UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) January 23, 2012
Associated Banc-Corp
(Exact name of registrant as specified in its chapter)
Wisconsin | 001-31343 | 39-1098068 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
1200 Hansen Road, Green Bay, Wisconsin | 54304 | |
(Address of principal executive offices) | (Zip code) |
Registrants telephone number, including area code 920-491-7000
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On January 23, 2012, the Compensation and Benefits Committee (the Committee) of the Board of Directors of Associated Banc-Corp (Associated) approved the performance criteria for its short-term cash incentive plan, named the 2012 Management Incentive Plan (the MIP), and for its 2012 Long Term Incentive Performance Plan (the LTIPP), each administered under the Associated Banc-Corp 2010 Incentive Compensation Plan (the Plan). Philip B. Flynn, President and Chief Executive Officer of Associated, and the other Named Executive Officers (NEOs) of Associated, as reflected in the Proxy Statement for the 2011 Annual Meeting of Shareholders, participate in the MIP and LTIPP along with all other Associated Executive Committee members. As components of the previously disclosed 2012 compensation structure for the NEOs, the NEOs are eligible to participate in the MIP, received restricted stock units (RSUs) subject to vesting pursuant to the performance criteria in the LTIPP as described below, and received stock options.
These Committee approvals were the latest step in Associateds previously announced transition toward a performance-based short-term and long-term incentive compensation program following Associateds full repayment of the U.S. Treasurys investment in Associated under TARP. The Committee intended to further align incentive compensation payout criteria to Associateds bottom line financial results on which it believes shareholders measure their investments in Associated.
The performance criteria established under the MIP is a matrix based on a combination of Return on Tier 1 Common Equity (ROT1CE) and fully diluted Earnings Per Share (EPS) results. The Committee believes that a return on regulatory capital measure is an important metric to measure and benchmark managements effectiveness versus similarly regulated institutions in its industry peer group. The actual payout will generally be determined based on the pre-established matrix indicating specific percentages of target performance based on various combinations of ROT1CE ranging from less than 5% to over 12.50%, and EPS results. The Committee has retained discretion to approve all payments under the MIP.
The performance criteria established under the LTIPP to determine the vesting of the RSUs is a matrix based on a combination of Associateds EPS (as may be adjusted in the discretion of the Committee to eliminate the effects of certain non-recurring items) and Total Shareholder Return (TSR) relative to Associateds industry peer group. The actual percentage of RSUs that vest will be determined based on the pre-established matrix indicating specific percentages based on various combinations of fully diluted EPS and TSR results. Awards may be increased or decreased by up to 10% under the matrix based upon Associateds TSR quintile ranking relative to the industry peer group. Quarterly dividend equivalents will be accrued and paid in cash upon vesting of the RSU.
The performance period for both the MIP and the LTIPP is calendar year 2012. In order to mitigate incentive compensation risk, the payouts under the MIP range from 25% to 175% of Associateds 2012 financial plan targets with a 100% payout at Associateds 2012 budget financial performance and the payouts under the LTIPP range from 80% to 100% of target.
2012 MIP Opportunity and Equity Grants
Set forth below are the grants to the NEOs at the previously approved and disclosed target dollar amounts which are calculated as percentages of the NEOs 2012 base salary.
Executive |
Management Incentive Plan (MIP)(1) |
Stock Options(2) | Performance-Based Restricted Stock Unit (LTIPP)(1)(2) |
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$ | # | $ | # | |||||||||||||||||
Philip B. Flynn, President and Chief Executive Officer |
$ | 625,000 | $ | 1,062,495 | 208,214 | $ | 1,062,489 | 81,919 | ||||||||||||
Joseph B. Selner, Executive Vice President, Chief Financial Officer |
$ | 207,750 | $ | 103,875 | 20,356 | $ | 103,864 | 8,008 | ||||||||||||
Mark J. McMullen, Vice Chairman of Associated Bank, National Association (3) |
$ | | $ | | $ | | ||||||||||||||
Scott S. Hickey, Executive Vice President, Chief Credit Officer |
$ | 192,250 | $ | 192,247 | 37,674 | $ | 192,241 | 14,822 |
(1) | Amounts reflect payout at 100% of target. |
(2) | The number of stock options and their exercise price, and the number of restricted stock units are calculated based on the grant date fair market value determined based on the closing stock price of $12.97 on the January 23, 2012 grant date. |
(3) | Mr. McMullen previously announced his retirement effective February 10, 2012 and accordingly, was not eligible to participate in the MIP and did not receive a grant of stock options or performance-based restricted stock units. |
In connection with the Plan and LTIPP, the Committee adopted a form of Performance-Based Restricted Stock Unit Agreement. In addition, the Committee adopted revised forms of Restricted Stock Agreement and Non-Qualified Stock Option Agreement for use with the Plan, which include provisions subjecting the award to any clawback or recoupment policy adopted by Associated, including any such policy adopted to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act. These forms of agreements are filed as Exhibit 99.1, Exhibit 99.2 and Exhibit 99.3, respectively, hereto and are incorporated herein by reference. The Committee also approved the availability for pledging of fully vested, but transfer restricted salary shares.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
Exhibit |
Description | |
99.1 | Form of Performance-Based Restricted Stock Unit Agreement | |
99.2 | Form of Restricted Stock Agreement | |
99.3 | Form of Non-Qualified Stock Option Agreement |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Associated Banc-Corp | ||||||
Date: January 27, 2012 |
By: | /s/ Kristi A. Hayek | ||||
Kristi A. Hayek | ||||||
Senior Vice President & Acting General Counsel |
Exhibit 99.1
Form Restricted Stock Unit Agreement (Performance-Based Vesting)
Associated Banc-Corp
2010 Incentive Compensation Plan
Cover Page to Restricted Stock Unit Agreement
(The Restricted Stock Unit Agreement is attached hereto)
Pursuant and subject to the Associated Banc-Corp 2010 Incentive Compensation Plan (the Plan) and the attached Restricted Stock Unit Agreement, the Committee has awarded the Grantee named below restricted stock units (RSUs) as follows:
Name of Grantee: | [INSERT NAME] | |
Grant Date: | [INSERT DATE] | |
Total Number of RSUs Granted and Available for Vesting Under This Award (i.e., 100% of target): | [INSERT NUMBER OF RSUs SUBJECT TO THIS AWARD] |
By executing below, the Grantee hereby acknowledges (1) receipt of a true copy of the Restricted Stock Unit Agreement; (2) that the Grantee has read the Restricted Stock Unit Agreement (including any Exhibits thereto) and the Plan carefully, and fully understands their contents; (3) that the Grantee accepts the award of RSUs; and (4) the Grantee agrees to be bound by the terms and conditions of the Restricted Stock Unit Agreement and the Plan.
IN WITNESS WHEREOF, as of the Grant Date, the Company and the Grantee hereby agree to be bound by the terms and conditions of the Restricted Stock Unit Agreement and the Plan.
ASSOCIATED BANC-CORP | GRANTEE | |||||||
By: |
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By: |
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Name: |
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Its: |
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Please sign and return your signed copy of (1) this cover page to the Restricted Stock Unit Agreement and (2) Exhibit A (Consent of Spouse) by [INSERT DATE] to [INSERT NAME/DEPARTMENT] at [INSERT CONTACT INFORMATION]. Failure to do so will result in forfeiture of the award. Please retain a copy of the signed documents; the remainder of the Restricted Stock Unit Agreement is for your records and does not need to be returned.
Form Restricted Stock Unit Agreement (Performance-Based Vesting)
ASSOCIATED BANC-CORP
2010 INCENTIVE COMPENSATION PLAN
RESTRICTED STOCK UNIT AGREEMENT
In accordance with and subject to the terms of the Associated Banc-Corp 2010 Incentive Compensation Plan (the Plan) and this Agreement, the Committee granted to the person named as grantee (the Grantee) on the cover page attached to this Restricted Stock Unit Agreement (the Cover Page) an award of Restricted Stock Units (the Cover Page and this Restricted Stock Unit Agreement hereinafter referred to as this Agreement).
To evidence such award and to set forth its terms, Associated Banc-Corp (the Company) and the Grantee agree as hereinafter set forth. All capitalized terms not otherwise defined in this Agreement shall have the meaning set forth in the Plan.
1. Grant of Restricted Stock Units. Subject to, and upon the terms and conditions set forth in this Agreement and the Plan, the Committee granted to the Grantee the number of restricted stock units set forth on the Cover Page (the RSUs), effective as of the grant date set forth on the Cover Page (the Grant Date), and the Grantee hereby accepts the grant of the RSUs, as set forth herein.
