Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
___________________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________________
WICOR, Inc.
(Exact name of registrant as specified in its charter)
Wisconsin 39-1346701
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
626 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(Address of principal executive offices) (Zip Code)
WICOR, Inc. 1994 Long-Term Performance Plan
(Full title of the plan)
George E. Wardeberg Copy to:
President and Chief
Executive Officer
WICOR, Inc. Jere D. McGaffey
626 East Wisconsin Avenue Foley & Lardner
Milwaukee, Wisconsin 53202 777 East Wisconsin Avenue
(414) 291-7026 Milwaukee, Wisconsin 53202
(Name, address and telephone number,
including area code, of agent for service)
__________________________
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed
Securities to be to be Maximum Maximum Amount of
Registered Registered Offering Aggregate Registration
Price Offering Fee
Per Share Price
Common Stock, 820,000 $28.9375(1) $23,728,750(1) $8,183
$1.00 par value shares
Common Stock 820,000 (2) (2) (2)
Purchase Rights rights
(1) Estimated pursuant to Rule 457(c) under the Securities Act of
1933 solely for the purpose of calculating the registration fee
based on the average of the high and low prices for WICOR, Inc.
Common Stock on the New York Stock Exchange consolidated
reporting system on September 26, 1994.
(2) The value attributable to the Common Stock Purchase Rights is
reflected in the market price of the Common Stock to which the
Rights are attached.
_________________________________
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The document or documents containing the information specified
in Part I are not required to be filed with the Securities and Exchange
Commission (the "Commission") as part of this Form S-8 Registration
Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Commission by WICOR, Inc.
(the "Company") are hereby incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1993, which includes certified financial statements as of and
for the year ended December 31, 1993.
2. The Company's Quarterly Reports on Form 10-Q for the
quarters ended March 31 and June 30, 1994.
3. The description of the Company's Common Stock contained in
Item 1 of the Company's Registration Statement on Form 8-A, including any
amendment or report filed for the purpose of updating such description.
4. The description of the Company's Common Stock Purchase
Rights contained in Item 1 of the Company's Registration Statement on Form
8-A, dated September 1, 1989, including any amendment or report filed for
the purpose of updating such description.
All documents subsequently filed by the Company pursuant to
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934,
as amended, after the date of filing of this Registration Statement and
prior to such time as the Company files a post-effective amendment to this
Registration Statement which indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold
shall be deemed to be incorporated by reference in this Registration
Statement and to be a part hereof from the date of filing of such
documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the securities being offered hereby will be
passed on for the Company by Foley & Lardner, Milwaukee, Wisconsin. Jere
D. McGaffey, a partner in the firm of Foley & Lardner, is a director of
the Company. As of September 15, 1994, Foley & Lardner attorneys who
participated in the preparation of this Registration Statement, including
Mr. McGaffey, beneficially owned 6,928 shares of the Company's Common
Stock and accompanying Common Stock Purchase Rights.
Item 6. Indemnification of Directors and Officers.
Pursuant to the Wisconsin Business Corporation Law and the
Company's By-laws, directors and officers of the Company are entitled to
mandatory indemnification from the Company against certain liabilities and
expenses (i) to the extent such officers or directors are successful in
the defense of a proceeding and (ii) in proceedings in which the director
or officer is not successful in defense thereof, unless it is determined
that the director or officer breached or failed to perform his or her
duties to the Company and such breach or failure constituted: (a) a
willful failure to deal fairly with the Company or its shareholders in
connection with a matter in which the director or officer had a material
conflict of interest; (b) a violation of the criminal law unless the
director or officer had reasonable cause to believe his or her conduct was
lawful or had no reasonable cause to believe his or her conduct was
unlawful; (c) a transaction from which the director or officer derived an
improper personal profit; or (d) willful misconduct. It should be noted
that the Wisconsin Business Corporation Law specifically states that it is
the public policy of Wisconsin to require or permit indemnification in
connection with a proceeding involving securities regulation, as described
therein, to the extent required or permitted as described above.
Additionally, under the Wisconsin Business Corporation Law, directors of
the Company are not subject to personal liability to the Company, its
shareholders or any person asserting rights on behalf thereof for certain
breaches or failures to perform any duty resulting solely from their
status as directors except in circumstances paralleling those in
subparagraphs (a) through (d) outlined above.
Expenses for the defense of any action for which indemnification
may be available may be advanced by the Company under certain
circumstances.
The indemnification provided by the Wisconsin Business
Corporation Law and the Company's By-laws is not exclusive of any other
rights to which a director or officer may be entitled.
The Company maintains a liability insurance policy for its
directors and officers as permitted by Wisconsin law which may extend to,
among other things, liability arising under the Securities Act of 1933, as
amended.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
The following exhibits have been filed (except where otherwise
indicated) as part of this Registration Statement:
Exhibit No. Exhibit
(4.1) WICOR, Inc. 1994 Long-Term
Performance Plan
(4.2) Form of Nonstatutory Stock
Option Agreement for use in
connection with the WICOR, Inc.
1994 Long-Term Performance Plan
(4.3) Form of Restricted Stock
Agreement for use in connection
with the WICOR, Inc. 1994 Long-
Term Performance Plan
(4.4) Restated Articles of
Incorporation of WICOR, Inc., as
amended (incorporated by
reference to Exhibit 3.1 to
WICOR, Inc.'s Annual Report on
Form 10-K for the year ended
December 31, 1992)
(4.5) Rights Agreement, dated as of
August 29, 1989, between WICOR,
Inc. and Manufacturers Hanover
Trust Company (n/k/a Chemical
Bank) (incorporated by reference
to Exhibit 4 to WICOR, Inc.'s
Current Report on Form 8-K,
dated as of August 29, 1989)
(5) Opinion of Foley & Lardner
(23.1) Consent of Arthur Andersen & Co.
(23.2) Consent of Foley & Lardner
(contained in Exhibit 5 hereto)
(24) Power of Attorney relating to
subsequent amendments (included
on the signature page to this
Registration Statement)
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933, as amended;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or
the most recent post-effective amendment thereof) which, individually
or in the aggregate, represents a fundamental change in the
information set forth in the Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, as amended, each such post-effective amendment
shall be deemed to be a new Registration Statement relating to the
securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933, as
amended, each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended,
that is incorporated by reference in this Registration Statement shall be
deemed to be a new Registration Statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under
the Securities Act of 1933, as amended, may be permitted to directors,
officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of
expenses incurred or paid by a director, officer or controlling person of
the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of
such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Milwaukee, State of Wisconsin,
on September 29, 1994.
WICOR, INC.
By: /s/ George E. Wardeberg
George E. Wardeberg
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated. Each person whose signature
appears below constitutes and appoints George E. Wardeberg and Joseph P.
Wenzler, and each of them, his or her true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for him or her
and in his or her name, place and stead, in any and all capacities, to
sign any and all amendments (including post-effective amendments) to this
Registration Statement and to file the same, with all exhibits thereto,
and other documents in connection herewith, with the Securities and
Exchange Commission, granting unto each said attorney-in-fact and agent,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully as he or she might or could
do in person, hereby ratifying and confirming all that each said attorney-
in-fact and agent may lawfully do or cause to be done by virtue hereof.
