Exhibit (10)-4
WISCONSIN ENERGY CORPORATION
AMENDED AND RESTATED
EXECUTIVE SEVERANCE POLICY
Introduction
Wisconsin Energy Corporation, a Wisconsin corporation
("Wisconsin Energy") has entered into an Agreement and Plan of
Merger dated as of June 27, 1999, as amended, (the "Merger
Agreement") among Wisconsin Energy, WICOR, Inc. and CEW
Acquisition, Inc. whereby WICOR, Inc. ("WICOR") will become a
wholly-owned subsidiary of Wisconsin Energy (the "WICOR
Transaction") and although no change of control of Wisconsin
Energy will occur in connection with such acquisition, the
inevitable adjustments that will occur following the acquisition
may result in loss or distraction of employees of Wisconsin
Energy and its subsidiaries to the detriment of Wisconsin Energy
and its shareholders.
Accordingly, the Board of Directors of Wisconsin Energy (the
"Board") has determined that appropriate steps should be taken to
assure Wisconsin Energy of the continued employment and attention
and dedication to duty of its employees and to seek to ensure the
availability of their continued service, notwithstanding the
closing of the WICOR Transaction.
Further, on April 25, 2000, the Board has determined that
further steps should be taken to seek to assure the continued
employment, attention and dedication to duty of the Participants
by affording them with reasonable security against changes in
their employment relationship should a change in control of
Wisconsin Energy occur, entirely apart from the WICOR
Transaction.
Therefore, in order to fulfill the above purposes, the
following plan has been developed and is hereby adopted.
ARTICLE I
ESTABLISHMENT OF PLAN
As of the Effective Time of Merger (as defined in the Merger
Agreement), Wisconsin Energy hereby establishes a separation
compensation plan known as the Wisconsin Energy Executive
Severance Policy, as set forth in this document.
ARTICLE II
DEFINITIONS
As used herein the following words and phrases shall have
the following respective meanings unless the context clearly
indicates otherwise.
(a) Annual Compensation. The sum of a Participant's
Annual Salary and Annual Incentive Award.
(b) Annual Incentive Award. The highest annual cash
incentive award earned by a Participant during any of the 3
years prior to a termination of employment entitling the
Participant to a Separation Benefit.
(c) Annual Salary. The Participant's regular annual
base salary immediately prior to his or her termination of
employment, including compensation converted to other
benefits under a flexible pay arrangement maintained by the
Corporation or deferred pursuant to a written plan or
agreement with the Corporation, but excluding overtime pay,
allowances, premium pay, compensation paid or payable under
any Corporation long-term or short-term incentive plan or
any similar payment.
(d) Board. The Board of Directors of Wisconsin
Energy.
(e) Code. The Internal Revenue Code of 1986, as
amended from time to time.
(f) Committee. The Compensation Committee of the
Board.
(g) Corporation. Wisconsin Energy and any successor
thereto.
(h) Date of Termination. The date on which a
Participant ceases to be an Employee.
(i) Employee. Any full-time, regular-benefit,
non-bargaining employee of an Employer. The term shall
exclude all individuals employed as independent contractors,
temporary employees, other benefit employees, non-benefit
employees, leased employees, even if it is subsequently
determined that such classification is incorrect.
(j) Employer. The Corporation, WICOR, Inc. as of the
Effective Time of Merger as defined in the Merger Agreement,
or a Subsidiary which has adopted the Plan pursuant to
Article V hereof.
(k) Participant. An individual who is designated as
such pursuant to Section 3.1.
(l) Plan. The Wisconsin Energy Executive Severance
Policy.
(m) Separation Benefits. The benefits described in
Section 4.3 that are provided to qualifying Participants
under the Plan.
(n) Separation Period. The period beginning on a
Participant's Date of Termination and ending on the third
anniversary thereof for a Participant designated on Schedule
1 as eligible for a Tier 2 Separation Benefit, ending on the
second anniversary thereof for a Participant designated as
eligible for a Tier 3 Separation Benefit, and ending on the
first anniversary thereof for a Participant designated as
eligible for a Tier 4 Separation Benefit.
(o) Subsidiary. Any corporation in which the
Corporation, directly or indirectly, holds a majority of the
voting power of such corporation's outstanding shares of
capital stock.