2. Crediting of RSUs. The RSUs shall be credited to an account on the Companys books as of the Grant Date. Such account shall be maintained for recordkeeping purposes only, and the Company is not obligated to segregate or set aside assets representing the amounts credited to such account. The obligation to settle such account shall be an unfunded, unsecured obligation of the Company.
3. Dividend Equivalents. Prior to settlement of the RSUs pursuant to Paragraph 8 below, the Grantees RSU Account shall be credited with Dividend Equivalents whenever the Company pays dividends on, or makes distributions with respect to, Shares. The amount of such Dividend Equivalents shall be determined by multiplying (a) by (b), where (a) is the dividend or distribution (as applicable) on a Share, and (b) is the number of RSUs credited to Grantees RSU Account pursuant to Paragraph 2 above as of the date of such dividend or distribution. Dividend Equivalents received by the Grantee pursuant to this Paragraph 3 shall be subject to the terms of this Agreement, including the vesting and settlement provisions of Paragraphs 5 and 8 below; provided, however, that such Dividend Equivalents shall be settled in cash.
4. Limitations on Transferability. At any time prior to vesting in accordance with Paragraph 5, 6 or 7 below, the RSUs and Dividend Equivalents, or any interest therein, cannot be directly or indirectly transferred, sold, assigned, pledged, hypothecated, encumbered or otherwise disposed.
5. Date of Vesting. Subject to the provisions of Paragraphs 6 and 7 below, the RSUs shall become vested (a) based on the terms and conditions specified in Exhibit B hereto (the Performance Criteria), and (b) on the date (the Vesting Date) that the Committee determines, in writing and in its sole discretion, the number of RSUs and Dividend Equivalents that shall become vested pursuant to the Performance Criteria.
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Form Restricted Stock Unit Agreement (Performance-Based Vesting)
Notwithstanding the foregoing, and subject to Paragraphs 6 and 7 below, in the event that the Grantee incurs a Termination of Service prior to the Vesting Date, any RSUs or Dividend Equivalents that were unvested on the date of such Termination of Service shall be immediately forfeited to the Company. Any RSUs or Dividend Equivalents that do not vest on the Vesting Date shall be forfeited to the Company. The Committee shall have full discretion and authority to determine whether and to what extent the Performance Criteria have been satisfied, and the determination of the Committee shall be final and binding on the Grantee, the Company, and all other Persons. In addition, notwithstanding the fact that the Performance Criteria may otherwise be fully satisfied, to the extent determined by the Committee in its sole and complete discretion, the number of RSUs and Dividend Equivalents that are to vest on the Vesting Date may be reduced by the Committee. Any such reduction shall be determined after the end of the applicable performance period and on or prior to the Vesting Date. Nothing in this Paragraph 5 shall affect the requirement that the Grantee remain employed by the Company as of the Vesting Date (subject to Paragraphs 6 and 7 below).
6. Termination of Service. Subject to Paragraph 7 below, the provisions of this Paragraph 6 shall apply in the event the Grantee incurs a Termination of Service at any time prior to all the RSUs and Dividend Equivalents vesting pursuant to Paragraph 5 above:
(a) If the Grantee incurs a Termination of Service because of his or her death or Disability, any RSUs or Dividend Equivalents that had not vested prior to the date of such Termination of Service shall vest.
(b) If the Grantee incurs a Termination of Service for any reason other than his or her death or Disability, then any RSUs or Dividend Equivalents that had not vested prior to the date of such Termination of Service shall be immediately forfeited to the Company.
7. Change in Control. Notwithstanding Paragraph 6 above, if the Grantee incurs an involuntary Termination of Service (other than due to Cause) (a) during the two year period immediately following a Change in Control that occurred after the Grant Date, and (b) before the Vesting Date, any RSUs or Dividend Equivalents that had not vested prior to the date of such Termination of Service shall vest. In addition, upon a Change in Control, the Grantee will have such rights with respect to the RSUs and Dividend Equivalents as are provided for in the Plan.
8. Settlement of RSUs and Dividend Equivalents. A vested RSU or Dividend Equivalent shall be settled as soon as administratively practicable after it vests, but in no event later than March 15 of the Year following the Year in which it vested. Each vested RSU shall be settled by ascribing to the Grantee (or, in the event of the Grantees death, to his or her Beneficiary) a Share in a book entry on the records kept by the Companys transfer agent or such other method of delivering Shares subject to this Award, as determined appropriate by the Committee. Each vested Dividend Equivalent shall be settled by a cash payment to the Grantee.
9. Spousal Consent. As a condition to the Companys obligations under this Agreement, the Company may require the Grantees spouse (if any) to execute and deliver to the Company the Consent of Spouse attached hereto as Exhibit A.
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Form Restricted Stock Unit Agreement (Performance-Based Vesting)
10. Restrictive Covenants.
(a) Confidential Information. The parties hereto acknowledge that the Company has created and maintains at great expense strategic plans, sales data and sales strategy, methods, products, procedures, processes, techniques, financial information, customer and supplier lists, personal customer data, pricing policies, personnel data and other similar confidential and proprietary information, and has received from its customers certain confidential and proprietary information (collectively, the Confidential Information). The parties hereto further acknowledge that the Company has taken and will continue to take actions to protect the Confidential Information. Accordingly, the Grantee agrees that during the term of the Grantees employment with the Company, and until the sooner of (i) such time as the Confidential Information becomes generally available to the public through no fault of the Grantee or other person under the duty of confidentiality to the Company, (ii) such time as the Confidential Information no longer provides a benefit to the Company, or (iii) two (2) years after the termination of the Grantees employment with the Company, the Grantee will not, in any capacity, use or disclose, or cause to be used or disclosed, in any geographic territory in which the Company or any of the Companys customers do business, any Confidential Information the Grantee acquired while employed by the Company. The requirements of confidentiality and the limitations on use and disclosure described in this Agreement shall not apply to Confidential Information that the Grantee can demonstrate by clear and convincing evidence, at the time of disclosure by the Company to the Grantee, was known to the Grantee as evidenced by the Grantees contemporaneous written records. The parties hereto agree that nothing in this Agreement shall be construed to limit or negate the law of torts or trade secrets where it provides the Company with broader protection than that provided herein.
(b) Return of Company Property. The parties hereto acknowledge that any material (in computerized or written form) that the Grantee obtained in the course of performing the Grantees employment duties are the sole and exclusive property of the Company, the Grantee agrees to immediately return any and all records, files, computerized data, documents, confidential or proprietary information, or any other property owned or belonging to the Company in the Grantees possession or under his or her control, without any originals or copies being kept by the Grantee or conveyed to any other person, upon the Grantees separation from employment or upon the Companys request.
(c) Non-Interference with Customers, Employees. For a period of six (6) months following the termination of the Grantees employment with the Company for any reason, the Grantee will not, directly or indirectly, on behalf of him/herself or any other person, entity or enterprise, do any of the following:
(i) solicit or accept business from any person or entity who is an Active Customer (as defined below) of the Company, a Subsidiary, or any of their affiliates, with whom the Grantee has had business contact during the twelve (12) month period prior to the termination of the Grantees employment with the Company (the Reference Period) for the purpose of providing competitive products or services similar to those provided by the Grantee during the Reference Period;
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Form Restricted Stock Unit Agreement (Performance-Based Vesting)
(ii) request or advise any of the Active Customers, suppliers or other business contacts of the Company who have business relationships with the Company and with whom the Grantee had business contact during his or her employment with the Company to withdraw, curtail or cancel any of their business relations with the Company;
(iii) induce or attempt to induce any employee or other personnel of the Company to terminate his or her relationship or breach his or her employment relationship or other contractual relationship, whether oral or written, with the Company; provided, however, that nothing shall prevent a future employer of the Grantee from hiring such employee or other personnel if the Grantee does not otherwise violate this provision.
Active Customer shall mean any customer or prospective customer of the Company which, within the Reference Period, either received any products or services supplied by or on behalf of the Company or was the recipient of at least two (2) business contacts by any personnel of the Company (including the Grantee).