Signatures Title Date
/s/ George E. Wardeberg President, Chief September 29, 1994
George E. Wardeberg Executive Officer and
Director (Principal
Executive Officer)
/s/ Joseph P. Wenzler Vice President, September 29, 1994
Joseph P. Wenzler Treasurer and Chief
Financial Officer
(Principal Financial
Officer and Principal
Accounting Officer)
/s/ Wendell F. Bueche
Wendell F. Bueche Director September 29, 1994
/s/ Willie D. Davis Director September 29, 1994
Willie D. Davis
/s/ James L. Forbes Director September 29, 1994
James L. Forbes
/s/ Jere D. McGaffey Director September 29, 1994
Jere D. McGaffey
/s/ Daniel F. McKeithan, Jr. Director September 29, 1994
Daniel F. McKeithan, Jr.
/s/ Guy A. Osborn Director September 29, 1994
Guy A. Osborn
/s/ Thomas F. Schrader Director September 29, 1994
Thomas F. Schrader
/s/ Stuart W. Tisdale Director September 29, 1994
Stuart W. Tisdale
/s/ Essie M. Whitelaw Director September 29, 1994
Essie M. Whitelaw
/s/ William B. Winter Director September 29, 1994
William B. Winter
<PAGE>
EXHIBIT INDEX
WICOR, INC. 1994 LONG-TERM PERFORMANCE PLAN
Exhibit No. Exhibit
(4.1) WICOR, Inc. 1994 Long-Term Performance
Plan
(4.2) Form of Nonstatutory Stock Option
Agreement for use in connection with
the WICOR, Inc. 1994 Long-Term
Performance Plan
(4.3) Form of Restricted Stock Agreement for
use in connection with the WICOR, Inc.
1994 Long-Term Performance Plan
(4.4) Restated Articles of Incorporation of
WICOR, Inc., as amended (incorporated
by reference to Exhibit 3.1 to WICOR,
Inc.'s Annual Report on Form 10-K for
the year ended December 31, 1992)
(4.5) Rights Agreement, dated as of August
29, 1989, between WICOR, Inc. and
Manufacturers Hanover Trust Company
(n/k/a Chemical Bank) (incorporated by
reference to Exhibit 4 to WICOR,
Inc.'s Current Report on Form 8-K,
dated as of August 29, 1989)
(5) Opinion of Foley & Lardner
(23.1) Consent of Arthur Andersen & Co.
(23.2) Consent of Foley & Lardner (contained
in Exhibit 5 hereto)
(24) Power of Attorney relating to
subsequent amendments (included on the
signature page to this Registration
Statement)
WICOR, INC.
1994 LONG-TERM PERFORMANCE PLAN
Section 1. Purpose
The purpose of the WICOR, Inc. 1994 Long-Term Performance Plan
(the "Plan") is to enhance the ability of WICOR, Inc. (together with any
successor thereto, the "Company") and its Affiliates (as defined below) to
attract, retain and motivate key salaried employees upon whom, in large
measure, the sustained growth and profitability of the Company depend and
to provide incentives to such key salaried employees which are more
directly linked to the profitability of the Company's businesses and
increases in shareholder value.
Section 2. Definitions
As used in the Plan, the following terms shall have the
respective meanings set forth below:
(a) "Affiliate" shall mean any entity that, directly or through
one or more intermediaries, is controlled by, controls, or is under common
control with, the Company.
(b) "Award" shall mean any Option, Stock Appreciation Right or
Restricted Stock granted under the Plan.
(c) "Award Agreement" shall mean any written agreement,
contract, or other instrument or document evidencing any Award granted
under the Plan.
(d) "Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
(e) "Commission" shall mean the United States Securities and
Exchange Commission or any successor agency.
(f) "Committee" shall mean a committee of the Board of
Directors of the Company designated by such Board to administer the Plan
and composed of not less than two directors, each of whom is a
"disinterested person" within the meaning of Rule 16b-3.
(g) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
(h) "Fair Market Value" shall mean, with respect to any
property (including, without limitation, any Shares or other securities),
the fair market value of such property determined by such methods or
procedures as shall be established from time to time by the Committee.
(i) "Incentive Stock Option" shall mean an Option granted under
Section 6(a) of the Plan that is intended to meet the requirements of
Section 422 of the Code, or any successor provision thereto.
(j) "Key Salaried Employee" shall mean any officer or other key
salaried employee of the Company or of any Affiliate who is responsible
for or contributes to the management, growth or profitability of the
business of the Company or any Affiliate as determined by the Committee.
(k) "Non-Qualified Stock Option" shall mean an Option granted
under Section 6(a) of the Plan that is not intended to be an Incentive
Stock Option.
(l) "Option" shall mean an Incentive Stock Option or a Non-
Qualified Stock Option.
(m) "Participant" shall mean a Key Salaried Employee designated
to be granted an Award under the Plan.
(n) "Person" shall mean any individual, corporation,
partnership, association, limited liability company, joint-stock company,
trust, unincorporated organization, or government or political subdivision
thereof.
(o) "Released Securities" shall mean Shares of Restricted Stock
with respect to which all applicable restrictions have expired, lapsed, or
been waived.
(p) "Restricted Securities" shall mean Awards of Restricted
Stock or other Awards under which issued and outstanding Shares are held
subject to certain restrictions.
(q) "Restricted Stock" shall mean any Shares granted under
Section 6(c) of the Plan.
(r) "Rule 16b-3" shall mean Rule 16b-3 as promulgated by the
Commission under the Exchange Act, or any successor rule or regulation
thereto.
(s) "Shares" shall mean shares of common stock of the Company
and such other securities or property as may become subject to Awards
pursuant to an adjustment made under Section 4(b) of the Plan.
(t) "Stock Appreciation Right" shall mean any right granted
under Section 6(b) of the Plan.
(u) "Total Shareholder Return" shall mean the appreciation of
the price of a share of common stock of the Company, plus the value of
dividends paid thereon assuming reinvestment in common stock of the
Company.
