<PAGE>
<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10 - Q
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended June 30, 1997
or
/ / TRANSITION REPORT PURSUANT TO SECTION 13 or 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission file number 1-7530
Wisconsin Gas Company
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Wisconsin 39-0476515
-------------------------------- --------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
626 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
--------------------------------------- ----------
(Address of principal executive office) (Zip Code)
(414) 385-7000
----------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15 (d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days.
Yes /X/ No / /
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Class Outstanding at July 18, 1997
- -------------------------- ----------------------------
Common Stock, $8 Par Value 1,125
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<PAGE> 2
INTRODUCTION
Wisconsin Gas Company ("Wisconsin Gas" or "Company"), a natural gas
distribution public utility, is a Wisconsin corporation and a wholly-owned
subsidiary of WICOR, Inc. ("WICOR"), a diversified holding company.
CONTENTS
PAGE
------
PART I. Financial Information 1
Management's Discussion and Analysis of
Interim Financial Statements 2-3
Financial Statements of Wisconsin Gas Company (Unaudited):
Statements of Income for the Three and Six
Months Ended June 30, 1997 and 1996 4
Balance Sheets as of June 30, 1997 and
December 31, 1996 5-6
Statements of Cash Flows for the Six
Months Ended June 30, 1997 and 1996 7
Notes to Financial Statements 8
PART II. Other Information 9
Signatures 10
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<PAGE> 3
Part I - Financial Information
Financial Statements
The financial statements included herein have been prepared without audit
pursuant to the rules and regulations of the Securities and Exchange
Commission. Certain information and footnote disclosures normally included
in financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted pursuant to such rules
and regulations, although management believes that the disclosures are
adequate to make the information presented not misleading. These condensed
financial statements should be read in conjunction with the audited
financial statements and the notes thereto included in the Company's Annual
Report on Form 10-K for the year ended December 31, 1996.
In the opinion of management, the information furnished reflects all
adjustments, which in all circumstances were normal and recurring,
necessary for a fair presentation of the results of operations for the
interim periods.
Because of seasonal factors, the results of operations for the interim
periods presented are not necessarily indicative of the results to be
expected for the full calendar year.
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<PAGE> 4
Management's Discussion and Analysis
of Interim Financial Statements of
Wisconsin Gas Company
Results of Operations
- ---------------------
The Company earned $0.3 million during the second quarter of 1997 compared
with break-even results in the second quarter of 1996. Net income for the six
months ended June 30, 1997, decreased by $2.3 million, or 9%, compared to the
same period of last year. The following factors had a significant effect on
the results of operations during the three- and six-month periods ended
June 30, 1997.
The improvement in net income for the second quarter was due primarily to
lower operating and maintenance expenses, depreciation expense and interest
charges. However, decreased gas margins, resulting from lower firm sales
volumes and a voluntary $3.0 million annual rate reduction effective November
1, 1996 (see "Regulatory Matters" below), partially offset the benefits from
the cost-management efforts. The decrease in 1997 year-to-date net income was
due to a combination of weather that was 6% warmer than last year and the 1996
rate reduction, the impact of which was offset in part by decreased operating,
maintenance and depreciation expense.
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<PAGE> 5
Revenues, margins and volumes are summarized below. Margin, defined as
revenues less cost of gas sold, is a better performance indicator than
revenues because the mix of volumes between sales and transportation service
affects revenues but not margin. In addition, changes in the cost of gas sold
are flowed through to revenue under a gas adjustment clause with no resulting
effect on margin.
<TABLE>
<CAPTION>
Three Months Six Months
Ended June 30, Ended June 30,
----------------- % ----------------- %
(Millions of Dollars) 1997 1996 Change 1997 1996 Change
- ----------------------- -------- -------- ------ -------- -------- ------
<S> <C> <C> <C> <C> <C> <C>
Gas Sales Revenues $ 88.3 $ 104.1 (15) $ 307.8 $ 316.7 (3)
Cost of Gas Sold 57.1 69.5 (18) 205.5 200.3 3
-------- -------- -------- --------
Gas Sales Margin 31.2 34.6 (10) 102.3 116.4 (12)
Gas Transport Margin 5.0 3.1 61 11.7 6.5 80
-------- -------- -------- --------
Total Margin $ 36.2 $ 37.7 (4) $ 114.0 $ 122.9 (7)
======== ======== ======== ========
(Millions of Therms)
- -------------------
Sales Volumes
Firm 127.4 140.8 (10) 488.8 548.3 (11)
Interruptible 13.8 43.8 (68) 47.9 121.0 (60)
Transportation Volume 98.2 58.3 68 221.1 122.7 80
-------- -------- -------- --------
Total Throughput 239.4 242.9 (1) 757.8 792.0 (4)
======== ======== ======== ========
Degree Days (Normal:
2nd Qtr. = 950
Six Months = 4,388) 1,215 1,203 1 4,530 4,833 (6)
======== ======== ======== ========
</TABLE>
The 10% decrease in firm sales volumes for the second quarter of 1997 was
caused principally by lower average use per customer, firm customers switching
to transportation and warmer weather early in the second quarter as compared
to the same period of last year. Transportation volumes increased mainly
because more customers purchased gas from sources other than Wisconsin Gas and
transported the volumes over the Wisconsin Gas distribution system. The
movement to transportation from gas sales had no impact on margin. For the
six months ended June 30, 1997, the total margin decrease was primarily due to
a 11% decrease in firm sales volumes. The weather was 3% colder than normal
during the first six months of 1997 but 6% warmer than the same period in
1996
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<PAGE> 6
Operating and maintenance expenses decreased $1.5 million, or 6%, during the
second quarter of 1997 compared to the second quarter of 1996. Year-to-date
operating and maintenance expenses decreased $3.3 million, or 6%, compared to
the same period of last year. The decrease is attributable to lower labor and
benefit expenses.
Depreciation expense for the three and six months ended June 30, 1997
decreased by $0.6 million, or 7%, and $1.3 million, or 8%, respectively, as
compared to the same periods in the prior year. The 1997 decrease was due to
the one-time impact of new depreciation rates permitted by the Public Service
Commission of Wisconsin ("PSCW")in 1996.
Interest expense decreased by $0.2 million for the 1997 second quarter due to
slightly lower borrowing levels.
Year-to-date income tax expense decreased by $2.2 million, or 13%, reflecting
the decrease in pre-tax income.
Financial Condition
- -------------------
Cash flow from operations for the six months ended June 30, 1997, decreased by
$16.7 million, or 16%, to $88.1 million compared to same period of 1996. Cash
flow from operations in the first six months of 1997 was lower, compared to
1996, as a result of higher recovered gas costs in the first half of 1996 due
to colder weather. Due to the seasonal nature of the energy business, accrued
revenues, accounts receivable and accounts payable are higher in the heating
season as compared with the warmer months.
Additional short-term borrowing will be needed during the third and fourth
quarters of 1997 to finance working capital primarily related to gas purchased
for injection into storage and accounts receivable. The Company has existing
lines of credit to satisfy this working capital need.
Cash flow from operations exceeded capital expenditures and dividend
requirements for the first six months in both 1997 and 1996.
Capital expenditures through June 1997 increased by $0.6 million, or 5%, to
$13.9 million. Cash flow from operations is expected to be sufficient to fund
the remaining capital expenditures for 1997.
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<PAGE> 7
Regulatory Matters
- ------------------
The Company voluntarily reduced its base rates by $3.0 million on an
annualized basis effective November 1, 1996. With this reduction, Wisconsin
Gas's rates recover $7.5 million per year less than the maximum margin allowed
by the PSCW's November 1994 rate order. The Company has the ability to raise
or lower margin rates within a specified range on a quarterly basis.
On June 24, 1997, the PSCW approved, with minor modifications, the second year
of the Company's two year pilot program ("Gas Advantage") which began on
November 1, 1996. For the second year of the program, the number of
residential and commercial customers will increase from 1,000 to 2,500 and
1,200 to 1,300, respectively. Customers who have enrolled in the pilot have
the ability to choose a supplier of natural gas from various gas marketers
under an open market concept. Wisconsin Gas continues to deliver the gas to
participating customers at the same margin rate it charges for bundled sales
services and bills the gas marketers for delivering natural gas to their
customers. Customers receive their monthly bills from the marketers. The Gas
Advantage program is designed to enhance competition by enabling customers to
compare services and prices available from Wisconsin Gas and third party
marketers.