(p) Target Annual Incentive. The Annual Incentive
Award that the Participant would have earned for the year in
which his or her Date of Termination occurs, if the target
goals had been achieved.
(q) WICOR Closing Date. The Effective Time of Merger
as defined in the Merger Agreement.
(r) Year 2000 Definitions. The words defined in the
Appendix attached hereto were added to the Plan by an
Amendment Agreement adopted by Wisconsin Energy on April 25,
2000.
ARTICLE III
ELIGIBILITY
III.1 Participation. Each of the individuals named on
Schedule 1 hereto shall be a Participant in the Plan. Schedule 1
may be amended by the Board from time to time to add individuals
as Participants. All Participants will also be designated on
Schedule 1 as eligible for either a Tier 2, Tier 3 or Tier 4
Separation Benefit under the provisions of section 4.3(b)(ii)
hereof.
III.2 Duration of Participation. A Participant shall
only cease to be a Participant in the Plan as a result of an
amendment or termination of the Plan complying with Article VII
of the Plan, or when he ceases to be an Employee of any Employer,
unless, at the time he ceases to be an Employee, such Participant
is entitled to payment of Separation Benefits as provided in the
Plan or there has been an event or occurrence described in
Section 4.2(a) or (aa) which would enable the Participant to
terminate his employment and receive Separation Benefits. A
Participant entitled to payment of a Separation Benefit or any
other amounts under the Plan shall remain a Participant in the
Plan until the full amount of the Separation Benefit and any
other amounts payable under the Plan have been paid to the
Participant. After the end of a 2-year period following the
WICOR Closing Date, the Board may remove any Participant from
coverage under the Plan. The removal may be accomplished by the
Board's causing the Employer to provide written notice of such
removal to the Participant at least one year in advance of the
effective date of removal. The earliest effective date of any
removal is the first day after the end of a 2-year period
following the WICOR Closing Date, assuming that the required
written notice of removal was given to the Participant at least
one year in advance. If prior to the effective date of such
removal, the Participant has become entitled to payment of a
Separation Benefit or any other amounts under the Plan, such
individual shall remain a Participant in the Plan until the full
amount of the Separation Benefit and any other amounts payable
under the Plan have been paid to the Participant.
ARTICLE IV
SEPARATION BENEFITS
IV.1 Right to Separation Benefit. A Participant shall be
entitled to receive Separation Benefits in accordance with
Section 4.3 if the Participant ceases to be an Employee for any
reason specified in Section 4.2(a) or (aa).
IV.2 Termination of Employment.
(a) Terminations Which Give Rise to Separation
Benefits Under This Plan. Except as set forth in Section
4.2(b), a Participant shall be entitled to Separation
Benefits if at any time on or after the WICOR Closing Date
and before the end of a 2-year period following the WICOR
Closing Date:
(i) the Participant ceases to be an Employee by
action of the Employer or any of its
affiliates (excluding any transfer to another
Employer);
(ii) the Participant's Annual Salary is reduced
below the higher of (A) the amount in effect
immediately before the WICOR Closing Date and
(B) the highest amount in effect at any time
thereafter, and the Participant ceases to be
an Employee by his or her own action within
90 days after the occurrence of such
reduction;
(iii) the Participant's duties and
responsibilities or the program of incentive
compensation or retirement and welfare
benefits offered to the Participant are
diminished in comparison to the duties and
responsibilities or the program of incentive
compensation or retirement and welfare
benefits enjoyed by the Participant
immediately before the WICOR Closing Date,
and the Participant ceases to be an Employee
by his or her own action within 90 days after
the occurrence after such reduction;
(iv) the Participant is required to be based at a
location more than 35 miles from the location
where the Participant was based and performed
services immediately before the WICOR Closing
Date, and the Participant ceases to be an
Employee by his or her own action within 90
days after such relocation; or
(v) an Employer or any affiliate of an Employer
sells or otherwise distributes or disposes of
the subsidiary, branch or other business unit
in which the Participant was employed before
such sale, distribution or disposition and
the requirements of Section 4.2(b)(iii) are
not met, and the Participant ceases to be an
Employee by action of the Employer upon or
within 90 days after such sale, distribution
or disposition.
(aa) Covered Termination Associated with a Change in
Control. In the event of a Covered Termination Associated
with a Change in Control, a Participant shall be entitled to
receive Separation Benefits in accordance with Section 4.3.
