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Exhibit 10.13
FORM OF
KEY EXECUTIVE EMPLOYMENT AND SEVERANCE
AGREEMENT
[FOR VICE PRESIDENTS]
THIS AGREEMENT, made
and entered into as of the ____ day of ___________, 2008, by and
between Alliant Energy Corporation, a Wisconsin corporation
(referred to herein as “Alliant” and, together with its
subsidiaries and any parent company controlling Alliant, referred
to herein as the “Company”), and _____________________
(hereinafter referred to as “Employee”).
W I T
N E S
S E T
H
WHEREAS, the Employee
is employed by the Company in a key executive capacity and the
Employee’s services are valuable to the conduct of the
business of the Company;
WHEREAS, the Company
desires to continue to attract and retain dedicated and skilled
management employees in a period of industry consolidation,
consistent with achieving the best possible value for its
shareowners in any change in control of the Company;
WHEREAS, the Company
recognizes that circumstances may arise in which a change in
control of the Company occurs, through acquisition or otherwise,
thereby causing a potential conflict of interest between the
Company’s needs for the Employee to remain focused on the
Company’s business and for the necessary continuity in
management prior to and following a change in control, and the
Employee’s reasonable personal concerns regarding future
employment with the Company and economic protection in the event of
loss of employment as a consequence of a change in
control;
WHEREAS, the Company
and the Employee are desirous that any proposal for a change in
control or acquisition of Alliant will be considered by the
Employee objectively and with reference only to the best interests
of Alliant and its shareowners;
WHEREAS, the Employee
will be in a better position to consider the Company’s best
interests if the Employee is afforded reasonable economic security,
as provided in this Agreement, against altered conditions of
employment which could result from any such change in control or
acquisition;
WHEREAS, the Employee
possesses intimate knowledge of the business and affairs of the
Company and has acquired certain confidential information and data
with respect to the Company; and
WHEREAS, the Company
desires to insure, insofar as possible, that it will continue to
have the benefit of the Employee’s services and to protect
its confidential information and goodwill;
NOW, THEREFORE, in
consideration of the foregoing and of the mutual covenants and
agreements hereinafter set forth, the parties hereto mutually
covenant and agree to amend and restate the existing agreement as
follows:
1. Definitions
.
(a) 409A
Affiliate . The term “409A
Affiliate” means each entity that is required to be included
in the Company’s controlled group of corporations within the
meaning of Code Section 414(b), or that is under common control
with the Company within the meaning of Code Section 414(c),
provided, however, that
the phrase “at least 50 percent” shall be used in place
of the phrase “at least 80 percent” each place it
appears therein or in the regulations thereunder.
(b) Act
. For purposes of this Agreement, the term
“Act” means the Securities Exchange Act of 1934, as
amended.
(c) Affiliate and
Associate . For purposes of this
Agreement, the terms “Affiliate” and
“Associate” shall have the respective meanings ascribed
to such terms in Rule l2b-2 of the General Rules and Regulations
under the Act.
(d) Beneficial
Owner . For purposes of this Agreement, a
Person shall be deemed to be the “Beneficial Owner” of
any securities:
(i) which such Person or any of such Person’s
Affiliates or Associates has the right to acquire (whether such
right is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding, or upon
the exercise of conversion rights, exchange rights, rights,
warrants or options, or otherwise; provided, however, that a Person
shall not be deemed the Beneficial Owner of, or to beneficially
own, (A) securities tendered pursuant to a tender or exchange offer
made by or on behalf of such Person or any of such Person’s
Affiliates or Associates until such tendered securities are
accepted for purchase, or (B) securities issuable upon exercise of
Rights issued pursuant to the terms of Alliant’s Rights
Agreement, dated as of January 20, 1999, between Alliant Energy
Corporation (f/k/a Interstate Energy Corporation) and Wells Fargo
Bank Minnesota, N.A. (as successor to Firstar Bank Milwaukee,
N.A.), as amended from time to time (or any successor to such
Rights Agreement), at any time before the issuance of such
securities;
(ii) which such Person or any of such Person’s
Affiliates or Associates, directly or indirectly, has the right to
vote or dispose of or has “beneficial ownership” of (as
determined pursuant to Rule l3d-3 of the General Rules and
Regulations under the Act), including pursuant to any agreement,
arrangement or understanding; provided,
however, that a Person shall not be
deemed the Beneficial Owner of, or to beneficially own, any
security under this subparagraph (ii) as a result of an agreement,
arrangement or understanding to vote such security if the
agreement, arrangement or understanding: (A) arises solely from a
revocable proxy or consent given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable rules and regulations under the Act
and (B) is not also then reportable on a Schedule l3D under the Act
(or any comparable or successor report); or
(iii) which are beneficially owned, directly or
indirectly, by any other Person with which such Person or any of
such Person’s Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring, holding,
voting (except pursuant to a revocable proxy as described in
subparagraph (ii) above) or disposing of any voting securities of
the Company.