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<PAGE> 8
WISCONSIN GAS COMPANY
Statements of Income
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
June 30, June 30,
--------------------- ---------------------
1997 1996 1997 1996
---------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Operating Revenues $ 93,280 $ 107,269 $ 319,522 $ 323,380
---------- ---------- ---------- ----------
Operating Expenses:
Cost of gas sold 57,145 69,513 205,516 200,276
Operations 20,290 22,028 44,353 47,904
Maintenance 2,423 2,217 4,418 4,118
Depreciation 7,843 8,415 15,427 16,727
Taxes, other than income taxes 2,226 2,362 4,784 4,868
---------- ---------- ---------- ----------
89,927 104,535 274,498 273,893
---------- ---------- ---------- ----------
Operating Income 3,353 2,734 45,024 49,487
---------- ---------- ---------- ----------
Interest Expense 2,799 3,041 6,133 6,271
Other Income and (Expenses), net 35 432 223 337
---------- ---------- ---------- ----------
Income Before Income Taxes 589 125 39,114 43,553
Income Tax Provision 258 124 14,867 17,050
---------- ---------- ---------- ----------
Net Income $ 331 $ 1 $ 24,247 $ 26,503
========== ========== ========== ==========
The accompanying notes are an integral part of these statements.
</TABLE>
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<PAGE> 9
WISCONSIN GAS COMPANY
Balance Sheets
<TABLE>
<CAPTION>
June 30,
1997 December 31,
(Unaudited) 1996
----------- ------------
(Thousands of Dollars)
Assets
- ------
<S> <C> <C>
Property, Plant and Equipment, at cost $ 782,176 $ 786,486
Less - Accumulated depreciation 406,393 409,151
----------- ------------
375,783 377,335
----------- ------------
Current Assets:
Cash and cash equivalents 4,822 8,960
Accounts receivable, less allowance
for doubtful accounts of $14,423
and $12,363, respectively 71,419 73,540
Accounts receivable - intercompany, net 537 76
Accrued utility revenues 3,615 54,382
Materials and supplies, at weighted average cost 4,109 3,098
Gas in storage, at weighted average cost 21,940 32,684
Deferred income taxes 17,879 17,879
Prepaid taxes 5,790 6,411
Other 1,585 1,668
----------- ------------
131,696 198,698
----------- ------------
Deferred Charges and Other:
Regulatory assets 99,122 101,808
Systems development costs 20,238 23,052
Prepaid pension costs 32,362 30,112
Other 7,016 7,372
----------- ------------
158,738 162,344
----------- ------------
$ 666,217 $ 738,377
=========== ============
The accompanying notes are an integral part of these statements.
</TABLE>
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<PAGE> 10
Wisconsin Gas Company
Balance Sheets
(continued)
<TABLE>
<CAPTION>
June 30,
1997 December 31,
(Unaudited) 1996
----------- ------------
<S> <C> <C>
Capitalization and Liabilities
- ------------------------------
Capitalization:
Common stock $ 9 $ 9
Other paid-in capital 119,858 119,095
Retained earnings 101,920 88,670
Long-term debt 150,555 152,453
----------- ------------
372,342 360,227
----------- ------------
Current Liabilities:
Accounts payable 36,375 64,548
Refundable gas costs 37,139 31,545
Short-term borrowings - 65,500
Current portion of long-term debt 2,000 2,000
Accrued payroll and benefits 9,070 8,116
Accrued taxes 7,833 712
Other 4,370 4,334
----------- ------------
96,787 176,755
----------- ------------
Deferred Credits and Other:
Regulatory liabilities 58,954 61,749
Deferred income taxes 35,569 35,569
Postretirement benefit obligation 51,200 51,359
Environmental remediation costs 35,822 36,222
Unamortized investment tax credit 6,908 7,265
Other 8,635 9,231
----------- ------------
197,088 201,395
----------- ------------
$ 666,217 $ 738,377
=========== ============
The accompanying notes are an integral part of these statements.
</TABLE>
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<PAGE> 11
WISCONSIN GAS COMPANY
Statements of Cash Flows (Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
June 30,
------------------------
1997 1996
---------- ----------
Operations (Thousands of Dollars)
<S> <C> <C>
Net income $ 24,247 $ 26,503
Adjustments to reconcile net income
to net cash flows:
Depreciation and amortization 19,407 20,902
Deferred income taxes - 142
Change in:
Receivables 52,888 36,812
Gas in storage 10,744 3,348
Other current assets (1,389) (637)
Accounts payable (28,173) (7,618)
Accrued taxes 7,742 2,524
Refundable gas costs 5,594 23,818
Other current liabilities 990 2,428
Other non-current assets and liabilities (3,915) (3,418)
---------- ----------
88,135 104,804
---------- ----------
Investment Activities:
Capital expenditures (13,936) (13,309)
Other, net 163 83
---------- ----------
(13,773) (13,226)
---------- ----------
Financing Activities:
Change in short-term borrowings (65,500) (57,500)
Reduction of long-term debt (2,000) (4,000)
Cash dividends paid to WICOR, Inc. (11,000) (10,000)
---------- ----------
(78,500) (71,500)
---------- ----------
Change in Cash and Cash Equivalents (4,138) 20,078
Cash and Cash Equivalents at Beginning of Period 8,960 7,463
---------- ----------
Cash and Cash Equivalents at End of Period $ 4,822 $ 27,541
========== ==========
The accompanying notes are an integral part of these statements.
</TABLE>
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<PAGE> 12
Notes to Financial Statements (Unaudited):
1) At June 30, 1997, Wisconsin Gas had total unsecured lines of credit
available from several banks of $135 million. As of June 30, 1997, no short-
term borrowings were outstanding under these credit agreements.
2) For purposes of the Statements of Cash Flows, income taxes paid, net of
refunds, and interest paid (excluding capitalized interest) were as follows:
For the Six Months
Ended June 30,
----------------------
1997 1996
---------- ----------
(Thousands of Dollars)
Income taxes paid $ 10,303 $ 16,267
Interest paid $ 5,982 $ 5,990
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<PAGE> 13
Part II - Other Information
Item 4. Results of Votes of Security Holders
- --------------------------------------------
On April 24, 1997, the following persons were elected as directors of
Wisconsin Gas to serve one-year terms: George E. Wardeberg, Stuart W. Tisdale,
Wendell F. Bueche, Willie D. Davis, Jere D. McGaffey, Daniel F. McKeithan,
Jr., Guy A. Osborn, Thomas F. Schrader, Essie M. Whitelaw and William B.
Winter. All of the issued and outstanding shares of common stock, $8 par
value, of Wisconsin Gas (1,125 shares) were voted in favor of the election of
the foregoing persons.
Item 6. Exhibits and Reports on Form 8-K
- ----------------------------------------
(a) Exhibits
10.1 Form of Key Executive Employment and Severance Agreement between the
Company and each of George E. Wardeberg, Thomas F. Schrader and
Joseph P. Wenzler.
27 Financial data schedule (EDGAR version only)
(b) Reports on Form 8-K. There were no reports on Form 8-K filed by the
Company during the second quarter of 1997.
<PAGE>
<PAGE> 14 SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
WISCONSIN GAS COMPANY
Dated: July 31, 1997 By: /s/ Joseph P. Wenzler
------------------------
Joseph P. Wenzler
Vice President and Chief
Financial Office
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<PAGE> 15
Wisconsin Gas Company
FORM 10-Q Exhibit Index
Exhibit No. Description
- ----------- -----------------------------------------------------------
10.1 Form of Key Executive Employment and Severance Agreement
between the Company and each of George E. Wardeberg, Thomas
F. Schrader and Joseph P. Wenzler.
27 Financial data schedule (EDGAR version only
<PAGE>
<PAGE> 1
NO
KEY EXECUTIVE EMPLOYMENT AND SEVERANCE AGREEMENT
THIS AGREEMENT, made and entered into as of the
day of , 1997, by and between WICOR, Inc., a Wisconsin
corporation (hereinafter referred to as the "Company"), and
(hereinafter referred to as the "Executive").
W I T N E S S E T H :
WHEREAS, the Executive is employed by the Company
and/or a subsidiary of the Company in a key executive capacity,
and the Executive's services are valuable to the conduct of the
business of the Company;
WHEREAS, the Board of Directors of the Company (the
"Board") recognizes that circumstances may arise in which a
change in control of the Company occurs, through acquisition or
otherwise, thereby causing uncertainty about the Executive's
future employment with the Company and/or any such subsidiary
without regard to the Executive's competence or past
contributions, which uncertainty may result in the loss of
valuable services of the Executive to the detriment of the
Company and its shareholders, and the Company and the Executive
wish to provide reasonable security to the Executive against
changes in the Executive's relationship with the Company in the
event of any such change in control;
WHEREAS, the Company and the Executive desire that any
proposal for a change in control or acquisition of the Company
will be considered by the Executive objectively and with
reference only to the best interests of the Company and its
shareholders; and
WHEREAS, the Executive will be in a better position to
consider the Company's best interests if the Executive is
afforded reasonable security, as provided in this Agreement,
against altered conditions of employment which could result from
any such change in control or acquisition.
