EXHIBIT 99.5
XXXXXXXX & XXXXX, INC.
1989 RESTRICTED STOCK PLAN
AMENDMENT TO
RESTRICTED STOCK AWARD AGREEMENT
This Amendment to Restricted Stock Award Agreement made as of April
30, 1997 among the undersigned, amends that certain Restricted Stock Award
Agreement, dated as of [_____________] (the "Award Agreement"), among Xxxxxxxx
& Xxxxx, Inc. (the "Company") and the undersigned employee of the Company
and/or one or more of its subsidiaries (the "Key Employee").
WITNESSETH:
WHEREAS, the Company maintains the Xxxxxxxx & Xxxxx, Inc. 1989
Restricted Stock Plan (hereinafter the "Restricted Stock Plan"); and
WHEREAS, an award of restricted stock has been made to the Key
Employee under the Restricted Stock Plan pursuant to the Award Agreement; and
WHEREAS, the Award Agreement provides that it may not be modified
except by written consent of the parties thereto, and
WHEREAS, the Company and the Key Employee deem it desirable to amend
the Award Agreement.
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, the parties hereby mutually
covenant and agree as follows:
1. DEFINITIONS. All capitalized terms which are not otherwise
defined herein shall have the meanings assigned such terms in the Award
Agreement or the Restricted Stock Plan, as applicable.
2. AMENDMENTS TO THE AWARD AGREEMENT. From and after the date
hereof, the Award Agreement is hereby amended to include paragraph 16, which
reads in its entirety as follows:
"16. CHANGE OF CONTROL. (a) Notwithstanding any other provision to
the contrary contained in this Agreement, effective upon a Change in
Control of the Company (as defined below), the restrictions imposed upon
the Restricted Stock (except for any such shares which were previously
forfeited to the Company) by Paragraph 2 of this Agreement shall
immediately be deemed to have lapsed and the Release Date shall be
deemed to have occurred as of the date of the Change in Control of the
Company with respect to such Restricted Stock.
(b) The following terms shall have the following meanings when
used in this Paragraph 16:
(i) The term "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
(ii) The terms "Affiliate" and "Associate" shall have
the respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations of the Exchange Act.
(iii) A Person (as defined herein) shall be deemed to be
the "Beneficial Owner" of any securities:
(A) which such Person or any of such Person's
Affiliates or Associates has the right to acquire (whether
such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement
or understanding, or upon the exercise of conversion
rights, exchange rights, rights, warrants or options, or
otherwise; PROVIDED, HOWEVER, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own,
(x) securities tendered pursuant to a tender or exchange
offer made by or on behalf of such Person or any of such
Person's Affiliates or Associates until such tendered
securities are accepted for purchase, or (y) securities
issuable upon exercise of Rights issued pursuant to the
terms of the Company's Rights Agreement with Firstar
Trust Company, dated as of August 23, 1995, as amended
from time to time (the "Rights Agreement") (or any
successor to such Rights Agreement), at any time before
the issuance of such securities;
(B) which such Person or any of such Person's
Affiliates or Associates, directly or indirectly, has the
right to vote or dispose of or has "beneficial ownership"
of (as determined pursuant to Rule 13d-3 of the General
Rules and Regulations under the Exchange Act), including
pursuant to any agreement, arrangement or understanding;
PROVIDED, HOWEVER, that a Person shall not be deemed the
Beneficial Owner of, or to beneficially own, any security
under this subparagraph (B) as a result of an agreement,
arrangement or understanding to vote such security if the
agreement, arrangement or understanding: (x) arises solely
from a revocable proxy or consent given to such Person in
response to a public proxy or consent solicitation made
pursuant to, and in accordance with, the applicable rules
and regulations under the Exchange Act and (y) is not also
then reportable on a Schedule 13D under the Exchange Act
(or any comparable or successor report); or
(C) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or
any of such Person's Affiliates or Associates has any
agreement, arrangement or understanding for the purpose of
acquiring, holding, voting (except pursuant to a revocable
proxy as described in subparagraph (B) above) or disposing
of any voting securities of the Company.
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(iv) A "Change in Control of the Company" shall mean a
change in control of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act. Without limiting the
inclusiveness of the definition in the preceding sentence, a Change
in Control of the Company shall be deemed to have occurred if:
(A) Any Person (other than any employee benefit plan
of the Company or any Participating Company, any entity
holding securities of the Company for or pursuant to the
terms of any such plan or any trustee, administrator or
fiduciary of such plan) is or becomes the Beneficial Owner
of securities of the Company representing at least 30% of
the combined voting power of the Company's then outstanding
securities;
(B) A Section 11(a)(ii) Event shall have occurred
under the Rights Agreement (or a similar event shall have
occurred under any successor to such Rights Agreement) at
any time any Rights are issued and outstanding thereunder;
(C) one-third or more of the members of the
Company's Board of Directors are not Continuing Directors
(as hereafter defined);
(D) there shall be consummated (x) any consolidation
or merger of the Company in which the Company is not the
continuing or surviving corporation or pursuant to which
shares of Stock would be converted into cash, securities or
other property, other than a merger of the Company in which
the holders of the Stock immediately prior to the merger
have the same proportionate ownership of common stock of
the surviving corporation immediately after the merger, or
(y) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all, or
substantially all, of the assets of the Company; or
(E) the shareholders of the Company approve any bid
or proposal for the liquidation or dissolution of the
Company.
(v) The term "Continuing Director" shall mean any member of the
Board of Directors of the Company who was a member of such Board on
April 5, 1997, and any successor of a Continuing Director who is
recommended to succeed a Continuing Director by a majority of the
Continuing Directors then on such Board.
(vi) The term "Person" shall mean any individual, firm,
partnership, corporation or other entity, including any successor
(by merger or otherwise) of such entity, or a group of any of the
foregoing acting in concert."
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3. MISCELLANEOUS. (a) Except as otherwise expressly provided in
this Amendment, all of the terms, conditions and provisions of the Award
Agreement remain unaltered and are in full force and effect. The Award
Agreement and this Amendment shall be read and construed as one Agreement.
(b) This Amendment shall be governed and construed in accordance
with the laws of the State of Wisconsin applicable to contracts made and to
be performed therein by and between residents thereof.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer and its corporate seal hereunto
affixed, and the Key Employee has hereunto affixed his hand and seal, all on
the day and year set forth above.
XXXXXXXX & XXXXX, INC.
(CORPORATE SEAL) By________________________________
[Name]
[Title]
__________________________________
[Name]
Key Employee
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