exv10w2w16





 Exhibit 10.2.16


INCORPORATED TERMS

DATED AS OF                                         

TO

RESTRICTED STOCK AND

RESTRICTED STOCK UNIT AGREEMENT




          The following are the “Incorporated Terms” referred to in the instrument entitled “Restricted
Stock and Restricted Stock Unit 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. (a) (i) Except as otherwise provided herein, the Base Restricted
Stock, the Matching Restricted Stock, the Time Vested RSUs and the Performance RSUs and the 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; in the case of the Matching Restricted Stock, the date set forth after “Matching Restricted
Stock Release Date” on the signature page; and in the case of the Time Vested RSUs and Performance
RSUs, until the Release Date determined as follows.



          (A) For each date set forth after “Time Vested RSUs Release Date” on the signature page,
divide the number of shares referred to after “Time Vested Restricted Stock Units” by the sum of
one and the difference between the latest year set forth after “Time Vested RSUs Release Date” on
the signature page and the earliest year set forth thereafter. The resulting quotient, rounded
down to the nearest whole RSU, is the number of Time Vested RSUs for which a Release Date shall
occur on the corresponding date set forth after “Time Vested RSUs Release Date” and such date shall
be the Release Date for such RSUs (and only for such RSUs), except that if after “Goal” on the
signature page “Applicable” appears, then such date shall be a Release Date only if the condition
set forth after “Goal” applicable to such Release Date is satisfied, provided that if such
condition is not satisfied, the number of RSUs for which a Release Date did not occur as a result
thereof (the “Unreleased RSUs”), shall be added to the number of RSUs for which a Release Date
shall occur on the next date on which a Release Date occurs, and provided further that if on the
last date set forth after “Time Vested RSUs Release Date” on the signature page, there are
Unreleased RSUs, such RSUs shall be released on earliest of the next two anniversaries of such last
date on which the condition set forth after “Goal” is satisfied and such anniversary shall be a
Release Date.



          (B) As used herein, “Combined Ratio” shall mean, for any year, the sum of the Incurred Loss
Ratio and the Expense Ratio for such year, expressed as a percentage. “Incurred Loss Ratio” shall
mean, for any year, the ratio, expressed as a percentage, of the Company’s direct losses incurred
from primary NIW written that year to its direct premiums earned from primary NIW written that
year, in each case as computed in accordance with Past Practices. “Expense Ratio” shall mean, for
any year, the ratio, expressed as a percentage, of the
underwriting and other expenses of the Company’s insurance company subsidiaries that year to



 









 







its
net premiums written that year, in each case as computed in accordance with Past Practices. As
used herein, “Past Practices” shall mean the manner in which the applicable item was calculated by
the Company prior to the date of this Agreement.



               (ii) The term “Release Date” shall be applied separately to the Base Restricted Stock, the
Matching Restricted Stock, the Time Vested RSUs and the Performance RSUs as if the term “Release
Date” were the term “Base Restricted Stock Release Date,” the term “Matching Restricted Stock
Release Date,” the term “Time Vested RSUs Release Date,” or the “Performance RSUs Release Date,” as
the case may be, and such application shall correspond to the application of the term “RSUs” as set
forth in Paragraph 1(a) of the Base Instrument.



          (b) (i) The Release Date for Performance RSUs shall be determined as follows. For each date
set forth after “Performance RSUs Release Date” on the signature page, multiply the number referred
to after “Performance RSUs” on the signature page by the product of (i) the Aggregate Percentage
Achievement for the fiscal year of the Company ended on the December 31 immediately preceding such
date and (ii) one-third. The resulting product, rounded down to the nearest whole RSU, is the
number of Performance RSUs for which a Release Date shall occur on the corresponding date set forth
after “Performance RSUs Release Date” and such date shall be the Release Date for such RSUs (and
only for such RSUs); provided that the number of Performance RSUs for which a Release Date occurs
shall in no event exceed the number of Performance RSUs that, when added together with Performance
RSUs as to which a Release Date has previously occurred under this Agreement, equals the number set
forth after “Performance Restricted Stock Units” on the signature page. The “Aggregate Percentage
Achievement” for any year shall mean the sum of the Expense Ratio Achievement Percentage, the Loss
Ratio Achievement Percentage and the Share Achievement Percentage for such year.