NOW, THEREFORE, in consideration of the foregoing and
of the mutual covenants and agreements hereinafter set forth, the
parties hereto mutually covenant and agree as follows:
1. Definitions. The following terms are used in this
Agreement as defined in Exhibit A:
Act Covered Termination
Accrued Benefits Effective Date
Affiliate and Associate Employer
Annual Cash Compensation Good Reason
Cause Normal Retirement Date
Change in Control Notice of Termination
Code Person
Competitive Activity Termination Date
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<PAGE> 2
2. Termination or Cancellation Prior to the Effective
Date. The Employer and the Executive shall each retain the right
to terminate the employment of the Executive at any time prior to
the Effective Date. If the Executive's employment is terminated
prior to the Effective Date, then this Agreement shall be
terminated and cancelled and of no further force or effect and
any and all rights and obligations of the parties hereunder shall
cease. In addition, this Agreement shall terminate upon the
Executive ceasing to be an officer of the Employer prior to a
Change in Control unless the Executive can reasonably demonstrate
that such change in status occurred under circumstances described
in clause (iii)(B)(1) or (iii)(B)(2) of the definition of
"Effective Date" in Exhibit A.
3. Employment Period. If the Executive is employed
by the Employer on the Effective Date, then the Company will, or
will cause the Employer to, continue thereafter to employ the
Executive during the Employment Period (as hereinafter defined),
and the Executive will remain in the employ of the Employer, in
accordance with and subject to the terms and provisions of this
Agreement. For purposes of this Agreement, the term "Employment
Period" means a period (i) commencing on the Effective Date, and
(ii) ending at 11:59 p.m. Milwaukee Time on the earlier of the
third anniversary of such date or the Executive's Normal
Retirement Date.
4. Duties. During the Employment Period, the
Executive shall, in the most significant capacities and positions
held by the Executive at any time during the 180-day period
preceding the Effective Date or in such other capacities and
positions as may be agreed to by the Company and the Executive in
writing, devote the Executive's best efforts and all of the
Executive's business time, attention and skill to the business
and affairs of the Employer, as such business and affairs now
exist and as they may hereafter be conducted.
5. Compensation. During the Employment Period, the
Executive shall be compensated as follows:
(a) The Executive shall receive, at reasonable
intervals (but not less often than monthly) and in accordance
with such standard policies as may be in effect immediately prior
to the Effective Date, an annual base salary in cash equivalent
of not less than twelve times the Executive's highest monthly
base salary for the twelve-month period immediately preceding the
month in which the Effective Date occurs or, if higher, annual
base salary at the rate in effect immediately prior to the
Effective Date (which base salary shall, unless otherwise agreed
in writing by the Executive, include the current receipt by the
Executive of any amounts which, prior to the Effective Date, the
Executive had elected to defer, whether such compensation is
deferred under Section 401(k) of the Code or otherwise), subject
to upward adjustment as provided in Section 6 (such salary amount
as adjusted upward from time to time is hereafter referred to as
the "Annual Base Salary").
(b) The Executive shall receive fringe benefits at
least equal in value to those provided for the Executive at any
time during the 180-day period immediately preceding the
Effective Date or, if more favorable to the Executive, those
provided generally at any time after the Effective Date to any
executives of the Company and its Affiliates of comparable status
and position to the Executive. The Executive shall be
reimbursed, at such intervals and in accordance with such
standard policies that are most favorable to the Executive that
were in effect at any time during the 180-day period immediately
preceding the Effective Date or, if more favorable to the
Executive, those provided generally at any time after the
Effective Date to any executives of the Company and its
Affiliates of comparable status and position to the Executive,
for any and all monies advanced in connection with the
Executive's employment for reasonable and necessary expenses
incurred by the Executive on behalf of the Company and its
Affiliates, including travel expenses.
<PAGE>
<PAGE> 3
(c) The Executive and/or the Executive's family, as
the case may be, shall be included, to the extent eligible
thereunder (which eligibility shall not be conditioned on the
Executive's salary grade or on any other requirement that
excludes executives of the Company and its Affiliates of
comparable status and position to the Executive unless such
exclusion was in effect for such plan or an equivalent plan on
the date 180 days prior to the Effective Date), in any and all
welfare benefit plans, practices, policies and programs providing
benefits for the Company's salaried employees in general or, if
more favorable to the Executive, to any executives of the Company
and its Affiliates of comparable status and position to the
Executive, including but not limited to group life insurance,
hospitalization, medical and dental plans; provided, that, (i) in
no event shall the aggregate level of benefits under such plans,
practices, policies and programs in which the Executive is
included be less than the aggregate level of benefits under
plans, practices, policies and programs of the type referred to
in this Section 5(c) in which the Executive was participating at
any time during the 180-day period immediately preceding the
Effective Date and (ii) in no event shall the aggregate level of
benefits under such plans, practices, policies and programs be
less than the aggregate level of benefits under plans, practices,
policies and programs of the type referred to in this
Section 5(c) provided at any time after the Effective Date to any
executive of the Company and its Affiliates of comparable status
and position to the Executive.
(d) The Executive shall annually be entitled to not
less than the amount of paid vacation and not fewer than the
number of paid holidays to which the Executive was entitled
annually at any time during the 180-day period immediately
preceding the Effective Date or such greater amount of paid
vacation and number of paid holidays as may be made available
annually to the Executive or any other executive of the Company
and its Affiliates of comparable status and position to the
Executive at any time after the Effective Date.
(e) The Executive shall be included in all plans
providing additional benefits to any executives of the Company
and its Affiliates of comparable status and position to the
Executive, including but not limited to deferred compensation,
split-dollar life insurance, retirement, supplemental retirement,
stock option, stock appreciation, stock bonus and similar or
comparable plans; provided, that, (i) in no event shall the
aggregate level of benefits under such plans be less than the
aggregate level of benefits under plans of the type referred to
in this Section 5(e) in which the Executive was participating at
any time during the 180-day period immediately preceding the
Effective Date; (ii) in no event shall the aggregate level of
benefits under such plans be less than the aggregate level of
benefits under plans of the type referred to in this Section 5(e)
provided at any time after the Effective Date to any executive of
the Company and its Affiliates of comparable status and position
to the Executive; and (iii) the Company's obligation to include
the Executive in bonus or incentive compensation plans shall be
determined by Section 5(f).
<PAGE>
<PAGE> 4
(f) To assure that the Executive will have an
opportunity to earn incentive compensation after the Effective
Date, the Executive shall be included in a bonus plan of the
Company that shall satisfy the standards described below (the
"Bonus Plan"). Bonuses under the Bonus Plan shall be payable
with respect to achieving such financial or other goals
reasonably related to the business of the Company, including the
Employer, as the Company shall establish (the "Goals"), all of
which Goals shall be attainable, prior to the end of the
Employment Period, with approximately the same degree of
probability as the goals under the Employer's annual incentive
plan currently in effect, or the successor to such plan, in the
form most favorable to the Executive that was in effect at any
time during the 180-day period prior to the Effective Date (the
"Existing Plan") and in view of the Company's existing and
projected financial and business circumstances applicable at the
time. The amount of the bonus (the "Bonus Amount") that the
Executive is eligible to earn under the Bonus Plan shall be no
less than the amount of the Executive's highest maximum potential
award under the Existing Plan at any time during the 180-day
period prior to the Effective Date or, if higher, any maximum
potential award under the Bonus Plan or any other bonus or
incentive compensation plan in effect after the Effective Date
for the Executive or for any executive of the Company and its
Affiliates of comparable status and position to the Executive
(such bonus amount herein referred to as the "Targeted Bonus"),
and if the Goals are not achieved (and, therefore, the entire
Targeted Bonus is not payable), then the Bonus Plan shall provide
for a payment of a Bonus Amount not less than a portion of the
Targeted Bonus reasonably related to that portion of the Goals
that were achieved. Payment of the Bonus Amount (i) shall be in
cash, unless otherwise agreed by the Executive, and (ii) shall
not be affected by any circumstance occurring subsequent to the
end of the Employment Period, including termination of the
Executive's employment.
6. Annual Compensation Adjustments. During the
Employment Period, the Board of Directors of the Company (or an
appropriate committee thereof) will consider and appraise, at
least annually, the contributions of the Executive to the
Employer, and in accordance with the Company's practice prior to
the Effective Date, due consideration shall be given, at least
annually, to the upward adjustment of the Executive's Annual Base
Salary (i) commensurate with increases generally given to other
executives of the Company and its Affiliates of comparable status
and position to the Executive, and (ii) as the scope of the
Company's operations or the Executive's duties expand.
7. Termination During Employment Period.
(a) Right to Terminate. During the Employment Period,
(i) the Company shall be entitled to terminate the Executive's
employment (A) for Cause, (B) by reason of the Executive's
disability pursuant to Section 11, or (C) for any other reason,
and (ii) the Executive shall be entitled to terminate the
Executive's employment for any reason. Any such termination
shall be subject to the procedures set forth in Section 12 and
shall be subject to any consequences of such termination set
forth in this Agreement. Any termination of the Executive's
employment during the Employment Period by the Employer shall be
deemed a termination by the Company for purposes of this
Agreement.
