OSHKOSH CORPORATION
1990 INCENTIVE STOCK PLAN, as amended
|
Section
1.
|
Establishment, Purpose, and Effective
Amended: As of / /2008
|
1.1
Establishment . Oshkosh Corporation, a Wisconsin
corporation, hereby establishes the “1990 INCENTIVE STOCK
PLAN” (the “Plan”) for key employees and for
directors of the Corporation who are not employees of the
Corporation or any Subsidiary. The Plan permits the grant of Stock
Options and Restricted Stock.
1.2
Purpose . The purpose of the Plan is to advance the
interests of the Corporation and its Subsidiaries and promote
continuity of management by encouraging and providing for the
acquisition of an equity interest in the success of the Corporation
by key employees and by enabling the Corporation to attract and
retain the services of key employees upon whose judgment, interest,
skills, and special effort the successful conduct of its operations
is largely dependent. In addition, the Plan is designed to promote
the best interests of the Corporation and its shareholders by
providing a means to attract and retain competent directors who are
not employees of the Corporation or any Subsidiary and to provide
opportunities for stock ownership by such directors which will
increase their proprietary interest in the Corporation and,
consequently, their identification with the interests of the
shareholders of the Corporation.
1.3
Effective Date . The Plan was initially effective April 9,
1990; amended effective April 25, 1994; amended effective September
21, 1998, by action at the 1999 annual meeting of the
Corporation’s shareholders; amended by the Board to give
effect to a 3-for-2 stock split effective August 19, 1999; amended
by the Board effective June 30, 2000; amended effective February 5,
2001, by action at the 2001 annual meeting of the
Corporation’s shareholders; and was further amended by the
Board effective , 2008.
|
Section
2.
|
Definitions;
Construction
|
2.1
Definitions . Whenever used herein,
the following terms shall have their respective meanings set forth
below:
|
|
(a)
“Act” means the federal Securities Exchange Act of
1934, as amended.
|
|
|
(b)
“Affiliate” has the meaning ascribed to such term in
Rule 12b-2 promulgated under the Act or any successor rule or
regulation thereto.
|
|
|
(c)
“Board” means the Board of Directors of the
Corporation.
|
|
|
(d)
“Change of Control” means the occurrence of any one of
the following events:
|
|
|
(i)
any Person (other than (A) the Corporation or any of its
subsidiaries, (B) a trustee or other fiduciary holding securities
under any employee benefit plan of the Corporation or any of its
subsidiaries, (C) an underwriter temporarily holding securities
pursuant to an offering of such securities, or (D) a corporation
owned, directly or indirectly, by the shareholders of the
Corporation in substantially the same proportions as their
ownership of stock in the Corporation (individually, an
“Excluded Person” and collectively, “Excluded
Persons”)) is or becomes the “Beneficial Owner”
(as such term is defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Corporation (not
including in the securities beneficially owned by such Person any
securities acquired directly from the Corporation or its Affiliates
after January 31, 2000, pursuant to express authorization by the
Board that refers to this exception) representing 25 percent or
more of (1) the combined voting power of the Corporation’s
then outstanding voting securities or (2) the then outstanding
shares of common stock of the Corporation; or
|
|
|
(ii)
the following individuals cease for any reason to constitute a
majority of the number of directors then serving: individuals who,
on January 31. 2000, constituted the Board and any new director
(other than a director whose initial assumption of office is in
connection with an actual or threatened election contest, including
but not limited to a consent solicitation, relating to the election
of directors of the Corporation) whose appointment or election by
the Board or nomination for election by the Corporation’s
shareholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors on
January 31, 2000, or whose appointment, election or nomination for
election was previously so approved; or
|
|
|
(iii)
consummation of a merger, consolidation or share exchange of the
Corporation with any other corporation or issuance of voting
securities of the Corporation in connection with a merger,
consolidation or share exchange of the Corporation (or any direct
or indirect subsidiary of the Corporation), other than (A) a
merger, consolidation or share exchange that would result in the
voting securities of the Corporation outstanding immediately prior
to such merger, consolidation or share exchange continuing to
represent (either by remaining outstanding or by being converted
into voting securities of the surviving entity or any parent
thereof) at least 50 percent of the combined voting power of the
voting securities of the Corporation or such surviving entity or