          (ii) The “Expense Ratio Achievement Percentage” for any year shall be determined as follows:



          (A) If the Company’s Expense Ratio for such year is equal to or higher than the Expense Ratio
set forth after “Maximum Expense Ratio” on the signature page, then the Expense Ratio Achievement
Percentage shall be 0%;



          (B) If the Company’s Expense Ratio for such year is equal to the Expense Ratio set forth after
“Target Expense Ratio” on the signature page, then the Expense Ratio Achievement Percentage shall
be 33.34%;



          (C) If the Company’s Expense Ratio for such year is equal to or lower than the Expense Ratio
set forth after “Threshold Expense Ratio” on the signature page, then the Expense Ratio Achievement
Percentage shall be 50%; and



          (D) If the Company’s Expense Ratio for such year is between the Maximum Expense Ratio and the
Target Expense Ratio, or between the Target Expense Ratio and the Threshold Expense Ratio, then the
Expense Ratio Achievement Percentage shall be
correspondingly interpolated on a linear basis between 0% and 33.34%, or between 33.34% and 50%,
respectively.



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          (iii) The “Loss Ratio Achievement Percentage” for any year shall be determined as follows:



          (A) If the Company’s Loss Ratio for such year is equal to or higher than the Loss Ratio set
forth after “Maximum Loss Ratio” on the signature page, the Loss Ratio Achievement Percentage shall
be 0%;



          (B) If the Company’s Loss Ratio for such year is equal to the Loss Ratio set forth after
“Target Expense Ratio” on the signature page, then the Loss Ratio Achievement Percentage shall be
33.33%;



          (C) If the Company’s Loss Ratio for such year is equal to or lower than the Loss Ratio set
forth after “Threshold Loss Ratio” on the signature page, then the Loss Ratio Achievement
Percentage shall be 50%; and



          (D) If the Company’s Loss Ratio for such year is between the Maximum Loss Ratio and the Target
Loss Ratio, or between the Target Loss Ratio and the Threshold Loss Ratio, then the Loss Ratio
Achievement Percentage shall be correspondingly interpolated on a linear basis between 0% and
33.33%, or between 33.33% and 50%, respectively.


“Loss Ratio” for any year shall mean the ratio, expressed as a percentage, of the Company’s direct
losses incurred from primary NIW written that year to its direct premiums earned from primary NIW
written that year, in each case as computed in accordance with Past Practices.




          (iv) The “Share Achievement Percentage” for any year shall be determined as follows:



          (A) If the Company’s Flow Market Share for such year is equal to or lower than the Flow Market
Share set forth after “Threshold Share” on the signature page, then the Flow Market Share
Achievement Percentage shall be 0%;



          (B) If the Company’s Flow Market Share for such year is equal to the Flow Market Share set
forth after “Target Share” on the signature page, then the Flow Market Share Achievement Percentage
shall be 33.33%;



          (C) If the Company’s Flow Market Share for such year is equal to or higher than the Flow
Market Share set forth after “Maximum Share” on the signature page, then the Flow Market Share
Achievement Percentage shall be 50%; and



          (D) If the Company’s Flow Market Share for such year is between the Threshold Share and the
Target Share, or between the Target Share and the Maximum Share, then the Flow Market Share
Achievement Percentage shall be correspondingly interpolated on a linear basis between 0% and
33.33%, or between 33.33% and 50%, respectively.


“Flow Market Share” for any year shall mean the Company’s market share of the industry’s flow NIW
for that year, expressed as a percentage, as reported by Inside Mortgage Finance (along


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with any
successor publication thereto, “Inside Mortgage Finance”); provided, however, that if Inside
Mortgage Finance has not reported the foregoing by the end of the second business day preceding the
Release Date, then “Flow Market Share” shall, for the applicable year, be calculated by the Company
using data provided by Mortgage Insurance Companies of America (“MICA”) and data publicly reported
by any company included in the calculation used by Inside Mortgage Finance as of the date of this
Agreement, but not included (or, if applicable, not fully included) in the data provided by MICA.