(b) Terminations Which Do Not Give Rise to Separation
Benefits Under This Plan. If a Participant's employment is
terminated for Cause, disability, death, or a qualified sale
of business (as those terms are defined below), or
voluntarily by the Participant (whether on account of
retirement or otherwise) in the absence of an event
described in Section 4.2(a)(ii), 4.2(a)(iii) or 4.2(a)(iv)
or described in item 3(c) of the Appendix, the Participant
shall not be entitled to Separation Benefits under the Plan.
(i) A termination for disability shall have
occurred where a Participant is terminated
because illness or injury has prevented him
or her from performing his or her duties (as
they existed immediately prior to the illness
or injury) on a full time basis for 180
consecutive business days.
(ii) A termination for Cause shall have occurred
where a Participant is terminated because of:
A. the willful and continued failure of the
Participant to perform substantially the
Participant's duties with the Corporation or one
of its affiliates (other than any such failure
resulting from incapacity due to physical or
mental illness), after a written demand for
substantial performance is delivered to the
Participant by the Board or an elected officer of
the Corporation which specifically identifies the
manner in which the Board or the elected officer
believes that the Participant has not
substantially performed the Participant's duties,
or
B. the willful engaging by the Participant
in illegal conduct or gross misconduct which is
materially and demonstrably injurious to the
Corporation.
For purposes of this provision, no act or failure
to act, on the part of the Participant, shall be
considered "willful" unless it is done, or omitted to
be done, by the Participant in bad faith or without
reasonable belief that the Participant's action or
omission was in the best interests of the Corporation.
Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or
upon the advice of counsel for the Corporation, shall
be conclusively presumed to be done, or omitted to be
done, by the Participant in good faith and in the best
interests of the Corporation.
(iii) A termination due to a qualified sale of
business shall have occurred where an
Employer or an affiliate of an Employer has
sold, distributed or otherwise disposed of
the subsidiary, branch or other business unit
in which the Participant was employed before
such sale, distribution or disposition and
the Participant has been offered employment
with the purchaser of such subsidiary, branch
or other business unit or the corporation or
other entity which is the owner thereof on
substantially the same terms and conditions
under which he worked for the Employer
(including, without limitation, base salary,
duties and responsibilities, program of
benefits and location where based). Such
terms and conditions shall also include,
without limitation, a legally binding
agreement or plan covering such Participant,
providing that upon a termination of
employment with the subsidiary, branch or
business unit (or the corporation or other
entity which is the owner thereof) or any
successor thereto of the kind described in
Article VI of this Plan, at any time before
the end of a 2-year period following either
the WICOR Closing Date or the first date on
which a Change in Control of the Corporation
occurs, as the case may be, the Participant's
employer or any successor will pay to each
such former Participant an amount equal to
the Separation Benefit and other benefits
that such former Participant would have
received under the Plan had he been a
Participant at the time of such termination.
For purposes of this subsection, the new
employer plan or agreement must treat service
with any Employer (irrespective of whether
the Employer was an affiliate of the
Corporation or the Employee was a Participant
at the time of such service) and the new
employer as continuous service for purposes
of calculating Separation Benefits.
IV.3 Separation Benefits.
(a) If a Participant's employment is terminated in
circumstances entitling him to a separation benefit as
provided in Section 4.2(a) or (aa), the Participant's
Employer shall pay such Participant, within 20 days of the
Date of Termination, a cash lump sum as set forth in Section
4.3(b) (unless a deferral has been elected under the next
sentence) and the continued benefits set forth as Section
4.3(c). The Participant may file a written irrevocable
deferral election form with the Employer either prior to the
expiration of thirty days from the date he or she has become
a Participant in this Plan and prior to termination of
employment, or in the event of a Covered Termination
Associated with a Change in Control, prior to the first date
on which a Change in Control of the Corporation occurs,
electing to defer all or part of such compensation and
irrevocably specifying a method of payment for such
compensation from among the methods allowable under the
Corporation's Executive Deferred Compensation Plan (the
"EDCP"). Any deferred amounts shall be credited with
earnings in the same manner as the Interest Rate Fund
provided for in the EDCP or any other investment alternative
that may later become allowable under the EDCP and the EDCP
provisions shall apply to deferrals made hereunder except
that (i) the provisions for a mandatory lump sum payment
upon a "Change in Control" as defined in the EDCP shall not
apply to deferrals made hereunder and (ii) the entire amount
deferred under this Plan shall be paid in a lump sum by the
Corporation no later than 20 days from the Date of
Termination to such grantor or "rabbi" trust as the
Corporation shall have established as a vehicle to hold such
amount pending payment, but with such trust designed so that
the Executive's rights to payment of such benefits are no
greater than those of an unsecured creditor. For purposes
of determining the benefits set forth in Sections 4.3(b) and
4.3(c), if the termination of the Participant's employment
is based upon a reduction of the Participant's Annual Salary
or benefits as described in Section 4.2(a)(ii) or
4.2(a)(iii) or as described in those same sections as
modified in Section 3(c) of the Appendix, such reduction
shall be ignored.
