EXHIBIT 10.4.2
INCORPORATED TERMS
DATED AS OF JANUARY 23, 2002
TO
STOCK OPTION AGREEMENT
The following are the "Incorporated Terms" referred to in the instrument
entitled "Stock Option Agreement" which refers to these Incorporated Terms and
which has been signed by the Company and the Employee (the "Base Instrument").
The Incorporated Terms and the Base Instrument constitute a single agreement and
that agreement consists of the Base Instrument and the Incorporated Terms. The
Incorporated Terms dovetail with the Base Instrument; because the last paragraph
of the Base Instrument is Paragraph 1, the Incorporated Terms begin with
Paragraph 2.
2. (a) The Stock Option, and any part thereof, shall be exercised by the
giving of ten days' (or such shorter period as the Company may permit) prior
written notice of exercise to the Secretary of the Company in a form determined
by the Company from time to time, which form shall, among other things, specify
the number of whole Option Shares to be purchased, and shall be accompanied by
payment in full of the aggregate Option Price for the number of Option Shares to
be purchased. A partial exercise of the Stock Option may not be made with
respect to fewer than ten (10) Option Shares unless the Option Shares purchased
are the total number then available for purchase under the Stock Option. Such
notice shall be deemed to have been given when hand-delivered or telecopied to
the person that the Company may specify from time to time, and, shall be
irrevocable and unconditional once given.
(b) The aggregate Option Price for such Option Shares may be paid either
by cash or a certified or bank cashier's check payable to the order of the
Company, or as otherwise permitted by the Company. The Company hereby permits
such Price to be paid by delivery to the Company shares of Common Stock having a
fair market value equal to such Price, provided that the shares so delivered
have been owned by the Employee for such period as the Company may specify from
time to time (which period in the case of restricted stock shall not begin until
the shares have vested). If the number of shares of Common Stock determined
pursuant to the preceding sentence includes a fractional share, the number of
shares delivered shall be reduced to the next lower whole number and the
Employee shall deliver to the Company cash or its equivalent in lieu of such
fractional share, or otherwise make arrangements satisfactory to the Company for
payment of such amount.
(c) The Employee shall be responsible for paying all withholding taxes
applicable to the exercise of any Stock Option. The Company shall have the right
to take any action necessary to insure that the Employee pays the required
withholding taxes. The Employee shall be permitted to satisfy the Company's tax
withholding requirements by making an election (the "Election") to have the
Company withhold Option Shares otherwise issuable to the Employee, or to deliver
to the Company shares of Common Stock, having a fair market value on the date
income is recognized with respect to the exercise of the Stock Option (the "Tax
Date") equal in amount to the amount to be so withheld. If the number of shares
of Common Stock determined pursuant to the preceding sentence includes a
fractional share, the number of shares withheld or delivered shall be reduced to
the next lower whole number and the Employee
shall deliver to the Company cash or its equivalent in lieu of such fractional
share, or otherwise make arrangements satisfactory to the Company for payment of
such amount. The Election shall be irrevocable and must be received by the
Secretary of the Company at his corporate office on or prior to the Employee's
Tax Date. The Election shall be made in writing and be in such form as the
Company shall determine.
(d) The Company's determination of fair market value for purposes of
Sections 2(b) and (c) shall be conclusive. Upon payment of the aggregate Option
Price for the Option Shares and the required withholding taxes, the Company
shall cause a certificate for the Option Shares so purchased to be delivered to
the Employee.
3. Neither the Employee nor his legal representative shall be or have any
rights or privileges of a shareholder of the Company in respect of any of the
Option Shares issuable upon exercise of the Stock Option unless and until a
certificate or certificates for such Option Shares shall have been issued upon
the exercise of the Stock Option.
