<PAGE>
Registration No. 333-
As filed with the Securities and Exchange Commission on April 27, 2000
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------
WISCONSIN ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
WISCONSIN 39-1391525
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
231 West Michigan Street
P. O. Box 2949
Milwaukee, Wisconsin 53201
(Address of principal executive offices) (Zip Code)
-------------------
WICOR, Inc. WICOR, Inc. WICOR, Inc.
1987 Stock Option Plan 1992 Director Stock Option 1994 Long-Term Performance
Plan Plan
(Full title of the plans)
-------------------
PAUL DONOVAN
Senior Vice President and Chief Financial Officer
Wisconsin Energy Corporation
231 West Michigan Street
P.O. Box 2949
Milwaukee, Wisconsin 53201
(Name and address of agent for service)
(414) 221-2345
(Telephone number, including area code, of agent for service)
Copy to:
BRUCE C. DAVIDSON
Quarles & Brady LLP
411 East Wisconsin Avenue
Milwaukee, Wisconsin 53202
(414) 277-5000
<PAGE>
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed
Proposed Maximum
Title of Securities Maximum Aggregate Amount of
to be Amount to be Offering Price Offering Registration
Registered (1) Registered (1)(2) Per Share Price (3) Fee
------------------- ----------------- -------------- --------- ------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 par value 4,619,969 shares (3) $63,252,255 $16,698.60
</TABLE>
(1) Consists of the following number of shares to be registered for each of
the plans covered by this registration statement:
o WICOR, Inc. 1987 Stock Option Plan 448,304 shares
o WICOR, Inc. 1992 Director Stock Option Plan 370,758 shares
o WICOR, Inc. 1994 Long-Term Performance Plan 3,800,907 shares
On April 26, 2000, WICOR, Inc. ("WICOR") became a wholly owned
subsidiary of the registrant through the merger of CEW Acquisition,
Inc. ("Acquisition"), a wholly owned subsidiary of the registrant, with
and into WICOR (the "Merger") pursuant to an Agreement and Plan of
Merger by and among the registrant, WICOR and Acquisition dated as of
June 27, 1999, as amended (the "Merger Agreement"). Under the Merger
Agreement, at the effective time of the Merger, each then outstanding
option to purchase shares of WICOR common stock, $1.00 par value (with
attached common stock purchase rights) (a "WICOR Option"), under
WICOR's 1987 Stock Option Plan (the "1987 Plan"), 1992 Director Stock
Option Plan (the "1992 Plan") or 1994 Long-Term Performance Plan (the
"1994 Plan"), each as amended (collectively, the "Plans"), was assumed
by the registrant and converted into an option to purchase shares of
registrant's common stock on the same terms and conditions as were
applicable under such WICOR Option. However, the number of shares
covered by such WICOR Option and the exercise price per share were
adjusted to reflect the Exchange Ratio under the Merger Agreement of
1.5194 shares of registrant common stock for each share of WICOR common
stock, and WICOR Options that were outstanding on June 27, 1999 became
fully vested at the effective time of the Merger notwithstanding any
vesting requirement otherwise applicable thereto.
(2) The Plans and the WICOR Options provide for possible adjustment of the
number, price and kind of shares covered by options granted in the
event of certain capital or other changes affecting the common stock.
Accordingly, pursuant to Rule 416(a) under the Securities Act of 1933,
this registration statement covers, in addition to the above 4,619,969
shares of common stock, an indeterminate number of shares that may
become subject to the assumed WICOR Options by means of any such
adjustment.
(3) The assumed WICOR Options, as adjusted pursuant to the Merger
Agreement, have various exercise prices ranging from $6.7872 to
$19.6212 per share of registrant's common stock. Pursuant to Rule
457(h), the aggregate offering price and the registration fee have been
computed upon the basis of the aggregate exercise price of the assumed
WICOR Options. The following table shows the aggregate exercise price
and the weighted average exercise price per share of the assumed WICOR
Options under each of the Plans:
<PAGE>
<TABLE>
<CAPTION>
Number of Shares of Registrant
Common Stock Covered by Aggregate Weighted Average
Plan Assumed WICOR Options Exercise Price Exercise Price Per Share
---- ------------------------------ -------------- ------------------------
<S> <C> <C> <C>
1987 Plan 448,304 $ 3,618,838.92 $ 8.0725
1992 Plan 370,758 $ 4,535,683.19 $12.2335
1994 Plan 3,800,907 $55,097,732.75 $14.4959
--------- --------------
4,619,969 $63,252,254.86
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1 and 2) will be
sent or given to Plan participants as specified by Rule 428(b)(1) under the
Securities Act of 1933.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Wisconsin Energy Corporation (the
"registrant") (Commission File No. 001-09057) with the Securities and Exchange
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 are incorporated herein by reference:
o Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, as amended by Amendment No. 1 on Form
10-K/A.
