Operating Income Margin” and “Net Income” shall mean the sales, operating income margin and net income, respectively, of the Company and its Subsidiaries for the applicable fiscal year as reported in the Company's audited financial statements for such fiscal year, as adjusted for changes in generally accepted accounting principles or the application of generally accepted accounting principles by the Company; and (ii) “Operating Income Margin” shall mean the operating income of the Company and its Subsidiaries for the applicable fiscal year expressed as a percentage of Sales for such fiscal year.
|
|
6.
|
Forfeiture
.
All of your rights to unvested Restricted Shares shall terminate and such Restricted Sharers shall be forfeited to the Company effective as of the earlier of (i) the Final Vesting Date if the Final Performance Goals have not been achieved, or (ii) the date your employment with the Company and its Affiliates terminates for any reason.
|
|
7.
|
Tax Withholding
.
The Company will notify you of the amount of any federal, state or local withholding taxes that must be paid in connection with the vesting of the Restricted Shares (or in connection with the grant of the Restricted Shares if you make the election described in Section 8). The Company may deduct such amount from your regular salary payments or other compensation otherwise due and owing to you. If the full amount of the withholding taxes cannot be recovered in this manner, you must promptly remit the deficiency to the Company upon the receipt of the Company’s notice. If you wish to satisfy some or all of such withholding taxes by delivering Shares you already own or by having the Company retain a portion of the vested Restricted Shares that would otherwise be released to you, you must make such a request in accordance with Section 19.2 of the Plan which shall be subject to approval by the Committee. The Company may withhold the release to you of any and all vested Shares to which you are otherwise entitled under this Agreement until and unless you have satisfied the applicable tax withholding obligations.
|
|
8.
|
83(b) Election
. You may make and file with the Internal Revenue Service an election under Section 83(b) of the Code with respect to the grant of the Restricted Shares, electing to include in your gross income as of the Grant Date the Fair Market Value of the Restricted Shares as of the Grant Date. You shall promptly provide a copy of such election to the Company. If you make and file such an election, you shall make such arrangements in accordance with Section 7 as are satisfactory to the Committee to provide for the payment of all applicable withholding taxes.
|
|
9.
|
Compensation Recovery
.
This Award and any shares or cash received in settlement thereof shall be subject to (i) the Company’s Policy Regarding Executive Incentive Compensation Recoupment as in effect from time to time, including any amendments or revisions thereto adopted by the Board or the Committee in response to the requirements of Section 10D of the Exchange Act and the rules promulgated by the Securities and Exchange Commission and the Nasdaq Stock Market thereunder; and (ii) forfeiture to or reimbursement of the Company under the circumstances and to the extent provided in Section 304 of the Sarbanes-Oxley Act of 2002 if you are one of the individuals expressly subject to such Section 304 or if you knowingly or grossly negligently engaged in the misconduct, or knowingly or grossly negligently failed to prevent the misconduct which resulted in material noncompliance by the Company with any financial reporting requirement under the securities laws and as a result of which the Company was required to prepare an accounting restatement.
|
|
10.
|
Governing Plan Document
. This Agreement and Award are subject to all the provisions of the Plan, and to all interpretations, rules and regulations which may, from time to time, be adopted and promulgated by the Committee pursuant to the Plan. If there is any conflict between the provisions of this Agreement and the Plan, the provisions of the Plan will govern.
|
|
11.
|
Binding Effect and Assignment
.
This Agreement shall be binding upon and inure to the benefit of your heirs and representatives and the assigns and successors of the Company, but neither this Agreement nor any rights hereunder shall be assignable or otherwise subject to transfer or pledge by you.
|
|
12.
|
Entire Agreement; Amendment; Severability
.
This Agreement and the Plan and any Non-Competition Agreement and Confidentiality Agreement between you and the Company dated as of the Grant Date embody the entire understanding of the parties regarding the subject matter hereof and shall supersede all prior agreements and understandings, oral or written, between the parties with respect thereto. Except as otherwise provided in Section 17.4 of the Plan, no change, alteration or modification of this Agreement may adversely affect in any material way your rights under this Agreement without your prior written consent. If any provision of this Agreement or the application of any provision hereof is declared to be illegal, invalid, or otherwise unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby.
|
|
13.
|
Certain References
.
