Registration No. 333-
UNITED STATES
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:
Chairman and Chief Executive Officer
WICOR, Inc. Jay O. Rothman
626 East Wisconsin Avenue Foley & Lardner
Milwaukee, Wisconsin 53202 777 East Wisconsin Avenue
(414) 291-7026 Milwaukee, Wisconsin 53202
(Name, address and telephone number, (414) 271-2400
including area code, of agent for
service)
__________________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Amount Offering Aggregate Amount of
Securities to be to be Price Offering Registration
Registered Registered(1) Per Share Price Fee
Common Stock,
$1.00 par value,
with attached 925,000 $46.625 $43,128,125 $12,722.80
Common Stock shares and (2) (2)
Purchase rights
Rights
(1) Each share of WICOR, Inc. Common Stock issued will have attached
thereto one Common Stock Purchase Right.
(2) Estimated pursuant to Rule 457(c) and (h) 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
Composite Tape on April 28, 1998. The value attributable to the
Common Stock Purchase Rights is reflected in the price of the
Common Stock.
___________________________
Pursuant to Rule 429 under the Securities Act of 1933, the
Prospectus referred to herein also relates to the Registrant's Registration
Statement on Form S-8 (Reg. No. 33-55755).
<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 by WICOR, Inc. (the "Company"),
are hereby incorporated herein by reference:
1. The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1997.
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998.
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 or the Plan
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.
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,
as amended to date.
(4.2) Form of Nonstatutory Stock Option Agreement
for use in connection with the WICOR, Inc.
1994 Long-Term Performance Plan
(incorporated by references to Exhibit 4.2
to the registrant's Registration Statement
on Form S-8 (Reg. No. 33-55755)).
(4.3) Form of Restricted Stock Agreement for use
in connection with the WICOR, Inc. 1994
Long-Term Performance Plan (incorporated by
reference to Exhibit 4.3 to the registrant's
Registration Statement on Form S-8 (Reg. No.
33-55755)).
(4.4) Restated Articles of Incorporation of WICOR,
Inc., as amended (incorporated by reference
to Exhibit 3.1 to the registrant'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
the registrant's Current Report on Form 8-K,
dated as of August 29, 1989).
(5) Opinion of Foley & Lardner.
(23.1) Consent of Arthur Andersen LLP.
(23.2) Consent of Foley & Lardner (contained in
Exhibit 5 hereto).
(24) Power of Attorney (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 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.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, 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,
each filing of the Registrant's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Securities Exchange Act of 1934) 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 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 this 30th day of April, 1998.
WICOR, INC.
By: /s/ George E. Wardeberg
George E. Wardeberg
Chairman 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 Chairman and Chief April 30, 1998
George E. Wardeberg Executive Officer
(Principal Executive
Officer)
/s/ Joseph P. Wenzler Senior Vice April 30, 1998
Joseph P. Wenzler President, Treasurer
and Chief Financial
Officer (Principal
Financial and
Accounting Officer)
/s/ Wendell F. Bueche Director April 30, 1998
Wendell F. Bueche
/s/ Willie D. Davis Director April 30, 1998
Willie D. Davis
/s/ Jere D. McGaffey Director April 30, 1998
Jere D. McGaffey
/s/ Daniel F. McKeithan, Jr. Director April 30, 1998
Daniel F. McKeithan, Jr.
/s/ Guy A. Osborn Director April 30, 1998
Guy A. Osborn
/s/ Thomas F. Schrader Director April 30, 1998
Thomas F. Schrader
/s/ Stuart W. Tisdale Director April 30, 1998
Stuart W. Tisdale
/s/ Essie M. Whitelaw Director April 30, 1998
Essie M. Whitelaw
/s/ William B. Winter Director April 30, 1998
William B. Winter
<PAGE>
EXHIBIT INDEX
Exhibit No. Exhibit
(4.1) WICOR, Inc. 1994 Long-Term Performance Plan, as amended to
date.
(4.2) Form of Nonstatutory Stock Option Agreement for use in
connection with the WICOR, Inc. 1994 Long Term Performance
Plan (incorporated by reference to Exhibit 4.2 to the
registrant's Registration Statement on Form S-8 (Reg. No.
33-55755)).
(4.3) Form of Restricted Stock Agreement for use in connection
with the WICOR, Inc. 1994 Long-Term Performance Plan
(incorporated by reference to Exhibit 4.3 to the
registrant's Registration Statement on Form S-8 (Reg. No.
33-55755)).
(4.4) Restated Articles of Incorporation of WICOR, Inc., as
amended (incorporated by reference to Exhibit 3.1 to the
registrant'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
the registrant's Current Report on Form 8-K, dated as of
August 29, 1989).
(5) Opinion of Foley & Lardner.
(23.1) Consent of Arthur Andersen LLP.
(23.2) Consent of Foley & Lardner (contained in Exhibit 5 hereto).
(24) Power of Attorney (included on the signature page to this
Registration Statement).
Exhibit 4.1
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 1,745,000. 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.
During any one calendar year, no Participant shall be granted Awards
of Options for, or Stock Appreciation Rights with respect to, more
than 150,000 Shares or receive more than 10,000 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 Participants shall be based on the criteria of
attaining a compounded annual percentage rate of Total Shareholder
Return 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.
As amended through April 23, 1998.
Exhibit 5
F O L E Y & L A R D N E R
A T T O R N E Y S A T L A W
CHICAGO FIRSTAR CENTER SAN DIEGO
JACKSONVILLE 777 EAST WISCONSIN AVENUE SAN FRANCISCO
LOS ANGELES MILWAUKEE, WISCONSIN 53202-5367 TALLAHASSEE
MADISON TELEPHONE (414) 271-2400 TAMPA
ORLANDO FACSIMILE (414) 297-4900 WASHINGTON, D.C.
SACRAMENTO WEST PALM BEACH
April 30, 1998
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 (the
"Securities Act"), relating to an additional 925,000 shares of the
Company's Common Stock, $1 par value (the "Common Stock"), and the
associated rights to purchase shares of Common Stock (the "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 (the "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;
and (v) 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
the Securities Act.
Very truly yours,
/s/ Foley & Lardner
FOLEY & LARDNER
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated January
26, 1998, included in and incorporated by reference in WICOR, Inc.'s Form
10-K for the year ended December 31, 1997 and to all references to our
firm included in this registration statement.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
April 30, 1998