any parent thereof outstanding immediately after such merger,
consolidation or share exchange, or (B) a merger, consolidation or
share exchange effected to implement a recapitalization of the
Corporation (or similar transaction) in which no Person (other than
an Excluded Person) is or becomes the Beneficial Owner, directly or
indirectly, of securities of the Corporation (not including in the
securities beneficially owned by such Person any securities
acquired directly from the Corporation or its Affiliates after
January 31, 2000, pursuant to express authorization by the Board
that refers to this exception) representing 25 percent or more of
(1) the combined voting power of the Corporation’s then
outstanding voting securities or (2) the then outstanding shares of
common stock of the Corporation; or
|
2
|
|
(iv)
(A) the shareholders of the Corporation approve a plan of complete
liquidation or dissolution of the Corporation or (B) the
consummation of a sale or disposition by the Corporation of all or
substantially all of the Corporation’s assets (in one
transaction or a series of related transactions within any period
of twenty-four (24) consecutive months), other than a sale or
disposition by the Corporation of all or substantially all of the
Corporation’s assets to an entity at least 75 percent of the
combined voting power of the voting securities of which are owned
by Persons in substantially the same proportions as their ownership
of the Corporation immediately prior to such sale.
|
Notwithstanding the foregoing, no
“Change of Control” shall be deemed to have occurred if
there is consummated any transaction or series of integrated
transactions immediately following which the record holders of the
common stock of the Corporation immediately prior to such
transaction or series of transactions continue to have
substantially the same proportionate ownership in an entity that
owns all or substantially all of the assets of the Corporation
immediately following such transaction or series of
transactions.
|
|
(e)
“Code” means the Internal Revenue Code of 1986, as
amended.
|
|
|
(f)
“Committee” means the Human Resources Committee of the
Board, which shall consist of two (2) or more members of the Board,
each of whom qualifies as a “non-employee director”
within the meaning of Rule 16b-3 and each of whom qualifies as an
“outside director” for purposes of Section 162(m) of
the Code.
|
|
|
(g)
“Corporation” means Oshkosh Corporation, a Wisconsin
corporation.
|
|
|
(h)
“Disability” shall have the meaning assigned to the
terms “total disability” or “totally
disabled” in the Oshkosh Corporation Long Term Disability
Program for Salaried Employees, provided the Participant remains
totally disabled for five (5) consecutive months.
|
|
|
(i)
“Fair Market Value” means the last sale price of the
Stock as reported on the NASDAQ National Market System on a
particular date.
|
|
|
(j)
“Non-Employee Director” means any member of the Board
who is not an employee of the Corporation or of any
Subsidiary.
|
|
|
(k)
“Option” means the right to purchase Stock at a stated
price for a specified period of time. For purposes of the Plan an
Option may be either (i) an “incentive stock option”
within the meaning of Section 422 of the Code or (ii) a
“nonstatutory stock option.”
|
3
|
|
(l)
“Participant” means any individual designated by the
Committee to participate in the Plan.
|
|
|
(m)
“Performance Goals” means any goals the Committee
establishes that relate to one or more of the following with
respect to the Corporation or any one or more Subsidiaries or other
business units: net sales; cost of sales; gross income; operating
income; earnings before interest and taxes; earnings before
interest, taxes, depreciation and amortization; income from
continuing operations; net income; basic earnings per share;
diluted earnings per share; cash flow; net cash provided by
operating activities; net cash provided by operating activities
less net cash used in investing activities; ratio of debt to debt
plus equity; return on shareholder equity; return on invested
capital; return on average total capital employed; return on net
assets employed before interest and taxes; operating working
capital; average accounts receivable (calculated by taking the
average of accounts receivable at the end of each month); average
inventories (calculated by taking the average of inventories at the
end of each month); and economic value added. As to each
Performance Goal, the relevant measurement of performance shall be
computed in accordance with generally accepted accounting
principles, but will exclude the effects of (i) extraordinary,
unusual and/or non-recurring items of gain or loss, (ii) gains or
losses on the disposition of a business, (iii) changes in tax or
accounting regulations or laws, or (iv) the effect of a merger or
acquisition, that in each case the Corporation identifies in its
audited financial statements, including footnotes, or the
Management’s Discussion and Analysis section of the
Corporation’s annual report.