(b) Termination for Cause or Without Good Reason. If
there is a Covered Termination for Cause or due to the
Executive's voluntarily terminating the Executive's employment
other than for Good Reason, then the Executive shall be entitled
to receive only Accrued Benefits.
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<PAGE> 5
(c) Termination Giving Rise to a Termination Payment.
If there is a Covered Termination by the Executive for Good
Reason, or by the Company other than by reason of (i) death, (ii)
disability pursuant to Section 11, or (iii) Cause, then the
Executive shall be entitled to receive, and the Company shall
promptly pay, Accrued Benefits and, in lieu of further base
salary for periods following the Termination Date, as liquidated
damages and additional severance pay and in consideration of the
covenant of the Executive set forth in Section 13(a), the
Termination Payment pursuant to Section 8(a).
8. Payments Upon Termination.
(a) Termination Payment. (i) Subject to the limits
set forth in Section 8(a)(ii), for purposes of this
Agreement, the "Termination Payment" shall be an amount
equal to the Annual Cash Compensation multiplied by the
number of years or fractional portion thereof remaining in
the Employment Period determined as of the Termination Date,
except that the Termination Payment shall not be less than
the amount of Annual Cash Compensation. The Termination
Payment shall be paid to the Executive in cash equivalent
not later than ten business days after the Termination Date.
The Executive shall not be required to mitigate the amount
of the Termination Payment by securing other employment or
otherwise, nor will such Termination Payment be reduced by
reason of the Executive securing other employment or for any
other reason. The Termination Payment shall be in addition
to any other severance payments to which the Executive is
entitled under the Company's severance policies and
practices in the form most favorable to the Executive that
were in effect at any time during the 180-day period prior
to the Effective Date.
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<PAGE> 6
(ii) Notwithstanding any other provision of this
Agreement, if any portion of the Termination Payment or any
other payment under this Agreement, or under any other
agreement with or plan of the Company or the Employer (in
the aggregate "Total Payments"), would constitute an "excess
parachute payment," then the Total Payments to be made to
the Executive shall be reduced such that the value of the
aggregate Total Payments that the Executive is entitled to
receive shall be One Dollar ($1) less than the maximum
amount which the Executive may receive without becoming
subject to the tax imposed by Section 4999 of the Code (or
any successor provision) or which the Company may pay
without loss of deduction under Section 280G(a) of the Code
(or any successor provision). For purposes of this
Agreement, the terms "excess parachute payment" and
"parachute payments" shall have the meanings assigned to
them in Section 280G of the Code (or any successor
provision), and such "parachute payments" shall be valued as
provided therein. Present value for purposes of this
Agreement shall be calculated in accordance with Section
1274(b)(2) of the Code (or any successor provision). Within
sixty days following delivery of the Notice of Termination
or notice by the Company to the Executive of its belief that
there is a payment or benefit due the Executive which will
result in an excess parachute payment as defined in Section
280G of the Code (or any successor provision), the Executive
and the Company, at the Company's expense, shall obtain the
opinion (which need not be unqualified) of nationally
recognized tax counsel selected by the Company's independent
auditors and acceptable to the Executive in the Executive's
sole discretion, which sets forth (A) the amount of the Base
Period Income, (B) the amount and present value of Total
Payments and (C) the amount and present value of any excess
parachute payments without regard to the limitations of this
Section 8(a)(ii). As used in this Section 8(a)(ii), the
term "Base Period Income" means an amount equal to the
Executive's "annualized includible compensation for the base
period" as defined in Section 280G(d)(1) of the Code (or any
successor provision). For purposes of such opinion, the
value of any noncash benefits or any deferred payment or
benefit shall be determined by the Company's independent
auditors in accordance with the principles of Sections
280G(d)(3) and (4) of the Code (or any successor
provisions), which determination shall be evidenced in a
certificate of such auditors addressed to the Company and
the Executive. Such opinion shall be dated as of the
Termination Date and addressed to the Company and the
Executive and shall be binding upon the Company and the
Executive. If such opinion determines that there would be
an excess parachute payment, then the Termination Payment
hereunder or any other payment determined by such counsel to
be includible in Total Payments shall be reduced or
eliminated as specified by the Executive in writing
delivered to the Company within thirty days of the
Executive's receipt of such opinion or, if the Executive
fails to so notify the Company, then as the Company shall
reasonably determine, so that under the bases of
calculations set forth in such opinion there will be no
excess parachute payment. If such counsel so requests in
connection with the opinion required by this Section, the
Executive and the Company shall obtain, at the Company's
expense, and the counsel may rely on in providing the
opinion, the advice of a firm of recognized executive
compensation consultants as to the reasonableness of any
item of compensation to be received by the Executive.
Notwithstanding the foregoing, the provisions of this
Section 8(a)(ii), including the calculations, notices and
opinions provided for herein, shall be based upon the
conclusive presumption that the following are reasonable:
(1) the compensation and benefits provided for in Section 5
and (2) any other compensation, including but not limited to
the Accrued Benefits, earned prior to the Termination Date
by the Executive pursuant to the Company's compensation
programs if such payments would have been made in the future
in any event, even though the timing of such payment is
triggered by the Change in Control or the Termination Date.
If the provisions of Sections 280G and 4999 of the Code (or
any successor provisions) are repealed without succession,
then this Section 8(a)(ii) shall be of no further force or
effect.
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<PAGE> 7
(b) Additional Benefits. If there is a Covered
Termination and the Executive is entitled to Accrued Benefits and
the Termination Payment, then the Executive shall be entitled to
the following additional benefits:
(i) The Executive will be entitled to pension
benefits in addition to the most favorable benefits provided
for the Executive under any version of the Wisconsin Gas
Company Pension Plan for Non-Union Employees and the
Employer's Supplemental Retirement Plan (or any successors
to such plans) in effect at any time during the 180-day
period prior to the Effective Date (the "Retirement Plans").
The amount of additional pension benefits will be equal to
the difference between the amount the Executive (or in the
event of the Executive's death, the Executive's surviving
spouse or other beneficiary) would be actually entitled to
receive upon retirement under the terms and conditions of
the Retirement Plans and the amount the Executive (or such
surviving spouse or beneficiary) would have been entitled to
receive under such terms and conditions if the Executive's
benefits under the Retirement Plans had been fully vested on
the Termination Date and the Executive had continued to work
for a period of two additional years after the Termination
Date at a salary rate equal to the Executive's Annual Base
Salary; provided, however, that in no event will the assumed
period of continued employment extend beyond the date on
which the Executive elects to begin receiving the additional
pension benefits. The Executive shall be entitled to elect
to receive the Executive's additional pension benefits in
any form (e.g. joint and survivor) that would have been
available to the Executive under the terms and conditions of
the Retirement Plans and (subject to reduction, if any,
under such terms) at any time after the Executive has
attained the age at which early retirement is permitted. In
addition, if the Executive starts to receive the Executive's
additional pension benefits before the earliest date on
which the Executive is eligible for unreduced Social
Security benefits, then the Executive will receive an amount
equal to the difference between the Executive's estimated
unreduced Social Security benefit and the actual benefit to
which the Executive is entitled until the Executive attains
the age when the Executive is eligible for unreduced
benefits.
(ii) Until the earlier of the end of the
Employment Period or such time as the Executive has obtained
new employment and is covered by benefits which in the
aggregate are at least equal in value to the following
benefits, the Executive shall continue to be covered, at the
expense of the Company, by the most favorable life
insurance, hospitalization, medical and dental coverage and
other welfare benefits provided to the Executive and the
Executive's family during the 180-day period immediately
preceding the Effective Date or at any time thereafter or,
if more favorable to the Executive, coverage as was required
hereunder with respect to the Executive immediately prior to
the date Notice of Termination is given; provided, however,
that if the Executive is otherwise entitled to receive
hospitalization and/or medical coverage under a plan or
plans for early retirees sponsored by the Company or a
subsidiary thereof, then the Executive shall not be eligible
for such hospitalization or medical coverage under this
Section 8(b)(ii).
(iii) The Executive shall receive, at the
expense of the Company, outplacement services, on an
individualized basis at a level of service commensurate with
the Executive's most senior status with the Company during
the 180-day period prior to the Effective Date (or, if
higher, at any time after the Effective Date), provided by a
nationally recognized executive placement firm selected by
the Company with the consent of the Executive, which consent
will not be unreasonably withheld; provided that the cost to
the Company of such services shall not exceed 15% of the
Executive's Annual Base Salary.
<PAGE>
<PAGE> 8
(iv) The Company shall bear up to $10,000 in the
aggregate of fees and expenses of consultants and/or legal
or accounting advisors engaged by the Executive to advise
the Executive as to matters relating to the computation of
benefits due and payable under this Section 8.