(d) Remedies. Notwithstanding any other provision of this Agreement, if the Grantee breaches any provision of this Paragraph 10, any RSUs and Dividend Equivalents shall be immediately forfeited to the Company. In addition, the Company shall be entitled to injunctive and other equitable relief (without the necessity of showing actual monetary damages or of posting any bond or other security): (i) restraining and enjoining any act which would constitute a breach, or (ii) compelling the performance of any obligation which, if not performed, would constitute a breach, as well as any other remedies available to the Company, including monetary damages. Upon the Companys request, the Grantee shall provide reasonable assurances and evidence of compliance with the restrictive covenants set forth in this Paragraph 10. If any court of competent jurisdiction shall deem any provision in this Paragraph 10 too restrictive, the other provisions shall stand, and the court shall modify the unduly restrictive provision to the point of greatest restriction permissible by law. The restrictive covenants set forth in this Paragraph 10 shall survive the termination of this Agreement, the forfeiture of any RSUs or Dividend Equivalents, and the Grantees termination of employment for any reason, and the Grantee shall continue to be bound by the terms of this Paragraph 10 as if this Agreement was still in effect.
11. Liability of Company. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance and transfer of any Shares pursuant to this Agreement shall relieve the Company of any liability with respect to the non-issuance or transfer of the Shares as to which such approval shall not have been obtained. However, the Company shall use commercially reasonable efforts to obtain all such approvals.
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Form Restricted Stock Unit Agreement (Performance-Based Vesting)
12. Adjustment of Award. This Award is subject to adjustment as provided under Section 4.2 of the Plan.
13. Plan and Agreement Amendment.
(a) No discontinuation, modification, or amendment of the Plan may, without the written consent of the Grantee, adversely affect the rights of the Grantee under this Agreement, except as otherwise provided under the Plan.
(b) This Agreement may be amended as provided under the Plan, but no such amendment shall adversely affect the Grantees rights under this Agreement without the Grantees written consent, unless otherwise permitted by the Plan.
14. Shareholder Rights. The Grantee will have no rights as a shareholder with respect to any RSU unless and until it is settled pursuant to Paragraph 8 above. As of the date that a Share is ascribed or otherwise delivered pursuant to Paragraph 8 above, the Grantee shall have rights as a shareholder in the Company with respect to such Share.
15. Employment Rights. This Agreement is not a contract of employment, and the terms of employment of the Grantee or other relationship of the Grantee with an Employer shall not be affected in any way by this Agreement except as specifically provided herein. The execution of this Agreement shall not be construed as conferring any legal rights upon the Grantee for a continuation of an employment or other relationship with an Employer, nor shall it interfere with the right of an Employer to discharge the Grantee and to treat him or her without regard to the effect which such treatment might have upon him or her as a Grantee.
16. Disclosure Rights. Except as required by applicable law, the Company (or any of its affiliates) shall not have any duty or obligation to disclose affirmatively to a record or beneficial holder of Shares or RSUs, and such holder shall have no right to be advised of, any material information regarding the Company at any time prior to, upon or in connection with receipt of Shares.
17. Governing Law. This Agreement shall be governed by the internal substantive laws, but not the choice of law rules, of the State of Wisconsin. This Agreement, subject to the terms and conditions of the Plan, represents the entire agreement between the parties with respect to this Award. The parties hereto each submit and consent to the jurisdiction of the courts in the State of Wisconsin, Brown County, in any action brought to enforce or otherwise relating to this Agreement.
18. Compliance with Laws and Regulations. Notwithstanding anything herein to the contrary:
(a) the Company shall not be obligated to credit a book entry related to the RSUs on the records of the Companys transfer agent, unless and until the Company is advised by its counsel that such book entry is in compliance with all applicable laws, regulations of governmental authority, and the requirements of any exchange upon which Shares are traded;
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Form Restricted Stock Unit Agreement (Performance-Based Vesting)
(b) the Company may require, as a condition of such a book entry, and in order to ensure compliance with such laws, regulations and requirements, that the Grantee make whatever covenants, agreements, and representations, or execute whatever documents or instruments, the Company, in its sole discretion, considers necessary or desirable;
(c) no payment or benefit under this Agreement shall be provided to the Grantee if it would violate any applicable Compensation Limitation; and
(d) notwithstanding anything to the contrary in this Agreement, the RSUs and Dividend Equivalents (including any proceeds, gains, or other economic benefit actually or constructively received by the Grantee thereof upon the receipt, vesting, or settlement thereof, or resale of the Shares received pursuant hereto upon or after settlement of this Award) shall be subject to the provisions of any clawback or recoupment policy adopted by the Board and/or the Committee, including any such policy adopted to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act, any rules or regulations promulgated and in effect thereunder, or any SEC or securities exchange rule.
19. Successors and Assigns. Except as otherwise expressly set forth in this Agreement, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the succeeding administrators, heirs and legal representatives of the Grantee and the successors and assigns of the Company.
20. No Limitation on Rights of the Company. This Agreement shall not in any way affect the right of the Company to adjust, reclassify, reorganize or otherwise make changes in its capital or business structure, or to merge, consolidate, dissolve, liquidate, sell or transfer all or any part of its business or assets.
21. Notices. Any communication or notice required or permitted to be given hereunder shall be in writing, and, if to the Company, to its principal place of business, attention: Secretary, and, if to the Grantee, to the address appearing on the records of the Company. Such communication or notice shall be delivered personally or sent by certified, registered, or express mail, postage prepaid, return receipt requested, or by a reputable overnight delivery service. Any such notice shall be deemed given when received by the intended recipient.
22. Construction. Notwithstanding any other provision of this Agreement, this Agreement is made and the RSUs and Dividend Equivalents are granted pursuant to the Plan and are in all respects limited by and subject to the express provisions of the Plan, as amended from time to time. This Agreement does not modify or amend the terms of the Plan. To the extent any provision of this Agreement is inconsistent or in conflict with any term or provision of the Plan, the Plan shall govern. The interpretation and construction by the Committee of the Plan, this Agreement and any such rules and regulations adopted by the Committee for purposes of administering the Plan shall be final and binding upon the Grantee and all other Persons.
23. Entire Agreement. This Agreement, together with the Plan, constitutes the entire obligation of the parties hereto with respect to the subject matter hereof and shall supersede any prior expressions of intent or understanding with respect to this transaction.
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Form Restricted Stock Unit Agreement (Performance-Based Vesting)
24. Waiver; Cumulative Rights. The failure or delay of either party to require performance by the other party of any provision hereof shall not affect its right to require performance of such provision unless and until such performance has been waived in writing. Each and every right hereunder is cumulative and may be exercised in part or in whole from time to time.
25. Counterparts. This Agreement may be signed in two counterparts, each of which shall be an original, but both of which shall constitute but one and the same instrument.
26. Headings. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
27. Severability. If any provision of this Agreement shall for any reason be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid or unenforceable provision were omitted.
28. Tax Consequences. The Grantee acknowledges and agrees that the Grantee is responsible for all taxes and tax consequences with respect to the grant or settlement of the RSUs and Dividend Equivalents awarded hereunder. The Grantee further acknowledges that it is the Grantees responsibility to obtain any advice that the Grantee deems necessary or appropriate with respect to any and all tax matters that may exist as a result of the grant or settlement of the RSUs and Dividend Equivalents awarded hereunder. Notwithstanding any other provision of this Agreement, the RSUs and Dividend Equivalents shall not be settled unless, as provided in Section 17 of the Plan, the Grantee shall have paid to the Company, or made arrangements satisfactory to the Company regarding the payment of, any federal, state, local or foreign income or employment taxes required by law to be withheld with respect to the grant or settlement of the RSUs and Dividend Equivalents or the lapse of restrictions otherwise imposed by this Agreement. This Agreement is intended to be exempt from Code Section 409A and shall be administered and interpreted in accordance with such intent.
29. Receipt of Plan. The Grantee acknowledges receipt of a copy of the Plan, and represents that the Grantee is familiar with the terms and provisions thereof, and hereby accepts the RSUs and Dividend Equivalents subject to all the terms and provisions of this Agreement and of the Plan. The Shares are granted pursuant to the terms of the Plan, the terms of which are incorporated herein by reference, and the RSUs and Dividend Equivalents shall in all respects be interpreted in accordance with the Plan. The Committee shall interpret and construe the Plan and this Agreement, and its interpretation and determination shall be conclusive and binding upon the parties hereto and any other person claiming an interest hereunder, with respect to any issue arising hereunder or thereunder.
30. Condition to Return Signed Agreement. This Agreement shall be null and void unless the Grantee signs, dates, and returns this Agreement to the Company on or before the date listed at the end of the Cover Page.
IN WITNESS WHEREOF, the parties hereto have acknowledged their rights and obligations under this Agreement as of the Grant Date by signing the Cover Page.