          (c) If all Time Vested RSUs set forth after “Time Vested Restricted Stock Units” on the
signature page or if all Performance RSUs set forth after “Performance RSUs” on the signature page
would have been released but for the provisions of this Agreement that round down RSUs to the
nearest whole number, the number of RSUs released on the last Release Date shall be the RSUs
awarded minus the RSUs that were previously released such that on such last Release Date the
fractional RSUs that were not been released due to rounding shall be released.



          (d) If by the end of the second business day preceding any date set forth after “Time Vested
RSUs Release Date” on the signature page (or the next two anniversaries thereof in the
circumstances contemplated by Paragraph 2(a)(i)(A) hereof) all of the information required by the
Company to determine whether the Goal for the prior year was met is not available, or if by the end
of the second business day preceding any date set forth after “Performance RSUs Release Date” on
the signature page, all of the information required by the Company to determine the “Aggregate
Percentage Achievement” is not available, then such date shall be two business days after the later
of the date on which the information to make the determination is available and the date on which
the Committee (as defined in Paragraph 6) certifies the Aggregate Percentage Achievement in
accordance with the regulations under Section 162(m) of the Code.



          3. Escrow. Shares of Restricted Stock shall be issued (in certificate or electronic
form, at the discretion of the Company) as soon as practicable in the name of the Employee but
shall be held in an escrow arrangement by the transfer agent for the Stock, as escrow agent.
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; Holding Period.




     (a)
Except as otherwise provided herein (including in Paragraph 4(b) below), 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 and any Stock delivered in settlement
of RSUs 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 (or in the case of RSUs, any such Stock delivered in settlement) to such effect.



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     (b) If after “Holding Period” on the signature page “Applicable” appears, then the Employee
agrees that, during the Holding Period, the Employee will not make a Sale of the Holding Period
Shares. “Holding Period” means a period beginning on the Release Date and ending on the earlier of
(i) the first anniversary of the Release Date and (ii) the first date on which the Employee is no
longer subject to the reporting requirements of Section 16(a) of the Act (as such term is defined
in the Annex). “Holding Period Shares” means a number of shares of Stock for which a Release Date
shall occur that are released on such Release Date equal to the lesser of (1) 25% of the aggregate
number of RSUs that are released on the Release Date and (2) 50% of the difference between (i) the
aggregate number of RSUs that are released on the Release Date and (ii) the aggregate number of
shares that are withheld to satisfy withholding tax requirements under Paragraph 10(b) of this
Agreement. “Sale” means a transfer for value, except that, (i) the transfer to the Company of
Holding Period Shares in payment of the exercise price of an option granted to the Employee by the
Company shall not be a Sale if there is no Sale for the remainder of the Holding Period of a number
of shares of Stock received upon exercise of such option that are not less than the number of
Holding Period Shares so transferred in connection with such exercise, and (ii) an involuntary
transfer, including Holding Period Shares converted in a merger, is not a Sale; it is understood
that neither a pledge nor a gift, including to an entity in which the Employee has an interest
(provided that in the case of such an entity, such entity does not make a Sale for the remainder of
the Holding Period), is a transfer for value.



     (c) If after “Holding Period” on the signature page “Applicable” appears, then the Employee
agrees that, during the Holding Period (for purposes of applying such definition to this Paragraph
4(c), Release Date means each date on which the Option is exercised), the Employee will not make a
Sale of the Option Holding Period Shares. “Option Holding Period Shares” means a number of shares
of Stock acquired at each exercise of the Option equal to the lesser of (1) 25% of the aggregate
number of shares for which the Option is exercised, and (2) 50% of the difference between (i) the
aggregate number of shares for which the Option is exercised and (ii) the aggregate number of
shares that are withheld from the shares delivered on such exercise to satisfy withholding tax
requirements applicable to such exercise, except that the Option Holding Period Shares shall not
exceed the number of shares for which the Option is exercised minus the sum of the number of shares
that are withheld to satisfy withholding tax requirements under Paragraph 10(b) of this Agreement
and the number of shares transferred to the Company in payment of the exercise price of the Option.
The Option is the option granted to the Employee by the Company on January 28, 2004.



     (d) Except as otherwise provided in the parenthetical in clause (ii) of the definition of
Sale, if a transfer that is not a Sale occurs, the Holding Period for the shares involved in such
transfer shall terminate at the time of such transfer.



