EXHIBIT 10.5.2
INCORPORATED TERMS
DATED AS OF JANUARY 23, 2002
TO
RESTRICTED STOCK AGREEMENT
The following are the "Incorporated Terms" referred to in the instrument
entitled "Restricted Stock 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. Restrictions. Except as otherwise provided herein, the Restricted
Stock may not be sold, transferred or otherwise alienated or hypothecated until,
in the case of the Base Restricted Stock, the date set forth after "Base
Restricted Stock Release Date" on the signature page, and in the case of the
Matching Restricted Stock, the date set forth after "Matching Restricted Stock
Release Date" on the signature page. The term "Release Date" shall be applied
separately to the Base Restricted Stock and the Matching Restricted Stock as if
the term "Release Date" were the term "Base Restricted Stock Release Date" or
the term "Matching Restricted Stock Release Date" and such application shall
correspond to the application of the term "Restricted Stock" as set forth in
Paragraph 1(a) of the Base Instrument.
3. Escrow. Shares of Restricted Stock shall be issued as soon as
practicable in the name of the Employee but shall be held in escrow by the
Company, as escrow agent. Upon issuance of such shares, (i) the Company shall
give the Employee a receipt for the Restricted Stock held in escrow which will
state that the Company holds such Stock in escrow for the account of the
Employee, subject to the terms of this Agreement, and (ii) the Employee shall
give the Company a stock power for such Stock duly endorsed in blank which will
be held in escrow for use in the event such Stock is forfeited in whole or in
part. Unless forfeited as provided herein, Restricted Stock shall cease to be
held in escrow and certificates for such Stock shall be delivered to the
Employee, or in the case of his death, to his Beneficiary (as hereinafter
defined) on the Release Date or upon any other termination of the restrictions
imposed by Paragraph 2 hereof.
4. Transfer After Release Date; Securities Law Restrictions. Except as
otherwise provided herein, Restricted Stock shall become free of the
restrictions of Paragraph 2 and be freely transferable by the Employee on the
Release Date. Notwithstanding the foregoing or anything to the contrary herein,
the Employee agrees and acknowledges with respect to any Restricted Stock that
has not been registered under the Securities Act of 1933, as amended (the "Act")
(i) he will not sell or otherwise dispose of such Stock except pursuant to an
effective registration statement under the Act and any applicable state
securities laws, or in a transaction which, in the opinion of counsel for the
Company, is exempt from such
registration, and (ii) a legend will be placed on the certificates or other
evidence for the Restricted Stock to such effect.
5. Termination of Employment Due to Death. If the Employee's employment
with the Company or any of its subsidiaries is terminated because of death prior
to the Release Date, the restrictions of Paragraph 2 applicable to the
Restricted Stock shall terminate on the date of death and such Restricted Stock
shall be free of such restrictions and, except as otherwise provided in
Paragraph 4 hereof, freely transferable.
6. Termination of Employment Other Than Due to Death. If the Employee's
employment with the Company and all of its subsidiaries is terminated prior to
the Release Date for any reason (including without limitation, disability or
termination by the Company and all subsidiaries thereof, with or without cause)
other than death, all Restricted Stock shall be forfeited to the Company on the
date of such termination unless the Management Development Committee of the
Company's Board of Directors, which is the Stock Award Committee contemplated by
the Plan and which administers the Plan (the "Committee") determines, on such
terms and conditions, if any, as the Committee may impose, that all or a portion
of the Restricted Stock shall be released to the Employee and the restrictions
of Paragraph 2 applicable thereto shall terminate. Absence of the Employee on
leave approved by a duly elected officer of the Company, other than the
Employee, shall not be considered a termination of employment during the period
of such leave. If Restricted Stock is forfeited, the Employee hereby appoints
the Company, acting through any Senior Vice President or more senior officer, as
the Employee's attorney-in-fact to transfer such forfeited Restricted Stock to
the Company.