o Registrant's Current Report on Form 8-K dated April 26, 2000.
o Description of the registrant's common stock contained in the
registrant's Current Report on Form 8-K dated September 1,
1999, which updates and supersedes the description of the
common stock incorporated by reference in the registrant's
Registration Statement on Form 8-B dated January 7, 1987, as
previously updated by the Registrant's Current Report on Form
8-K dated October 31, 1991; and any future amendment or report
filed for the purpose of updating such description.
All documents subsequently filed by the registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment 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 herein and to be a part hereof from the
date of the filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part hereof.
Item 4. Description of Securities.
Not applicable. See third bullet point in Item 3 above.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Wisconsin Energy is incorporated under the Wisconsin Business
Corporation Law (the "WBCL").
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<PAGE>
Under Section 180.0851(1) of the WBCL, Wisconsin Energy is required to
indemnify a director or officer, to the extent such person is successful on the
merits or otherwise in the defense of a proceeding, for all reasonable expenses
incurred in the proceeding if such person was a party because he or she was a
director or officer of Wisconsin Energy. In all other cases, Wisconsin Energy is
required by Section 180.0851(2) to indemnify a director or officer against
liability incurred in a proceeding to which such person was a party because he
or she was a director or officer of Wisconsin Energy, unless it is determined
that he or she breached or failed to perform a duty owed to Wisconsin Energy and
the breach or failure to perform constitutes: (i) a willful failure to deal
fairly with Wisconsin Energy or its shareholders in connection with a matter in
which the director or officer has a material conflict of interest; (ii) a
violation of criminal law, unless the director or officer had reasonable cause
to believe his or her conduct was lawful or no reasonable cause to believe his
or her conduct was unlawful; (iii) a transaction from which the director or
officer derived an improper personal profit; or (iv) willful misconduct. Section
180.0858(1) provides that, subject to certain limitations, the mandatory
indemnification provisions do not preclude any additional right to
indemnification or allowance of expenses that a director or officer may have
under Wisconsin Energy's Restated Articles of Incorporation, Bylaws, any written
agreement or a resolution of the Board of Directors or shareholders.
Section 180.0859 of the WBCL provides that it is the public policy of
the State of Wisconsin to require or permit indemnification, allowance of
expenses and insurance to the extent required or permitted under Sections
180.0850 to 180.0858 of the WBCL, for any liability incurred in connection with
a proceeding involving a federal or state statute, rule or regulation regulating
the offer, sale or purchase of securities.
Section 180.0828 of the WBCL provides that, with certain exceptions, a
director is not liable to a corporation, its shareholders, or any person
asserting rights on behalf of the corporation or its shareholders, for damages,
settlements, fees, fines, penalties or other monetary liabilities arising from a
breach of, or failure to perform, any duty resulting solely from his or her
status as a director, unless the person asserting liability proves that the
breach or failure to perform constitutes any of the four exceptions to mandatory
indemnification under Section 180.0851(2) referred to above.
Under Section 180.0833 of the WBCL, directors of Wisconsin Energy
against whom claims are asserted with respect to the declaration of improper
dividends or distributions to shareholders or certain other improper acts which
they approved are entitled to contribution from other directors who approved
such actions and from shareholders who knowingly accepted an improper dividend
or distribution, as provided therein.
Articles V and VI of Wisconsin Energy's Bylaws provide that Wisconsin
Energy will indemnify to the fullest extent permitted by law any person who is
or was a party or threatened to be made a party to any legal proceeding by
reason of the fact that such person is or was a director or officer of Wisconsin
Energy, or is or was serving at the request of Wisconsin Energy as a director or
officer of another enterprise, against expenses (including attorney fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by the person in connection with such legal proceeding. Wisconsin Energy's
Restated Articles of Incorporation and Bylaws do not limit the indemnification
to which directors and officers are entitled under the WBCL.