References to you in any provision of this Agreement under circumstances where the provision should logically be construed to apply to your executors or administrators, or to the person or persons to whom all or any portion of the Restricted Shares may be transferred by will or the laws of descent and distribution, shall be deemed to include such person or persons.
|
|
14.
|
Notices
.
Every notice or other communication relating to this Agreement shall be in writing and shall be mailed to or delivered to the party for whom it is intended at such address as may from time to time be designated by it in a notice mailed or delivered to the other party as herein provided; provided, however, that unless and until some other address be so designated, all notices or communications by you to the Company shall be mailed or delivered to the Company at its office at 2100 Highway 55, Medina, Minnesota 55340, and all notices or communications by the Company to you may be given to you personally or may be mailed to you at the address indicated in the Company's records as your most recent mailing address.
|
| Participant: _____________________ | SSN:_________________ |
|
Number of Performance Based Restricted Shares Granted:
|
_____________
|
|
Grant Date:
|
_____________
|
|
Initial Vesting Date:
Final Vesting Date:
|
_______________, if Initial Performance Goals satisfied
_______________, if Final Performance Goals satisfied
|
|
Initial Performance Period:
Final Performance Period:
|
Fiscal year _____
Fiscal year _____
|
|
Initial Performance Goals:
Final Performance Goal:
|
For the Initial Performance Period:
·
Operating Income Margin ______
·
Net Income $___________
For the Final Performance Period:
·
Operating Income Margin ______
·
Net Income $___________
|
|
Agreed:
__________________________
Participant
Attachment: Award Terms and Conditions
|
POLARIS INDUSTRIES INC.
Michael W. Malone
Vice President-Finance and Chief Financial Officer
|
|
1.
|
Award of Restricted Shares
.
The Company hereby confirms the grant to you, as of the Grant Date, of the number of Performance Based Restricted Shares identified on the cover page of this Agreement (the "Restricted Shares"), subject to the terms and conditions of this Agreement and the Plan.
|
|
2.
|
Stock Certificate Legend
.
As soon as practicable after the Grant Date, the Company shall cause one or more stock certificates representing the Restricted Shares to be registered in your name. Such stock certificate(s) shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under applicable federal or state securities laws, and may bear a legend making appropriate reference to such restrictions. In addition, each certificate representing the Restricted Shares shall bear the following legend (the "Agreement Legend"):
|
|
|
“The shares of stock represented by this Certificate are subject to the restrictions on sale and transfer, whether voluntarily, involuntarily or by operation of law, and the forfeiture conditions set forth in the Polaris Industries Inc. 2007 Omnibus Incentive Plan and in the associated Performance Based Restricted Share Award Agreement entered into between the registered owner and Polaris Industries Inc. Copies of such Agreement are on file in the offices of Polaris Industries Inc., 2100 Highway 55, Medina, Minnesota 55340.”
|
|
3.
|
Escrow and Delivery of Shares
.
Until the Restricted Shares vest as provided in Section 5 of this Agreement, the certificate(s) representing the Restricted Shares shall be held in custody by the Secretary of the Company. Simultaneously with the execution and delivery of this Agreement, you shall deliver to the Company one or more stock powers endorsed in blank relating to the Restricted Shares. Upon vesting of all or any portion of the Restricted Shares, the Company shall deliver or cause to be delivered to you a certificate or certificates without the Agreement Legend for those Shares that have vested, subject to Sections 6, 7 and 9 of this Agreement. Upon forfeiture of all or any portion of the Restricted Shares in accordance with Sections 6 or 9 of this Agreement, the certificate(s) representing the forfeited Restricted Shares shall be canceled.