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Form Restricted Stock Unit Agreement (Performance-Based Vesting)
Exhibit A
Consent of Spouse
I, , spouse of the , have read and approve the foregoing Restricted Stock Unit Grant Agreement (the Agreement). In consideration of the Companys grant to my spouse of restricted stock units (which will be settled in shares of Associated Banc-Corp) and Dividend Equivalents (which will be settled in cash), as set forth in the Agreement, I hereby appoint my spouse as my attorney-in-fact with respect to the exercise of any rights under the Agreement and agree to be bound by the provisions of the Agreement insofar as I may have any rights in said Agreement or any shares issued or cash paid pursuant thereto under the community property laws or similar laws relating to marital property in effect in the state of our residence as of the date of the signing of the foregoing Agreement.
Dated: ,
Signature of Spouse |
¨ | Not applicable; I am not married. |
Exhibit A Page 1
Form Restricted Stock Unit Agreement (Performance-Based Vesting)
Exhibit B
Performance Criteria
(as attached)
Exhibit B Page 1
Exhibit 99.2
2012 Form Restricted Stock Agreement
Associated Banc-Corp
2010 Incentive Compensation Plan
Cover Page to Restricted Stock Agreement
(The Restricted Stock Agreement is attached hereto)
Pursuant and subject to the Associated Banc-Corp 2010 Incentive Compensation Plan (the Plan) and the attached Restricted Stock Agreement, the Committee has awarded the Grantee named below shares of restricted Common Stock of Associated Banc-Corp (Restricted Shares) as follows:
Name of Grantee: | [INSERT NAME] | |
Grant Date: | [INSERT DATE] | |
Total Number of Restricted Shares Granted and Available for Vesting Under This Award: | [INSERT NUMBER OF RESTRICTED SHARES SUBJECT TO THIS AWARD] |
By executing below, the Grantee hereby acknowledges (1) receipt of a true copy of the Restricted Stock Agreement; (2) that the Grantee has read the Restricted Stock Agreement and the Plan carefully, and fully understands their contents; (3) that the Grantee accepts the award of Restricted Shares; and (4) the Grantee agrees to be bound by the terms and conditions of the Restricted Stock Agreement and the Plan.
IN WITNESS WHEREOF, as of the Grant Date the Company and the Grantee hereby agree to be bound by the terms and conditions of the Restricted Stock Agreement and the Plan.
ASSOCIATED BANC-CORP | GRANTEE | |||||||
By: |
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By: |
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Name: |
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Its: |
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Please sign and return your signed copy of (1) this cover page to the Restricted Stock Agreement and (2) Exhibit A (Consent of Spouse) by [INSERT DATE] to [INSERT NAME/DEPARTMENT] at [INSERT CONTACT INFORMATION]. Failure to do so will result in forfeiture of the award. Please retain a copy of the signed documents; the remainder of the Restricted Stock Agreement is for your records and does not need to be returned.
2012 Form Restricted Stock Agreement
ASSOCIATED BANC-CORP
2010 INCENTIVE COMPENSATION PLAN
RESTRICTED STOCK AGREEMENT
In accordance with and subject to the terms of the Associated Banc-Corp 2010 Incentive Compensation Plan (the Plan) and this Agreement, the Committee granted to the person named as grantee (the Grantee) on the cover page attached to this Restricted Stock Agreement (the Cover Page) an award of Restricted Shares of Associated Banc-Corp (the Company) (the Cover Page and this Restricted Stock Agreement hereinafter referred to as this Agreement).
To evidence such award and to set forth its terms, the Company and the Grantee agree as follows. All capitalized terms not otherwise defined in this Agreement shall have the meaning set forth in the Plan.
1. Grant of Restricted Shares. Subject to, and upon the terms and conditions set forth in this Agreement and the Plan, the Committee granted to the Grantee the number of restricted shares set forth on the Cover Page (the Restricted Shares), effective as of the grant date set forth on the Cover Page (the Grant Date), and the Grantee hereby accepts the grant of the Restricted Shares on a restricted basis, as set forth herein.
2. Limitations on Transferability. At any time prior to vesting in accordance with Paragraph 3, 4 or 5 below, the Restricted Shares, or any interest therein, cannot be directly or indirectly transferred, sold, assigned, pledged, hypothecated, encumbered or otherwise disposed.
3. Dates of Vesting. Subject to the provisions of Paragraphs 4 and 5 below, the Restricted Shares shall cease to be restricted and shall become non-forfeitable (thereafter being referred to as Vested Shares) in accordance with the following schedule:
Vesting Date |
Percentage of Restricted Shares Vested |
|||
1st Anniversary of Grant Date |
34 | % | ||
2nd Anniversary of Grant Date |
67 | % | ||
3rd Anniversary of Grant Date |
100 | % |
Notwithstanding the foregoing, and subject to Paragraphs 4 and 5 below, in the event that the Grantee incurs a Termination of Service, any Restricted Shares that were unvested on the date of such Termination of Service shall be immediately forfeited to the Company.
4. Termination of Service. Subject to Paragraph 5 below, the provisions of this Paragraph 4 shall apply in the event the Grantee incurs a Termination of Service at any time prior to all the Restricted Shares becoming Vested Shares pursuant to Paragraph 3 above:
(a) If the Grantee incurs a Termination of Service because of his or her death or Disability, any Restricted Shares that had not become Vested Shares prior to the date of such Termination of Service shall become Vested Shares, and the Grantee shall immediately own the Vested Shares free of all restrictions otherwise imposed by this Agreement except for Vested Shares used to satisfy the tax withholding obligations set forth in Paragraph 25 below or otherwise required by any taxing authority.
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2012 Form Restricted Stock Agreement
(b) If the Grantee incurs a Termination of Service for any reason other than his or her death or Disability (including for Early Retirement or Normal Retirement), then any Restricted Shares that had not become Vested Shares prior to the date of such Termination of Service shall be immediately forfeited to the Company.
5. Change in Control. Notwithstanding Paragraph 4 above, if the Grantee incurs an involuntary Termination of Service (other than due to Cause) during the two year period immediately following a Change in Control, any Restricted Shares that had not become Vested Shares prior to the date of such Termination of Service shall become Vested Shares, and the Grantee shall immediately own the Vested Shares free of all restrictions otherwise imposed by this Agreement except for Vested Shares used to satisfy the tax withholding obligations set forth in Paragraph 25 below or otherwise required by any taxing authority. In addition, upon a Change in Control, the Grantee will have such rights with respect to the Restricted Shares as are provided for in the Plan.
6. Transfer of Restricted Shares. The Company, in its sole discretion, shall credit the Restricted Shares to the Grantee in a book entry on the records kept by the Companys transfer agent. The Restricted Shares shall be subject to restrictions on transfer until, and to the extent, such Restricted Shares become Vested Shares pursuant to Paragraph 3, 4 or 5 above. To the extent any Restricted Shares fail to become Vested Shares pursuant to Paragraph 3, 4 or 5 above, the Company shall cancel such forfeited Restricted Shares pursuant to the terms of the Plan and this Agreement. The Company shall release the restrictions in the book entry records of its transfer agent once Restricted Shares become Vested Shares. As a further condition to the Companys obligations under this Agreement, the Company may require the Grantees spouse (if any) to execute and deliver to the Company the Consent of Spouse attached hereto as Exhibit A.
7. Restrictive Covenants.
(a) Confidential Information. The parties hereto acknowledge that the Company has created and maintains at great expense strategic plans, sales data and sales strategy, methods, products, procedures, processes, techniques, financial information, customer and supplier lists, personal customer data, pricing policies, personnel data and other similar confidential and proprietary information, and has received from its customers certain confidential and proprietary information (collectively, the Confidential Information). The parties hereto further acknowledge that the Company has taken and will continue to take actions to protect the Confidential Information. Accordingly, the Grantee agrees that during the term of the Grantees employment with the Company, and until the sooner of (i) such time as the Confidential Information becomes generally available to the public through no fault of the Grantee or other person under the duty of confidentiality to the Company, (ii) such time as the Confidential Information no longer provides a benefit to the Company, or (iii) two (2) years after the termination of the Grantees employment with the Company, the Grantee will not, in any capacity, use or disclose, or cause to be used or disclosed, in any geographic territory in which the Company or any of the Companys customers do business, any Confidential
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2012 Form Restricted Stock Agreement
Information the Grantee acquired while employed by the Company. The requirements of confidentiality and the limitations on use and disclosure described in this Agreement shall not apply to Confidential Information that the Grantee can demonstrate by clear and convincing evidence, at the time of disclosure by the Company to the Grantee, was known to the Grantee as evidenced by the Grantees contemporaneous written records. The parties hereto agree that nothing in this Agreement shall be construed to limit or negate the law of torts or trade secrets where it provides the Company with broader protection than that provided herein.