(b) The cash lump sum referred to in Section 4.3(a)
shall equal the aggregate of the following amounts:
(i) the sum of (A) the Participant's Annual
Salary through the Date of Termination to the
extent not theretofore paid, (B) the product
of (1) the Target Incentive and (2) a
fraction, the numerator of which is the
number of days in such year through the date
of Termination, and the denominator of which
is 365, and (C) any accrued vacation pay, in
each case to the extent not theretofore paid
and in full satisfaction of the rights of the
Participant thereto;
(ii) an amount equal to the product of (A) the
number specified below for the Tier level
applicable to the Participant as set forth on
Schedule 1, and (B) the sum of (1) the
Participant's Annual Salary and (2) the
higher of the Target Annual Incentive Award
or the Annual Incentive Award:
Tier Level Multiplier for (A) Above
Tier 2 3
Tier 3 2
Tier 4 1
(iii) an amount equal to the difference
between (A) the actuarial equivalent of the
benefit under the Corporation's qualified
defined benefit retirement plan (the
"Retirement Plan") and any excess or
supplemental retirement plans in which the
Participant participates (together, the
"SERP") which the Participant would receive
if his or her employment continued during the
Separation Period, assuming that the
Participant's compensation during the
Separation Period would have been equal to
his or her compensation as in effect
immediately before the termination or, if
higher, immediately before the WICOR Closing
Date or the first date on which a Change in
Control of the Corporation occurs, as the
case may be, and (B) the actuarial equivalent
of the Participant's actual benefit (paid or
payable), if any, under the Retirement Plan
and the SERP as of the Date of Termination.
The actuarial assumptions used for purposes
of determining actuarial equivalence shall be
no less favorable to the Participant than the
most favorable of those in effect under the
Retirement Plan and the SERP on the Date of
Termination and the WICOR Closing Date or the
first date on which a Change in Control of
the Corporation occurs, as the case may be.
(c) The continued benefits referred to above shall be
the provision to the Participant and his or her family
during the Separation Period of medical, dental and life
insurance benefits as if the Participant's employment had
not been terminated; provided, however, that if the
Participant becomes reemployed with another employer and is
eligible to receive medical or other welfare benefits under
another employer-provided plan, the medical and other
welfare benefits described herein shall be secondary to
those provided under such other plan during such applicable
period of eligibility. For purposes of determining
eligibility (but not the time of commencement of benefits)
of the Participant for retiree medical, dental and life
insurance benefits under the Corporation's plans, practices,
programs and policies, the Participant shall be considered
to have remained employed during the Separation Period and
to have retired on the last day of such period.
To the extent any benefits described in this Section 4.3(c)
cannot be provided pursuant to the appropriate plan or program
maintained for Employees, the Employer shall provide such
benefits outside such plan or program at no additional cost
(including without limitation tax cost) to the Participant.
IV.4 Other Benefits Payable. The cash lump sum and
continuing benefits described in Section 4.3 above shall be
payable in addition to, and not in lieu of, all other accrued or
vested or earned but deferred compensation, rights, options or
other benefits which may be owed to a Participant upon or
following termination, including but not limited to accrued
vacation or sick pay, amounts or benefits payable under any bonus
or other compensation plans, stock option plan, stock ownership
plan, stock purchase plan, restricted stock plan, life insurance
plan, health plan, disability plan or similar or successor plan,
but excluding any severance pay under any severance plan,
practice or program or pay in lieu of notice required to be paid
to such Participant under applicable law.
IV.5 Certain Reduction of Payments by the Corporation.