(e) Board
. “Board” shall mean the Board of
Directors of Alliant Energy Corporation.
(f) Cause
. “Cause” for termination by the Company
of the Employee’s employment shall, for purposes of this
Agreement, be limited to any of the following: (i) the engaging by
the Employee in intentional conduct not taken in good faith which
has caused demonstrable and serious financial injury to the
Company, as evidenced by a determination in a binding and final
judgment, order or decree of a court or administrative agency of
competent jurisdiction, in effect after exhaustion or lapse of all
rights of appeal, in an action, suit or proceeding, whether civil,
criminal, administrative or investigative; (ii) conviction of a
felony (as evidenced by binding and final judgment, order or decree
of a court of competent jurisdiction, in effect after exhaustion of
all rights of appeal) which substantially impairs the
Employee’s ability to perform the Employee’s duties or
responsibilities; and (iii) continuing willful and unreasonable
refusal by the Employee to perform the Employee’s duties or
responsibilities (unless significantly changed without the
Employee’s consent).
(g) Change in Control of
the Company . A “Change in Control
of the Company” shall be determined with reference to Alliant
Energy Corporation as the Company, as more fully set forth below,
and shall be deemed to have occurred if an event set forth in any
one of the following paragraphs shall have occurred:
(i) any Person (other than (A) Alliant or any of its
subsidiaries, (B) a trustee or other fiduciary holding securities
under any employee benefit plan of the Company, (C) an underwriter
temporarily holding securities pursuant to an offering of such
securities or (D) a corporation owned, directly or indirectly, by
the shareowners of Alliant in substantially the same proportions as
their ownership of stock in Alliant (“Excluded
Persons”)) is or becomes the Beneficial Owner, directly or
indirectly, of securities of Alliant (not including in the
securities beneficially owned by such Person any securities
acquired directly from Alliant or its Affiliates after
[current date] ,
pursuant to express authorization by the Board that refers to this
exception) representing 20% or more of either the then outstanding
shares of common stock of Alliant or the combined voting power of
the Company’s then outstanding voting securities;
or
(ii) the following individuals cease for any reason
to constitute a majority of the number of directors of Alliant then
serving: (A) individuals who, on [same
current date], constituted the Board
and (B) any new director (other than a director whose initial
assumption of office is in connection with an actual or threatened
election contest, including but not limited to a consent
solicitation, relating to the election of directors of the Company)
whose appointment or election by the Board or nomination for
election by the Company’s shareowners was approved by a vote
of at least two-thirds (2/3) of the directors then still in office
who either were directors on [same
current date] , or whose appointment,
election or nomination for election was previously so approved
(collectively the “Continuing Directors”);
provided, however, that
individuals who are appointed to the Board pursuant to or in
accordance with the terms of an agreement relating to a merger,
consolidation, or share exchange involving Alliant (or any direct
or indirect subsidiary of the Company) shall not be Continuing
Directors for purposes of this Agreement until after such
individuals are first nominated for election by a vote of at least
two-thirds (2/3) of the then Continuing Directors and are
thereafter elected as directors by the shareowners of Alliant at a
meeting of shareowners held following consummation of such merger,
consolidation, or share exchange; and,
provided further, that in the event the
failure of any such persons appointed to the Board to be Continuing
Directors results in a Change in Control of the Company, the
subsequent qualification of such persons as Continuing Directors
shall not alter the fact that a Change in Control of the Company
occurred; or
(iii) the shareowners of Alliant approve a merger,
consolidation or share exchange of Alliant with any other
corporation or approve the issuance of voting securities of Alliant
in connection with a merger, consolidation or share exchange of
Alliant (or any direct or indirect subsidiary of the Company)
pursuant to applicable stock exchange requirements, other than (A)
a merger, consolidation or share exchange which would result in the
voting securities of Alliant outstanding immediately prior to such
merger, consolidation or share exchange continuing to represent
(either by remaining outstanding or by being converted into voting
securities of the surviving entity or any parent thereof) at least
50% of the combined voting power of the voting securities of
Alliant or such surviving entity or any parent thereof outstanding
immediately after such merger, consolidation or share exchange, or
(B) a merger, consolidation or share exchange effected to implement
a recapitalization of Alliant (or similar transaction) in which no
Person (other than an Excluded Person) is or becomes the Beneficial
Owner, directly or indirectly, of securities of Alliant (not
including in the securities beneficially owned by such Person any
securities acquired directly from Alliant or its Affiliates
after [same current date]
, pursuant to express authorization by the Board
that refers to this exception) representing 20% or more of either
the then outstanding shares of common stock of Alliant or the
combined voting power of the Company’s then outstanding
voting securities; or
(iv) the shareowners of Alliant approve a plan of
complete liquidation or dissolution of Alliant or an agreement for
the sale or disposition by Alliant of all or substantially all of
the Company’s assets (in one transaction or a series of
related transactions within any period of 24 consecutive months),
other than a sale or disposition by Alliant of all or substantially
all of the Company’s assets to an entity at least 75% of the
combined voting power of the voting securities of which are owned
by Persons in substantially the same proportions as their ownership
of Alliant immediately prior to such sale.