|
|
|
(n)
“Period of Restriction” means the period during which
the transfer of shares of Restricted Stock is restricted pursuant
to Section 7 of the Plan.
|
|
|
(o)
“Person” has the meaning given in Section 3(a)(9) of
the Act, as modified and used in Sections 13(d) and 14(d)
thereof.
|
|
|
(p)
“Restricted Stock” means Stock granted to a Participant
pursuant to Section 7 of the Plan.
|
|
|
(q)
“Retirement” shall have the meaning assigned to such
term in the pension plan of the Corporation.
|
|
|
(r)
“Rule 16b-3” means Rule 16b-3 as promulgated by the
United States Securities and Exchange Commission under the Act or
any successor rule or regulation thereto.
|
|
|
(s)
“Stock” means the Common Stock of the Corporation, par
value of one cent ($.01) per share.
|
|
|
(t)
“Subsidiary” means any present or future subsidiary of
the Corporation, as defined in Section 424(f) of the
Code.
|
2.2
Number . Except when otherwise indicated by the context, the
singular shall include the plural, and the plural shall include the
singular.
4
|
Section
3.
|
Eligibility
and Participation
|
3.1
Eligibility and Participation . Participants in the Plan
shall be selected by the Committee from among those officers and
other key employees of the Corporation and its Subsidiaries who, in
the opinion of the Committee, are in a position to contribute
materially to the Corporation’s continued growth and
development and to its long-term financial success. All
Non-Employee Directors shall receive grants of Options as provided
in Section 6A.
|
Section
4.
|
Stock
Subject to Plan
|
4.1
Number . The total number of shares of Stock subject to
issuance under the Plan may not exceed 2,152,753. The total number
of shares of Stock subject to issuance pursuant to Options granted
under the Plan in any five year period to any one person may not
exceed 600,000. The limitations set forth in this Section 4.1 are
subject to adjustment upon occurrence of any of the events
indicated in Subsection 4.3. The shares to be delivered under the
Plan may consist, in whole or in part, of authorized but unissued
Stock or treasury Stock, not reserved for any other
purpose.
4.2
Unused Stock; Unexercised Rights . In the event any shares
of stock are subject to an Option which, for any reason, expires or
is terminated unexercised as to such shares, or any shares of
Stock, subject to a Restricted Stock grant made under the Plan are
reacquired by the Corporation pursuant to Subsection 7.9 or 7.10 of
the Plan, such shares again shall become available for issuance
under the Plan.
4.3
Adjustment in Capitalization . In the event that (i) the
Corporation shall at any time be involved in a merger or other
transaction in which shares of Stock are changed or exchanged; or
(ii) the Corporation shall subdivide or combine shares of Stock or
the Corporation shall declare a dividend payable in shares of
Stock, other securities (other than any associated preferred stock
purchase rights issued pursuant to that certain Rights Agreement,
dated February 1, 1999, between the Corporation and
ComputerShare Investor Services, LLC, as successor rights agent, or
similar stock purchase rights that the Corporation might authorize
and issue in the future) or other property; or (iii) the
Corporation shall effect a cash dividend the amount of which
exceeds 10% of the trading price of the Stock at the time the
dividend is declared, or the Corporation shall effect any other
dividend or other distribution on shares of Stock in the form of
cash, or a repurchase of shares of Stock, that the Board determines
by resolution is special or extraordinary in nature or that is in
connection with a transaction that the Corporation characterizes
publicly as a recapitalization or reorganization involving shares
of Stock; or (iv) any other event shall occur which, in the case of
this clause (iv), in the judgment of the Committee necessitates an
adjustment to prevent dilution or enlargement of the benefits or
potential benefits intended to be made available under the Plan,
then, subject to Participants’rights under Section 10.2, the
Committee shall, in such manner as it may deem equitable, adjust
any or all of (A) the number and type of shares of Stock subject to
any outstanding Stock Option or Restricted Stock grant; provided,
however, that fractional shares shall be rounded to the nearest
whole share, and (B) the exercise price with respect to any Stock
Option. Any such
|