          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, (i)
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, and (ii) a Release Date shall be deemed to
have occurred for all RSUs.



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          6. Forfeiture of Restricted Stock and RSUs. (a) 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 and all RSUs shall be
forfeited to the Company on the date of such termination unless otherwise provided in subparagraph
(b) below, or unless 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”) determines, on such terms and conditions, if any, as the
Committee may impose, that all or a portion of the Restricted Stock and/or Stock deliverable on
settlement of RSUs 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.



          The Release Date for the Time Vested RSUs and the Performance RSUs may occur on multiple
dates, each of which is a Release Date for the number of RSUs determined as provided in Paragraphs
2(a) and (b). Hence, any forfeiture of Time Vested RSUs or Performance RSUs applies only to the
RSUs for which a Release Date had not yet occurred on the date of forfeiture. The preceding
sentence has been included in this Agreement for the purpose of avoiding any doubt that the result
described in the preceding sentence would occur; therefore, such result will occur under prior
agreements awarding Performance Restricted Stock to the Employee even though a comparable provision
is not included in such agreements.



          (b) If the Employee’s employment with the Company and all of its 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 years, such retirement shall not
result in forfeiture of any Time Vested RSUs or Performance RSUs (this provision does not apply to
the Base or Matching Restricted Stock) if (1) the Employee’s employment with the Company or one of
its subsidiaries continues for no less than one year after the date of this Agreement, and (2) 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 of the dates set forth after (i) “Time Vested RSUs Release Date” on the
signature page, and (ii) “Performance RSUs Release Date” on the signature page, and the Employee
complies with such agreement. If the Employee enters into such a non-competition agreement and
thereafter breaches the terms thereof, the RSUs shall be forfeited and the Employee shall return to
the Company any Stock awarded under this Agreement that was delivered to the Employee after the
date on which such non-competition agreement was entered into. If the conditions in the second
preceding sentence are satisfied and the Employee complies with the terms of such agreement, upon
the Employee’s
death, the provisions of Paragraph 5 shall apply as if the Employee’s employment with the Company
and its subsidiaries terminated because of such death.



          (c) Any (i) Performance RSUs for which a Release Date has not occurred by the latest date set
forth after “Performance RSUs Release Date” on the signature page (as such date may be extended
under Paragraph 2(d) hereof) and (ii) Time Vested RSUs for which a



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Release Date does not occur
because the condition set forth after “Goal” on the signature page is not satisfied by the second
anniversary of the latest date set forth after “Time Vested RSUs Release Date” on the signature
page (as such date may be extended under Paragraph 2(d) hereof), shall be forfeited to the Company,
unless in the case of (i) and (ii) the Committee determines otherwise as contemplated in
subparagraph (a) above.



          (d) If Restricted Stock is forfeited, the Employee hereby appoints the Company, acting through
any 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 and the Stock to be delivered in
settlement of RSUs. 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, upon the
death of the Employee, the Employee’s estate shall be entitled to receive the Restricted Stock and
the Stock to be delivered in settlement of RSUs. If the Committee is in doubt as to the right of
any person to receive such Restricted Stock or Stock to be delivered in settlement of RSUs, the
Company may retain the same and any distributions thereon, without liability for any interest
thereon, until the Committee determines the person entitled thereto, or the Company may deliver
such all of such property and any distributions thereon to any court of appropriate jurisdiction
and such delivery shall be a complete discharge of the liability of the Company therefor.



          8. Stock Legends. (a) In addition to any legends placed on certificates for
Restricted Stock, each certificate or 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 2002 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.




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     (b) If after “Holding Period” on the signature page “Applicable” appears, at the option of the
Company, an appropriate legend may be placed on certificates for Stock noting the requirements to
hold such Stock imposed by Paragraphs 4(b) and (c) of this Agreement. When such requirements
terminate, the Employee shall be entitled to have the foregoing legend removed from such
certificates.



          9. Voting Rights; Dividends and Other Distributions; Rights of RSUs. (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.



          (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.



