EXHIBIT 99.4
XXXXXXXX & XXXXX, INC.
1989 STOCK OPTION PLAN
AMENDMENT TO
STOCK OPTION AWARD AGREEMENT
This Amendment to Stock Option Award Agreement made as of April 30,
1997 among the undersigned, amends that certain Stock Option 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 Stock
Option Plan (hereinafter the "Stock Option Plan"); and
WHEREAS, an award of stock options has been made to the Key Employee
under the Stock Option 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 Stock Option Plan, as applicable.
2. AMENDMENTS TO THE AWARD AGREEMENT. From and after the date
hereof, the Award Agreement is hereby amended to include Paragraph 13, which
reads in its entirety as follows:
"13. CHANGE OF CONTROL. (a) Notwithstanding any other provision to
the contrary contained in this Agreement, if a Change in Control of the
Company (as defined below) occurs prior to the Expiration Date, the Option
(to the extent not previously exercised or terminated) shall immediately and
automatically become exercisable as of the date of the Change in Control of
the Company.
(b) The following terms shall have the following meanings when used in
this Paragraph 13:
(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 occured 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 voiting 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
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[Name]
[Title]
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[Name]
Key Employee
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