Section 3. Administration
The Plan shall be administered by the Committee; provided,
however, that if at any time the Committee shall not be in existence, the
functions of the Committee as specified in the Plan shall be exercised by
those members of the Board of Directors of the Company who qualify as
"disinterested persons" under Rule 16b-3. Subject to the terms of the
Plan and applicable law, the Committee shall have full power and authority
to: (i) designate Participants; (ii) determine the type or types of
Awards to be granted to each Participant under the Plan; (iii) determine
the number of Shares to be covered by (or with respect to which payments,
rights, or other matters are to be calculated in connection with) Awards
granted to Participants; (iv) determine the terms and conditions of any
Award granted to a Participant; (v) determine whether, to what extent, and
under what circumstances Awards granted to Participants may be settled or
exercised in cash, Shares, other securities, other Awards, or other
property, or canceled, forfeited, or suspended to the extent permitted in
Section 7 of the Plan, and the method or methods by which Awards may be
settled, exercised, canceled, forfeited, or suspended; (vi) determine
whether, to what extent, and under what circumstances cash, Shares, other
securities, other Awards, other property, and other amounts payable with
respect to an Award granted to Participants under the Plan shall be
deferred either automatically or at the election of the holder thereof or
of the Committee; (vii) interpret and administer the Plan and any
instrument or agreement relating to, or Award made under, the Plan
(including, without limitation, any Award Agreement); (viii) establish,
amend, suspend, or waive such rules and regulations and appoint such
agents as it shall deem appropriate for the proper administration of the
Plan; and (ix) make any other determination and take any other action that
the Committee deems necessary or desirable for the administration of the
Plan. Unless otherwise expressly provided in the Plan, all designations,
determinations, interpretations, and other decisions under or with respect
to the Plan or any Award shall be within the sole discretion of the
Committee, may be made at any time, and shall be final, conclusive, and
binding upon all Persons, including the Company, any Affiliate, any
Participant, any holder or beneficiary of any Award, any shareholder, and
any employee of the Company or of any Affiliate.
The Committee shall solicit and consider the recommendations of
the Chief Executive Officer of the Company with regard to, among other
things, the designation of Participants, the type of Awards to be granted
under the Plan to such Participants and the number of Shares to be subject
thereto, and the other terms and conditions of Awards granted to
Participants, subject to the limitations of Rule 16b-3.
Section 4. Shares Available for Award
(a) Shares Available. Subject to adjustment as provided in
Section 4(b):
(i) Number of Shares Available. The total number of
Shares with respect to which Awards may be granted under the Plan
shall be 820,000. If, after the effective date of the Plan, any
Shares covered by an Award granted under the Plan, or to which any
Award relates, are forfeited or if an Award otherwise terminates,
expires or is canceled prior to the delivery of all of the Shares or
of other consideration issuable or payable pursuant to such Award and
if such forfeiture, termination, expiration or cancellation occurs
prior to the payment of dividends or the exercise by the holder of
other indicia of ownership of the Shares to which the Award relates,
then the number of Shares counted against the number of Shares
available under the Plan in connection with the grant of such Award,
to the extent of any such forfeiture, termination, expiration or
cancellation, shall again be available for granting of additional
Awards under the Plan; provided, however, that if an Award covering
additional Shares is granted to a Participant in connection with such
forfeiture, termination, expiration or cancellation, then the Shares
subject to the forfeiture, termination, expiration or cancellation
shall be counted against the total number of Shares with respect to
which Awards may be granted under the Plan and the maximum number of
Shares that may be the subject of Awards granted to individual
Participants under the Plan in an amount equal to the number of
Shares to which such additional grant relates.
(ii) Limitation on Awards to Individual Participants. No
Participant shall be granted Awards that could result in such
Participant exercising Options for, or Stock Appreciation Rights with
respect to, more than 125,000 Shares or receiving more than 25,000
Shares of Restricted Stock under the Plan.
(iii) Accounting for Awards. The number of Shares
covered by an Award under the Plan, or to which such Award relates,
shall be counted on the date of grant of such Award against the
number of Shares available for granting Awards under the Plan;
provided, however, that if Options and Stock Appreciation Rights are
granted in tandem and the exercise of either an Option or Stock
Appreciation Right results in an offsetting reduction in the number
of Options or Stock Appreciation Rights subject to the Award, then
the number of Shares to which such Award relates shall only be
counted against the number of Shares available for granting Awards
under the Plan to the extent of the aggregate number of Shares as to
which such Award may be exercised.
(iv) Sources of Shares Deliverable Under Awards. Any
Shares delivered pursuant to an Award may consist, in whole or in
part, of authorized and unissued Shares or of treasury Shares.
(b) Adjustments. In the event that the Company shall pay a
dividend on its common stock in Shares, effect a stock split, or effect a
similar corporate transaction or event that affects the Shares such that
an adjustment is determined by the Committee to be appropriate in order to
prevent dilution or enlargement of the benefits or potential benefits
intended to be made available under the Plan, then the number of Shares
subject to the Plan and which thereafter may be made the subject of Awards
and the number of Shares subject to outstanding Awards under the Plan, and
the exercise and grant prices thereof, shall be equitably adjusted by the
Committee such that the number of Shares, as adjusted, shall bear the same
relation to the total number of outstanding shares of common stock of the
Company following the transaction or event as immediately prior to such
transaction or event; provided, however, in each case, that with respect
to Awards of Incentive Stock Options no such adjustment shall be
authorized to the extent that such authority would cause the Plan to
violate Section 422(b)(1) of the Code or any successor provision thereto;
and provided further, however, that the number of Shares subject to any
Award payable or denominated in Shares shall always be a whole number.
Section 5. Eligibility
Any Key Salaried Employee, including any executive officer or
employee who is also a director of the Company or of any Affiliate, who is
not a member of the Committee shall be eligible to be designated a
Participant.
Section 6. Awards
(a) Options. The Committee is hereby authorized to grant
Options to Participants with the terms and conditions as set forth below
and with such additional terms and conditions, in either case not
inconsistent with the provisions of the Plan, as the Committee shall
determine; provided, however, that no Option shall be granted, directly or
indirectly, in connection with the forfeiture, termination, cancellation
or expiration of an Option previously granted under the Plan prior to its
normal expiration date if such forfeited, terminated, canceled or expired
Option has an exercise price higher than the Option proposed to be
granted.
(i) Exercise Price. The exercise price per Share under an
Option shall be determined by the Committee; provided, however, that
such exercise price shall not be less than 100% of the Fair Market
Value of a Share on the date of grant of such Option; and provided
further, that such exercise price shall not be adjusted following the
date of grant of such Option except as provided in Section 4(b)
hereof.
(ii) Option Term. The term of each Option shall be fixed
by the Committee; provided, however, that in no event shall the term
of any Option exceed a period of ten years from the date of its
grant.
(iii) Exercisability and Method of Exercise. An Option
shall become exercisable in such manner and within such period or
periods and in such installments or otherwise as shall be determined
by the Committee. The Committee also shall determine the method or
methods by which, and the form or forms, including, without
limitation, cash, Shares, other securities, other Awards, or other
property, or any combination thereof, having a Fair Market Value on
the exercise date equal to the relevant exercise price, in which
payment of the exercise price with respect to any Option may be made
or deemed to have been made.
(iv) Incentive Stock Options. The terms of any Incentive
Stock Option granted under the Plan shall comply in all respects with
the provisions of Section 422 of the Code, or any successor provision
thereto, and any regulations promulgated thereunder.