Notwithstanding the foregoing, no “Change in
Control of the Company” shall be deemed to have occurred if
there is consummated any transaction or series of integrated
transactions immediately following which the record holders of the
common stock of Alliant immediately prior to such transaction or
series of transactions continue to own, directly or indirectly, in
the same proportions as their ownership in the Company, an entity
that owns all or substantially all of the assets or voting
securities of Alliant immediately following such transaction or
series of transactions.
(h) Code
. For purposes of this Agreement, the term
“Code” means the Internal Revenue Code of 1986,
including any amendments thereto or successor tax codes
thereof.
(i) Covered
Termination . Subject to Subsection 2(b)
hereof, for purposes of this Agreement, the term “Covered
Termination” means any Termination of Employment of the
Employee during the Employment Period where the Notice of
Termination is delivered on or the Termination Date is any date
prior to the end of the Employment Period.
(j) Employment
Period . Subject to Subsection 2(b)
hereof, for purposes of this Agreement, the term “Employment
Period” means a period commencing on the date of a Change in
Control of the Company, and ending at 11:59 p.m. Central Time on
the earlier of the second anniversary of such date or the
Employee’s Normal Retirement Date.
(k) Good Reason
. For purposes of this Agreement, the Employee shall
have “Good Reason” for termination of employment if an
applicable event occurs and the Employee provides notice to Alliant
of the existence of the event within 90 days of the initial
existence of the event and Alliant fails to cure the event within
30 days of such notice. The applicable events are any one or more
of the following:
(i) a material breach of this Agreement by the
Company, including failure by Alliant to obtain the Agreement
referred to in Subsection 17(a) hereof as provided
therein;
(ii) a material diminution in the Employee’s
base compensation;
(iii) a material diminution in the Employee’s
authority, duties, or responsibilities, including a material
diminution in the budget over which the Employee retains authority;
or
(iv) a material diminution in the authority, duties,
or responsibilities of the supervisor to whom the Employee is
required to report, including a requirement that the Employee
report to a corporate officer or employee instead of reporting
directly to the board of directors or a corporation (or similar
governing body with respect to an entity other than a
corporation).
(l) Normal Retirement
Date . For purposes of this Agreement,
the term “Normal Retirement Date” means “Normal
Retirement Date” as defined in the primary qualified defined
benefit pension plan applicable to the Employee, or any successor
plan, as in effect on the date of the Change in Control of the
Company.
(m) Person
. For purposes of this Agreement, the term
“Person” shall mean any individual, firm, partnership,
corporation or other entity, including any successor (by merger or
otherwise) of such entity, or a group of any of the foregoing
acting in concert.
(n) Separation from
Service . For purposes of this Agreement,
the term “Separation from Service” means an
Employee’s Termination of Employment, or if the Employee
continues to provide services following his or her Termination of
Employment, such later date as is considered a separation from
service from the Company and its 409A Affiliates within the meaning
of Code Section 409A. Specifically, if an Employee continues to
provide services to the Company or a 409A Affiliate in a capacity
other than as an employee, such shift in status is not
automatically a Separation from Service.