(b) Return of Company Property. The parties hereto acknowledge that any material (in computerized or written form) that the Grantee obtained in the course of performing the Grantees employment duties are the sole and exclusive property of the Company, the Grantee agrees to immediately return any and all records, files, computerized data, documents, confidential or proprietary information, or any other property owned or belonging to the Company in the Grantees possession or under his or her control, without any originals or copies being kept by the Grantee or conveyed to any other person, upon the Grantees separation from employment or upon the Companys request.
(c) Non-Interference with Customers, Employees. For a period of six (6) months following the termination of the Grantees employment with the Company for any reason, the Grantee will not, directly or indirectly, on behalf of him/herself or any other person, entity or enterprise, do any of the following:
(i) solicit or accept business from any person or entity who is an Active Customer (as defined below) of the Company, a Subsidiary, or any of their affiliates, with whom the Grantee has had business contact during the twelve (12) month period prior to the termination of the Grantees employment with the Company (the Reference Period) for the purpose of providing competitive products or services similar to those provided by the Grantee during the Reference Period;
(ii) request or advise any of the Active Customers, suppliers or other business contacts of the Company who have business relationships with the Company and with whom the Grantee had business contact during his/her employment with the Company to withdraw, curtail or cancel any of their business relations with the Company;
(iii) induce or attempt to induce any employee or other personnel of the Company to terminate his or her relationship or breach his/her employment relationship or other contractual relationship, whether oral or written, with the Company; provided, however, that nothing shall prevent a future employer of the Grantee from hiring such employee or other personnel if the Grantee does not otherwise violate this provision.
Active Customer shall mean any customer or prospective customer of the Company which, within the Reference Period, either received any products or services supplied by or on behalf of the Company or was the recipient of at least two (2) business contacts by any personnel of the Company (including the Grantee).
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2012 Form Restricted Stock Agreement
(d) Remedies. Notwithstanding any other provision of this Agreement, if the Grantee breaches any provision of this Paragraph 7, any Restricted Shares shall be immediately forfeited to the Company. In addition, the Company shall be entitled to injunctive and other equitable relief (without the necessity of showing actual monetary damages or of posting any bond or other security): (i) restraining and enjoining any act which would constitute a breach, or (ii) compelling the performance of any obligation which, if not performed, would constitute a breach, as well as any other remedies available to the Company, including monetary damages. Upon the Companys request, the Grantee shall provide reasonable assurances and evidence of compliance with the restrictive covenants set forth in this Paragraph 7. If any court of competent jurisdiction shall deem any provision in this Paragraph 7 too restrictive, the other provisions shall stand, and the court shall modify the unduly restrictive provision to the point of greatest restriction permissible by law. The restrictive covenants set forth in this Paragraph 7 shall survive the termination of this Agreement, the forfeiture of any Restricted Shares, and the Grantees termination of employment for any reason, and the Grantee shall continue to be bound by the terms of this Paragraph 7 as if this Agreement was still in effect.
8. Liability of Company. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance and transfer of any Shares pursuant to this Agreement shall relieve the Company of any liability with respect to the non-issuance or transfer of the Shares as to which such approval shall not have been obtained. However, the Company shall use commercially reasonable efforts to obtain all such approvals.
9. Adjustment in Restricted Shares. This Award of Restricted Shares is subject to adjustment as provided under Section 4.2 of the Plan.
10. Plan and Agreement Amendment.
(a) No discontinuation, modification, or amendment of the Plan may, without the written consent of the Grantee, adversely affect the rights of the Grantee under this Agreement, except as otherwise provided under the Plan.
(b) This Agreement may be amended as provided under the Plan, but no such amendment shall adversely affect the Grantees rights under this Agreement without the Grantees written consent, unless otherwise permitted by the Plan.
11. Shareholder Rights. The Grantee shall be entitled to receive any dividends that become payable on or after the Grant Date with respect to the Restricted Shares and Vested Shares; provided, however, that no dividends shall be payable (a) with respect to the Restricted Shares on account of record dates occurring prior to the Grant Date and (b) with respect to forfeited Restricted Shares on account of record dates occurring on or after the date of such forfeiture. The Grantee shall be entitled to vote the Restricted Shares on or after the Grant Date to the same extent as would have been applicable to the Grantee if the Restricted Shares had then
4
2012 Form Restricted Stock Agreement
been Vested Shares; provided, however, that the Grantee shall not be entitled to vote (a) the Restricted Shares on account of record dates occurring prior to the Grant Date and (b) with respect to forfeited Restricted Shares on account of record dates occurring on or after the date of such forfeiture.
12. Employment Rights. This Agreement is not a contract of employment, and the terms of employment of the Grantee or other relationship of the Grantee with an Employer shall not be affected in any way by this Agreement except as specifically provided herein. The execution of this Agreement shall not be construed as conferring any legal rights upon the Grantee for a continuation of an employment or other relationship with an Employer, nor shall it interfere with the right of an Employer to discharge the Grantee and to treat him or her without regard to the effect which such treatment might have upon him or her as a Grantee.
13. Disclosure Rights. Except as required by applicable law, the Company (or any of its affiliates) shall not have any duty or obligation to disclose affirmatively to a record or beneficial holder of Common Stock, Restricted Shares or Vested Shares, and such holder shall have no right to be advised of, any material information regarding the Company at any time prior to, upon or in connection with receipt of the Shares.
14. Governing Law. This Agreement shall be governed by the internal substantive laws, but not the choice of law rules, of the State of Wisconsin. This Agreement, subject to the terms and conditions of the Plan, represents the entire agreement between the parties with respect to the grant of the Restricted Shares to the Grantee. The parties hereto each submit and consent to the jurisdiction of the courts in the State of Wisconsin, Brown County, in any action brought to enforce or otherwise relating to this Agreement.
15. Compliance with Laws and Regulations. Notwithstanding anything herein to the contrary:
(a) the Company shall not be obligated to credit a book entry related to the Restricted Shares or Vested Shares to be entered on the records of the Companys transfer agent, unless and until the Company is advised by its counsel that such book entry is in compliance with all applicable laws, regulations of governmental authority, and the requirements of any exchange upon which Shares are traded;
(b) the Company may require, as a condition of such a book entry, and in order to ensure compliance with such laws, regulations and requirements, that the Grantee make whatever covenants, agreements, and representations, or execute whatever documents or instruments, the Company, in its sole discretion, considers necessary or desirable;
(c) no payment or benefit under this Agreement shall be provided to the Grantee if it would violate any applicable Compensation Limitation; and
(d) notwithstanding anything to the contrary in this Agreement, the Restricted Shares (including any proceeds, gains, or other economic benefit actually or constructively received by the Grantee thereof upon the receipt or vesting thereof, or resale of the Shares received pursuant hereto upon or after the Restricted Shares become
5
2012 Form Restricted Stock Agreement
Vested Shares) shall be subject to the provisions of any clawback or recoupment policy adopted by the Board and/or the Committee, including any such policy adopted to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act, any rules or regulations promulgated and in effect thereunder, or any SEC or securities exchange rule.
16. Successors and Assigns. Except as otherwise expressly set forth in this Agreement, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the succeeding administrators, heirs and legal representatives of the Grantee and the successors and assigns of the Company.
17. No Limitation on Rights of the Company. This Agreement shall not in any way affect the right of the Company to adjust, reclassify, reorganize or otherwise make changes in its capital or business structure, or to merge, consolidate, dissolve, liquidate, sell or transfer all or any part of its business or assets.
18. Notices. Any communication or notice required or permitted to be given hereunder shall be in writing, and, if to the Company, to its principal place of business, attention: Secretary, and, if to the Grantee, to the address appearing on the records of the Company. Such communication or notice shall be delivered personally or sent by certified, registered, or express mail, postage prepaid, return receipt requested, or by a reputable overnight delivery service. Any such notice shall be deemed given when received by the intended recipient.