Officers and directors of Wisconsin Energy are covered by insurance
policies purchased by Wisconsin Energy under which they are insured (subject to
exceptions and limitations specified in the policies) against expenses and
liabilities arising out of actions, suits or proceedings to which they are
parties by reason of being or having been such directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
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<PAGE>
Item 8. Exhibits.
See Exhibit Index following the Signatures page(s) in this registration
statement, which Exhibit Index is incorporated herein by reference.
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;
(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,
represent a fundamental change in the
information set forth in the registration
statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high end of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than a 20% change in
the maximum aggregate offering price set
forth in the "Calculation of Registration
Fee" table in the effective registration
statement; and
(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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3 or Form S-8, and the information required
to be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference 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 therein, 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 the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
-3-
<PAGE>
(h) 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 provisions referred to in Item 6 of
this registration statement, 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.
-4-
<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 April 27, 2000.
WISCONSIN ENERGY CORPORATION
By: /s/ RICHARD A. ABDOO
---------------------
Richard A. Abdoo, Chairman of the Board,
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby authorizes Richard A. Abdoo and
Paul Donovan, or either of them, as attorneys-in-fact with full power of
substitution, to execute in the name and on behalf of such person, individually,
and in each capacity stated below or otherwise, and to file, any and all
amendments to this registration statement.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.*
Signature and Title
/s/ RICHARD A. ABDOO
- -------------------------------------------
Richard A. Abdoo, Chairman of the Board,
President and Chief Executive Officer
(Principal Executive Officer and Director)
/s/ PAUL DONOVAN
- -------------------------------------------
Paul Donovan, Senior Vice President
and Chief Financial Officer
(Principal Financial Officer)
/s/ STEPHEN P. DICKSON
- -------------------------------------------
Stephen P. Dickson, Controller
Principal Accounting Officer)
/s/ JOHN F. AHEARNE
- -------------------------------------------
John F. Ahearne, Director
/s/ JOHN F. BERGSTROM
- -------------------------------------------
John F. Bergstrom, Director
/s/ BARBARA L. BOWLES
- -------------------------------------------
Barbara L. Bowles, Director
/s/ ROBERT A. CORNOG
- -------------------------------------------
Robert A. Cornog, Director
/s/ WILLIE D. DAVIS
- -------------------------------------------
Willie D. Davis, Director
/s/ RICHARD R. GRIGG
- -------------------------------------------
Richard R. Grigg, Director
/s/ JOHN N. MACDONOUGH
- -------------------------------------------
John N. MacDonough, Director
/s/ JULIA B. NORTH
- -------------------------------------------
Julia B. North, Director
/s/ FREDERICK P. STRATTON, JR.
- -------------------------------------------
Frederick P. Stratton, Jr., Director
/s/ GEORGE E. WARDEBERG
- -------------------------------------------
George E. Wardeberg, Director
* Each of the above signatures is affixed as of April 27, 2000.
S-1
<PAGE>
WISCONSIN ENERGY CORPORATION
(the "registrant")
Commission File No. 001-09057
EXHIBIT INDEX
TO
S-8 REGISTRATION STATEMENT
<TABLE>
<CAPTION>
Incorporated herein
Exhibit No. Description by reference to Filed herewith
----------- ----------- --------------- --------------
<S> <C> <C> <C>
4.1 Restated Articles of Incorporation of registrant Exhibit (3)-1 to the
registrant's Form 10-Q
for the quarter ended
June 30, 1995
4.2 Bylaws of registrant Exhibit 3.2 to the
registrant's Form 10-K
for the year ended
December 31, 1999
4.3 WICOR, Inc. 1994 Long-Term Performance Exhibit 10.1 to
Plan, as amended WICOR's Form 10-Q
for the quarter ended
June 30, 1998 (File
No. 001-07951)
4.4 Form of Nonstatutory Stock Option Agreement Exhibit 4.2 to
under the WICOR, Inc. 1994 Long-Term WICOR's Registration
Performance Plan Statement on Form S-8
(Reg. No. 33-55755)
4.5 Form of Nonstatutory Stock Option Agreement X
for February, 2000 Grants of Options under the
WICOR, Inc. 1994 Long-Term Performance
Plan
4.6 WICOR, Inc. 1992 Director Stock Option Plan, Exhibit 10.3 to