(o) Termination of
Employment . For purposes of this
Agreement, the Employee’s Termination of Employment shall
occur when the Company and Employee reasonably anticipate that no
further services will be performed by the Employee for the Company
and its 409A Affiliates or that the level of bona fide services the
Employee will perform after such date as an employee of the Company
and its 409A Affiliates will permanently decrease to no more than
20% of the average level of bona fide services performed by the
Employee (whether as an employee or independent contractor) for the
Company and its 409A Affiliates over the immediately preceding
36-month period (or such lesser period of services).
Notwithstanding the foregoing, if Employee takes a leave of absence
for purposes of military leave, sick leave or other bona fide leave
of absence, the Employee will not be deemed to have incurred a
Termination of Employment for the first 6 months of the leave of
absence, or if longer, for so long as the Employee’s right to
reemployment is provided either by statute or by contract,
including this Agreement; provided that if the leave of absence
is due to a medically determinable physical or mental impairment
that can be expected to result in death or last for a continuous
period of not less than six months, where such impairment causes
the Employee to be unable to perform the duties of his or her
position of employment or any substantially similar position of
employment, the leave may be extended for up to 29 months without
causing a Termination of Employment.
(p) Termination
Date . For purposes of this Agreement,
except as otherwise provided in Subsection 2(b), Subsection 10(b),
and Subsection 17(a) hereof, the term “Termination
Date” means (i) if the Employee’s Termination of
Employment is due to the Employee’s death, the date of death;
(ii) if the Employee’s Termination of Employment is by reason
of voluntary early retirement, as agreed in writing by the Company
and the Employee, the date of such early retirement which is set
forth in such written agreement; (iii) if the Employee’s
Termination of Employment for purposes of this Agreement is by
reason of disability pursuant to Section 12 hereof, the earlier of
30 days after the Notice of Termination is given or one day prior
to the end of the Employment Period; (iv) if the Employee’s
Termination of Employment is by the Employee voluntarily (other
than for Good Reason), the date the Notice of Termination is given;
and (v) if the Employee’s Termination of Employment is by the
Company (other than by reason of disability pursuant to Section 12
hereof) or by the Employee for Good Reason, the earlier of 30 days
after the Notice of Termination is given or one day prior to the
end of the Employment Period. Notwithstanding the
foregoing,
(1) If termination is for Cause pursuant to
Subsection 1(f)(iii) of this Agreement and if the Employee has
cured the conduct constituting such Cause as described by the
Company in its Notice of Termination within such 30-day or shorter
period, then the Employee’s employment hereunder shall
continue as if the Company had not delivered its Notice of
Termination.
(2) If the Employee shall in good faith give a
Notice of Termination for Good Reason and the Company notifies the
Employee that a dispute exists concerning the termination within
the 15-day period following receipt thereof, then the Employee may
elect to continue the Employee’s employment during such
dispute and the Termination Date shall be determined under this
paragraph. If the Employee so elects and it is thereafter
determined that Good Reason did exist, the Termination Date shall
be the earliest of (i) the date on which the dispute is finally
determined, either (x) by mutual written agreement of the parties
or (y) in accordance with Section 23 hereof, (ii) the date of the
Employee’s death or (iii) one day prior to the end of the
Employment Period. If the Employee so elects and it is thereafter
determined that Good Reason did not exist, then the employment of
the Employee hereunder shall continue after such determination as
if the Employee had not delivered the Notice of Termination
asserting Good Reason and there shall be no Termination Date
arising out of such Notice. In either case, this Agreement
continues, until the Termination Date, if any, as if the Employee
had not delivered the Notice of Termination except that, if it is
finally determined that Good Reason did exist, the Employee shall
in no case be denied the benefits described in Sections 8(b) and 9
hereof (including a Termination Payment) based on events occurring
after the Employee delivered his Notice of Termination.
(3) Except as provided in Subsection (l)(m)(2)
above, if the party receiving the Notice of Termination notifies
the other party that a dispute exists concerning the termination
within the appropriate period following receipt thereof and it is
finally determined that the reason asserted in such Notice of
Termination did not exist, then (1) if such Notice was delivered by
the Employee, the Employee will be deemed to have voluntarily
terminated his employment and the Termination Date shall be the
earlier of the date 15- days after the Notice of Termination is
given or one day prior to the end of the Employment Period and (2)
if delivered by the Company, the Company will be deemed to have
terminated the Employee other than by reason of death, disability
or Cause.
2. Termination or
Cancellation Prior to Change in Control .
