EXHIBIT 4.5
WICOR, INC.
NONSTATUTORY STOCK OPTION AGREEMENT
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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
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
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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
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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 ▇▇▇▇▇ ▇▇▇▇▇▇ 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.
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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 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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.
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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:
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Title:
Participant:
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(Signature)
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(Name)
No. of Shares of Option Stock:
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Purchase Price per Share:
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Date of Agreement:
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Grant Date:
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Initial Exercise Date:
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Expiration Date:
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Beneficiary:
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Address of Beneficiary:
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Beneficiary Tax Identification
(Social Security)
No.:
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