as amended WICOR's Form 10-K
for the year ended
December 31, 1998
(File No. 001-07951)
4.7 Form of Director Nonstatutory Stock Option Exhibit 4.2 to
Agreement under the WICOR, Inc. 1992 WICOR's Registration
Director Stock Option Plan Statement on Form S-8
(Reg. No. 33-67132)
4.8 Form of Director Nonstatutory Stock Option X
Agreement for February, 2000 Option Grants
under the WICOR, Inc. 1992 Director Stock
Option Plan
</TABLE>
EI-1
<PAGE>
<TABLE>
<CAPTION>
Incorporated herein
Exhibit No. Description by reference to Filed herewith
----------- ----------- --------------- --------------
<S> <C> <C> <C>
4.9 WICOR, Inc.1987 Stock Option Plan, as Exhibit 4.1 to
amended WICOR's Registration
Statement on Form S-8
(Reg. No. 33-67134)
4.10 Form of Nonstatutory Stock Option Agreement Exhibit 10.20 to
under the WICOR, Inc. 1987 Stock Option Plan WICOR's Form 10-K
for the year ended
December 31, 1991
(File No. 001-07951)
5 Opinion of Quarles & Brady LLP as to the X
legality of the securities being registered (to the
extent such securities may be original issuance
or treasury shares as opposed to market
purchase shares)
23.1 Consent of PricewaterhouseCoopers LLP X
23.2 Consent of Quarles & Brady LLP Contained in
Exhibit 5
23.3 Consent of Arthur Andersen LLP X
24 Power of Attorney Contained in
registrant's
Signatures page
</TABLE>
EI-2
<PAGE>
EXHIBIT 4.5
WICOR, INC.
NONSTATUTORY 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 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/her stock ownership in the Company
in order to increase his/her 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 nonstatutory 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 a transaction pursuant to Paragraph 12
hereof, this Option cannot be exercised prior to the Initial Exercise Date set
forth on the signature page hereof and thereafter may only be exercised with
respect to one-third (1/3) of the Option Stock on and after the Exercise Date,
with respect to two-thirds (2/3) of the Option Stock on a cumulative basis on
and after the first (1st) anniversary of the Initial Exercise Date and in full
on and after the second (2nd) anniversary of the Initial Exercise Date. The
Option may not be exercised after the Expiration Date set forth on the signature
page hereof. 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
<PAGE>
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 is 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 Transferable. The Option is not transferable,
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 or his/her guardian or legal
representative.
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/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
thirty-six (36) 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
2
<PAGE>
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
3
<PAGE>
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 July 27, 1999, between the Company
and Manufacturers Hanover Trust Company (now Chase Mellon Shareholder Services)
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.
4
<PAGE>
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.
14. WEC Merger. Notwithstanding any other provision in this
Agreement to the contrary, this Agreement is subject to Sections 2.9 and 6.1(k)
of the Agreement and Plan of Merger by and among Wisconsin Energy Corporation
and WICOR, Inc. and CEW Acquisition, Inc., dated as of June 27, 1999, as amended
September 9, 1999, (the "Merger Agreement"). As a result, at the Effective Time
of the Merger (as defined in the Merger Agreement), each Option then outstanding
hereunder shall be converted into an option to purchase shares of Wisconsin
Energy Common Stock as described in Section 2.9 of the Merger Agreement.
Further, the transactions resulting from the Merger Agreement shall not result
in any acceleration of vesting under this Agreement, except as described below.
From and after the Effective Time of the Merger (as defined in the Merger
Agreement), each Option hereunder shall vest at the earliest of: (i) one-third
(1/3) of the shares of Wisconsin Energy Common Stock (as defined in the Merger
Agreement) covered by each Option shall vest on each of the first, second and
third annual anniversary of the Grant Date of such Option; or (ii) a termination
of the Participant's employment with the WICOR Companies (as defined in the
Merger Agreement) by the WICOR Companies without "Cause" as defined in the
Wisconsin Energy Severance Policies (as defined in the Merger Agreement) or by
the Participant under circumstances where the Participant is entitled to
"Separation Benefits" under Section 4.2(a) of the Severance Policies (other than
Section 4.2(a)(i) of the Severance Policies); or (iii) a "change in control" of
Wisconsin Energy after the Effective Time of the Merger.