Notwithstanding any other provision of this Plan, if any
portion of the Separation Benefits or any other payment under any
other agreement with or plan of the Corporation or the Employer
(in the aggregate "Total Payments"), would constitute an "excess
parachute payment," then the Total Payments to be made to the
Participant shall be reduced such that the value of the aggregate
Total Payments that the Participant is entitled to receive shall
be One Dollar ($1) less than the maximum amount which the
Participant may receive without becoming subject to the tax
imposed by Section 4999 of the Internal Revenue Code (the "Code")
(or any successor provision) or which the Corporation may pay
without loss of deduction under Section 280G(a) of the Code (or
any successor provision). For purposes of this Plan, the terms
"excess parachute payment" and "parachute payments" shall have
the meaning assigned to them in Section 280G of the Code (or any
successor provision), and such "parachute payments" shall be
valued as provided therein. Present value for purposes of this
Agreement shall be calculated in accordance with Section
1274(b)(2) of the Code (or any successor provision). Within 60
days following delivery of a notice by the Corporation to the
Participant of its belief that there is a payment or benefit due
the Participant which will result in an excess parachute payment
as defined in Section 280G of the Code (or any successor
provision), the Participant and the Corporation, at the
Corporation's expense, shall obtain the opinion (which need not
be unqualified) of the Corporation's independent auditors which
sets forth (A) the amount of the Base Period Income, (B) the
amount and present value of Total Payments and (C) the amount and
present value of any excess parachute payments without regard to
the limitations of this Section 4.5. As used in this Section
4.5, "Base Period Income" means the Participant's "annualized
includible compensation for the base period" as defined in
Section 280G(d)(1) of the Code (or any successor provision). For
purposes of such opinion, the value of any noncash benefits or
any deferred payment or benefit shall be determined by the
Corporation's independent auditors in accordance with the
principles of Sections 280G(d)(3) and (4) of the Code (or any
successor provisions), which determination shall be evidenced in
a certificate of such auditors addressed to the Corporation and
the Participant. Such opinion shall be dated as of the
Participant's date of termination of employment and addressed to
the Corporation and the Participant and shall be binding, absent
manifest error, upon the Corporation and the Participant. If
such opinion determines that there would be an excess parachute
payment, the Separation Benefits hereunder or any other payment
determined by such auditors to be includible in Total Payments
shall be reduced or eliminated as specified by the Participant in
writing delivered to the Corporation within 30 days of the
Participant's receipt of such opinion or, if the Participant
fails to so notify the Corporation, then as the Corporation shall
reasonably determine, so that under the bases of calculations set
forth in such opinion there will be no excess parachute payment.
If such auditors so request in connection with the opinion
required by this Section, the Participant and the Corporation
shall obtain, at the Corporation's expense, and the auditors may
rely on in providing the opinion, the advice of a firm of
recognized executive compensation consultants as to the
reasonableness of any item of compensation to be received by the
Participant. Notwithstanding the foregoing, the calculations
provided for herein shall be based upon the conclusive
presumption that the following are reasonable: the compensation
payments made under Section 4.3(b)(i) as well as any other
compensation, earned prior to the date of the Participant's
termination of employment pursuant to the Corporation's
compensation programs if such payments would have been made in
the future in any event, even though the timing of such payment
is triggered by the Change of Control. If the provisions of
Sections 280G and 4999 of the Code (or any successor provisions)
are repealed without succession, then this Section 4.5 shall be
of no further force or effect.
The Participant shall notify the Corporation in writing of
any claim by the Internal Revenue Service that, if successful,
would subject the Participant to the tax imposed by Section 4999
of the Code. Such notification shall be given as soon as
practicable, but no later than 10 business days after the
Participant is informed in writing of such claim and shall
apprise the Corporation of the nature of the claim and the date
on which such claim is requested to be paid. The Participant
shall not pay such claim prior to the expiration of the 30-day
period following the date on which he gives notice to the
Corporation (or such shorter period ending on the date that any
payment of taxes with respect to the claim is due). If the
Corporation notifies the Participant in writing prior to the
expiration of such period that it desires to contest such claim,
the Participant agrees to give the Corporation any information
reasonably requested by the Corporation in writing relating to
such claim, to take such action in connection with contesting
such claim as the Corporation shall reasonably request in writing
from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney
reasonably selected by the Corporation, to cooperate with the
Corporation in good faith in order to effectively contest such
claim, to permit the Corporation to control any proceedings
relating to such claim and to permit the Corporation to pursue or
forego any and all administrative appeals, proceedings, hearings
and conferences with the taxing authority with respect to such
claim. The Corporation shall bear and pay directly all costs and
expenses, including additional interest and penalties) incurred
in connection with such contest. Further, provided only that
Corporation receives timely written notification from the
Participant with respect to such claim, the Corporation will
indemnify and hold the Participant harmless, on an after-tax
basis, for any excise tax under Section 4999 of the Code
(including interest and penalties thereon), such that the net
amount retained by the Participant after the deduction of any
such excise tax and any interest or penalties thereon (but not
any federal, state or local income tax) would be the same as if
such excise tax had never applied.