7. Beneficiary. (a) The person whose name appears on the signature page
hereof after the caption "Beneficiary" or any successor designated by the
Employee in accordance herewith (the person who is the Employee's Beneficiary at
the time of his death herein referred to as the "Beneficiary") shall be entitled
to receive the Restricted Stock to be released to the Beneficiary under
Paragraphs 3 and 5 as a result of the death of the Employee. The Employee may
from time to time revoke or change his Beneficiary without the consent of any
prior Beneficiary by filing a new designation with the Committee. The last such
designation received by the Committee shall be controlling; provided, however,
that no designation, or change or revocation thereof, shall be effective unless
received by the Committee prior to the Employee's death, and in no event shall
any designation be effective as of a date prior to such receipt.
(b) If no such Beneficiary designation is in effect at the time of an
Employee's death, or if no designated Beneficiary survives the Employee or if
such designation conflicts with law, the Employee's estate shall be entitled to
receive the Restricted Stock upon the death of the Employee. If the Committee is
in doubt as to the right of any person to receive such Restricted Stock, the
Company may retain such Stock and any distributions thereon, without liability
for any interest thereon, until the Committee determines the person entitled
thereto, or the Company may deliver such Restricted Stock and any
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distributions thereon to any court of appropriate jurisdiction and such delivery
shall be a complete discharge of the liability of the Company therefor.
8. Restricted Stock Legend. In addition to any legends placed on
certificates for Restricted Stock or other evidence of ownership of Restricted
Stock under Paragraph 4 hereof, each certificate or such other evidence for
shares of Restricted Stock shall bear the following legend:
"The sale or other transfer of these shares of stock, whether voluntary,
or by operation of law, is subject to certain restrictions set forth in
the MGIC Investment Corporation 1991 Stock Incentive Plan and a
Restricted Stock Agreement between MGIC Investment Corporation and the
registered owner hereof. A copy of such Plan and such Agreement may be
obtained from the Secretary of MGIC Investment Corporation."
When the restrictions imposed by Paragraph 2 hereof terminate, the Employee
shall be entitled to have the foregoing legend removed from such Stock.
9. Voting Rights; Dividends and Other Distributions. (a) While the
Restricted Stock is subject to restrictions under Paragraph 2 and prior to any
forfeiture thereof, the Employee may exercise full voting rights for the
Restricted Stock registered in his name and held in escrow hereunder.
(b) While the Restricted Stock is subject to the restrictions under
Paragraph 2 and prior to any forfeiture thereof, the Employee shall be entitled
to receive all dividends and other distributions paid with respect to the
Restricted Stock. If any such dividends or distributions are paid in Stock, such
shares shall be subject to the same restrictions as the shares of Restricted
Stock with respect to which they were paid, including the requirement that
Restricted Stock be held in escrow pursuant to Paragraph 3 hereof.
(c) Subject to the provisions of this Agreement, the Employee shall have,
with respect to the Restricted Stock, all other rights of holders of Stock.
10. Tax Withholding. (a) It shall be a condition of the obligation of the
Company to issue or release from escrow Restricted Stock to the Employee or the
Beneficiary, and the Employee agrees, that the Employee shall pay to the Company
upon its demand, such amount as may be requested by the Company for the purpose
of satisfying its liability to withhold federal, state, or local income or other
taxes incurred by reason of the award of the Restricted Stock or as a result of
the termination of the restrictions on such Stock hereunder.
(b) If the Employee does not make an election under Section 83(b) of the
Internal Revenue Code of 1986, as amended, with respect to the Restricted Stock
awarded hereunder, the Employee may satisfy the Company's withholding tax
requirements by electing to have the Company withhold that number of shares of
Restricted Stock otherwise deliverable to the Employee from escrow hereunder or
to deliver to the Company a number of shares of
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Stock, in each case, having a fair market value (as determined by the Committee)
on the Tax Date (as defined below) equal to the minimum amount required to be
withheld as a result of the termination of the restrictions on such Restricted
Stock. The election must be in writing and be delivered to the Company prior to
the Tax Date. If the number of shares so calculated to be withheld shall include
a fractional share, the Employee shall deliver cash in lieu of such fractional
share. All elections shall be made in a form approved by the Committee and shall
be subject to disapproval, in whole or in part, by the Committee. As used
herein, "Tax Date" means the date on which the Employee must include in his
gross income for federal income tax purposes the fair market value of the
Restricted Stock over the purchase price therefor.