19. Construction. Notwithstanding any other provision of this Agreement, this Agreement is made and the Restricted Shares are granted pursuant to the Plan and are in all respects limited by and subject to the express provisions of the Plan, as amended from time to time. This Agreement does not modify or amend the terms of the Plan. To the extent any provision of this Agreement is inconsistent or in conflict with any term or provision of the Plan, the Plan shall govern. The interpretation and construction by the Committee of the Plan, this Agreement and any such rules and regulations adopted by the Committee for purposes of administering the Plan shall be final and binding upon the Grantee and all other persons.
20. Entire Agreement. This Agreement, together with the Plan, constitutes the entire obligation of the parties hereto with respect to the subject matter hereof and shall supersede any prior expressions of intent or understanding with respect to this transaction.
21. Waiver; Cumulative Rights. The failure or delay of either party to require performance by the other party of any provision hereof shall not affect its right to require performance of such provision unless and until such performance has been waived in writing. Each and every right hereunder is cumulative and may be exercised in part or in whole from time to time.
22. Counterparts. This Agreement may be signed in two counterparts, each of which shall be an original, but both of which shall constitute but one and the same instrument.
23. Headings. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
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2012 Form Restricted Stock Agreement
24. Severability. If any provision of this Agreement shall for any reason be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid or unenforceable provision were omitted.
25. Tax Consequences. The Grantee acknowledges and agrees that the Grantee is responsible for all taxes and tax consequences with respect to the grant of the Restricted Shares or the lapse of restrictions otherwise imposed by this Agreement. The Grantee further acknowledges that it is the Grantees responsibility to obtain any advice that the Grantee deems necessary or appropriate with respect to any and all tax matters that may exist as a result of the grant of the Restricted Shares or the lapse of restrictions otherwise imposed by this Agreement. If the Grantee files a Code Section 83(b) election with respect to the Restricted Shares, he or she will immediately notify the Company of such election. Notwithstanding any other provision of this Agreement, the Restricted Shares shall not be released to the Grantee unless, as provided in Section 17 of the Plan, the Grantee shall have paid to the Company, or made arrangements satisfactory to the Company regarding the payment of, any federal, state, local or foreign income or employment taxes required by law to be withheld with respect to the grant of the Restricted Shares or the lapse of restrictions otherwise imposed by this Agreement.
26. Receipt of Plan. The Grantee acknowledges receipt of a copy of the Plan, and represents that the Grantee is familiar with the terms and provisions thereof, and hereby accepts the Restricted Shares subject to all the terms and provisions of this Agreement and of the Plan. The Shares are granted pursuant to the terms of the Plan, the terms of which are incorporated herein by reference, and the Restricted Shares shall in all respects be interpreted in accordance with the Plan. The Committee shall interpret and construe the Plan and this Agreement, and its interpretation and determination shall be conclusive and binding upon the parties hereto and any other person claiming an interest hereunder, with respect to any issue arising hereunder or thereunder.
27. Condition to Return Signed Agreement. This Agreement shall be null and void unless the Grantee signs, dates, and returns this Agreement to the Company on or before the date listed at the end of the Cover Page.
IN WITNESS WHEREOF, the parties hereto have acknowledged their rights and obligations under this Agreement as of the Grant Date by signing the Cover Page.
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2012 Form Restricted Stock Agreement
Exhibit A
Consent of Spouse
I, , spouse of the , have read and approve the foregoing Restricted Stock Grant Agreement (the Agreement). In consideration of the Companys grant to my spouse of shares of Associated Banc-Corp, as set forth in the Agreement, I hereby appoint my spouse as my attorney-in-fact with respect to the exercise of any rights under the Agreement and agree to be bound by the provisions of the Agreement insofar as I may have any rights in said Agreement or any shares issued pursuant thereto under the community property laws or similar laws relating to marital property in effect in the state of our residence as of the date of the signing of the foregoing Agreement.
Dated: ,
Signature of Spouse |
¨ | Not applicable; I am not married. |
Exhibit A Page 1
Exhibit 99.3
2012 Form Non-Qualified Stock Option Grant Agreement
Associated Banc-Corp
2010 Incentive Compensation Plan
Cover Page to Non-Qualified Stock Option Agreement
(The Non-Qualified Stock Option Agreement is attached hereto)
Pursuant and subject to the Associated Banc-Corp 2010 Incentive Compensation Plan (the Plan) and the attached Non-Qualified Stock Option Agreement, the Committee has awarded the Grantee named below an option (the Option) to purchase shares of Common Stock of Associated Banc-Corp (Shares) as follows:
Name of Grantee: | [INSERT NAME] | |
Grant Date: | [INSERT DATE] | |
Total Number of Shares Subject to the Option: | [INSERT NUMBER] | |
Option Price: | [INSERT PRICE] per Share |
By executing below, the Grantee hereby acknowledges, (1) receipt of a true copy of the Non-Qualified Stock Option Agreement; (2) that the Grantee has read the Non-Qualified Stock Option Agreement and the Plan carefully, and fully understands their contents; (3) that the Grantee accepts the award of the Option; and (4) the Grantee agrees to be bound by the terms and conditions of the Non-Qualified Stock Option Agreement and the Plan.
IN WITNESS WHEREOF, as of the Grant Date the Company and the Grantee hereby agree to be bound by the terms and conditions of the Non-Qualified Stock Option Agreement and the Plan.
ASSOCIATED BANC-CORP | GRANTEE | |||||||
By: |
|
By: |
| |||||
Name: |
|
|||||||
Its: |
|
Please sign and return your signed copy of (1) this cover page to the Non-Qualified Stock Option Agreement and (2) if youre married, Exhibit A (Consent of Spouse) by [INSERT DATE] to [INSERT NAME AND CONTACT INFORMATION]. Failure to do so will result in forfeiture of the award. Please retain a copy of the signed documents; the remainder of the Non-Qualified Stock Option Agreement is for your records and does not need to be returned.
ASSOCIATED BANC-CORP
2010 INCENTIVE COMPENSATION PLAN
NON-QUALIFIED STOCK OPTION AGREEMENT
In accordance with and subject to the terms of the Associated Banc-Corp 2010 Incentive Compensation Plan (the Plan) and this Agreement, the Committee granted to the person named as grantee (the Grantee) on the cover page attached to this Non-Qualified Stock Option Agreement (the Cover Page) an option to purchase shares of common stock, par value $0.01 per share, of the Company (the Cover Page and this Non-Qualified Stock Option Agreement hereinafter referred to as the Agreement).
To evidence the Option and to set forth its terms, the Company and the Grantee agree as follows. All capitalized terms used, but otherwise not defined herein, shall have the meanings set forth in the Plan.
1. Grant of Option. Subject to and upon the terms and conditions set forth in this Agreement and the Plan, the Committee granted to the Grantee an option (the Option) to purchase the number of shares of Common Stock set forth on the Cover Page (subject to adjustment as provided in Section 4.2 of the Plan), effective as of the grant date set forth on the Cover Page (the Grant Date), and the Grantee hereby accepts the grant of the Option as set forth herein. The Option granted hereby is not intended to constitute an Incentive Stock Option, within the meaning of Section 422 of the Internal Revenue Code of 1986, as amended.
2. Option Price. The purchase price of this Option shall be equal to the per-Share price set forth on the Cover Page (the Option Price) (subject to adjustment as provided in Section 4.2 of the Plan). The Option Price is equal to 100% of the Fair Market Value of one Share of Common Stock on the Grant Date.
3. Term and Vesting of the Option. The Options Term shall expire on the tenth anniversary of the Grant Date, and, except as otherwise provided herein, any portion of this Option may be exercised upon or following the date on which such portion vests, as long as such exercise occurs prior to the expiration of this Option as provided in this Agreement and the Plan. Subject to Paragraphs 4 and 5 below, this Option shall vest in accordance with the following schedule:
Vesting Date |
Percentage of Option Vested |
|||
1st Anniversary of Grant Date |
34 | % | ||
2nd Anniversary of Grant Date |
67 | % | ||
3rd Anniversary of Grant Date |
100 | % |
Notwithstanding the foregoing provisions of this Paragraph 3, and except as otherwise determined by the Committee, as provided in the Plan or as provided herein, any portion of this Option that is not vested (or otherwise not exercisable) at the time of the Grantees Termination of Service shall not become exercisable after such termination and shall be immediately cancelled and forfeited to the Company.
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4. Termination of Service. Subject to Paragraph 5 below, the provisions of this Paragraph 4 shall apply in the event the Grantee incurs a Termination of Service at any time prior to this Option becoming fully vested pursuant to Paragraph 3 above:
(a) If the Grantee incurs a Termination of Service because of his or her Early Retirement or Normal Retirement, (i) any unvested portion of this Option shall be immediately forfeited to the Company, and (ii) any vested and exercisable portion of this Option shall remain exercisable for one year following such Termination of Service. Any such vested portion of this Option that is not exercised prior to the end of such one-year period shall be forfeited to the Company.