          (d) RSUs represent only the right to receive as Stock, on the terms provided herein (i) the
number of shares indicated after “Time Vested Restricted Stock” on the signature page and (ii) a
number of shares equal to the number set forth after “Performance RSUs” on the signature page.
Except to the extent forfeited as provided herein, on the RSU Settlement Date set forth on the
signature page or determined as provided thereon, RSUs shall be settled by the issuance (or
transfer from treasury) of shares of Stock and certificates for such Stock shall be delivered to
the Employee, or in the case of his death, to his Beneficiary. The Employee with respect to RSUs
shall have no rights as a holder of Stock, including the right to vote or to receive dividends,
until certificates for such Stock are actually delivered in settlement of the RSUs.
Notwithstanding the preceding sentence, (i) on the next Payroll Date (as defined below) after each
date on which the Company pays a dividend in cash on the Stock, the Company shall make a payment in
cash on the Time Vested RSUs that are outstanding on the record date for such dividend equal to the
dividend that would have been paid on the number of shares indicated after “Time Vested Restricted
Stock Units” on the signature page had such shares been outstanding, and (ii) to the extent
Performance RSUs are released on a Release Date, the Company shall make a payment in cash equal to
the aggregate amount that would have been paid as dividends on the shares of Stock issued or
transferred in settlement if such shares had been outstanding on each dividend record date on and
after the date of this Agreement and prior to the date on which such
Shares are issued (or transferred from treasury). “Payroll Date” means a date on which the
Company or a subsidiary makes a bi-weekly payment of wages to the Employee.



          10. Tax Withholding. (a) It shall be a condition of the obligation of the Company to
release from escrow Restricted Stock to the Employee or the Beneficiary or to deliver Stock in
settlement of RSUs, 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



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incurred by reason of the award of the
Restricted Stock or RSUs, as a result of the termination of the restrictions on Restricted Stock
hereunder or the delivery of Stock in settlement of RSUs.



          (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, and does not satisfy
the withholding obligations prior to the Tax Date (as defined below) by paying sufficient cash to
the Company or transferring ownership of a sufficient number of other shares of Stock to the
Company as provided in Paragraph 10(c), then the withholding tax requirements arising from the
termination of restrictions on the Restricted Stock or the settlement of RSUs in Stock shall be
satisfied through a withholding by the Company of shares of Stock that would otherwise be delivered
to the Employee. In such event, the Company shall withhold that number of shares of Restricted
Stock otherwise deliverable to the Employee from escrow hereunder or that number of shares of Stock
that would otherwise be delivered in settlement of RSUs, in each case, having a Fair Market Value
(as such term is defined in the Plan) on the day prior to the Tax Date equal to the amount required
to be withheld as a result of the termination of the restrictions on such Restricted Stock or as a
result of the settlement of RSUs in Stock. 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, or Stock delivered in settlement of the RSUs, over the purchase price
therefor.



          (c) If the Employee desires to use cash or other shares of Stock to satisfy the withholding
obligations set forth above, the Employee must: (i) make an election to do so in writing on a form
provided by the Company, (ii) deliver such election form to the Company by the deadline specified
by the Company, and (iii) deliver to the company the required cash or other shares of Stock having
a Fair Market Value on the Tax Date (as defined above) equal to the amount required to be withheld.



          11. Adjustments in Event of Change in Stock or Fiscal Year. 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 award of Restricted Stock or the award of
RSUs or the realization of the objectives of such award, the Committee shall make such adjustments
in the shares of Restricted Stock subject to this Agreement or in the shares deliverable on
settlement of RSUs, or in the terms, conditions or restrictions of this Agreement as the Committee
deems equitable, except that in the event of any stock split, reverse stock split, stock dividend,
combination or reclassification of the Stock that occurs after the date of this Agreement
(collectively, “future capital adjustment”), the number of RSUs shall be
proportionally adjusted for any increase or decrease in the number of outstanding shares
resulting from such future capital adjustment, any such adjustment rounded down to the next lower
whole share. In addition, if the Company changes its fiscal year from a year ending December 31,
the Committee may make such adjustments in the Time Vested RSUs Release Date and the Performance
RSUs Release Date as set forth on the signature page as the Committee deems equitable.