IV.6 Payment Obligations Absolute; Offset for Wisconsin
Energy Senior Executive Severance Policy. Subject to Section 4.5
and except for the Wisconsin Energy Senior Executive Severance
Policy offset described below, the obligations of the Corporation
and the Employers to pay the separation benefits described in
Section 4.3 shall be absolute and unconditional and shall not be
affected by any circumstances, including, without limitation, any
set-off, counterclaim, recoupment, defense or other right which
the Corporation or any of its Subsidiaries may have against any
Participant. In no event shall a Participant be obligated to
seek other employment or take any other action by way of
mitigation of the amounts payable to a Participant under any of
the provisions of this Plan, nor shall the amount of any payment
hereunder be reduced by any compensation earned by a Participant
as a result of employment by another employer, except as
specifically provided in Section 4.3(c). If any of the
Participants in this Plan are also participants under the
Wisconsin Energy Senior Executive Severance Policy adopted by
Wisconsin Energy in 1995 (the "SESP") and become entitled to any
cash or benefits under the terms of the SESP, the same shall be
offset against any cash or benefits otherwise due to such
Participants under the terms of this Agreement.
ARTICLE V
PARTICIPATING EMPLOYERS
This Plan may be adopted by any Subsidiary of the
Corporation. Upon such adoption, the Subsidiary shall become an
Employer hereunder and the provisions of the Plan shall be fully
applicable to the Employees of that Subsidiary who are
Participants pursuant to Section 3.1.
ARTICLE VI
SUCCESSOR TO CORPORATION
This Plan shall bind any successor of the Corporation, its
assets or its businesses (whether direct or indirect, by
purchase, merger, consolidation or otherwise) in the same manner
and to the same extent that the Corporation would be obligated
under this Plan if no succession had taken place.
In the case of any transaction in which a successor would
not by the foregoing provision or by operation of law be bound by
this Plan, the Corporation shall require such successor expressly
and unconditionally to assume and agree to perform the
Corporation's obligations under this Plan, in the same manner and
to the same extent that the Corporation would be required to
perform if no such succession had taken place. The term
"Corporation," as used in this Plan, shall mean the Corporation
as hereinbefore defined and any successor or assignee to the
business or assets which by reason hereof becomes bound by this
Plan.
ARTICLE VII
DURATION, AMENDMENT AND TERMINATION
VII.1 Duration. This Plan shall be deemed established,
without the need for any further act by the Board, on the
Effective Time of Merger and it shall continue for a period of 2
years after the WICOR Closing Date, on which date it will expire,
unless extended for an additional period or periods by resolution
adopted by the Board.
However, once the WICOR Closing Date has occurred, then
notwithstanding any other provision of the Plan, the Plan shall
continue in full force and effect and shall not terminate or
expire until after all Participants who become entitled to any
payments hereunder shall have received such payments in full and
all adjustments required to be made pursuant to Sections 4.5 and
4.6 have been made.
If the Effective Time of Merger has not occurred on or prior
to January 1, 2001, then this Plan will become void and of no
force and effect.
Pursuant to the Amendment Agreement, the Board has extended
this Plan to continue it on a year by year basis after the
expiration of a period of 2 years following the WICOR Closing
Date. The Corporation reserves the right, however, to terminate
this Plan at any time by providing written notice of such
termination to each person who is then a Participant at least one
year in advance of the effective date of the Plan's termination.
However, if prior to the effective date of the Plan termination,
a Participant has become entitled to payment of a Separation
Benefit or any other amounts under the Plan, such individual
shall remain a Participant in the Plan until the full amount of
the Separation Benefit and any other amounts payable under the
Plan have been paid to the Participant.