5
<PAGE>
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:
-----------------------
(Signature)
-----------------------
(Name)
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.:
-------------------------------
6
<PAGE>
EXHIBIT 4.8
WICOR, INC.
DIRECTOR NONSTATUTORY 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
director of the Company or one of its subsidiaries whose signature is set forth
on the signature page hereof (the "Optionee").
W I T N E S S E T H :
WHEREAS, the Company has adopted the 1992 Director Stock Option
Plan, as amended, (the "Plan") to permit options for shares of the Company's
common stock (the "Stock"), to be awarded to eligible directors of the Company
or any subsidiary (as defined in the Plan); and
WHEREAS, the Optionee is an eligible director of the Company or a
Subsidiary, and the Company desires to retain him/her as a director and provide
him/her with a means to acquire or to increase his/her proprietary interest in
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 Optionee a nonstatutory 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. 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. The Option
shall terminate two (2) years following the date the Optionee ceases to be a
director of the Company or any Subsidiary, but no later than the Expiration
Date. 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 Optionee, or by a
combination thereof.
(b) If the purchase price is 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 Optionee 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 Transferable. The Option is not transferable,
voluntarily or by operation of law, other than by will or by the laws of descent
and
<PAGE>
distribution. During the lifetime of the Optionee, the Option may be exercised
only by the Optionee or his/her guardian or legal representative.
3. Securities Law Restrictions. The Optionee 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. No Rights As Shareholder. The Optionee shall have no rights as
a holder of the Option Stock until a certificate for the Option Stock has been
validly issued.
5. Tax Withholding. (a) It shall be a condition of the obligation
of the Company to issue Option Stock to the Optionee or the Beneficiary, and the
Optionee agrees, that the Optionee 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 Optionee may elect to have the Company withhold that
number of shares of Option Stock otherwise issuable to the Optionee 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, (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 of the Optionee occurs prior to the expiration of such six-month
period. The full number of shares of Option Stock issuable on exercise of the
Option may be issued to the Optionee, and in such event the Optionee 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 Optionee shall
deliver cash in lieu of such fractional share. All elections shall be made in a
form approved by the Committee and shall be subject to disapproval, in whole or
in part, by the Committee. As used herein, "Tax Date" means the date on which
the Optionee 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.
6. Beneficiary. (a) The person whose name appears on the
signature page hereof after the caption "Beneficiary", or any successor
designated by the Optionee in accordance herewith (the person who is the
Optionee'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 Optionee. The Optionee 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
2
<PAGE>
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 Optionee's death.
(b) If no such Beneficiary designation is in effect at the time
of the Optionee's death, or if no designated Beneficiary survives the Optionee
or if such designation conflicts with applicable law, the Optionee's estate
shall be entitled to exercise the Option, to the extent it is exercisable after
the death of the Optionee. If the Committee is in doubt as to the right of any
person 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. 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.
8. 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 Optionee any right to continue as a director of
the Company or any Subsidiary, or interfere with or limit in any way the right
of the Company's Board of Directors to terminate the Optionee's directorship at
any time.
9. Interpretation by Committee. The Optionee agrees that any
dispute or disagreement which may arise in connection with this Agreement shall
be resolved by the Compensation Committee of the Company's Board of Directors or
any successor to such Committee which administers the Plan ("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 Optionees awarded Option Stock.
10. WEC Merger. Notwithstanding any other provisions in this
Agreement to the contrary, this Agreement is subject to Sections 2.9 and 6.1(k)
of the Agreement and Plan of Merger by and among Wisconsin Energy Corporation
and WICOR, Inc. and CEW Acquisition, Inc. dated as of June 27, 1999, as amended
September 9, 1999 (the "Merger Agreement"). As a result, each Option hereunder
then outstanding shall, at the Effective Time of the Merger (as defined in the
Merger
3
<PAGE>
Agreement), be converted into an option to purchase shares of Wisconsin Energy
Common Stock as described in Section 2.9 of the Merger Agreement.
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
Option Stock shall be given to the Optionee at either his/her office location or
his/her 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 Optionee, the Beneficiary
and the personal representatives and heirs of the Optionee.
(f) This Agreement is subject in all respects to the terms and
conditions of the Plan.