9. Death. (a) Except as provided in Section 9(b),
in the event of a Covered Termination due to the Executive's
death, the Executive's estate, heirs and beneficiaries shall
receive all the Executive's Accrued Benefits through the
Termination Date.
(b) If the Executive dies after a Notice of
Termination is given (i) by the Company or (ii) by the Executive
for Good Reason, then the Executive's estate, heirs and
beneficiaries shall be entitled to the benefits described in
Section 9(a) and, subject to the provisions of this Agreement, to
such Termination Payment to which the Executive would have been
entitled had the Executive lived. In such event, the Termination
Date shall be thirty days following the giving of the Notice of
Termination, subject to extension pursuant to the definition of
"Termination Date" in Exhibit A.
10. Retirement. If, during the Employment Period, the
Executive and the Employer shall execute an agreement providing
for the early retirement of the Executive from the Employer, or
the Executive shall otherwise give notice that the Executive is
voluntarily choosing to retire early from the Employer, then the
Executive shall receive Accrued Benefits through the Termination
Date; provided, that if the Executive's employment is terminated
by the Executive for Good Reason or by the Company other than by
reason of death, disability or Cause and the Executive also, in
connection with such termination, elects voluntary early
retirement, then the Executive shall also be entitled to receive
a Termination Payment pursuant to Section 8(a).
11. Termination for Disability. If, during the
Employment Period, as a result of the Executive's disability due
to physical or mental illness or injury (regardless of whether
such illness or injury is job-related), the Executive shall have
been absent from the Executive's duties hereunder on a full-time
basis for a period of 182 days and, within thirty days after the
Company notifies the Executive in writing that it intends to
terminate the Executive's employment (which notice shall not
constitute the Notice of Termination contemplated below), the
Executive shall not have returned to the performance of the
Executive's duties hereunder on a full-time basis, then the
Company may terminate the Executive's employment for purposes of
this Agreement pursuant to a Notice of Termination. If the
Executive's employment is terminated on account of the
Executive's disability in accordance with this Section, then the
Executive shall receive Accrued Benefits in accordance with
Section 8(a) and shall remain eligible for all benefits provided
by any long term disability programs of the Employer in effect at
the time the Company sends notice to the Executive of its intent
to terminate pursuant to this Section.
12. Termination Notice and Procedure. (a) Any
termination of the Executive's employment during the Employment
Period by the Company or the Executive (other than a termination
of the Executive's employment referenced in the second sentence
of the definition of "Effective Date" in Exhibit A) shall be
communicated by written Notice of Termination to the Executive,
if such Notice is given by the Company, and to the Company, if
such Notice is given by the Executive, all in accordance with the
following procedures and those set forth in Section 22:
(i) If such termination is for disability, Cause or
Good Reason, the Notice of Termination shall indicate in
reasonable detail the facts and circumstances alleged to provide
a basis for such termination.
<PAGE>
<PAGE> 9
(ii) Any Notice of Termination by the Company shall
have been approved, prior to the giving thereof to the Executive,
by a resolution duly adopted by a majority of the directors of
the Company (or any successor corporation) then in office, a copy
of which shall accompany the Notice.
(iii) If the Notice is given by the Executive for
Good Reason, then the Executive may cease performing the
Executive's duties hereunder on or after the date 15 days after
the delivery of Notice of Termination (unless the Notice of
Termination is based upon clause (viii) of the definition of
"Good Reason" in Exhibit A, in which case the Executive may cease
performing his duties at the time the Executive's employment is
terminated) and shall in any event cease employment on the
Termination Date, if any, arising from the delivery of such
Notice. If the Notice is given by the Company, then the
Executive may cease performing the Executive's duties hereunder
on the date of receipt of the Notice of Termination, subject to
the Executive's rights hereunder.
(iv) The recipient of any Notice of Termination shall
personally deliver or mail in accordance with Section 22 written
notice of any dispute relating to such Notice of Termination to
the party giving such Notice within fifteen days after receipt
thereof. After the expiration of such fifteen days, the contents
of the Notice of Termination shall become final and not subject
to dispute.
Notwithstanding the foregoing, (A) if the Executive terminates
the Executive's employment after a Change in Control without
complying with this Section 12, then the Executive will be deemed
to have voluntarily terminated the Executive's employment other
than for Good Reason and deemed to have delivered a written
Notice of Termination to that effect to the Company as of the
date of such termination and (B) if the Company terminates the
Executive's employment after a Change in Control without
complying with this Section 12, then the Company will be deemed
to have terminated the Executive's employment other than by
reason of death, disability or Cause and the Company will be
deemed to have delivered a written Notice of Termination to that
effect to the Executive as of the date of such termination.
Under circumstances described in clause (B) above, the Executive
may, but shall not be obligated to, also deliver a Notice of
Termination based upon clause (viii) of the definition of "Good
Reason" in Exhibit A for the purpose of subjecting such Notice to
Section 12(a)(iv).
(b) If a Change in Control occurs and the Executive's
employment with the Employer terminates (whether by the Company,
the Executive or otherwise) within 180 days prior to the Change
in Control, then the Executive may assert that such termination
is a Covered Termination by sending a written Notice of
Termination to the Company at any time prior to the first
anniversary of the Change in Control in accordance with the
procedures set forth in this Section 12(b) and those set forth in
Section 22. If the Executive asserts that the Executive
terminated the Executive's employment for Good Reason or that the
Company terminated the Executive's employment other than for
disability or Cause, then the Notice of Termination shall
indicate in reasonable detail the facts and circumstances alleged
to provide a basis for such assertions. The Company shall
personally deliver or mail in accordance with Section 22 written
notice of any dispute relating to such Notice of Termination to
the Executive within fifteen days after receipt thereof. After
the expiration of such fifteen days, the contents of the Notice
of Termination shall become final and not subject to dispute.
13. Further Obligations of the Executive.
(a) Competition. The Executive agrees that, in the
event of any Covered Termination where the Executive is entitled
to (and receives) Accrued Benefits and the Termination Payment,
the Executive shall not, for a period of six months after the
Termination Date, without the prior written approval of the
Company's Board of Directors, engage in any Competitive Activity.
<PAGE>
<PAGE> 10
(b) Confidentiality. During and following the
Executive's employment by the Employer, the Executive shall hold
in confidence and not directly or indirectly disclose or use or
copy or make lists of any confidential information or proprietary
data of the Company (including that of the Employer), except to
the extent authorized in writing by the Board of Directors of the
Company or required by any court or administrative agency, other
than to an employee of the Company or a person to whom disclosure
is reasonably necessary or appropriate in connection with the
performance by the Executive of duties as an executive of the
Company or the Employer. Confidential information shall not
include any information known generally to the public or any
information of a type not otherwise considered confidential by
persons engaged in the same business or a business similar to
that of the Company. All records, files, documents and
materials, or copies thereof, relating to the business of the
Company which the Executive shall prepare, or use, or come into
contact with, shall be and remain the sole property of the
Company and shall be promptly returned to the Company upon
termination of employment with the Employer.
14. Expenses and Interest. If, after the Effective
Date, (i) a dispute arises with respect to the enforcement of the
Executive's rights under this Agreement, (ii) any legal or
arbitration proceeding shall be brought to enforce or interpret
any provision contained herein or to recover damages for breach
hereof, or (iii) any tax audit or proceeding is commenced that is
attributable in part to the application of Section 4999 of the
Code, in any case so long as the Executive is not acting in bad
faith, then the Company shall reimburse the Executive for any
reasonable attorneys' fees and necessary costs and disbursements
incurred as a result of such dispute, legal or arbitration
proceeding or tax audit or proceeding ("Expenses"), and
prejudgment interest on any money judgment or arbitration award
obtained by the Executive calculated at the rate of interest
announced by M&I Marshall & Ilsley Bank, Milwaukee, Wisconsin,
from time to time as its prime or base lending rate from the date
that payments to the Executive should have been made under this
Agreement. Within ten days after the Executive's written request
therefor, the Company shall pay to the Executive, or such other
person or entity as the Executive may designate in writing to the
Company, the Executive's reasonable Expenses in advance of the
final disposition or conclusion of any such dispute, legal or
arbitration proceeding.
15. Payment Obligations Absolute. The Company's
obligation during and after the Employment Period to pay the
Executive the amounts and to make the benefit and other
arrangements provided herein shall be absolute and unconditional
and shall not be affected by any circumstances, including,
without limitation, any setoff, counterclaim, recoupment, defense
or other right which the Company may have against the Executive
or anyone else. Except as provided in Section 14, all amounts
payable by the Company hereunder shall be paid without notice or
demand. Each and every payment made hereunder by the Company
shall be final, and the Company will not seek to recover all or
any part of such payment from the Executive, or from whomsoever
may be entitled thereto, for any reason whatsoever.