(b) If the Grantee incurs a Termination of Service because of his or her death or Disability, this Option shall (i) become fully vested and exercisable and (ii) remain exercisable for one year following such Termination of Service. Any portion of this Option that is not exercised prior to the end of such one-year period shall be forfeited to the Company.
(c) If the Grantee incurs a Termination of Service by an Employer without Cause or voluntarily on his or her part (but not on account of the Grantees death, Disability, Early Retirement or Normal Retirement), (i) any vested portion of this Option shall remain exercisable for 30 days following such Termination of Service and (ii) any unvested portion of this Option shall be immediately forfeited to the Company. Any portion of this Option that is not exercised prior to the end of such 30-day period shall be forfeited to the Company.
(d) If the Grantee incurs a Termination of Service for Cause, this Option shall be immediately forfeited to the Company.
5. Change in Control. Notwithstanding Paragraph 4 above, if the Grantee incurs an involuntary Termination of Service (other than due to Cause) during the two year period immediately following a Change in Control, any unvested portion of this Option prior to the date of such Termination of Service shall become vested and exercisable, and this Option shall remain exercisable for 30 days following such Termination of Service. Any portion of this option that is not exercised prior to the end of such 30-day period shall be forfeited to the Company. In addition, upon a Change in Control, the Grantee will have such rights with respect to this Option as are provided for in the Plan.
6. Exercise of Option. On or after the date any portion of this Option becomes exercisable, but prior to the expiration of this Option in accordance with Paragraphs 3, 4 or 5 above, the portion of this Option that has become exercisable may be exercised in whole or in part by the Grantee (or, pursuant to this Paragraph 6, by his or her permitted successor) upon delivery of the following to the Company:
(a) a written notice of exercise which identifies this Agreement and states the number of whole Shares then being purchased; and
(b) any combination of cash (or by personal check or wire transfer payable to the Company), and/or (i) with the approval of the Committee, Shares or Shares of Restricted Stock then owned by the Grantee in an amount having a combined Fair Market Value on the exercise date equal to the aggregate Option Price of the Shares then being purchased, or
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(ii) unless otherwise prohibited by law or Company policy, an irrevocable authorization of a third party to sell Shares acquired upon the exercise of this Option and prompt remittance to the Company of a sufficient portion of the sale proceeds to pay the entire Option Price and any tax withholdings resulting from such exercise.
Notwithstanding the foregoing, the Grantee (or any permitted successor) shall take whatever additional actions, including, without limitation, the furnishing of an opinion of counsel, and execute whatever additional documents the Company may, in its sole discretion, deem necessary or advisable in order to carry out or effect one or more of the obligations or restrictions imposed by the Plan, this Agreement or applicable law.
No Shares shall be issued upon exercise of this Option until full payment has been made. Upon satisfaction of the conditions and requirements of this Paragraph 6 and the Plan, the Company shall credit, in a book entry on the records kept by the Companys transfer agent, the number of Shares in respect of which this Option shall have been exercised. Upon exercise of this Option (or a portion thereof), the Company shall have a reasonable time to so credit the Common Stock for which this Option has been exercised, and the Grantee shall not be treated as a shareholder for any purposes whatsoever prior to such credit. No adjustment shall be made for cash dividends or other rights for which the record date is prior to the date such Common Stock is recorded as issued and transferred in book entry of the Companys transfer agent, except as otherwise provided in the Plan or this Agreement. As a further condition to the Companys obligations under this Agreement, the Company may require the Grantees spouse (if any) to execute and deliver to the Company the Consent of Spouse attached hereto as Exhibit A.
7. Limitation Upon Transfer. This Option and all rights granted hereunder shall not (a) be transferred by the Grantee, other than by will, by the laws of descent and distribution, or to a Permitted Transferee; (b) be otherwise assigned, pledged or hypothecated in any way; and (c) be subject to execution, attachment or similar process. Any attempt to transfer this Option, other than by will or by the laws of descent and distribution or to a Permitted Transferee, or to assign, pledge, hypothecate or otherwise dispose of this Option or of any rights granted hereunder contrary to the provisions hereof, or upon the levy of any attachment or similar process upon this Option or such rights, shall be void and unenforceable against the Company or any Subsidiary; provided, however, that the Grantee may designate a Beneficiary to receive benefits in the event of the Grantees death. This Option shall be exercised during the Grantees lifetime only by the Grantee, the Grantees guardian, the Grantees legal representative or a Permitted Transferee.
8. Restrictive Covenants.
(a) Confidential Information. The parties hereto acknowledge that the Company has created and maintains at great expense strategic plans, sales data and sales strategy, methods, products, procedures, processes, techniques, financial information, customer and supplier lists, personal customer data, pricing policies, personnel data and other similar confidential and proprietary information, and has received from its customers certain confidential and proprietary information (collectively, the Confidential Information). The parties hereto further acknowledge that the Company has taken and will continue to take actions to protect the Confidential Information. Accordingly, the Grantee agrees that during the term of the Grantees
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employment with the Company, and until the sooner of (i) such time as the Confidential Information becomes generally available to the public through no fault of the Grantee or other person under the duty of confidentiality to the Company, (ii) such time as the Confidential Information no longer provides a benefit to the Company, or (iii) two (2) years after the termination of the Grantees employment with the Company, the Grantee will not, in any capacity, use or disclose, or cause to be used or disclosed, in any geographic territory in which the Company or any of the Companys customers do business, any Confidential Information the Grantee acquired while employed by the Company. The requirements of confidentiality and the limitations on use and disclosure described in this Agreement shall not apply to Confidential Information that the Grantee can demonstrate by clear and convincing evidence, at the time of disclosure by the Company to the Grantee, was known to the Grantee as evidenced by the Grantees contemporaneous written records. The parties hereto agree that nothing in this Agreement shall be construed to limit or negate the law of torts or trade secrets where it provides the Company with broader protection than that provided herein.
(b) Return of Company Property. The parties hereto acknowledge that any material (in computerized or written form) that the Grantee obtained in the course of performing the Grantees employment duties are the sole and exclusive property of the Company, the Grantee agrees to immediately return any and all records, files, computerized data, documents, confidential or proprietary information, or any other property owned or belonging to the Company in the Grantees possession or under his or her control, without any originals or copies being kept by the Grantee or conveyed to any other person, upon the Grantees separation from employment or upon the Companys request.
(c) Non-Interference with Customers, Employees. For a period of six (6) months following the termination of the Grantees employment with the Company for any reason, the Grantee will not, directly or indirectly, on behalf of him/herself or any other person, entity or enterprise, do any of the following:
(i) solicit or accept business from any person or entity who is an Active Customer (as defined below) of the Company, a Subsidiary, or any of their affiliates, with whom the Grantee has had business contact during the twelve (12) month period prior to the termination of the Grantees employment with the Company (the Reference Period) for the purpose of providing competitive products or services similar to those provided by the Grantee during the Reference Period;
(ii) request or advise any of the Active Customers, suppliers or other business contacts of the Company who have business relationships with the Company and with whom the Grantee had business contact during his/her employment with the Company to withdraw, curtail or cancel any of their business relations with the Company;
(iii) induce or attempt to induce any employee or other personnel of the Company to terminate his or her relationship or breach his/her employment relationship or other contractual relationship, whether oral or written, with the Company; provided, however, that nothing shall prevent a future employer of the Grantee from hiring such employee or other personnel if the Grantee does not otherwise violate this provision.
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Active Customer shall mean any customer or prospective customer of the Company which, within the Reference Period, either received any products or services supplied by or on behalf of the Company or was the recipient of at least two (2) business contacts by any personnel of the Company (including the Grantee).
(e) Remedies. Notwithstanding any other provision of this Agreement, if the Grantee breaches any provision of this Paragraph 8, the Option shall be immediately forfeited to the Company. In addition, the Company shall be entitled to injunctive and other equitable relief (without the necessity of showing actual monetary damages or of posting any bond or other security): (i) restraining and enjoining any act which would constitute a breach, or (ii) compelling the performance of any obligation which, if not performed, would constitute a breach, as well as any other remedies available to the Company, including monetary damages. Upon the Companys request, the Grantee shall provide reasonable assurances and evidence of compliance with the restrictive covenants set forth in this Paragraph 8. If any court of competent jurisdiction shall deem any provision in this Paragraph 8 too restrictive, the other provisions shall stand, and the court shall modify the unduly restrictive provision to the point of greatest restriction permissible by law. The restrictive covenants set forth in this Paragraph 8 shall survive the termination of this Agreement, the forfeiture of the Option, and the Grantees termination of employment for any reason, and the Grantee shall continue to be bound by the terms of this Paragraph 8 as if this Agreement was still in effect.