|
|
|
(a)
|
Beginning on the Grant Date, you shall have all rights and privileges of a stockholder of the Company with respect to the Restricted Shares except as follows (the “Restrictions”):
|
|
|
(i)
|
Dividends and other distributions paid with respect to Restricted Shares before they vest shall be disposed of in accordance with Section 4(c);
|
|
|
(ii)
|
None of the Restricted Shares may be sold, transferred, assigned, pledged or otherwise encumbered or disposed of before they vest other than by will or the laws of descent and distribution; and
|
|
|
(iii)
|
All or a portion of the Restricted Shares may be forfeited in accordance with Section 6.
|
|
|
(b)
|
Any attempt to dispose of Restricted Shares in a manner contrary to the Restrictions shall be null, void and ineffective. If and when the Restricted Shares vest in accordance with the terms of this Agreement and the Restrictions lapse, such shares shall no longer be considered Restricted Shares for purposes of this Agreement.
|
|
|
(c)
|
You hereby irrevocably and unconditionally assign to the Company any and all cash and non-cash dividends and other distributions paid with respect to the Restricted Shares before they vest; provided, however, that any Shares distributed as a dividend or otherwise with respect to the Restricted Shares before they vest shall not be subject to such assignment, shall be considered additional Restricted Shares subject to the same Restrictions as the underlying Restricted Shares and shall be held as prescribed in Section 3.
|
|
5.
|
Vesting of Restricted Shares
.
Subject to Sections 6, 9 and 10 of this Agreement, the Restricted Shares shall vest and the Restrictions shall lapse as provided in this Section 5.
|
|
|
(a)
|
All of the Restricted Shares shall vest as of the Initial Vesting Date if the Company’s Operating Income Margin and Net Income (as defined below) for the Initial Performance Period are equal to or greater than the Initial Performance Goals set forth on cover page of this Agreement.
|
|
|
(b)
|
If the Restricted Shares do not vest as a result of achievement of the Initial Performance Goals in accordance with Section 5(a), all of the Restricted Shares shall vest as of the Final Vesting Date if the Company’s Operating Income Margin and Net Income for the Final Performance Period are equal to or greater than the Final Performance Goals set forth on the cover page of this Agreement.
|
|
|
(c)
|
For purposes of this Agreement, (i) “Sales,” “Operating Income Margin” and “Net Income” shall mean the sales, operating income margin and net income, respectively, of the Company and its Subsidiaries for the applicable fiscal year as reported in the Company's audited financial statements for such fiscal year, as adjusted for changes in generally accepted accounting principles or the application of generally accepted accounting principles by the Company; and (ii) “Operating Income Margin” shall mean the operating income of the Company and its Subsidiaries for the applicable fiscal year expressed as a percentage of Sales for such fiscal year.
|
|
6.
|
Forfeiture
.
All of your rights to unvested Restricted Shares shall terminate and such Restricted Sharers shall be forfeited to the Company effective as of the earlier of (i) the Final Vesting Date if the Final Performance Goals have not been achieved, or (ii) the date your employment with the Company and its Affiliates terminates for any reason.
|
|
7.
|
Tax Withholding
.
The Company will notify you of the amount of any federal, state or local withholding taxes that must be paid in connection with the vesting of the Restricted Shares (or in connection with the grant of the Restricted Shares if you make the election described in Section 8). The Company may deduct such amount from your regular salary payments or other compensation otherwise due and owing to you. If the full amount of the withholding taxes cannot be recovered in this manner, you must promptly remit the deficiency to the Company upon the receipt of the Company’s notice. If you wish to satisfy some or all of such withholding taxes by delivering Shares you already own or by having the Company retain a portion of the vested Restricted Shares that would otherwise be released to you, you must make such a request in accordance with Section 19.2 of the Plan which shall be subject to approval by the Committee. The Company may withhold the release to you of any and all vested Shares to which you are otherwise entitled under this Agreement until and unless you have satisfied the applicable tax withholding obligations.
|
|
8.
|
83(b) Election
. You may make and file with the Internal Revenue Service an election under Section 83(b) of the Code with respect to the grant of the Restricted Shares, electing to include in your gross income as of the Grant Date the Fair Market Value of the Restricted Shares as of the Grant Date. You shall promptly provide a copy of such election to the Company. If you make and file such an election, you shall make such arrangements in accordance with Section 7 as are satisfactory to the Committee to provide for the payment of all applicable withholding taxes.
|
|
9.
|
Compensation Recovery
.