(b) Stock Appreciation Rights. The Committee is hereby
authorized to grant Stock Appreciation Rights to Participants. Subject to
the terms of the Plan and any applicable Award Agreement, a Stock
Appreciation Right granted under the Plan shall confer on the holder
thereof a right to receive, upon exercise thereof, the excess of (i) the
Fair Market Value of one Share on the date of exercise over (ii) the grant
price of the right as specified by the Committee, which shall not be less
than the Fair Market Value of one Share on the date of grant of the Stock
Appreciation Right. Subject to the terms of the Plan, the grant price,
term, methods of exercise, methods of settlement (including whether the
Participant will be paid in cash or Shares, or a combination thereof), and
any other terms and conditions of any Stock Appreciation Right shall be as
determined by the Committee; provided, however, that the grant price of a
Stock Appreciation Right may not be adjusted following the date of grant
of such Stock Appreciation Right except as provided in Section 4(b)
hereof. The Committee may impose such conditions or restrictions on the
exercise of any Stock Appreciation Right as it may deem appropriate,
including, without limitation, restricting the time of exercise of the
Stock Appreciation Right to specified periods as may be necessary to
satisfy the requirements of Rule 16b-3.
(c) Restricted Stock Awards.
(i) Issuance. The Committee is hereby authorized to grant
Awards of Restricted Stock to Participants.
(ii) Restrictions. Shares of Restricted Stock granted to
Participants shall be subject to such restrictions as the Committee
may impose, which restrictions may lapse separately or in combination
at such time or times, in such installments or otherwise, as the
Committee may deem appropriate.
(iii) Performance Criteria. The restrictions
applicable to Company executives and the Chairman and President of
each subsidiary of the Company shall be based on the criteria of
attaining over a period of at least three years a compounded annual
percentage rate of Total Shareholder Return compared to a specified
group of gas distribution utilities. The restrictions applicable to
other executives of the subsidiaries shall be as determined by the
Committee.
(iv) Registration. Any Restricted Stock granted under the
Plan to a Participant may be evidenced in such manner as the
Committee may deem appropriate. In the event any stock certificate
is issued in respect of Shares of Restricted Stock granted under the
Plan to a Participant, such certificate shall be registered in the
name of the Participant and shall bear an appropriate legend (as
determined by the Committee) referring to the terms, conditions, and
restrictions applicable to such Restricted Stock.
(v) Payment of Restricted Stock. At the end of the
applicable restriction period relating to Restricted Stock granted to
a Participant, one or more stock certificates for the appropriate
number of Shares, free of restrictions, shall be delivered to the
Participant, or, if the Participant received stock certificates
representing the Restricted Stock at the time of grant, the legends
placed on such certificates shall be removed.
(vi) Forfeiture. Except as otherwise determined by the
Committee, upon termination of employment of a Participant (as
determined under criteria established by the Committee) for any
reason during the applicable restriction period, all Shares of
Restricted Stock still subject to restriction shall be forfeited by
the Participant and reacquired by the Company.
(d) General.
(i) No Consideration for Awards. Awards shall be granted
to Participants for no cash consideration unless otherwise determined
by the Committee.
(ii) Award Agreements. Each Award granted under the Plan
shall be evidenced by an Award Agreement in such form (consistent
with the terms of the Plan) as shall have been approved by the
Committee.
(iii) Awards May Be Granted Separately or Together.
Awards to Participants under the Plan may be granted either alone or
in addition to, in tandem with, or in substitution for any other
Award or any award granted under any other plan of the Company or any
Affiliate. Awards granted in addition to or in tandem with other
Awards, or in addition to or in tandem with awards granted under any
other plan of the Company or any Affiliate, may be granted either at
the same time as or at a different time from the grant of such other
Awards or awards.
(iv) Limits on Transfer of Awards. No Award (other than
Released Securities), and no right under any such Award, shall be
assignable, alienable, saleable, or transferable by a Participant
otherwise than by will or by the laws of descent and distribution
(or, in the case of an Award of Restricted Securities, to the
Company); provided, however, that a Participant at the discretion of
the Committee may be entitled, in the manner established by the
Committee, to designate a beneficiary or beneficiaries to exercise
his or her rights, and to receive any property distributable, with
respect to any Award upon the death of the Participant. Each Award,
and each right under any Award, shall be exercisable, during the
lifetime of the Participant, only by such individual or, if
permissible under applicable law, by such individual's guardian or
legal representative. No Award (other than Released Securities), and
no right under any such Award, may be pledged, alienated, attached,
or otherwise encumbered, and any purported pledge, alienation,
attachment, or encumbrance thereof shall be void and unenforceable
against the Company or any Affiliate.
(v) Term of Awards. Except as otherwise provided in the
Plan, the term of each Award shall be for such period as may be
determined by the Committee.
(vi) Rule 16b-3 Six-Month Limitations. To the extent
required in order to comply with Rule 16b-3 only, any equity security
offered pursuant to the Plan may not be sold for at least six months
after acquisition, except in the case of death or disability, and any
derivative security issued pursuant to the Plan shall not be
exercisable for at least six months, except in case of death or
disability of the holder thereof. Terms used in the preceding
sentence shall, for the purposes of such sentence only, have the
meanings, if any, assigned or attributed to them under Rule 16b-3.
(vii) Share Certificates; Representation by
Participants. In addition to the restrictions imposed pursuant to
Section 6(c) hereof, all certificates for Shares delivered under the
Plan pursuant to any Award or the exercise thereof shall be subject
to such stop transfer orders and other restrictions as the Committee
may deem advisable under the Plan or the rules, regulations, and
other requirements of the Commission, any stock exchange or other
market upon which such Shares are then listed or traded, and any
applicable federal or state securities laws, and the Committee may
cause a legend or legends to be put on any such certificates to make
appropriate reference to such restrictions. The Committee may
require each Participant or other Person who acquires Shares under
the Plan by means of an Award originally made to a Participant to
represent to the Company in writing that such Participant or other
Person is acquiring the Shares without a view to the distribution
thereof.
Section 7. Amendment and Termination; Waiver of Conditions
(a) Amendments to the Plan. The Board of Directors of the
Company may amend, alter, suspend, discontinue, or terminate the Plan at
any time; provided, however, that no amendment, alteration, suspension,
discontinuation or termination of the Plan shall in any manner (except as
otherwise provided in this Section 7) adversely affect any Award granted
and then outstanding under the Plan without the consent of the
Participant; provided further that, notwithstanding any other provision of
the Plan or any Award Agreement, without the approval of the shareholders
of the Company, no amendment, alteration, suspension, discontinuation, or
termination of the Plan shall be made that would:
(i) increase the total number of Shares available for
Awards under the Plan or the maximum number of Shares with respect to
which Awards may be made to individual Participants, except as
provided in Section 4(b) hereof;
(ii) modify the performance criteria pursuant to which
Restricted Stock vests;
(iii) materially increase the benefits accruing to
Participants under the Plan; or
(iv) materially modify the requirements as to eligibility
for participation in the Plan.
(b) Adjustments of Awards Upon Certain Acquisitions. In the
event the Company or any Affiliate shall assume outstanding employee
awards or the right or obligation to make future such awards in connection
with the acquisition of another business or another corporation or
business entity, the Committee may make such adjustments, not inconsistent
with the terms of the Plan, in the terms of Awards granted to Participants
as it shall deem appropriate in order to achieve reasonable comparability
or other equitable relationship between the assumed awards and the Awards
granted under the Plan to Participants as so adjusted.