VII.2 Amendment. Except as provided in Section 7.1, the
Plan shall not be subject to amendment, change, substitution,
deletion, revocation or termination in any respect which
adversely affects the rights of Participants. Notwithstanding
any other provision in the Plan, nothing in the Amendment
Agreement shall in any manner alter or diminish or be construed
to alter or diminish the rights of the individuals who are
Participants in this Plan as of the WICOR Closing Date.
VII.3 Form of Amendment. The form of any amendment of
the Plan shall be a written instrument signed by a duly
authorized officer or officers of the Corporation, certifying
that the amendment has been approved by the Board.
ARTICLE VIII
MISCELLANEOUS
VIII.1 Indemnification. If a Participant institutes any
legal action in seeking to obtain or enforce or is required to
defend in any legal action the validity or enforceability of, any
right or benefit provided by this Plan, the Corporation or the
Employer will pay for all actual reasonable legal fees and
expenses incurred (as incurred) by such Participant, regardless
of the outcome of such action.
VIII.2 Employment Status. This Plan does not constitute
a contract of employment or impose on the Participant or the
Participant's Employer any obligation to retain the Participant
as an Employee, to change the status of the Participant's
employment, or to change the Corporation's policies or those of
its Subsidiaries regarding termination of employment.
VIII.3 Claim Procedure. If an Employee or former
Employee makes a written request alleging a right to receive
benefits under this Plan or alleging a right to receive an
adjustment in benefits being paid under the Plan, the Corporation
shall treat it as a claim for benefit. All claims for benefit
under the Plan shall be sent to the Human Resources Department of
the Corporation and must be received within 90 days after
termination of employment. If the Corporation determines that
any individual who has claimed a right to receive benefits, or
different benefits, under the Plan is not entitled to receive all
or any part of the benefits claimed, it will inform the claimant
in writing of its determination and the reasons therefor in terms
calculated to be understood by the claimant. The notice will be
sent within 90 days of the claim unless the Corporation
determines additional time, not exceeding 90 days, is needed.
The notice shall make specific reference to the pertinent Plan
provisions on which the denial is based, and describe any
additional material or information that is necessary. Such
notice shall, in addition, inform the claimant what procedure the
claimant should follow to take advantage of the review procedures
set forth below in the event the claimant desires to contest the
denial of the claim. The claimant may within 90 days thereafter
submit in writing to the Corporation a notice that the claimant
contests the denial of his or her claim by the Corporation and
desires a further review. The Corporation shall within 60 days
thereafter review the claim and authorize the claimant to appear
personally and review pertinent documents and submit issues and
comments relating to the claim to the persons responsible for
making the determination on behalf of the Corporation. The
Corporation will render its final decision with specific reasons
therefor in writing and will transmit it to the claimant within
60 days of the written request for review, unless the Corporation
determines additional time, not exceeding 60 days, is needed, and
so notifies the Participant. If the Corporation fails to respond
to a claim filed in accordance with the foregoing within 60 days
or any such extended period, the Corporation shall be deemed to
have denied the claim.
VIII.4 Validity and Severability. The invalidity or
unenforceability of any provision of the Plan shall not affect
the validity or enforceability of any other provision of the
Plan, which shall remain in full force and effect, and any
prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other
jurisdiction.
VIII.5 Governing Law. The validity, interpretation,
construction and performance of the Plan shall in all respects be
governed by the laws of Wisconsin, without reference to
principles of conflict of law, except to the extent preempted by
federal law.
VIII.6 Notices. All communications provided for herein
shall be in writing and shall be deemed to have been duly given
when delivered or five business days after having been mailed by
United States registered or certified mail, return receipt
requested, postage prepaid, addressed to the Employer (to the
attention of the Secretary of the Employer) at its principal
executive office and to the Participant at his/her principal
residence, or to such other address as any party may have
furnished to the other in writing in accordance herewith, except
that notices of a change of address shall be effective only upon
receipt.
SCHEDULE 1
Participants Eligible for Separation
Benefits if the Conditions Specified in
Section 4.2(a) are Satisfied and Tier Level
Applicable for Each Such Participant:
A. Employees of the WICOR Companies selected for participation
by WICOR pursuant to Section 3.15(f) of the Merger Agreement
i) For Tier 2: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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B. Employees named by the Board:
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