Exhibit 10.33
AMENDED AND
RESTATED
NON-COMPETE AND SPECIAL SEVERANCE
TAX PROTECTION AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT is effective as of January
1, 2008, between WISCONSIN ENERGY CORPORATION (the "Company") and
Stephen P. Dickson (the "Executive"). This Agreement amends and
restates the agreement made on August 30, 2000, between the
Company and the Executive, to comply with Internal Revenue Code
Section 409(A), which governs the time and form of payment of
non-qualified deferred compensation, including the tax gross-up
provided under this Agreement.
The Executive is currently a key executive of the Company and a
participant in the Amended and Restated Executive Severance Policy
(the "ESP") and the Board of Directors of the Company wishes to
provide certain further protection to the Executive with regard to
certain benefits under the ESP in return for an agreement by the
Executive not to compete with the Company.
In consideration of the terms and conditions set forth below,
the parties agree as follows:
- Incorporation of ESP . The ESP, as may
be amended from time to time, is incorporated by reference and made
a part of this Agreement. All of the capitalized terms used in this
Agreement, if not otherwise defined, have the meaning given to them
in the ESP.
- Non-Compete
Agreement . In consideration of this Agreement, the Executive
agrees that, should the Executive incur a Covered Termination
Associated with a Change in Control, and as a result become
entitled to receive Separation Benefits under the ESP, the
Executive will not, for a period of one year from the date of such
Covered Termination Associated with a Change in Control, directly
or indirectly own, manage, operate, join, control, be employed by,
or participate in the ownership, management, operation or control
of, or be connected in any manner, including but not limited to,
holding the position of shareholder, director, officer, consultant,
independent contractor, executive, partner, or investor with any
"Competing Enterprise" within the "Territory." For purposes of this
Section 2, a "Competing Enterprise" means any entity, firm or
person engaged in a business involving the distribution and sale of
electrical, gas, steam or other energy sources to end users in
competition with such business conducted by the Company or its
Subsidiaries, and the "Territory" means the State of Wisconsin, the
upper peninsula area of the State of Michigan and any other
territory in which the Company or its Subsidiaries is involved in
the same business in competition with a Competing Enterprise as of
the date of the Executive's termination of employment. The
Executive recognizes that the Territory may change as the scope of
business conducted by the Company or its Subsidiaries which is in
competition with Competing Enterprises changes and the Executive
acknowledges that it is reasonable for the Territory to include not
only the areas in which the Company and its Subsidiaries are
presently operating, but also those areas into which such business
of the Company and its Subsidiaries may expand. If the Executive
notifies the Company in writing of any employment or opportunity
which the Executive proposes to undertake during the one year
non-compete period, and supplies the Company with any additional
information which the Company may reasonably request, the Company
agrees to promptly notify the Executive within thirty
days after all information reasonably requested by it has been
provided, whether the Company considers the proposed employment or
opportunity to be prohibited by these provisions and, if so,
whether the Company is willing to waive the same. Notwithstanding
anything in this Section 2, the Executive shall not be prohibited
from acquiring or holding up to 2% of the common stock of an entity
that is traded on a national securities exchange or a nationally
recognized over-the-counter market.
- Severance Tax Protection . Should the
Executive incur a Covered Termination Associated with a Change in
Control, and as a result become entitled to receive Separation
Benefits under the ESP, then the provisions of the ESP that provide
for a reduction in the Total Payments to be made to the Executive
to avoid operation of Sections 280G and 4999 of the Internal
Revenue Code, shall not apply. Instead, no limitation shall be
applied to the Total Payments otherwise payable to the Executive
and the Executive shall be entitled to the benefit of a "Gross-Up
Payment" as defined below and subject to the following
provisions:
-
- In the event it shall be determined that any
payment or distribution by the Company to or for the benefit of the
Executive (whether paid or payable or distributed or distributable
pursuant to the terms of the ESP or otherwise, but determined
without regard to any additional payments required under this
Section 3) (a "Payment") would be subject to the excise tax imposed
by Section 4999 of the Internal Revenue Code of 1986, as amended
(the "Code") or any interest or penalties are incurred by the
Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter
collectively referred to as the "Excise Tax"), then the Executive
shall be entitled to receive an additional payment (a "Gross-Up
Payment") in an amount such that after payment by the Executive of
all taxes (including any interest or penalties imposed with respect
to such taxes), including, without limitation, any income taxes
(and any interest and penalties imposed with respect thereto) and
Excise Tax imposed on the Gross-Up Payment, the Executive retains
an amount of the Gross-Up Payment equal to the Excise Tax imposed
upon the Payments.
- Subject to the
provisions of paragraph (c) of this Section 3, all determinations
required to be made under this Section 3, including whether and
when a Gross-Up Payment is required and the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving at such
determination, shall be made by a certified public accounting firm
designated by the Executive (the "Accounting Firm"), which shall
provide detailed supporting calculations both to the Company and
the Executive within fifteen business days of the receipt of notice
from the Executive that there has been a Payment, or such earlier
time as is requested by the Company. In the event that the
Accounting Firm is serving as accountant or auditor for the
individual, entity or group effecting the Change in Control, the
Executive shall appoint another nationally recognized accounting
firm to make the determinations required hereunder (which
accounting firm shall then be referred to as the Accounting Firm
hereunder). All fees and expenses of the Accounting Firm shall be
borne sol
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