EXHIBIT
10.39
AMENDED AND
RESTATED
DEFERRED
COMPENSATION AGREEMENT
This Agreement, made
this __________ day of __________, by and between Madison Gas
and Electric Company, located in Madison, Wisconsin, (hereinafter
referred to as “MGE”); and __________
(hereinafter referred to as the “Employee”),
shall be effective as of __________.
WITNESSETH:
WHEREAS
, the Employee is
employed as an Officer of MGE; and
WHEREAS
, the Employee has
rendered valuable services to MGE; and
WHEREAS
, MGE desires to benefit
from the Employee’s continuing loyalty, service and counsel
and to assist the Employee in providing for retirement as well as
the contingencies of Disability (as defined below) and death;
and
[ WHEREAS , the
Employee and MGE previously entered into a Deferred Compensation
Agreement on (the
“Grandfathered Agreement”), which is amended and
restated by this Agreement; and]
[ WHEREAS , the
terms of this Agreement are applicable only to amounts deferred
under this Agreement after December 31, 2004, and amounts deferred
under the Grandfathered Agreement on or before December 31, 2004
remain subject to the terms of the Grandfathered Agreement as in
effect as of December 31, 2004.]
NOW
THEREFORE ,
in consideration of the premises and the mutual covenants and
agreements hereinafter set forth, it is hereby agreed as
follows:
SECTION 1. –
EMPLOYMENT
a.
MGE agrees to employ
the Employee and the Employee agrees to serve MGE in such capacity
or capacities as designated from time to time by the Board of
Directors of MGE (hereinafter referred to as the
“Board”), until such employment is terminated by either
party for any reason, including the resignation by the Employee, or
the reclassification of the Employee by the Board, from the
position as an Officer of the Company.
b.
The Employee agrees to
devote his/her business time, attention, skill and efforts during
the term of his/her employment, to the faithful and diligent
performance of his/her duties to MGE, and that he/she will at all
times serve and further the best interests of MGE to the best of
his/her abilities.
SECTION 2. -
COMPENSATION
MGE shall pay the
Employee during his/her term of employment with MGE, such monthly
salary as the Board may determine from time to time, together with
deferred compensation payable hereunder, as provided in Section 5
hereof.
SECTION 3. -
ADMINISTRATION
The Fiduciary
Investment Committee of the Company (the “Committee”)
shall have the duty of administering the terms and conditions of
this Agreement, except for Section 1 a., Section 2 and Section 10
hereof. Actions taken by the Committee shall be binding on MGE and
the Board, and the Employee directly affected thereby. In the
absence of such a Committee, the Board shall administer this
Agreement.
SECTION 4. -
DEFERRALS; ACCOUNTING
a.
MGE shall establish a
bookkeeping reserve for the Employee (hereinafter called
“Deferred Compensation Account”). The Deferred
Compensation Account shall serve solely as a device for determining
the amount of deferred compensation to be paid to the Employee at
the later time herein provided, and shall not constitute or be
treated as a segregated trust fund of any kind, it being expressly
provided that the amounts credited to the Deferred Compensation
Account shall be and remain the sole property of MGE; and shall at
all times continue to be part of MGE’s general funds. The
Employee and any designated beneficiary hereunder shall have no
proprietary rights of any nature whatsoever with respect to the
Deferred Compensation Account, unless and until such time as a
payment is made to the Employee from the amounts credited to the
Deferred Compensation Account as hereinafter provided, and then
only as to the amount of such payment, and only to the extent of
any unsecured general creditor of MGE.
b.
Commencing on
__________ and ending on __________, and each succeeding calendar
year during the term of Employee’s employment, MGE shall
credit to the Employee’s Deferred Compensation Account the
amount or portion of the Employee’s compensation for each
calendar month as the Employee has previously designated in writing
prior to __________.
c.
With respect to any
succeeding calendar year, the Employee shall have the right to
change the amount of his/her compensation designated to be
deferred, provided that, the Employee must notify MGE in writing
prior to the beginning of the year the change is to be effective
that he/she desires to change the amount or portion of compensation
for such year to be deferred.
d.
For each calendar month
during the term of this Agreement, amounts credited to the
Employee’s Deferred Compensation Account shall earn interest
at the rate quoted at the close of the preceding June 30 or
December 31, as applicable, on U.S. Treasury Bills having a 26-week
maturity, increased by one percentage point, compounded monthly,
provided however, that in no event shall the interest rate be less
than seven percent (7%) per annum, compounded monthly.
SECTION 5. –
TIME OF PAYMENT
a.
Payments from the
Deferred Compensation Account, pursuant to Section 6 hereunder,
shall commence upon the Employee’s Separation from Service
(as defined below) with MGE, unless payable sooner in accordance
with subsection b. or c. of this Section 5.
A “Separation
from Service” means a termination of services provided by the
Employee to MGE, as determined by MGE in accordance with Treasury
Regulation section 1.409A-1(h), but excluding a termination of
services by reason of the Employee’s death or Disability.
In determining whether the Employee has experienced a
Separation from Service, the following provisions shall
apply:
(1)
Subject to subsection
(2) below, the Employee’s Separation from Service shall occur
when the Employee has experienced a termination of employment with
MGE. The Employee shall be considered to have experienced a
termination of employment when the facts and circumstances indicate
that the Employee and MGE reasonably anticipate that
either:
- 2 -
(A)
no further services
will be performed for MGE after a certain date; or
(B)
that the level of bona
fide services the Employee will perform for MGE after such date
(whether as an employee or consultant) will permanently decrease to
no more than 20% of the average level of bona fide services
performed by such Employee (whether as an employee or consultant)
over the immediately preceding 36-month period (or the full period
of services to MGE if the Employee has been providing services to
MGE for less than 36 months).
(2)
If the Employee is on
military leave, sick leave, or other bona fide leave of
ab