11. Adjustments in Event of Change in Stock. In the event of any change
in the outstanding shares of Stock ("capital adjustment") for any reason,
including but not limited to, any stock splits, stock dividend,
recapitalization, merger, consolidation, reorganization, combination or exchange
of shares or other similar event which, in the judgment of the Committee, could
distort the implementation of the Plan or the realization of its objectives, the
Committee may make such adjustments in the shares of Restricted Stock subject to
this Agreement, or in the terms, conditions or restrictions of this Agreement as
the Committee deems equitable.
12. Change in Control. If a "Change in Control of the Company" (as
defined in Annex attached hereto) occurs, the restrictions of Paragraph 2
applicable to the Restricted Stock shall terminate on the date of the Change in
Control of the Company and such date shall be deemed to be the Release Date.
13. Powers of Company Not Affected; No Right to Continued Employment.
(a) The existence of the Restricted Stock shall not affect in any way the
right or power of the Company or its stockholders to make or authorize any
combination, subdivision or reclassification of the Stock or any reorganization,
merger, consolidation, business combination, exchange of shares, or other change
in the Company's capital structure or its business, or any issue of bonds,
debentures or stock having rights or preferences equal, superior or affecting
the Restricted Stock or the rights thereof, or dissolution or liquidation of the
Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of a similar character or
otherwise. The determination of the Committee as to any such adjustment shall be
conclusive and binding for all purposes of this Agreement.
(b) Nothing herein contained shall confer upon the Employee any right to
continue in the employment of any Participating Company or interfere with or
limit in any way the right of any Participating Company to terminate the
Employee's employment at any time, subject, however, to the provisions of any
agreement of employment between any Participating Company and the Employee. The
Employee acknowledges that a termination of his or her employment could occur at
a time before which the restrictions referred to in Paragraph 2 above have
lapsed, resulting in the forfeiture of the Restricted Stock by the Employee. In
such
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event, the Employee will not be able to realize the value of the Restricted
Stock nor will the Employee be entitled to any compensation on account of such
value.
14. Interpretation by Committee. The Employee agrees that any dispute or
disagreement which may arise in connection with this Agreement shall be resolved
by the Committee, in its sole discretion, and that any interpretation by the
Committee of the terms of this Agreement or the Plan and any determination made
by the Committee under this Agreement or the Plan may be made in the sole
discretion of the Committee and shall be final, binding, and conclusive. Any
such determination need not be uniform and may be made differently among
Employees awarded Restricted Stock.
15. Miscellaneous. (a) This Agreement shall be governed and construed in
accordance with the laws of the State of Wisconsin applicable to contracts made
and to be performed therein between residents thereof.
(b) The waiver by the Company of any provision of this Agreement shall
not operate or be construed to be a subsequent waiver of the same provision or
waiver of any other provision hereof.
(c) The Restricted Stock shall be deemed to have been awarded pursuant to
the Plan and is subject to the terms and conditions 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
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.
(d) Any notice, filing or delivery hereunder or with respect to
Restricted Stock shall be given to the Employee at either his usual work
location or his home address as indicated in the records of the Company, and
shall be given to the Committee or the Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Avenue,
Milwaukee 53202, Attention: Secretary. All such notices shall be given by first
class mail, postage pre-paid, or by personal delivery.
(e) This Agreement shall be binding upon and inure to the benefit of the
Company and its successors and assigns and shall be binding upon and inure to
the benefit of the Employee, the Beneficiary and the personal representative(s)
and heirs of the Employee, except that the Employee may not transfer any
interest in any Restricted Stock prior to the release of the restrictions
imposed by Paragraph 2.
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
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directors by the shareholders of the Company at a meeting of shareholders
held 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.
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(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.
(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.
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(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.
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