This Award and any shares or cash received in settlement thereof shall be subject to (i) the Company’s Policy Regarding Executive Incentive Compensation Recoupment as in effect from time to time, including any amendments or revisions thereto adopted by the Board or the Committee in response to the requirements of Section 10D of the Exchange Act and the rules promulgated by the Securities and Exchange Commission and the Nasdaq Stock Market thereunder; and (ii) forfeiture to or reimbursement of the Company under the circumstances and to the extent provided in Section 304 of the Sarbanes-Oxley Act of 2002 if you are one of the individuals expressly subject to such Section 304 or if you knowingly or grossly negligently engaged in the misconduct, or knowingly or grossly negligently failed to prevent the misconduct which resulted in material noncompliance by the Company with any financial reporting requirement under the securities laws and as a result of which the Company was required to prepare an accounting restatement.
|
|
10.
|
Change in Control
.
If a Change in Control of the Company occurs before the Final Vesting Date and while you continue to be employed by the Company or any of its Affiliates, this Award shall be dealt with as provided in Article 11 of the Plan.
|
|
11.
|
Governing Plan Document
. This Agreement and Award are subject to all the provisions of the Plan, and to all interpretations, rules and regulations which may, from time to time, be adopted and promulgated by the Committee pursuant to the Plan. If there is any conflict between the provisions of this Agreement and the Plan, the provisions of the Plan will govern.
|
|
12.
|
Binding Effect and Assignment
.
This Agreement shall be binding upon and inure to the benefit of your heirs and representatives and the assigns and successors of the Company, but neither this Agreement nor any rights hereunder shall be assignable or otherwise subject to transfer or pledge by you.
|
|
13.
|
Entire Agreement; Amendment; Severability
.
This Agreement and the Plan and any Non-Competition Agreement and Confidentiality Agreement between you and the Company dated as of the Grant Date embody the entire understanding of the parties regarding the subject matter hereof and shall supersede all prior agreements and understandings, oral or written, between the parties with respect thereto. Except as otherwise provided in Section 17.4 of the Plan, no change, alteration or modification of this Agreement may adversely affect in any material way your rights under this Agreement without your prior written consent. If any provision of this Agreement or the application of any provision hereof is declared to be illegal, invalid, or otherwise unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby.
|
|
14.
|
Certain References
.
References to you in any provision of this Agreement under circumstances where the provision should logically be construed to apply to your executors or administrators, or to the person or persons to whom all or any portion of the Restricted Shares may be transferred by will or the laws of descent and distribution, shall be deemed to include such person or persons.
|
|
15.
|
Notices
.
Every notice or other communication relating to this Agreement shall be in writing and shall be mailed to or delivered to the party for whom it is intended at such address as may from time to time be designated by it in a notice mailed or delivered to the other party as herein provided; provided, however, that unless and until some other address be so designated, all notices or communications by you to the Company shall be mailed or delivered to the Company at its office at 2100 Highway 55, Medina, Minnesota 55340, and all notices or communications by the Company to you may be given to you personally or may be mailed to you at the address indicated in the Company's records as your most recent mailing address.
|
| Participant: _____________________ | SSN:_________________ |
|
Number of Restricted Shares Granted:
|
_______________
|
|
Date of Grant:
|
_______________
|
|
Vesting Schedule:
|
Date
Number of Shares That Vest
|
|
Agreed:
_________________________
Participant
Attachment: Award Terms and Conditions
|
POLARIS INDUSTRIES INC.
Michael W. Malone
Vice President-Finance and Chief Financial Officer
|
|
1.
|
Award of Restricted Shares
.
The Company hereby confirms the grant to you, as of the Grant Date, of the number of restricted Shares identified on the cover page of this Agreement (the "Restricted Shares"), subject to the terms and conditions of this Agreement and the Plan.
|
|
2.
|
Stock Certificate Legend
.