9. Liability of the Company. The inability of the Company to obtain approval from any regulatory body having authority deemed by the Company to be necessary to the lawful issuance and transfer of any Shares pursuant to this Agreement shall relieve the Company of any liability with respect to the non-issuance or transfer of the Shares as to which such approval shall not have been obtained. However, the Company shall use commercially reasonable efforts to obtain all such approvals.
10. Adjustment in Option. This Option is subject to adjustment as provided under Section 4.2 of the Plan.
11. Plan and Agreement Amendment.
(a) No discontinuation, modification, or amendment of the Plan may, without the written consent of the Grantee, adversely affect the rights of the Grantee under this Agreement, except as otherwise provided under the Plan.
(b) This Agreement may be amended as provided under the Plan, but no such amendment shall adversely affect the Grantees rights under this Agreement without the Grantees written consent, unless otherwise permitted by the Plan.
12. Shareholder Rights. The Grantee shall have the rights of a shareholder with respect to the Shares subject to this Option only upon becoming the holder of such Shares.
13. Employment Rights. This Agreement is not a contract of employment, and the terms of employment of the Grantee or other relationship of the Grantee with an Employer shall not be affected in any way by this Agreement except as specifically provided herein. The execution of this Agreement shall not be construed as conferring any legal rights upon the
5
Grantee for a continuation of an employment or other relationship with an Employer, nor shall it interfere with the right of an Employer to discharge the Grantee and to treat him or her without regard to the effect which such treatment might have upon him or her as a Grantee.
14. Disclosure Rights. Except as required by applicable law, the Company (or any of its affiliates) shall not have any duty or obligation to disclose affirmatively to a record or beneficial holder of Common Stock or an option to purchase such stock, and such holder shall have no right to be advised of, any material information regarding the Company at any time prior to, upon or in connection with receipt of the Shares.
15. Governing Law. This Agreement shall be governed by the internal substantive laws, but not the choice of law rules, of the State of Wisconsin. This Agreement, subject to the terms and conditions of the Plan, represents the entire agreement between the parties with respect to the grant of this Option to the Grantee. The parties hereto each submit and consent to the jurisdiction of the courts in the State of Wisconsin, Brown County, in any action brought to enforce or otherwise relating to this Agreement.
16. Compliance with Laws and Regulations. Notwithstanding anything herein to the contrary:
(a) the Company shall not be obligated to credit a book entry related to any Shares under this Option on the records of the Companys transfer agent unless and until the Company is advised by its counsel that such book entry is in compliance with all applicable laws, regulations of governmental authority, and the requirements of any exchange upon which Shares are traded;
(b) the Company may require, as a condition of such a book entry, and in order to ensure compliance with such laws, regulations and requirements, that the Grantee make whatever covenants, agreements, and representations, or execute whatever documents or instruments, the Company, in its sole discretion, considers necessary or desirable;
(c) no payment or benefit under this Agreement shall be provided to the Grantee if it would violate any applicable Compensation Limitation; and
(d) Notwithstanding anything to the contrary in this Agreement, the Option (including any proceeds, gains, or other economic benefit actually or constructively received by the Grantee thereof upon the receipt, vesting, or exercise thereof, or the receipt or resale of Shares upon or after exercise of this Award) shall be subject to the provisions of any clawback or recoupment policy adopted by the Board and/or the Committee, including any such policy adopted to comply with the Dodd-Frank Wall Street Reform and Consumer Protection Act, any rules or regulations promulgated and in effect thereunder, or any SEC or securities exchange rule.
17. Successors and Assigns. Except as otherwise expressly set forth in this Agreement, the provisions of this Agreement shall inure to the benefit of, and be binding upon, the succeeding administrators, heirs and legal representatives of the Grantee and the successors and assigns of the Company.
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18. No Limitation on Rights of the Company. This Agreement shall not in any way affect the right of the Company to adjust, reclassify, reorganize or otherwise make changes in its capital or business structure, or to merge, consolidate, dissolve, liquidate, sell or transfer all or any part of its business or assets.
19. Notices. Any communication or notice required or permitted to be given hereunder shall be in writing, and, if to the Company, to its principal place of business, attention: Secretary, and, if to the Grantee, to the address appearing on the records of the Company. Such communication or notice shall be delivered personally or sent by certified, registered, or express mail, postage prepaid, return receipt requested, or by a reputable overnight delivery service. Any such notice shall be deemed given when received by the intended recipient.
20. Construction. Notwithstanding any other provision of this Agreement, this Agreement is made and this Option is granted pursuant to the Plan and are in all respects limited by and subject to the express provisions of the Plan, as amended from time to time. This Agreement does not modify or amend the terms of the Plan. To the extent any provision of this Agreement is inconsistent or in conflict with any term or provision of the Plan, the Plan shall govern. The interpretation and construction by the Committee of the Plan, this Agreement and any such rules and regulations adopted by the Committee for purposes of administering the Plan shall be final and binding upon the Grantee and all other persons.
21. Entire Agreement. This Agreement, together with the Plan, constitutes the entire obligation of the parties hereto with respect to the subject matter hereof and shall supersede any prior expressions of intent or understanding with respect to this transaction.
22. Waiver; Cumulative Rights. The failure or delay of either party to require performance by the other party of any provision hereof shall not affect its right to require performance of such provision unless and until such performance has been waived in writing. Each and every right hereunder is cumulative and may be exercised in part or in whole from time to time.
23. Counterparts. This Agreement may be signed in two counterparts, each of which shall be an original, but both of which shall constitute but one and the same instrument.
24. Headings. The headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
25. Severability. If any provision of this Agreement shall for any reason be held to be invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid or unenforceable provision were omitted.
26. Tax Consequences. The Grantee acknowledges and agrees that the Grantee is responsible for all taxes and tax consequences with respect to the grant of this Option and any exercise thereof. The Grantee further acknowledges that it is the Grantees responsibility to obtain any advice that the Grantee deems necessary or appropriate with respect to any and all tax matters that may exist as a result of the grant of this Option or the exercise thereof. Notwithstanding any other provision of this Agreement, Shares shall not be credited to the
7
Grantee upon his or her exercise of this Option unless, as provided in Section 17 of the Plan, the Grantee shall have paid to the Company, or made arrangements satisfactory to the Company regarding the payment of, any federal, state, local or foreign income or employment taxes required by law to be withheld with respect to the grant of this Option or exercise thereof.
27. Receipt of Plan. The Grantee acknowledges receipt of a copy of the Plan, and represents that the Grantee is familiar with the terms and provisions thereof, and hereby accepts this Option subject to all the terms and provisions of this Agreement and of the Plan. This Option is granted pursuant to the terms of the Plan, the terms of which are incorporated herein by reference, and the Option shall in all respects be interpreted in accordance with the Plan. The Committee shall interpret and construe the Plan and this Agreement, and its interpretation and determination shall be conclusive and binding upon the parties hereto and any other person claiming an interest hereunder, with respect to any issue arising hereunder or thereunder.
28. No Obligation to Exercise Option. The grant of this Option shall impose no obligation upon the Grantee to exercise this Option.
29. Condition to Return Signed Agreement. This Agreement shall be null and void unless the Grantee signs, dates, and returns this Agreement to the Company on or before the date listed at the end of the Cover Page.
IN WITNESS WHEREOF, the parties hereto have acknowledged their rights and obligations under this Agreement as of the Grant Date by signing the Cover Page.
8
Exhibit A
Consent of Spouse
I, , spouse of the , have read and approve the foregoing Non-Qualified Stock Option Agreement (the Agreement). In consideration of the Companys grant to my spouse of an option to purchase shares of Associated Banc-Corp, as set forth in the Agreement, I hereby appoint my spouse as my attorney-in-fact with respect to the exercise of any rights under the Agreement and agree to be bound by the provisions of the Agreement insofar as I may have any rights in said Agreement or any shares issued pursuant thereto under the community property laws or similar laws relating to marital property in effect in the state of our residence as of the date of the signing of the foregoing Agreement.
Dated: ,
Signature of Spouse |
Exhibit A Page 1
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