          12. Change in Control. If a “Change in Control of the Company” (as defined in the
Annex attached hereto) occurs, notwithstanding anything herein, the restrictions of



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Paragraph 2
applicable to the Restricted Stock shall terminate on the date of the Change in Control of the
Company and a Release Date shall be deemed to have occurred for all RSUs. The Employee agrees that
such Annex may be amended by the Company on one or more occasions without the consent or approval
of the Employee if in the determination of the Committee such amendment is necessary or appropriate
to conform the provisions of such Annex to Treasury Regulation 1.409A-1 et seq. or any position
published by the IRS with respect to Section 409A of the Internal Revenue Code of 1986, as amended.
The right of the Company to make such an amendment does not depend on whether the Restricted Stock
or RSUs are subject to such Section but will enable the Company to have uniform provisions
governing a change of control among all agreements having such change of control provisions,
including those under which compensation is subject to such Section. Any such amendment will
become effective upon notice to the Employee. The Company will seek to give the Employee notice of
an amendment with reasonable promptness after the Committee has approved the amendment.



          13. Powers of Company Not Affected; No Right to Continued Employment.



          (a) The existence of the Restricted Stock or RSUs 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 any Stock to be issued in settlement of RSUs or, in both cases, 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 the Company or any subsidiary or interfere with or limit in any way the right of the
Company or any subsidiary to terminate the Employee’s employment at any time, subject, however, to
the provisions of any agreement of employment between the Company or any subsidiary 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 and RSUs by the Employee, unless otherwise provided herein. In
such event, the Employee will not be able to realize the value of the Restricted Stock or of the
Stock that underlies the RSUs 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 and RSUs.



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          15. Clawback. If and to the extent the Committee deems it appropriate for such
payment to be made, each Covered Employee shall pay the Company an amount equal to the Excess
Compensation. “Covered Employee” means an Employee who was a Section 16 Filer at an Affected
Performance RSUs Release Date regardless of whether such Employee ceased to be a Section 16 Filer
thereafter. “Section 16 Filer” is a person who is required to file reports under Section 16(a) of
the Act as such requirement to so file is in effect at each Affected Performance RSUs Release Date.
“Affected Performance RSUs Release Date” means each Performance RSUs Release Date on which, had a
financial restatement that was made after such Performance RSUs Release Date been in effect at such
Performance RSUs Release Date, the number of shares of Stock settled on account of Performance RSUs
would have been lower. “Excess Compensation” means (i) the difference between the Income that was
recognized by the Covered Employee on an Affected Performance RSUs Release Date and the Income that
would have been recognized had the financial restatement referred to in the definition of Affected
Performance RSUs Release Date then been in effect, except that such difference will be deemed to be
zero for each Affected Performance RSUs Release Date prior to the date on which Covered Employee
was a Section 16 Filer, plus (ii) the value of any deduction to which the Covered Employee is
entitled on account of the payment to the Company required by this Paragraph 15. “Income” means
income determined for federal income tax purposes minus the amount of federal, state and local
income taxes and, to the extent applicable, the employee portion of Social Security and Medicaid
payroll taxes, payable on account of such income. The amount of federal, state and local income
taxes and the value of any deduction contemplated by clause (ii) of the second preceding sentence
shall be computed by assuming that Income is taxed at the highest marginal rate, with such rate for
any state and local income taxes appropriately adjusted to reflect the benefit of an itemized
federal deduction for such taxes (if in the case of local taxes, such taxes are eligible for such a
deduction), which adjustment shall be made by assuming that no reduction in such deduction on
account of the Covered Employee’s adjusted gross income applies.



          16. 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 and RSUs shall be deemed to have been awarded pursuant to the Plan
and are 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 or RSUs 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 250 East Kilbourn
Avenue, Milwaukee 53202, Attention: Secretary. All such notices shall be given by first class
mail, postage pre-paid, or by personal delivery.



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          (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 nor may the Employee transfer any interest in any RSUs.



          (f) As a condition to the grant of the Restricted Stock and RSUs, the Employee must execute an
agreement not to compete in the form provided to the Employee by the Company.



          (g) The Restricted Stock and Restricted Stock Unit Agreement, dated as of February 28, 2008,
between the Company and the Employee is hereby amended to conform Paragraph 2(a)(i)(B) and
Paragraph 2(c)(iii)(A) of such agreement to Paragraph 2(a)(i)(B) and Paragraph 2(b)(iii)(A),
respectively, of this Agreement.