As soon as practicable after the Grant Date, the Company shall cause one or more stock certificates representing the Restricted Shares to be registered in your name. Such stock certificate(s) shall be subject to such stop-transfer orders and other restrictions as the Committee may deem advisable under applicable federal or state securities laws, and may bear a legend making appropriate reference to such restrictions. In addition, each certificate representing the Restricted Shares shall bear the following legend (the "Agreement Legend"):
|
|
|
“The shares of stock represented by this Certificate are subject to the restrictions on sale and transfer, whether voluntarily, involuntarily or by operation of law, and the forfeiture conditions set forth in the Polaris Industries Inc. 2007 Omnibus Incentive Plan and in the associated Restricted Stock Award Agreement entered into between the registered owner and Polaris Industries Inc. Copies of such Agreement are on file in the offices of Polaris Industries Inc., 2100 Highway 55, Medina, Minnesota 55340.”
|
|
3.
|
Escrow and Delivery of Shares
.
Until the Restricted Shares vest as provided in Section 5 of this Agreement, the certificate(s) representing the Restricted Shares shall be held in custody by the Secretary of the Company. Simultaneously with the execution and delivery of this Agreement, you shall deliver to the Company one or more stock powers endorsed in blank relating to the Restricted Shares. Upon vesting of all or any portion of the Restricted Shares, the Company shall deliver or cause to be delivered to you a certificate or certificates without the Agreement Legend for those Shares that have vested, subject to Sections 6, 7 and 9 of this Agreement. Upon forfeiture of all or any portion of the Restricted Shares in accordance with Sections 6 or 9 of this Agreement, the certificate(s) representing the forfeited Restricted Shares shall be canceled.
|
|
|
(a)
|
Beginning on the Grant Date, you shall have all rights and privileges of a stockholder of the Company with respect to the Restricted Shares except as follows (the “Restrictions”):
|
|
|
(i)
|
Dividends and other distributions paid with respect to Restricted Shares before they vest shall be disposed of in accordance with Section 4(c);
|
|
|
(ii)
|
None of the Restricted Shares may be sold, transferred, assigned, pledged or otherwise encumbered or disposed of before they vest other than by will or the laws of descent and distribution; and
|
|
|
(iii)
|
All or a portion of the Restricted Shares may be forfeited in accordance with Section 6.
|
|
|
(b)
|
Any attempt to dispose of Restricted Shares in a manner contrary to the Restrictions shall be null, void and ineffective. If and when the Restricted Shares vest in accordance with the terms of this Agreement and the Restrictions lapse, such Shares shall no longer be considered Restricted Shares for purposes of this Agreement.
|
|
|
(c)
|
You hereby irrevocably and unconditionally assign to the Company any and all cash and non-cash dividends and other distributions paid with respect to the Restricted Shares before they vest; provided, however, that any Shares distributed as a dividend or otherwise with respect to the Restricted Shares before they vest shall not be subject to such assignment, shall be considered additional Restricted Shares subject to the same Restrictions as the underlying Restricted Shares and shall be held as prescribed in Section 3.
|
|
5.
|
Vesting of Restricted Shares
.
Subject to Sections 6 and 9 of this Agreement, (i) Restrictions on the Restricted Shares shall lapse and the Restricted Shares shall vest in accordance with the Vesting Schedule set forth on the cover page to this Agreement, so long as your employment with the Company and any of its Affiliates has not previously ended; and (ii) if a Change in Control of the Company occurs while you continue to be employed by the Company or any of its Affiliates and before all of the Restricted Shares have otherwise vested in accordance with the Vesting Schedule, all of the unvested Restricted Shares shall immediately vest.
|
|
6.
|
Forfeiture
.
All of your rights to unvested Restricted Shares shall terminate and such Restricted Sharers shall be forfeited to the Company effective as of the earlier of (i) the Final Vesting Date if the Final Performance Goals have not been achieved, or (ii) the date your employment with the Company and its Affiliates terminates for any reason.
|
|
7.
|
Tax Withholding
.
