EXHIBIT 10.1.1
INCORPORATED TERMS
DATED AS OF _________________
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 of shares of Common
Stock having a Fair Market Value on the day prior to exercise of the Stock
Option equal to such Price, provided such delivery will not result in a charge
to earnings. 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. Unless such payment method is prohibited by law, including Section 402
of the Sarbanes-Oxley Act of 2002, the Company further permits such Price to be
paid as contemplated in Section 2.4(c) of the Plan, subject to the Company's
right to specify the date on which funds on account of the exercise are to be
paid to the Company.
(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, in each case having a Fair Market Value
on the day prior to the day on which 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) 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 unless
a different result occurs in or pursuant to Section 4(e) below. Except as
provided in or pursuant to Section 4(e) below, 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
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having been employed by the Company or any subsidiary thereof for an
aggregate period of at least seven (7) years; or
(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 Management Development, Nominating and Governance Committee of
the Company's Board of Directors (the "Management Development Committee") or
other Committee of such Board administering the Plan (the Management Development
Committee or such other Committee is herein referred to as 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.
(e) (i) If the Employee's employment with the Company and all
subsidiaries terminates by reason of retirement after reaching age 62 and after
having been employed by the Company or any subsidiary thereof for an aggregate
period of at least seven (7) years, (A) the Stock Option shall continue to vest
on each date set forth under "Vesting Schedule" on the signature page if (x) no
later than the date on which employment terminates, the Employee enters into an
agreement with the Company (which agreement shall be drafted by and acceptable
to the Company) under which the Employee agrees not to compete with the Company
and its subsidiaries during a period ending one year after the latest date set
forth under such Vesting Schedule, and (y) the Employee complies with such
agreement, and (B) if the conditions in clause (A) are satisfied, (x) upon the
Employee's death any unvested portion of the Stock Option shall become
immediately vested and exercisable by the personal representative or other
person referred to in Section 4(d) and (y) the Termination Date shall be 365
days after the date on which the last vesting of the Stock Option occurs
(including vesting as a result of death), except that if the Employee was
employed by a combination of the Company or any subsidiary of WMAC Investment
Corporation or any of its subsidiaries for an aggregate continuous period
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(disregarding any break in service of less than three months) of at least twenty
(20) years, the Termination Date shall be the date specified in Section
4(b)(iv).
(ii) If the Employee's employment with the Company and all
subsidiaries terminates by reason of retirement after reaching age 55 and after
having been employed by the Company or any subsidiary for an aggregate period of
at least seven (7) years, without creating any implication that the Committee
may not act in other cases, the Committee may take action in its sole discretion
to provide that the Stock Option, or a portion thereof determined by the
Committee, shall become vested upon the Employee's death, shall continue to vest
during the balance of the vesting period and shall continue to be exercisable
after termination of employment, all as contemplated in Subsection 4(e)(i) above
if the Employee complies with the conditions in clauses (x) and (y) of
Subsection 4(e)(i).
(iii) If the Employee enters into a noncompetition agreement
contemplated by Subsection 4(e)(i) or (ii) and thereafter breaches the terms
thereof, the Termination Date shall occur on the date of the breach and any
portion of the Stock Option that is not then vested shall not become exercisable
or vested thereafter.
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 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.
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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.
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).
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15. As a condition to the grant of the Stock Option, Employee must execute
an agreement not to compete in the form provided to the Employee by the Company.
The end of Paragraph 15 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