<PAGE>
<PAGE> 11
16. Successors. (a) If the Company sells, assigns or
transfers all or substantially all of its business and assets to
any Person or if the Company merges into or consolidates or
otherwise combines (where the Company does not survive such
combination) with any Person (any such event, a "Sale of
Business"), then the Company shall assign all of its right, title
and interest in this Agreement as of the date of such event to
such Person, and the Company shall cause such Person, by written
agreement in form and substance reasonably satisfactory to the
Executive, to expressly assume and agree to perform from and
after the date of such assignment all of the terms, conditions
and provisions imposed by this Agreement upon the Company.
Failure of the Company to obtain such agreement prior to the
effective date of such Sale of Business shall be a breach of this
Agreement constituting "Good Reason" hereunder, except that for
purposes of implementing the foregoing, the date upon which such
Sale of Business becomes effective shall be deemed the
Termination Date. In case of such assignment by the Company and
of assumption and agreement by such Person, as used in this
Agreement, "Company" shall thereafter mean such Person which
executes and delivers the agreement provided for in this Section
16 or which otherwise becomes bound by all the terms and
provisions of this Agreement by operation of law, and this
Agreement shall inure to the benefit of, and be enforceable by,
such Person. The Executive shall, in the Executive's discretion,
be entitled to proceed against any or all of such Persons, any
Person which theretofore was such a successor to the Company (as
defined in the first paragraph of this Agreement) and the Company
(as so defined) in any action to enforce any rights of the
Executive hereunder. Except as provided in this Subsection, this
Agreement shall not be assignable by the Company. This Agreement
shall not be terminated by the voluntary or involuntary
dissolution of the Company.
(b) This Agreement and all rights of the Executive
shall inure to the benefit of and be enforceable by the
Executive's personal or legal representatives, executors,
administrators, heirs and beneficiaries. All amounts payable to
the Executive under Sections 7, 8, 9, 10, 11 and 14 if the
Executive had lived shall be paid, in the event of the
Executive's death, to the Executive's estate, heirs and
representatives; provided, however, that the foregoing shall not
be construed to modify any terms of any benefit plan of the
Employer, as such terms are in effect on the Effective Date, that
expressly govern benefits under such plan in the event of the
Executive's death.
17. Severability. The provisions of this Agreement
shall be regarded as divisible, and if any of said provisions or
any part hereof are declared invalid or unenforceable by a court
of competent jurisdiction, then the validity and enforceability
of the remainder of such provisions or parts hereof and the
applicability thereof shall not be affected thereby.
18. Amendment. This Agreement may not be amended or
modified at any time except by written instrument executed by the
Company and the Executive.
19. Withholding. The Employer shall be entitled to
withhold from amounts to be paid to the Executive hereunder any
federal, state or local withholding or other taxes or charges
which it is from time to time required to withhold; provided,
that the amount so withheld shall not exceed the minimum amount
required to be withheld by law. The Employer shall be entitled
to rely on an opinion of nationally recognized tax counsel if any
question as to the amount or requirement of any such withholding
shall arise.
20. Certain Rules of Construction. No party shall be
considered as being responsible for the drafting of this
Agreement for the purpose of applying any rule construing
ambiguities against the drafter or otherwise. No draft of this
Agreement shall be taken into account in construing this
Agreement. Any provision of this Agreement which requires an
agreement in writing shall be deemed to require that the writing
in question be signed by the Executive and an authorized
representative of the Company.
<PAGE>
<PAGE> 12
21. Governing Law; Resolution of Disputes. (a) This
Agreement and the rights and obligations hereunder shall be
governed by and construed in accordance with the internal laws of
the State of Wisconsin (excluding any choice of law rules that
may direct the application of the laws of another jurisdiction)
except that Section 21(b) shall be construed in accordance with
the Federal Arbitration Act if arbitration is chosen by the
Executive as the method of dispute resolution.
(b) Any dispute arising out of this Agreement shall,
at the Executive's election, be determined by arbitration under
the rules of the American Arbitration Association then in effect
(but subject to any evidentiary standards set forth in this
Agreement), in which case both parties shall be bound by the
arbitration award, or by litigation. Whether the dispute is to
be settled by arbitration or litigation, the venue for the
arbitration or litigation shall be Milwaukee, Wisconsin or, at
the Executive's election, if the Executive is no longer residing
or working in the Milwaukee, Wisconsin metropolitan area, in the
judicial district encompassing the city in which the Executive
resides; provided, that, if the Executive is not then residing in
the United States, the election of the Executive with respect to
such venue shall be either Milwaukee, Wisconsin or in the
judicial district encompassing that city in the United States
among the thirty cities having the largest population (as
determined by the most recent United States Census data available
at the Termination Date) that is closest to the Executive's
residence. The parties consent to personal jurisdiction in each
trial court in the selected venue having subject matter
jurisdiction notwithstanding their residence or situs, and each
party irrevocably consents to service of process in the manner
provided hereunder for the giving of notices.
22. Notice. Notices given pursuant to this Agreement
shall be in writing and, except as otherwise provided by Section
12(a)(iii), shall be deemed given when actually received by the
Executive or actually received by the Company's Secretary or any
officer of the Company other than the Executive. If mailed, such
notices shall be mailed by United States registered or certified
mail, return receipt requested, addressee only, postage prepaid,
if to the Company, to WICOR, Inc., Attention: Secretary (or, if
the Executive is then Secretary, to the Chief Executive Officer),
626 East Wisconsin Avenue, Milwaukee, Wisconsin 53202, or if to
the Executive, at the address set forth below the Executive's
signature to this Agreement, or to such other address as the
party to be notified shall have theretofore given to the other
party in writing.
23. Additional Payment. (a) If, notwithstanding the
provisions of Section 8(a)(ii), but subject to subsection (b), it
is ultimately determined by a court or pursuant to a final
determination by the Internal Revenue Service that any portion of
Total Payments is subject to the tax (the "Excise Tax") imposed
by Section 4999 of the Code (or any successor provision), then
the Company shall pay to the Executive an additional amount (the
"Gross-Up Payment") such that the net amount retained by the
Executive after deduction of any Excise Tax and any interest
charges or penalties in respect of the imposition of such Excise
Tax (but not any federal, state or local income tax) on the Total
Payments, and any federal, state and local income tax and Excise
Tax upon the payment provided for by this Section 23 shall be
equal to the Total Payments. For purposes of determining the
amount of the Gross-Up Payment, the Executive shall be deemed to
pay federal income taxes at the highest marginal rate of federal
income taxation in the calendar year in which the Gross-Up
Payment is to be made and state and local income taxes at the
highest marginal rates of taxation in the state and locality of
the Executive's domicile for income tax purposes on the date the
Gross-Up Payment is made, net of the maximum reduction in federal
income taxes that could be obtained from deduction of such state
and local taxes.
(b) If legislation is enacted that would require the
Company's shareholders to approve this Agreement, prior to a
Change in Control, due solely to the provision contained in
subsection (a) of this Section 23, then
<PAGE>
<PAGE> 13
(i) from and after such time as shareholder approval
would be required, until shareholder approval is obtained as
required by such legislation, subsection (a) shall be of no
force and effect;
(ii) if the Company seeks shareholder approval of any
other agreement providing similar benefits to any other
executive of the Company, then the Company shall seek
shareholder approval of this Agreement at the same
shareholders' meeting or meetings at which the shareholders
consider any such other agreement; and
(iii) the Company and the Executive shall use their
best efforts to consider and agree in writing upon an
amendment to this Section 23 such that, as amended, this
Subsection would provide the Executive with the benefits
intended to be afforded to the Executive by subsection (a)
without requiring shareholder approval.
24. No Waiver. The Executive's or the Company's
failure to insist upon strict compliance with any provision of
this Agreement or the failure to assert any right the Executive
or the Company may have hereunder, including, without limitation,
the right of the Executive to terminate employment for Good
Reason, shall not be deemed to be a waiver of such provision or
right or any other provision or right of this Agreement.
25. Headings. The headings herein contained are for
reference only and shall not affect the meaning or interpretation
of any provision of this Agreement.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the day and year first written above.
WICOR, INC.
By:
Attest:
EXECUTIVE
(SEAL)
[name]
[address]
<PAGE>
<PAGE> 14
Exhibit A
CERTAIN DEFINED TERMS
For purposes of this Agreement,
(a) Act. The term "Act" means the Securities
Exchange Act of 1934, as amended.