(c) Correction of Defects, Omissions, and Inconsistencies. The
Committee may correct any defect, supply any omission, or reconcile any
inconsistency in any Award or Award Agreement in the manner and to the
extent it shall deem necessary or desirable to carry the Plan into effect.
Section 8. General Provisions
(a) No Rights to Awards. No Key Salaried Employee, Participant
or other Person shall have any claim to be granted any Award under the
Plan, and there is no obligation for uniformity of treatment of Key
Salaried Employees, Participants, or holders or beneficiaries of Awards
under the Plan. The terms and conditions of Awards need not be the same
with respect to each Participant.
(b) Withholding. No later than the date as of which an amount
first becomes includible in the gross income of a Participant for federal
income tax purposes with respect to any Award under the Plan, the
Participant shall pay to the Company, or make arrangements satisfactory to
the Company regarding the payment of, any federal, state, local or foreign
taxes of any kind required by law to be withheld with respect to such
amount. Unless otherwise determined by the Committee, withholding
obligations arising with respect to Awards to Participants under the Plan
may be settled with Shares (other than Restricted Securities), including
Shares that are part of, or are received upon exercise of, the Award that
gives rise to the withholding requirement. The obligations of the Company
under the Plan shall be conditional on such payment or arrangements, and
the Company and any Affiliate shall, to the extent permitted by law, have
the right to deduct any such taxes from any payment otherwise due to the
Participant. The Committee may establish such procedures as it deems
appropriate for the settling of withholding obligations with Shares,
including, without limitation, the establishment of such procedures as may
be necessary to satisfy the requirements of Rule 16b-3.
(c) No Limit on Other Compensation Arrangements. Nothing
contained in the Plan shall prevent the Company or any Affiliate from
adopting or continuing in effect other or additional compensation
arrangements, and such arrangements may be either generally applicable or
applicable only in specific cases.
(d) Rights and Status of Recipients of Awards. The grant of an
Award shall not be construed as giving a Participant the right to be
retained in the employ of the Company or any Affiliate. Further, the
Company or any Affiliate may at any time dismiss a Participant from
employment, free from any liability, or any claim under the Plan. Except
for rights accorded under the Plan and under any applicable Award
Agreement, Participants shall have no rights as holders of Shares as a
result of the granting of Awards hereunder.
(e) Unfunded Status of the Plan. Unless otherwise determined
by the Committee, the Plan shall be unfunded and shall not create (or be
construed to create) a trust or a separate fund or funds. The Plan shall
not establish any fiduciary relationship between the Company and any
Participant or other Person. To the extent any Person holds any right by
virtue of a grant under the Plan, such right (unless otherwise determined
by the Committee) shall be no greater than the right of an unsecured
general creditor of the Company.
(f) Governing Law. The validity, construction, and effect of
the Plan and any rules and regulations relating to the Plan shall be
determined in accordance with the internal laws of the State of Wisconsin
and applicable federal law.
(g) Severability. If any provision of the Plan or any Award
Agreement or any Award is or becomes or is deemed to be invalid, illegal,
or unenforceable in any jurisdiction, or as to any Person or Award, or
would disqualify the Plan, any Award Agreement or any Award under any law
deemed applicable by the Committee, such provision shall be construed or
deemed amended to conform to applicable laws, or if it cannot be so
construed or deemed amended without, in the determination of the
Committee, materially altering the intent of the Plan, any Award Agreement
or the Award, such provision shall be stricken as to such jurisdiction,
Person, or Award, and the remainder of the Plan, any such Award Agreement
and any such Award shall remain in full force and effect.
(h) No Fractional Shares. No fractional Shares or other
securities shall be issued or delivered pursuant to the Plan, any Award
Agreement or any Award, and the Committee shall determine (except as
otherwise provided in the Plan) whether cash, other securities, or other
property shall be paid or transferred in lieu of any fractional Shares or
other securities, or whether such fractional Shares or other securities or
any rights thereto shall be canceled, terminated, or otherwise eliminated.
(i) Headings. Headings are given to the Sections and
subsections of the Plan solely as a convenience to facilitate reference.
Such headings shall not be deemed in any way material or relevant to the
construction or interpretation of the Plan or any provision thereof.
Section 9. Effective Date of the Plan
The Plan shall be effective as of March 1, 1994, subject,
however, to the approval of the Plan by the shareholders of the Company at
the next annual meeting of shareholders, or any adjournment thereof,
within twelve months following the date of adoption of the Plan by the
Board of Directors of the Company.
Section 10. Term of the Plan
No Award shall be granted under the Plan after March 1, 2004.
However, unless otherwise expressly provided in the Plan or in an
applicable Award Agreement, any Award theretofore granted may extend
beyond such date, and, to the extent set forth in the Plan, the authority
of the Committee to amend, alter, adjust, suspend, discontinue, or
terminate any such Award, or to waive any conditions or restrictions with
respect to any such Award, and the authority of the Board of Directors of
the Company to amend the Plan, shall extend beyond such date.
WICOR, INC.
NON-STATUTORY STOCK OPTION AGREEMENT
THIS AGREEMENT is made and entered into as of the date set forth
on the signature page hereof by and between WICOR, Inc., a Wisconsin
corporation with its principal offices at Milwaukee, Wisconsin (the
"Company"), and the employee of the Company or one of its affiliates and
whose signature is set forth on the signature page hereof (the
"Participant").
W I T N E S S E T H :
WHEREAS, the Company has adopted the 1994 Long-Term Performance
Plan (the "Plan") to permit options for shares of the Company's common
stock (the "Stock"), to be awarded to certain key salaried employees of
the Company and any affiliate (individually, a "Participating Company" and
collectively, the "Participating Companies"); and
WHEREAS, the Participant is a key salaried employee of a
Participating Company, and the Company desires such employee to remain in
such employ and to further an opportunity for his stock ownership in the
Company in order to increase his proprietary interest in the success of
the Company;
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, the parties hereby mutually
covenant and agree as follows:
1. Award of Option. (a) Subject to the terms and conditions
set forth herein, the Company hereby awards the Participant a non-
statutory option (the "Option") to purchase the number of shares of Stock
set forth on the signature page hereof (the "Option Stock") at the
purchase price per share set forth on the signature page hereof, which
shall not be less than Fair Market Value on the date of grant. "Fair
Market Value" means the average of the high and low sales prices for a
share of Stock in consolidated trading on the relevant date. Except with
respect to an exercise pursuant to Paragraph 4 hereof or a transaction
pursuant to Paragraph 12 hereof, this Option cannot be exercised prior to
the first anniversary of the date hereof and thereafter may only be
exercised with respect to one-third (1/3) of the Option Stock on and after
the first (1st) anniversary of the date hereof, with respect to two-thirds
(2/3) of the Option Stock on a cumulative basis on and after the second
(2nd) anniversary of the date hereof and in full on and after the third
(3rd) anniversary of the date hereof. The Option may not be exercised
prior to the Initial Exercise Date set forth on the signature page hereof
or after the Expiration Date set forth thereon. Except as provided
herein, the Option shall not be exercisable after the termination of the
Participant's employment with all Participating Companies. Absence of the
Participant on leave approved by a duly elected officer of the Company,
other than the Participant, shall not be considered a termination of
employment during the period of such leave. The Option may be exercised
in whole or in part (but no exercise shall be for fewer than 50 shares of
Stock or all of the shares subject to the Option, if fewer) by notice in
writing to the Company. The aggregate purchase price for the Stock for
which the Option is exercised shall be paid to the Company at the time of
exercise in cash, Stock registered in the name of the Participant, or by a
combination thereof.