          (h) If any payment or benefit (or any acceleration of any payment or benefit) made or provided
to the Employee or for the Employee’s benefit in connection with this Agreement or any other
agreement between the Employee and the Company pursuant to which the Employee was awarded
restricted stock, restricted stock units or stock options (the “Payments”) are determined to be
subject to the interest charges and taxes imposed by Section 409A(a)(1)(B) of the Internal Revenue
Code of 1986, as amended, or any state, local, or foreign taxes of a similar nature, or any
interest charges or penalties with respect to such taxes (such taxes, together with any such
interest charges and penalties, are collectively referred to as the “Section 409A Tax”), then the
Company shall pay the Employee, within 30 days after the date on which the Employee provides the
Company with a written request for reimbursement thereof (accompanied by proof of taxes paid), but
in no event later than the end of the calendar year following the year in which the Employee remits
the Section 409A tax to the Internal Revenue Service or other applicable taxing authority, an
additional amount (the “Section 409A Gross-Up Payment”); provided, however, that any Section 409A
Gross-Up Payment shall be reduced to the extent that the Section 409A Tax payable is due to the
direct fault of the Employee. The Section 409A Gross-Up Payment shall, subject to the proviso at
the end of the previous sentence, be such that the net amount retained by the Employee after
deduction of the Section 409A Tax (but not any federal, state, or local income tax or employment
tax) and any federal, state, or local income
tax, or employment tax upon the payment provided for by this Subsection 16(h) shall be equal
to the Payments. For purposes of determining the amount of the Section 409A Gross-Up Payment, the
Employee shall be deemed to pay federal income tax and employment taxes at the highest marginal
rate of federal income and employment taxation in the calendar year in which the Section 409A
Gross-Up Payment is to be made and state and local income taxes at the highest marginal rate of
taxation in the state and locality of the Employee’s domicile for income tax purposes on the date
the Section 409A Gross-Up Payment is made, net of the maximum reduction in federal income taxes
that may be obtained from the deduction of such state and local taxes. The Company and the
Employee shall reasonably cooperate with each other in connection with any administrative or
judicial proceedings concerning the existence or amount of liability for Section 409A Tax with
respect to the Payments, and the Employee shall, if reasonably



-12-









 







requested by the Company, contest
any obligation to pay a Section 409A Tax for which a Section 409A Gross-Up Payment is owed. If, as
a result thereof, the Employee receives a tax refund or credit for any Section 409A Tax previously
paid with respect to any Payments for which a Section 409A Gross-Up Payment was paid, the Employee
shall return to the Company an amount equal to such refund or credit.



          The end of Paragraph 16 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 more than 50% of the total fair market value
of the stock of the Company or representing 50% or more of the total voting power of
the stock of the Company; or




     (ii) during any 12 consecutive month period, 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 a majority 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 majority 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 a majority of the then
Continuing Directors and are thereafter
elected as directors by the shareholders of the Company at a meeting of



Annex - Page 1 of 4









 







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 to a Person (in one transaction or a series of related transactions
within any period of 12 consecutive months), other than a sale or disposition by the
Company of all or substantially all of the Company’s assets to (a) a shareholder of
the Company (immediately before the asset transfer) in exchange for or with respect
to its stock; (b) an entity, 50% or more of the total value or voting power of which
is owned, directly or indirectly, by the Company; (c) a Person that owns, directly
or indirectly, 50% or more of the total value or voting power of all of the
outstanding stock of the Company; or (d) an entity, at least 50% of the total value
or voting power of which is owned, directly or indirectly, by a Person that owns,
directly or indirectly, 50% or more of the total value or voting power of all the
outstanding voting stock of the Company. It is understood that in no event shall a
sale or disposition of assets be considered to be a sale of substantially all of the
assets unless the assets sold or disposed of have a
total gross fair market value of at least 40% of the total gross fair market
value of all of the Company’s assets immediately prior to such sale or disposition.



Annex - Page 2 of 4









 





     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.




     (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 Wells Fargo Bank Minnesota, National Association (as successor Rights
Agent), 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 2(iii)(b) 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



Annex - Page 3 of 4









 






     (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 2(iii)(b) 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.




     (v) Stock. The term “stock” shall have the meaning contemplated by
Treasury Regulation 1.409A-1 et seq.



Annex - Page 4 of 4