4. (a) The Stock Option shall be deemed to have been granted as of the
date of this Stock Option Agreement and shall become exercisable or vested as
follows:
(i) The percentage of the Option Shares which shall vest and may
be exercised by the Employee shall be as set forth on the signature page
hereof under "Vesting Schedule" with respect to each date set forth
thereon. For purposes of such vesting schedule, vesting shall occur on
the date specified and in the percentage indicated in such schedule; and
(ii) Without limiting the discretion of the Committee to act in
other cases, if a "Change in Control of the Company" (as defined in the
Annex attached hereto) occurs, the Stock Option shall become fully vested
and exercisable in full as of the date thereof.
(b) If the Employee's employment with the Company terminates for any
reason, the Stock Option to the extent not exercisable or vested as of the date
of termination shall not become exercisable or vested as a result of events
(including the passage of time or the achievement of another anniversary date
for vesting and exercise) occurring subsequent to the date of termination. The
vested but unexercised portion of the Stock Option shall automatically and
without notice terminate and become null and void at the time of the earliest
date (the "Termination Date") to occur of the following:
(i) Thirty (30) days after the termination of the Employee's
employment with the Company and all subsidiaries thereof for any reason
(including without limitation, disability or termination by the Company
and all subsidiaries thereof, with or without cause) other than by reason
of the Employee's death or a leave of absence approved by the Company or
by reason of the Employee's retirement from the Company and all
subsidiaries thereof after reaching age 55 and after having been employed
by the Company or any subsidiary thereof for an aggregate period of at
least seven (7) years; or
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(ii) Three Hundred Sixty-Five (365) days following the termination
of the Employee's employment with the Company and all subsidiaries
thereof by reason of the Employee's death or by reason of the Employee's
retirement from the Company and all subsidiaries thereof after reaching
age 55 and after having been employed by the Company or any subsidiary
thereof for an aggregate period of at least seven (7) years; or
(iii) Thirty (30) days after expiration or termination of a leave
of absence approved by the Company unless the Employee becomes reemployed
with the Company prior to such 30-day period in which event the Stock
Option shall continue in effect in accordance with its terms; or
(iv) the date set forth after "Final Termination Date" on the
signature page hereof.
(c) The Committee, in its sole discretion, may from time to time
accelerate or waive any conditions to the exercise of the Stock Option.
(d) If the Employee dies while in the employ of the Company or any
subsidiary then, regardless of whether the Stock Option is subject to exercise
under Section 4(a) above, the Stock Option shall become immediately vested and
exercisable by the personal representative of the Employee or the person to whom
the Employee's rights under the Stock Option are transferred by law or
applicable laws of descent and distribution.
5. Nothing herein contained shall confer upon the Employee the right to
continue in the employment of the Company or affect the right of the Company to
terminate the Employee's employment at any time, or permit the exercise of the
Stock Option as a result of the Company electing to terminate at any time the
employment of the Employee subject, however, to the provisions of any agreement
of employment between the Company and the Employee. The Employee acknowledges
that a termination of employment could occur at a time at which the portion of
the Stock Option that is not exercisable or vested could have substantial value
and that as a result of such termination, the Employee will not be able to
realize such value nor will the Employee be entitled to any compensation on
account of such value. In addition, the Employee acknowledges that a termination
of employment will likely cause the vested but unexercised portion of the Stock
Option to terminate earlier than it otherwise would, with the result that the
value to the Employee of having a longer exercise period will be lost without
any compensation to the Employee on account of such loss.
6. In the event of any change in the outstanding shares of the Company
("capital adjustment") for any reason, including but not limited to, any stock
split, stock dividend, recapitalization, merger, consolidation, reorganization,
combination or exchange of shares or other similar event, an adjustment in the
number or kind of shares of Common Stock subject to the Stock Option, the Option
Price under the Stock Option shall be made by the Committee in a manner
consistent with such capital adjustment. The determination of the Committee as
to any
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such adjustment shall be conclusive and binding for all purposes of this
Stock Option Agreement.