The Company will notify you of the amount of any federal, state or local withholding taxes that must be paid in connection with the vesting of the Restricted Shares (or in connection with the grant of the Restricted Shares if you make the election described in Section 8). The Company may deduct such amount from your regular salary payments or other compensation otherwise due and owing to you. If the full amount of the withholding taxes cannot be recovered in this manner, you must promptly remit the deficiency to the Company upon the receipt of the Company’s notice. If you wish to satisfy some or all of such withholding taxes by delivering Shares you already own or by having the Company retain a portion of the vested Restricted Shares that would otherwise be released to you, you must make such a request in accordance with Section 19.2 of the Plan, which request shall be subject to approval by the Committee. The Company may withhold the release to you of any and all vested Shares to which you are otherwise entitled under this Agreement until and unless you have satisfied the applicable tax withholding obligations.
|
|
8.
|
83(b) Election
. You may make and file with the Internal Revenue Service an election under Section 83(b) of the Code with respect to the grant of the Restricted Shares, electing to include in your gross income as of the Grant Date the Fair Market Value of the Restricted Shares as of the Grant Date. You shall promptly provide a copy of such election to the Company. If you make and file such an election, you shall make such arrangements in accordance with Section 7 as are satisfactory to the Committee to provide for the payment of all applicable withholding taxes.
|
|
9.
|
Compensation Recovery
.
This Award and any shares or cash received in settlement thereof shall be subject to (i) the Company’s Policy Regarding Executive Incentive Compensation Recoupment as in effect from time to time, including any amendments or revisions thereto adopted by the Board or the Committee in response to the requirements of Section 10D of the Exchange Act and the rules promulgated by the Securities and Exchange Commission and the Nasdaq Stock Market thereunder; and (ii) forfeiture to or reimbursement of the Company under the circumstances and to the extent provided in Section 304 of the Sarbanes-Oxley Act of 2002 if you are one of the individuals expressly subject to such Section 304 or if you knowingly or grossly negligently engaged in the misconduct, or knowingly or grossly negligently failed to prevent the misconduct which resulted in material noncompliance by the Company with any financial reporting requirement under the securities laws and as a result of which the Company was required to prepare an accounting restatement.
|
|
10.
|
Governing Plan Document
. This Agreement and Award are subject to all the provisions of the Plan, and to all interpretations, rules and regulations which may, from time to time, be adopted and promulgated by the Committee pursuant to the Plan. If there is any conflict between the provisions of this Agreement and the Plan, the provisions of the Plan will govern.
|
|
11.
|
Binding Effect and Assignment
.
This Agreement shall be binding upon and inure to the benefit of your heirs and representatives and the assigns and successors of the Company, but neither this Agreement nor any rights hereunder shall be assignable or otherwise subject to transfer or pledge by you.
|
|
12.
|
Entire Agreement; Amendment; Severability
.
This Agreement and the Plan and any Non-Competition Agreement and Confidentiality Agreement between you and the Company dated as of the Grant Date embody the entire understanding of the parties regarding the subject matter hereof and shall supersede all prior agreements and understandings, oral or written, between the parties with respect thereto. Except as otherwise provided in Section 17.4 of the Plan, no change, alteration or modification of this Agreement may adversely affect in any material way your rights under this Agreement without your prior written consent. If any provision of this Agreement or the application of any provision hereof is declared to be illegal, invalid, or otherwise unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby.
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13.
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Certain References
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References to you in any provision of this Agreement under circumstances where the provision should logically be construed to apply to your executors or administrators, or to the person or persons to whom all or any portion of the Restricted Shares may be transferred by will or the laws of descent and distribution, shall be deemed to include such person or persons.
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14.
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Notices
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Every notice or other communication relating to this Agreement shall be in writing and shall be mailed to or delivered to the party for whom it is intended at such address as may from time to time be designated by it in a notice mailed or delivered to the other party as herein provided; provided, however, that unless and until some other address be so designated, all notices or communications by you to the Company shall be mailed or delivered to the Company at its office at 2100 Highway 55, Medina, Minnesota 55340, and all notices or communications by the Company to you may be given to you personally or may be mailed to you at the address indicated in the Company's records as your most recent mailing address.
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