(b) Accrued Benefits. The term "Accrued Benefits"
shall include the following amounts, payable as described herein:
(i) all base salary for the time period ending with the
Termination Date; (ii) reimbursement for any and all monies
advanced in connection with the Executive's employment for
reasonable and necessary expenses incurred by the Executive on
behalf of the Company and its Affiliates for the time period
ending with the Termination Date; (iii) any and all other cash
earned through the Termination Date and deferred at the election
of the Executive or pursuant to any deferred compensation plan
then in effect; (iv) notwithstanding any provision of any bonus
or incentive compensation plan applicable to the Executive, a
lump sum amount, in cash, equal to the sum of (A) any bonus or
incentive compensation that has been allocated or awarded to the
Executive for a fiscal year or other measuring period under the
plan that ends prior to the Termination Date but has not yet been
paid (pursuant to Section 5(f) or otherwise) and (B) a pro rata
portion to the Termination Date of the aggregate value of all
contingent bonus or incentive compensation awards to the
Executive for all uncompleted periods under the plan calculated
as to each such award as if the Goals with respect to such bonus
or incentive compensation award had been attained; and (v) all
other payments and benefits to which the Executive (or in the
event of the Executive's death, the Executive's surviving spouse
or other beneficiary) may be entitled as compensatory fringe
benefits or under the terms of any benefit plan of the Employer,
including severance payments under the Employer's severance
policies and practices in the form most favorable to the
Executive that were in effect at any time during the 180-day
period prior to the Effective Date. Payment of Accrued Benefits
shall be made promptly in accordance with the Employer's
prevailing practice with respect to clauses (i) and (ii) or, with
respect to clauses (iii), (iv) and (v), pursuant to the terms of
the benefit plan or practice establishing such benefits.
(c) Affiliate and Associate. The terms "Affiliate"
and "Associate" shall have the respective meanings ascribed to
such terms in Rule 12b-2 of the General Rules and Regulations of
the Act.
(d) Annual Cash Compensation. The term "Annual Cash
Compensation" shall mean the sum of (A) the Executive's Annual
Base Salary, plus (B) the highest of (1) the highest annual bonus
or incentive compensation award earned by the Executive under any
cash bonus or incentive compensation plan of the Company or any
of its Affiliates during the three complete fiscal years of the
Company immediately preceding the Termination Date or, if more
favorable to the Executive, during the three complete fiscal
years of the Company immediately preceding the Effective Date;
(2) the Executive's bonus or incentive compensation Targeted
Bonus for the fiscal year in which the Termination Date occurs;
or (3) the highest average annual bonus and/or incentive
compensation earned during the three complete fiscal years of the
Company immediately preceding the Termination Date (or, if more
favorable to the Executive, during the three complete fiscal
years of the Company immediately preceding the Effective Date)
under any cash bonus or incentive compensation plan of the
Company or any of its Affiliates by the group of executives of
the Company and its Affiliates participating under such plan
during such fiscal years at a status or position comparable to
that at which the Executive participated or would have
participated pursuant to the Executive's most senior position at
any time during the 180 days preceding the Effective Date or
thereafter until the Termination Date.
<PAGE>
<PAGE> 15
(e) Cause. The Company may terminate the Executive's
employment after the Effective Date for "Cause" only if the
conditions set forth in paragraphs (i) and (ii) have been met and
the Company otherwise complies with this Agreement:
(i) (A) the Executive has committed any act of
fraud, embezzlement or theft in connection with the
Executive's duties as an Executive or in the course of
employment with the Company and/or its subsidiaries; (B) the
Executive has willfully and continually failed to perform
substantially the Executive's duties with the Company or any
of its Affiliates (other than any such failure resulting
from incapacity due to physical or mental illness or injury,
regardless of whether such illness or injury is job-related)
for an appropriate period, which shall not be less than 30
days, after the Chief Executive Officer of the Company (or,
if the Executive is then Chief Executive Officer, the Board)
has delivered a written demand for performance to the
Executive that specifically identifies the manner in which
the Chief Executive Officer (or the Board, as the case may
be) believes the Executive has not substantially performed
the Executive's duties; (C) the Executive has willfully
engaged in illegal conduct or gross misconduct that is
materially and demonstrably injurious to the Company; (D)
the Executive has willfully and wrongfully disclosed any
trade secret or other confidential information of the
Company or any of its Affiliates; or (E) the Executive has
engaged in any Competitive Activity; and in any such case
the act or omission shall have been determined by the Board
to have been materially harmful to the Company and its
subsidiaries taken as a whole.
For purposes of this provision, (1) no act or
failure to act on the part of the Executive shall be
considered "willful" unless it is done, or omitted to be
done, by the Executive in bad faith or without reasonable
belief that the Executive's action or omission was in the
best interests of the Company and (2) any act, or failure to
act, based upon authority given pursuant to a resolution
duly adopted by the Board or upon the instructions of the
Chief Executive Officer or a senior officer of the Company
or based upon the advice of counsel for the Company shall be
conclusively presumed to be done, or omitted to be done, by
the Executive in good faith and in the best interests of the
Company.
(ii) (A) The Company terminates the Executive's
employment by delivering a Notice of Termination to the
Executive, (B) prior to the time the Company has terminated
the Executive's employment pursuant to a Notice of
Termination, the Board, by the affirmative vote of not less
than three-quarters (3/4) of the entire membership of the
Board, has adopted a resolution finding that the Executive
was guilty of conduct set forth in this definition of Cause,
and specifying the particulars thereof in detail, at a
meeting of the Board called and held for the purpose of
considering such termination (after reasonable notice to the
Executive and an opportunity for the Executive, together
with the Executive's counsel, to be heard before the Board)
and (C) the Company delivers a copy of such resolution to
the Executive with the Notice of Termination at the time the
Executive's employment is terminated.
In the event of a dispute regarding whether the Executive's
employment has been terminated for Cause, no claim by the Company
that the Company has terminated the Executive's employment for
Cause in accordance with this Agreement shall be given effect
unless the Company establishes by clear and convincing evidence
that the Company has complied with the requirements of this
Agreement to terminate the Executive's employment for Cause.
<PAGE>
<PAGE> 16
(f) Change in Control. A "Change in Control" shall be
deemed to have occurred if the 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" (as such term is defined in Rule 13d-3
under the Act), 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 January 1, 1997 pursuant to
express authorization by the Board that refers to this
exception) representing 25% 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; or
(ii) the following individuals cease for any
reason to constitute a majority of the number of directors
then serving: individuals who, on January 1, 1997,
constituted the Board and 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 January 1, 1997
or whose appointment, election or nomination for election
was previously so approved; or
(iii) the shareholders of the Company approve
a merger, consolidation or share exchange of the Company
with any other corporation or approve the issuance of voting
securities of the Company 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 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
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 January 1, 1997 pursuant to express
authorization by the Board that refers to this exception)
representing 25% 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;
or
<PAGE>
<PAGE> 17
(iv) the shareholders of the Company approve a
plan of complete liquidation or dissolution of the Company
or an agreement for 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 at least 75% of the
combined voting power of the voting securities of which are
owned by Persons in substantially the same proportions as
their ownership of the Company immediately prior to such
sale.
Notwithstanding the foregoing, no "Change in Control"
shall be deemed to have occurred if there is consummated any
transaction or series of integrated transactions immediately
following which the record holders of the common stock of the
Company immediately prior to such transaction or series of
transactions continue to have substantially the same
proportionate ownership in an entity that owns all or
substantially all of the assets or voting securities of the
Company immediately following such transaction or series of
transactions.
(g) Code. The term "Code" means the Internal Revenue
Code of 1986, including any amendments thereto or successor tax
codes thereof.
(h) Competitive Activity. The Executive shall engage
in a "Competitive Activity" if the Executive participates in the
management of, is employed by or owns any interest in any
business enterprise at a location within the United States that
engages in substantial competition with the Company or its
subsidiaries, where such enterprise's revenues from any
competitive activities amount to 10% or more of such enterprise's
consolidated net revenues and sales for its most recently
completed fiscal year; provided, however, that owning stock or
other securities of a competitor amounting to less than five
percent of the outstanding capital stock of such competitor shall
not be a "Competitive Activity".
(i) Covered Termination. The term "Covered
Termination" means any termination of the Executive's employment
during the Employment Period where the Termination Date or the
date Notice of Termination is delivered is any date on or prior
to the end of the Employment Period.
(j) Effective Date. The term "Effective Date" shall
mean the first date on which a Change in Control occurs.
Anything in this Agreement to the contrary notwithstanding, if
(i) a Change in Control occurs, (ii) the Executive's employment
with the Employer terminates (whether by the Company, the
Executive or otherwise) within 180 days prior to the Change in
Control and (iii) it is reasonably demonstrated by the Executive
that (A) any such termination of employment by the Employer (1)
was at the request of a third party who has taken steps
reasonably calculated to effect a Change in Control or (2)
otherwise arose in connection with or in anticipation of a Change
in Control, or (B) any such termination of employment by the
Executive took place subsequent to the occurrence of an event
described in clause (ii), (iii), (iv) or (v) of the definition of
"Good Reason" which event (1) occurred at the request of a third
party who has taken steps reasonably calculated to effect a
Change in Control or (2) otherwise arose in connection with or in
anticipation of a Change in Control, then for all purposes of
this Agreement the term "Effective Date" shall mean the day
immediately prior to the date of such termination of employment.
