Exhibit 10.2
FORM OF
KEY EXECUTIVE EMPLOYMENT AND
SEVERANCE AGREEMENT
[
FOR HARVEY, PROTSCH,
SWAN]
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 third 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, hospitalization, medical,
dental, profit sharing and stock bonus plans; provided,
that, (i) in no event shall the aggregate level of benefits
under such plans in which the Employee is includ