(b) If the purchase price may be paid wholly or partly in Stock,
any Stock tendered in payment thereof shall be free of all adverse claims
and duly endorsed in blank by the Participant or accompanied by stock
powers duly endorsed in blank. Stock tendered shall be valued at Fair
Market Value on the date on which the Option is exercised.
2. Option Not Transferrable. The Option is not transferrable,
voluntarily or by operation of law, other than by will or by the laws of
descent and distribution. During the lifetime of the Participant, the
Option may be exercised only by the Participant.
3. Securities Law Restrictions. The Participant agrees and
acknowledges with respect to any Option Stock that has not been registered
under the Securities Act of 1933, as amended (the "Act") that (i) he or
she 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 for the Option Stock to such effect.
4. Exercise of Option After Termination of Employment Due to
Death, Retirement or Total Disability. (a) If the Participant's
employment with all Participating Companies is terminated because of
death, Retirement or Total Disability (as such terms are defined below)
the Participant or, in the case of his or her death, the Participant's
Beneficiary (as defined herein) shall be entitled to exercise the Option
to the extent otherwise exercisable within twenty-four (24) months after
such termination of employment, but in no event beyond the Expiration
Date.
(b) As used herein, (i) "Retirement" means termination of
employment with all Participating Companies pursuant to any pension or
retirement plan of any Participating Company, except that if the
Participant's employment is terminated for Cause (as hereinafter defined)
or because of death or Total Disability, such termination shall not be
"Retirement" for purposes hereof, and (ii) "Total Disability" means the
complete and permanent inability of a Participant to perform all of his
duties under the terms of his employment with any Participating Company,
as determined by the Compensation Committee of the Company's Board of
Directors or any successor to such Committee which administers the Plan,
or if no such Committee has been appointed, by the Board of Directors of
the Company (collectively, the "Committee") upon the basis of such
evidence, including independent medical reports and data, as the Committee
deems appropriate or necessary.
5. Exercise of Option After Termination of Employment Other
Than for Cause, Death, Retirement or Total Disability. If the
Participant's employment with the Company is terminated for any reason
other than Cause (as defined below), death, Retirement or Total
Disability, the Participant shall be entitled to exercise the Option to
the extent otherwise exercisable until three (3) months after such
termination of employment, but in no event beyond the Expiration Date. As
used herein, "Cause" means, as determined by the Committee, the
Participant's intentional dishonest or illegal conduct in connection with
the Participant's performance of services for any Participating Company.
6. Beneficiary. (a) The person whose name appears on the
signature page hereof after the caption "Beneficiary" or any successor
designated by the Participant in accordance herewith (the person who is
the Participant's Beneficiary at the time of his death herein referred to
as the "Beneficiary") shall be entitled to exercise the Option, to the
extent it is exercisable, after the death of the Participant. The
Participant may from time to time revoke or change the 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 Participant's death.
(b) If no such Beneficiary designation is in effect at the time
of a Participant's death, or if no designated Beneficiary survives the
Participant or if such designation conflicts with applicable law, the
Participant's estate shall be entitled to exercise the Option, to the
extent it is exercisable after the death of the Participant. If the
Committee is in doubt as to the right of any person to exercise the
Option, the Company may refuse to recognize such exercise, without
liability for any interest or dividends on the Option Stock, until the
Committee determines the person entitled to exercise the Option, or the
Company may apply to any court of appropriate jurisdiction and such
application shall be a complete discharge of the liability of the Company
therefor.
7. No Rights As Shareholder. The Participant shall have no
rights as a holder of the Option Stock until a certificate for the Option
Stock has been validly issued.
8. Tax Withholding. (a) It shall be a condition of the
obligation of the Company to issue Option Stock to the Participant or the
Beneficiary, and the Participant agrees, that the Participant shall pay to
the Company upon its demand, such amount as may be requested by the
Company for the purpose of satisfying its liability to withhold federal,
state, or local income or other taxes incurred by reason of the exercise
of the Option.
(b) The Participant may elect to have the Company withhold that
number of shares of Option Stock otherwise issuable to the Participant
upon exercise of the Option or to deliver to the Company a number of
shares of Stock, in each case, having a Fair Market Value on the Tax Date
(as defined below) equal to the minimum amount required to be withheld as
a result of such exercise. The election must be made in writing and, if
the Participant is an Insider (as defined below), (i) delivered to the
Company either six months or more prior to the Tax Date or during a ten-
day period beginning on the third day following the release of the
Company's quarterly or annual summary statement of sales and earnings
which occurs prior to the Tax Date and (ii) shall not be effective until
at least six months after the Grant Date, provided, however, that the
restriction in clause (ii) shall not apply in the event death or Total
Disability of the Participant occurs prior to the expiration of such six-
month period. If the Participant is not an Insider, the election must be
delivered to the Company prior to the Tax Date. If the Participant is an
Insider, the full number of shares of Option Stock issuable on exercise of
the Option may be issued to the Participant, and in such event the
Participant shall be unconditionally obligated to tender back to the
Company, as soon as practicable after the Tax Date, a number of shares of
Stock having a Fair Market Value on the Tax Date equal to the minimum
amount required to be withheld. If the number of shares so determined
shall include a fractional share, the Participant shall deliver cash in
lieu of such fractional share. All elections shall be made in a form
approved by the Committee and shall be subject to disapproval, in whole or
in part, by the Committee. As used herein, (i) "Tax Date" means the date
on which the Participant must include in his or her gross income for
federal income tax purposes the fair market value of the Option Stock over
the purchase price therefor and (ii) "Insider" means an officer or
director of the Company or a beneficial owner of more than 10% of the
class of Stock.
9. Adjustments in Event of Change in Stock. In the event that
the Company shall pay a dividend on its Stock in shares of Stock or other
securities, effect a Stock split, or effect a similar corporate
transaction or other event which, in the judgment of the Committee could
dilute or enlarge the benefits or potential benefits intended to be made
available under the Plan, the Committee may, subject to the provisions of
the Plan, make such adjustments in the number or kind of shares of Option
Stock issuable on exercise of the Option, or in the terms, conditions or
restrictions of this Agreement, including the purchase price, as the
Committee deems equitable.