(k) Employer. The term "Employer" means the Company
and/or any subsidiary of the Company that employed the Executive
immediately prior to the Effective Date.
<PAGE>
<PAGE> 18
(l) Good Reason. The Executive shall have a "Good
Reason" for termination of employment on or after the Effective
Date if the Executive determines in good faith that any of the
following events has occurred:
(i) any breach of this Agreement by the Company,
including specifically any breach by the Company of its
agreements contained in Section 4, Section 5 or Section 6,
other than an isolated, insubstantial and inadvertent
failure not occurring in bad faith that the Company remedies
promptly after receipt of notice thereof given by the
Executive;
(ii) any reduction in the Executive's base salary,
percentage of base salary available as incentive
compensation or bonus opportunity or benefits, in each case
relative to those most favorable to the Executive in effect
at any time during the 180-day period prior to the Effective
Date or, to the extent more favorable to the Executive,
those in effect after the Effective Date;
(iii) a material adverse change, without the
Executive's prior written consent, in the Executive's
working conditions or status with the Company or the
Employer from such working conditions or status in effect
during the 180-day period prior to the Effective Date or, to
the extent more favorable to the Executive, those in effect
after the Effective Date, including but not limited to (A) a
material change in the nature or scope of the Executive's
titles, authority, powers, functions, duties, reporting
requirements or responsibilities, or (B) a material
reduction in the level of support services, staff,
secretarial and other assistance, office space and
accoutrements, but excluding for this purpose an isolated,
insubstantial and inadvertent event not occurring in bad
faith that the Company remedies promptly after receipt of
notice thereof given by the Executive;
(iv) the relocation of the Executive's principal
place of employment to a location more than 35 miles from
the Executive's principal place of employment on the date
180 days prior to the Effective Date;
(v) the Employer requires the Executive to travel
on Employer business to a materially greater extent than was
required during the 180-day period prior to the Effective
Date;
(vi) failure by the Company to obtain the
agreement referred to in Section 16(a) as provided therein;
(vii) the Executive has continued the
Executive's employment through the first anniversary of the
Change in Control; provided, however, that the Executive may
exercise the Executive's rights to terminate the Executive's
employment under this clause (vii) only if the Executive
delivers the Notice of Termination during the 60 days
following such first anniversary; or
(viii) the Company or the Employer terminates
the Executive's employment after a Change in Control without
delivering a Notice of Termination in accordance with
Section 12;
<PAGE>
<PAGE> 19
provided that (A) any such event occurs following the Effective
Date or (B) in the case of any event described in clauses (ii),
(iii), (iv) or (v) above, such event occurs on or prior to the
Effective Date under circumstances described in
clause (iii)(B)(1) or (iii)(B)(2) of the definition of "Effective
Date." In the event of a dispute regarding whether the Executive
terminated the Executive's employment for "Good Reason" in
accordance with this Agreement, no claim by the Company that such
termination does not constitute a Covered Termination shall be
given effect unless the Company establishes by clear and
convincing evidence that such termination does not constitute a
Covered Termination. Any election by the Executive to terminate
the Executive's employment for Good Reason shall not be deemed a
voluntary termination of employment by the Executive for purposes
of any other employee benefit or other plan.
(m) Normal Retirement Date. The term "Normal
Retirement Date" means the date the Executive reaches "Normal
Retirement Age" as defined in the Wisconsin Gas Company Pension
Plan for Non-Union Employees as in effect on the date hereof, or
the corresponding date under any successor plan of the Employer
as in effect on the Effective Date.
(n) Notice of Termination. The term "Notice of
Termination" means a written notice as contemplated by
Section 12.
(o) Person. The term "Person" shall have the meaning
given in Section 3(a)(9) of the Act, as modified and used in
Sections 13(d) and 14(d) thereof.
(p) Termination Date. Except as otherwise provided in
Section 9(b) and Section 16(a), the term "Termination Date" means
(i) if the Executive's employment is terminated by the
Executive's death, the date of death; (ii) if the Executive's
employment is terminated by reason of voluntary early retirement,
as agreed in writing by the Company and the Executive, the date
of such early retirement that is set forth in such written
agreement; (iii) if the Executive's employment is terminated for
purposes of this Agreement by reason of disability pursuant to
Section 11, thirty days after the Notice of Termination is given;
(iv) if the Executive's employment is terminated by the Executive
voluntarily (other than for Good Reason), the date the Notice of
Termination is given; and (v) if the Executive's employment is
terminated by the Company (other than by reason of disability
pursuant to Section 11) or by the Executive for Good Reason,
thirty days after the Notice of Termination is given.
Notwithstanding the foregoing,
<PAGE>
<PAGE> 20
(A) If the Executive shall in good faith give a Notice
of Termination for Good Reason and the Company notifies the
Executive that a dispute exists concerning the termination within
the fifteen-day period following receipt thereof, then the
Executive may elect to continue the Executive's employment during
such dispute and the Termination Date shall be determined under
this paragraph. If the Executive so elects and it is thereafter
determined that the Executive terminated the Executive's
employment for Good Reason in accordance with this Agreement,
then the Termination Date shall be the earlier of (1) the date on
which the dispute is finally determined, either (x) by mutual
written agreement of the parties or (y) in accordance with
Section 21 or (2) the date of the Executive's death. If the
Executive so elects and it is thereafter determined that the
Executive did not terminate the Executive's employment for Good
Reason in accordance with this Agreement, then the employment of
the Executive hereunder shall continue after such determination
as if the Executive had not delivered the Notice of Termination
asserting Good Reason and there shall be no Termination Date
arising out of such Notice. In either case, this Agreement
continues, until the Termination Date, if any, as if the
Executive had not delivered the Notice of Termination except
that, if it is finally determined that the Executive terminated
the Executive's employment for Good Reason in accordance with
this Agreement, then the Executive shall in no case be denied the
benefits described in Section 8 (including a Termination Payment)
based on events occurring after the Executive delivered the
Executive's Notice of Termination.
(B) If an opinion is required to be delivered pursuant
to Section 8(a)(ii) and such opinion shall not have been
delivered, then the Termination Date shall be the date on which
such opinion is delivered.
(C) Except as provided in paragraph (A) above, if the
party receiving the Notice of Termination notifies the other
party that a dispute exists concerning the termination within the
fifteen-day period following receipt thereof and it is finally
determined that termination of the Executive's employment for the
reason asserted in such Notice of Termination was not in
accordance with this Agreement, then (1) if such Notice was
delivered by the Executive, then the Executive will be deemed to
have voluntarily terminated the Executive's employment other than
for Good Reason by means of such Notice and (2) if delivered by
the Company, then the Company will be deemed to have terminated
the Executive's employment other than by reason of death,
disability or Cause by means of such Notice.
<TABLE> <S> <C>
<ARTICLE> UT
<LEGEND>
This schedule contains summary financial information extracted from the
Wisconsin Gas Company FORM 10-Q for the six months ended June 30, 1997 and is
qualified in its entirety by reference to such financial statements and the
related footnotes.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> JUN-30-1997
<BOOK-VALUE> PER-BOOK
<TOTAL-NET-UTILITY-PLANT> 375,783
<OTHER-PROPERTY-AND-INVEST> 0
<TOTAL-CURRENT-ASSETS> 131,696
<TOTAL-DEFERRED-CHARGES> 158,738
<OTHER-ASSETS> 0
<TOTAL-ASSETS> 666,217
<COMMON> 9
<CAPITAL-SURPLUS-PAID-IN> 119,858
<RETAINED-EARNINGS> 101,920
<TOTAL-COMMON-STOCKHOLDERS-EQ> 221,787
0
0
<LONG-TERM-DEBT-NET> 150,555
<SHORT-TERM-NOTES> 0
<LONG-TERM-NOTES-PAYABLE> 150,000
<COMMERCIAL-PAPER-OBLIGATIONS> 0
<LONG-TERM-DEBT-CURRENT-PORT> 2,000
0
<CAPITAL-LEASE-OBLIGATIONS> 0
<LEASES-CURRENT> 0
<OTHER-ITEMS-CAPITAL-AND-LIAB> 291,875
<TOT-CAPITALIZATION-AND-LIAB> 666,217
<GROSS-OPERATING-REVENUE> 319,522
<INCOME-TAX-EXPENSE> 14,867
<OTHER-OPERATING-EXPENSES> 274,498
<TOTAL-OPERATING-EXPENSES> 289,365
<OPERATING-INCOME-LOSS> 30,157
<OTHER-INCOME-NET> 223
<INCOME-BEFORE-INTEREST-EXPEN> 30,380
<TOTAL-INTEREST-EXPENSE> 6,133
<NET-INCOME> 24,247
0
<EARNINGS-AVAILABLE-FOR-COMM> 24,247
<COMMON-STOCK-DIVIDENDS> 11,000
<TOTAL-INTEREST-ON-BONDS> 176
<CASH-FLOW-OPERATIONS> 88,135
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