(a) Subject to Subsection 2(b) hereof, the Company and the Employee
shall each retain the right to cause the Employee to incur a
Termination of Employment at any time prior to a Change in Control
of the Company. Subject to Subsection 2(b) hereof, in the event the
Employee incurs a Termination of Employment prior to a Change in
Control of the Company, this Agreement shall be terminated and
cancelled and of no further force and effect, and any and all
rights and obligations of the parties hereunder shall
cease.
(b) Anything in this Agreement to the contrary
notwithstanding, if a Change in Control of the Company occurs and
if the Employee incurred an involuntary Termination of Employment
by action of the Company (other than a termination due to the
Employee’s death or as a result of the Employee’s
disability or for Cause) during the period of 180 days prior to the
date on which the Change in Control of the Company occurs, and if
it is reasonably demonstrated by the Employee that such Termination
of Employment (i) was at the request of a third party who has taken
steps reasonably calculated to effect a Change in Control of the
Company or (ii) otherwise arose in connection with or in
anticipation of a Change in Control of the Company, then for all
purposes of this Agreement related to the Accrued Benefits and the
Termination Payment in Section 9 hereof, but excluding the
additional benefits in Subsection 8(b) hereof, such Termination of
Employment shall be deemed a “Covered Termination,”
“Notice of Termination” shall be deemed to have been
given, and the “Employment Period” shall be deemed to
have begun on the date of such termination which shall be deemed to
be the “Termination Date” and the date of the Change of
Control of the Company for purposes of this Agreement.
3. Employment
Period . If a Change in Control of the
Company occurs when the Employee is employed by the Company, the
Company will continue thereafter to employ the Employee during the
Employment Period, and the Employee will remain in the employ of
the Company in accordance with and subject to the terms and
provisions of this Agreement. Any Termination of Employment by the
Company of the Employee’s employment during the Employment
Period shall be deemed a termination by the Company for purposes of
this Agreement.
4. Duties
. During the Employment Period, the Employee shall,
in the same capacities and positions held by the Employee at the
time of the Change in Control of the Company or in such other
capacities and positions as may be agreed to by the Company and the
Employee in writing, devote the Employee’s best efforts and
all of the Employee’s business time, attention and skill to
the business and affairs of the Company, as such business and
affairs now exist and as they may hereafter be conducted. The
services which are to be performed by the Employee hereunder are to
be rendered in the same metropolitan area in which the Employee was
employed at the date of such Change in Control of the Company, or
in such other place or places as shall be mutually agreed upon in
writing by the Employee and the Company from time to time. Without
the Employee’s consent, the Employee shall not be required to
be absent from such metropolitan area more than 45 days in any
fiscal year of the Company.
5. Compensation
. During the Employment Period, the Employee shall
be compensated as follows:
(a) The Employee shall receive, at reasonable
intervals (but not less often than monthly) and in accordance with
such standard policies as may be in effect immediately prior to the
Change in Control of the Company, an annual base salary in cash
equivalent of not less than 12 times the Employee’s highest
monthly base salary for the twelve-month period immediately
preceding the month in which the Change in Control of the Company
occurs or, if higher, annual base salary at the rate in effect
immediately prior to the Change in Control of the Company (which
base salary shall be determined prior to any reduction for amounts
deferred under Code Section 401(k) or otherwise, or deducted
pursuant to a cafeteria plan under Code Section 125, subject to
adjustment as hereinafter provided in Section 6 (such salary amount
as adjusted upward from time to time is hereafter referred to as
the “Annual Base Salary”).
(b) The Employee shall receive fringe benefits at
least equal in value to the highest value of such benefits provided
for the Employee at any time during the 180-day period immediately
prior to the Change in Control of the Company or, if more favorable
to the Employee, those provided generally at any time during the
Employment Period to any employees of the Company of comparable
status and position to the Employee; and shall be reimbursed, at
such intervals and in accordance with such standard policies that
are most favorable to the Employee that were in effect at any time
during the 180-day period immediately prior to the Change in
Control of the Company, for any and all monies advanced in
connection with the Employee’s employment for reasonable and
necessary expenses incurred by the Employee on behalf of the
Company, including travel expenses.
(c) The Employee and/or the Employee’s family,
as the case may be, shall be included, to the extent eligible
thereunder (which eligibility shall not be conditioned on the
Employee’s salary grade or on any other requirement which
excludes persons of comparable status and position to the Employee
unless such exclusion was in effect for such plan or an equivalent
plan at any time during the 180-day period immediately prior to the
Change in Control of the Company), in any and all plans providing
benefits for the Company’s salaried employees of comparable
status and position, including but not limited to group life
insurance,
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