10. Powers of Company Not Affected. The existence of the
Option shall not affect in any way the right or power of the Company or
its shareholders 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 Option Stock or the rights thereof, or dissolution or
liquidation of the Company, or any sale or transfer of all or any part of
its assets or business, or any other corporate act or proceeding, whether
of a similar character or otherwise. Nothing in this Agreement shall
confer upon the Participant any right to continue in the employment of any
Participating Company or interfere with or limit in any way the right of
any Participating Company to terminate the Participant's employment at any
time.
11. Interpretation by Committee. The Participant 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 Participants awarded Option
Stock.
12. Change of Control. Any defined term used in this Paragraph
and not defined elsewhere in this Agreement shall have the meaning given
it in that certain Rights Agreement, dated as of August 29, 1989, between
the Company and Manufacturers Hanover Trust Company, or any successor
agreement as the Committee shall determine. If a Person becomes an
Acquiring Person, the Option provided herein shall be fully exercisable
notwithstanding any vesting requirement otherwise provided in Paragraph 1
hereof.
13. Miscellaneous. (a) This Agreement shall be governed and
construed in accordance with the internal laws of the State of Wisconsin
applicable to contracts made and to be performed therein between residents
thereof.
(b) This Agreement may not be amended or modified except by the
written consent of the parties hereto.
(c) The captions of this Agreement are inserted for convenience
of reference only and shall not be taken into account in construing this
Agreement.
(d) Any notice, filing or delivery hereunder or with respect to
Option Stock shall be given to the Participant 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 626 East Wisconsin
Avenue, Milwaukee, Wisconsin 53202, Attention: Treasurer. All such
notices shall be given by first class mail, postage prepaid, or by
personal delivery.
(e) This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns and shall be binding
upon and, subject to Paragraph 2, inure to the benefit of the Participant,
the Beneficiary and the personal representatives and heirs of the
Participant.
(f) This Agreement is subject in all respects to the terms and
conditions of the Plan.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer and the Participant has hereunto
affixed his or her signature, all as of the day and year set forth below.
WICOR, INC. ("Company")
By: ____________________________________
Title:
____________________________________________
Participant:________________________________
No. of Shares of Option Stock:
Purchase Price per Share:
Date of Agreement:
Grant Date:
Initial Exercise Date:
Expiration Date:
Beneficiary:________________________________
Address of Beneficiary:
____________________________________________
____________________________________________
Beneficiary Tax Identification (Social
Security)
No.: _______________________________________
WICOR, INC.
RESTRICTED STOCK AGREEMENT
THIS AGREEMENT is made and entered into as of the date set forth
on the signature page hereof by and between WICOR, Inc., a Wisconsin
corporation with its principal offices at Milwaukee, Wisconsin (the
"Company"), and the employee of the Company or one of its affiliates and
whose signature is set forth on the signature page hereof (the
"Participant").
W I T N E S S E T H :
WHEREAS, the Company has adopted the 1994 Long-Term Performance
Plan (the "Plan") to permit shares of the Company's common stock (the
"Stock"), to be awarded to certain key salaried employees of the Company
and any subsidiary (individually, a "Participating Company" and
collectively, the "Participating Companies"); and
WHEREAS, the Participant is a key salaried employee of a
Participating Company, and the Company desires such employee to remain in
such employ and to further an opportunity for his stock ownership in the
Company in order to increase his proprietary interest in the success of
the Company;
NOW, THEREFORE, in consideration of the premises and of the
covenants and agreements herein set forth, the parties hereby mutually
covenant and agree as follows:
1. Award of Restricted Stock. Subject to the terms and
conditions set forth herein, the Company hereby awards the Participant the
number of shares of Stock set forth on the signature page hereof (the
"Restricted Stock").
2. Restrictions. Except as otherwise provided herein,
Restricted Stock may not be sold, transferred, pledged, assigned,
encumbered or otherwise alienated or hypothecated until the date of
release (the "Release Date") determined in accordance with the performance
criteria schedule attached hereto as Exhibit A (the "Performance Criteria
Schedule"). Any defined term used in this Paragraph and not defined
elsewhere in this Agreement shall have the meaning given it in that
certain Rights Agreement, dated as of August 29, 1989, between the Company
and Manufacturers Hanover Trust Company, or any successor agreement as the
Committee shall determine. Notwithstanding anything in this Paragraph 2,
the date on which a Person becomes an Acquiring Person shall be the
Release Date.
3. Escrow. Certificates for shares of Restricted Stock shall
be issued as soon as practicable in the name of the Participant but shall
be held in escrow by the Company, as escrow agent. Upon issuance of such
certificates, (i) the Company shall give the Participant a receipt for the
Restricted Stock held in escrow which will state that the Company holds
such Stock in escrow for the account of the Participant, subject to the
terms of this Agreement, and (ii) the Participant shall give the Company a
stock power for such Stock duly endorsed in blank which will be held in
escrow for use in the event such Stock is forfeited in whole or in part.
Unless theretofore forfeited as provided herein, Restricted Stock shall
cease to be held in escrow and certificates for such Stock shall be
delivered to the Participant on the Release Date.
4. Transfer After Release Date; Securities Law Restrictions.
As determined in accordance with the Performance Criteria Schedule, that
portion of Restricted Stock shall become free of the restrictions of
Paragraph 2 and be freely transferable by the Participant on the Release
Date. Notwithstanding the foregoing or anything to the contrary herein,
the Participant agrees and acknowledges with respect to any Restricted
Stock that has not been registered under the Securities Act of 1933, as
amended (the "Act") (i) he or she 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 for the
Restricted Stock to such effect.
5. Termination of Employment or Death. If the Participant's
employment with any Participating Company is terminated for any reason
(including death) prior to the Release Date, all Restricted Stock shall be
forfeited to the Company on the date on which such termination of
employment occurs.
6. Certificate Legend. In addition to any legends placed on
certificates for Restricted Stock under Paragraph 4 hereof, each
certificate for shares of Restricted Stock may bear the following legend:
"THE SALE OR OTHER TRANSFER OF THE SHARES OF STOCK
REPRESENTED BY THIS CERTIFICATE, WHETHER VOLUNTARY,
INVOLUNTARY OR BY OPERATION OF LAW, IS SUBJECT TO CERTAIN
RESTRICTIONS SET FORTH IN THE WICOR, INC. 1994 LONG-TERM
PERFORMANCE PLAN AND A RESTRICTED STOCK AGREEMENT BETWEEN
WICOR, INC. AND THE REGISTERED OWNER HEREOF. A COPY OF
SUCH PLAN AND SUCH AGREEMENT MAY BE OBTAINED FROM THE
SECRETARY OF WICOR, INC."
When the restrictions imposed by Paragraph 2 hereof terminate, the
Participant shall be entitled to have the foregoing legend removed from
the certificates representing such Restricted Stock.
7. Voting Rights; Dividends and Other Distributions. (a) While
the Restricted Stock is subject to restrictions under Paragraph 2 and
prior to any forfeiture thereof, the Participant may exercise full voting
rights for the Restricted Stock registered in his or her name and held in
escrow hereunder.