7. Notwithstanding any provision of this Stock Option Agreement to the
contrary, the Committee may take whatever action it may consider necessary or
appropriate to comply with the Securities Act of 1933, as amended, or any other
applicable securities law, including limiting the exercisability of the Stock
Option or the issuance of Option Shares hereunder.
8. The Stock Option may not be exercised if the issuance of such Option
Shares upon such exercise would constitute a violation of any applicable Federal
or state securities law or other law or regulation. As a condition to the
exercise of the Stock Option, the Company may require the Employee to make any
representation and warranty to the Company as may be required by any applicable
law or regulation.
9. Except as herein otherwise provided or as otherwise permitted by the
Committee, the Stock Option and any rights and privileges conferred by this
Stock Option Agreement shall not be transferred, assigned, pledged or
hypothecated in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment, or similar process. Upon any attempt so to
transfer, assign, pledge, hypothecate, or otherwise dispose of the Stock Option,
or of any right or privilege conferred hereby, contrary to the provisions
hereof, or upon the levy of an attachment or similar process upon the rights and
privileges conferred hereby, the Stock Option and the rights and privileges
conferred hereby shall immediately become null and void.
10. The Stock Option shall be deemed to have been granted pursuant to the
Plan and is subject to the terms and provisions thereof. In the event of any
conflict between the terms hereof and the provisions of the Plan, the terms and
conditions of the Plan shall prevail. Any and all terms used herein, unless
otherwise specifically defined herein, shall have the meaning ascribed to them
in the Plan. A copy of the Plan is available on request of the Employee made in
writing or by e-mail to the Company's Secretary.
11. This Stock Option Agreement shall be binding upon and inure to the
benefit of the parties hereto and any successors to the business of the Company,
but neither this Stock Option Agreement nor any rights hereunder shall be
assignable by the Employee, except as may be permitted pursuant to Section 9
above.
12. All decisions or interpretations of the Committee with respect to any
question arising under the Plan or under this Stock Option Agreement shall be
binding, conclusive and final. As a condition of the granting of the Stock
Option, the Employee agrees, for himself and his personal representatives, that
any dispute or disagreement which may arise under or as a result of or pursuant
to this Stock Option Agreement shall be determined by the Committee in its sole
discretion, and that any interpretation or determination by the Committee shall
be final, binding and conclusive. Such determinations need not be uniform and
may be made differently by the Committee with respect to other employees of the
Company who are, have been, or will be granted stock options by the Company.
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13. The waiver by the Company of any provision of this Stock Option
Agreement shall not operate as or be construed to be a subsequent waiver of the
same provisions or waiver of any other provision hereof.
14. Except as herein otherwise provided, the Stock Option shall be
irrevocable before the Termination Date and its validity and construction shall
be governed by the laws of the State of Wisconsin (excluding the conflict of
laws provisions of such laws).
The end of Paragraph 14 is the end of the Incorporated Terms. The
remainder of the Agreement is contained in the Base Instrument.
