EXHIBIT 4.8
WICOR, INC.
DIRECTOR 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
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
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
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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
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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 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000, 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.
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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:
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Title:
Optionee:
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(Name)
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(Signature)
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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