(b) While the Restricted Stock is subject to the restrictions
under Paragraph 2 and prior to any forfeiture thereof, the Participant
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
terms, conditions and 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 Participant
shall have, with respect to the Restricted Stock, all other rights of
holders of Stock.
8. Tax Withholding. (a) It shall be a condition of the
obligation of the Company to issue or release from escrow Restricted Stock
to the Participant, and the Participant agrees, that the Participant shall
pay to the Company upon demand such amount as may be requested by the
Company for the purpose of satisfying its liability to withhold federal,
state, or local income or other taxes incurred by reason of the award of
the Restricted Stock or as a result of the termination of the restrictions
on such Stock hereunder.
(b) If the Participant does not make an election under Section
83(b) of the Internal Revenue Code of 1986, as amended, with respect to
the Restricted Stock awarded hereunder, the Participant may satisfy the
Company's withholding tax requirements by electing to have the Company
withhold that number of shares of Restricted Stock otherwise deliverable
to the Participant from escrow hereunder or to deliver to the Company a
number of shares of Stock, in each case, having a Fair Market Value on the
Tax Date (as defined below) equal to the minimum amount required to be
withheld as a result of the termination of the restrictions on such
Restricted Stock. The election must be made in writing and, if the
Participant is an Insider (as defined below), (i) delivered to the Company
either six months or more prior to the Tax Date or during a ten-day period
beginning on the third day following the release of the Company's
quarterly or annual summary statement of sales and earnings which occurs
prior to the Tax Date and (ii) shall not be effective until at least six
months after the Grant Date, provided, however, that the restriction in
clause (ii) shall not apply in the event death or Total Disability of the
Participant occurs prior to the expiration of such six-month period. If
the Participant is not an Insider, the election must be delivered to the
Company prior to the Tax Date. If the Participant is an Insider, the full
number of shares of Restricted Stock deliverable may be released to the
Participant, and in such event the Participant shall be unconditionally
obligated to tender back to the Company, as soon as practicable after the
Tax Date, a number of shares of Stock having a Fair Market Value on the
Tax Date equal to the minimum amount required to be withheld. If the
number of shares so determined shall include a fractional share, the
Participant shall deliver cash in lieu of such fractional share. All
elections shall be made in a form approved by the Committee and shall be
subject to disapproval, in whole or in part, by the Committee. As used
herein, (i) "Tax Date" means the date on which the Participant must
include in his or her gross income for federal income tax purposes the
fair market value of the Restricted Stock over the purchase price therefor
and (ii) "Insider" means an officer or director of the Company or a
beneficial owner of more than 10% of the class of Stock.
9. Powers of Company Not Affected. The existence of the
Restricted Stock shall not affect in any way the right or power of the
Company or its shareholders to make or authorize any combination,
subdivision or reclassification of the Stock or any reorganization,
merger, consolidation, business combination, exchange of shares, or other
change in the Company's capital structure or its business, or any issue of
bonds, debentures or stock having rights or preferences equal, superior or
affecting the Restricted Stock or the rights thereof, or dissolution or
liquidation of the Company, or any sale or transfer of all or any part of
its assets or business, or any other corporate act or proceeding, whether
of a similar character or otherwise. Nothing in this Agreement shall
confer upon the Participant any right to continue in the employment of any
Participating Company, or interfere with or limit in any way the right of
any Participating Company to terminate the Participant's employment at any
time.
10. Interpretation by Committee. The Participant 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 Participants awarded Restricted
Stock.
11. Miscellaneous. (a) This Agreement shall be governed and
construed in accordance with the internal laws of the State of Wisconsin
applicable to contracts made and to be performed therein between residents
thereof.
(b) This Agreement may not be amended or modified except by the
written consent of the parties hereto.
(c) The captions of this Agreement are inserted for convenience
of reference only and shall not be taken into account in construing this
Agreement.
(d) Any notice, filing or delivery hereunder or with respect to
Restricted Stock shall be given to the Participant 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 626 East
Wisconsin Avenue, Milwaukee, Wisconsin 53202, Attention: Treasurer. All
such notices shall be given by first class mail, postage prepaid, or by
personal delivery.
(e) This Agreement shall be binding upon and inure to the
benefit of the Company and its successors and assigns and shall be binding
upon and inure to the benefit of the Participant, except that the
Participant may not transfer any interest in any Restricted Stock prior to
the release of the restrictions imposed by Paragraph 2.
(f) This Agreement is subject in all respects to the terms and
conditions of the Plan.
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer and the Participant has hereunto
affixed his or her signature, all as of the day and year set forth below.
WICOR, INC. ("Company")
By:_________________________________________
Title:
Participant: _______________________________
No. of Shares of Restricted Stock: _________
Date of Agreement: _________________________
Grant Date: ________________________________
Foley & Lardner
Firstar Center
777 East Wisconsin Avenue
Milwaukee, WI 53202-5367
September 29, 1994
WICOR, Inc.
626 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
Gentlemen:
We have acted as counsel for WICOR, Inc. (the "Company") in
conjunction with the preparation of a Form S-8 Registration Statement (the
"Registration Statement") to be filed by the Company with the Securities
and Exchange Commission under the Securities Act of 1933, as amended
("Securities Act"), relating to 820,000 shares of the Company's Common
Stock, $1 par value ("Common Stock"), and the associated rights to
purchase shares of Common Stock ("Rights"), which may be issued pursuant
to the WICOR, Inc. 1994 Long-Term Performance Plan (the "Plan"). The
terms of the Rights are as set forth in that certain Rights Agreement
("Rights Agreement"), dated as of August 29, 1989, by and between the
Company and Chemical Bank (f/k/a Manufacturers Hanover Trust Company). We
have examined: (i) the Plan; (ii) signed copies of the Registration
Statement; (iii) the Company's Restated Articles of Incorporation and By-
laws, as amended to date; (iv) the Rights Agreement; (v) resolutions of
the Company's Board of Directors and shareholders with respect to the
Plan; and (vi) such other proceedings, documents and records as we have
deemed necessary to enable us to render this opinion.
Based on the foregoing, we are of the opinion that:
1. The Company is a corporation validly existing under the
laws of the State of Wisconsin.
2. The Common Stock, when issued and paid for in the manner
provided in the Plan, will be validly issued, fully paid and nonassessable
and no personal liability will attach to the ownership thereof, except
with respect to wage claims of employees of the Company for services
performed not to exceed six months' service in any one case, as provided
in Section 180.0622(2)(b) of the Wisconsin Business Corporation Law and
judicial interpretations thereof.
3. The Rights when issued pursuant to the terms of the Rights
Agreement will be validly issued.
We consent to the use of this opinion as an exhibit to the
Registration Statement. In giving our consent, we do not admit that we
are "experts" within the meaning of Section 11 of the
Securities Act, or within the category of persons whose consent is
required by Section 7 of said Act.
Very truly yours,
FOLEY & LARDNER
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated February
11, 1994 included and incorporated by reference in WICOR, Inc.'s Form 10-K
for the year ended December 31, 1993 and to all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
September 28, 1994