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ANNEX
Definition of "Change in Control of the Company" and Related Terms
1. Change in Control of the Company. A "Change in Control of the Company"
shall be deemed to have occurred if an event set forth in any one of the
following paragraphs shall have occurred:
(i) any Person (other than (A) the Company or any of its
subsidiaries, (B) a trustee or other fiduciary holding securities under
any employee benefit plan of the Company 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 Company in substantially the same proportions as
their ownership of stock in the Company ("Excluded Persons")) is or
becomes the Beneficial Owner, directly or indirectly, of securities of
the Company (not including in the securities beneficially owned by such
Person any securities acquired directly from the Company or its
Affiliates after July 22, 1999, pursuant to express authorization by the
Board of Directors of the Company (the "Board") that refers to this
exception) representing 50% or more of either the then outstanding shares
of common stock of the Company or the combined voting power of the
Company's then outstanding voting securities entitled to vote generally
in the election of directors; or
(ii) the following individuals cease for any reason to constitute
a majority of the number of directors of the Company then serving: (A)
individuals who, on July 22, 1999, constituted the Board and (B) 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 Company, as such terms are used in Rule 14a-11 of
Regulation 14A under the Act) whose appointment or election by the Board
or nomination for election by the Company'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 July 22, 1999, or whose initial appointment,
election or nomination for election as a director which occurred after
July 22, 1999 was approved by such vote of the directors then still in
office at the time of such initial appointment, election or nomination
who were themselves either directors on July 22, 1999 or initially
appointed, elected or nominated by such two-thirds (2/3) vote as
described above ad infinitum (collectively the "Continuing Directors");
provided, however, that individuals who are appointed to the Board
pursuant to or in accordance with the terms of an agreement relating to a
merger, consolidation, or share exchange involving the Company (or any
direct or indirect subsidiary of the Company) shall not be Continuing
Directors for purposes of this Agreement until after such individuals are
first nominated for election by a vote of at least two-thirds (2/3) of
the then Continuing Directors and are thereafter elected as directors by
the shareholders of the Company at a meeting of shareholders held
Annex - Page 1 of 3
following consummation of such merger, consolidation, or share exchange;
and, provided further, that in the event the failure of any such persons
appointed to the Board to be Continuing Directors results in a Change in
Control of the Company, the subsequent qualification of such persons as
Continuing Directors shall not alter the fact that a Change in Control of
the Company occurred; or
(iii) a merger, consolidation or share exchange of the Company
with any other corporation is consummated or voting securities of the
Company are issued in connection with a merger, consolidation or share
exchange of the Company (or any direct or indirect subsidiary of the
Company) pursuant to applicable stock exchange requirements, other than
(A) a merger, consolidation or share exchange which would result in the
voting securities of the Company entitled to vote generally in the
election of directors 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% of the combined
voting power of the voting securities of the Company or such surviving
entity or any parent thereof entitled to vote generally in the election
of directors of such entity or parent outstanding immediately after such
merger, consolidation or share exchange, or (B) a merger, consolidation
or share exchange effected to implement a recapitalization of the Company
(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 Company (not including in the securities beneficially
owned by such Person any securities acquired directly from the Company or
its Affiliates after July 22, 1999, pursuant to express authorization by
the Board that refers to this exception) representing at least 50% of the
combined voting power of the Company's then outstanding voting securities
entitled to vote generally in the election of directors; or
(iv) the sale or disposition by the Company of all or
substantially all of the Company's assets (in one transaction or a series
of related transactions within any period of 24 consecutive months),
other than a sale or disposition by the Company of all or substantially
all of the Company's assets to an entity of which at least 75% of the
combined voting power of the voting securities entitled to vote generally
in the election of directors immediately after such sale are owned by
Persons in substantially the same proportions as their ownership of the
Company immediately prior to such sale.
2. Related Definitions. For purposes of this Annex, the following terms,
when capitalized, shall have the following meanings:
(i) Act. The term "Act" means the Securities Exchange Act of 1934,
as amended.
(ii) Affiliate and Associate. The terms "Affiliate" and
"Associate" shall have the respective meanings ascribed to such terms in
Rule l2b-2 of the General Rules and Regulations under the Act.
Annex - Page 2 of 3
(iii) Beneficial Owner. A Person 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, (A) 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 (B) securities issuable upon
exercise of Rights issued pursuant to the terms of the Company's
Rights Agreement, dated as of July 22, 1999, between the Company
and Firstar Bank Milwaukee, N.A., as amended from time to time (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 l3d-3 of the General Rules and Regulations under
the 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 Subsection 1 (c) as a result of an agreement,
arrangement or understanding to vote such security if the
agreement, arrangement or understanding: (A) 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
Act and (B) is not also then reportable on a Schedule l3D under
the 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 Subsection
1(c) (ii) above) or disposing of any voting securities of the
Company.
(iv) Person. 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.
Annex - Page 3 of 3