4
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be
executed by its duly authorized officer and the Optionee has hereunto affixed
his or her signature, all as of the day and year set forth below.
WICOR, INC. ("Company")
By:
--------------------------------
Title:
Optionee:
-----------------------
(Name)
-----------------------
(Signature)
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.:
-------------------------------
5
<PAGE>
Exhibit 5
Quarles & Brady LLP
411 East Wisconsin Avenue
Milwaukee, WI 53202-4497
April 27, 2000
Wisconsin Energy Corporation
231 West Michigan Street
P.O. Box 2949
Milwaukee, WI 53201
Re: WICOR, Inc. 1987 Stock Option Plan, 1992 Director Stock Option
Plan and 1994 Long-Term Performance Plan
Ladies and Gentlemen:
We are providing this opinion in connection with the Registration
Statement of Wisconsin Energy Corporation (the "Company") on Form S-8 (the
"Registration Statement") to be filed under the Securities Act of 1933, as
amended (the "Act"), with respect to the proposed sale by the Company of up to
4,619,969 shares of Common Stock, par value $.01 per share ("Shares"), of the
Company upon the exercise of stock options outstanding under WICOR, Inc.'s
("WICOR") 1987 Stock Option Plan, 1992 Director Stock Option Plan and 1994
Long-Term Performance Plan, each as amended (collectively, the "Plans"), which
were assumed by the Company and converted into options to acquire Common Stock
of the Company pursuant to the Agreement and Plan of Merger by and among the
Company, WICOR and CEW Acquisition, Inc. ("Acquisition"), a wholly owned
subsidiary of the Company, dated as of June 27, 1999, as amended (the "Merger
Agreement"). Pursuant to the Merger Agreement, WICOR became a wholly owned
subsidiary of the Company through the merger of Acquisition with and into WICOR
on April 26, 2000 (the "Merger"). Under the Merger Agreement, each option to
purchase WICOR Common Stock, par value $1.00 per share ("WICOR Common Stock"),
outstanding under the Plans at the effective time of the Merger (a "WICOR
Option") was assumed by the Company and converted into an option to purchase
shares of Company Common Stock on terms adjusted to reflect the Exchange Ratio
under the Merger Agreement of 1.5194 shares of Company Common Stock for each
share of WICOR Common Stock.
We have examined: (i) the Registration Statement; (ii) the Company's
Restated Articles of Incorporation and Bylaws, each as amended to date; (iii)
the Merger Agreement; (iv) the Plans; (v) the corporate proceedings relating to
the authorization for the issuance of the Shares in accordance with the Merger
Agreement; and (vi) such other documents and records and such matters of law as
we have deemed necessary in order to render this opinion.
On the basis of the foregoing, we advise you that, in our opinion:
1. The Company is a corporation duly incorporated and validly
existing under the laws of the State of Wisconsin.
2. The Shares to be sold from time to time upon the exercise of
the WICOR Options assumed under the Plans which are original
issuance or treasury shares, when issued and paid for as
contemplated by the Registration Statement, the WICOR Option
agreements, as assumed and adjusted in
<PAGE>
Wisconsin Energy Corporation
April 27, 2000
Page 2
accordance with the Merger Agreement, and the Plans, will be
validly issued, fully paid and nonassessable by the Company,
subject to the personal liability which may be imposed on
shareholders by Section 180.0622(2)(b) of the Wisconsin
Business Corporation Law, as judicially interpreted, for debts
owing to employees for services performed, but not exceeding
six months service in any one case.
Larry J. Martin, a partner in our firm, serves as General Counsel of
the Company.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving consent, we do not admit that we are "experts"
within the meaning of Section 11 of the Act, or that we come within the category
of persons whose consent is required by Section 7 of the Act.
Very truly yours,
/s/ Quarles & Brady LLP
QUARLES & BRADY LLP
<PAGE>
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 25, 2000, relating to the
financial statements and financial statement schedule, which appears in the
Wisconsin Energy Corporation Annual Report on Form 10-K for the year ended
December 31, 1999.
/s/PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
Milwaukee, Wisconsin
April 27, 2000
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 24, 2000,
included in WICOR, Inc.'s Form 10-K for the year ended December 31, 1999 and
incorporated by reference in Wisconsin Energy Corporation's Form 8-K dated April
26, 2000.
/s/Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Milwaukee, Wisconsin
April 24, 2000
