FORM OF ALLIANT ENERGY CORPORATION PERFORMANCE SHARE AGREEMENT
Exhibit
10.4d
FORM OF
ALLIANT
ENERGY CORPORATION
THIS
PERFORMANCE SHARE AGREEMENT is made and entered into as of this ___ day
of February, 2010 (the “Grant Date”) by and between Alliant Energy Corporation,
a Wisconsin corporation (the “Company”), and [Employee],
a key employee of the Company (“Employee”).
R
E C I T A L S
WHEREAS,
the Company has in effect the Alliant Energy Corporation 2002 Equity Incentive
Plan, as Amended and Restated (the “Plan”), the terms of which, to the extent
not stated herein, are specifically incorporated by reference in this Agreement
(defined terms used herein which are not otherwise defined shall have the
meaning set forth in the Plan);
WHEREAS,
one of the purposes of the Plan is to permit the grant of various equity-based
incentive awards, including performance shares (the “Performance Shares”), to be
granted to certain Key Employees of the Company and any of its
Affiliates;
WHEREAS,
the Employee is now employed by the Company or an Affiliate of the Company in a
key capacity and has exhibited judgment, initiative and efforts which have
contributed materially to the successful performance of the Company or its
Affiliates; and
WHEREAS,
the Company desires the Employee to remain as an employee of the Company or its
Affiliates and wishes to provide the Employee with the opportunity to secure or
increase his or her stock ownership in the Company in order to develop even a
stronger incentive to put forth maximum effort for the continued success and
growth of the Company.
A
G R E E M E N T
NOW,
THEREFORE, in consideration of the premises and of the covenants and
agreements herein set forth, the parties hereby mutually covenant and agree as
follows:
|
1.
|
Award. Subject
to the terms of this Agreement and the Plan, the Employee is hereby
granted _______Performance
Shares on the date first written above (the “Grant
Date”). Performance Shares granted under this Agreement are
units that will be reflected in a book account maintained by the Company
during the Performance Period, and that will be settled in cash and/or
shares of Common Stock, $.01 par value, of the Company (“Common Stock”) to
the extent provided in this Agreement and the
Plan.
|
|
2.
|
Performance
Period. The “Performance Period” is the period beginning
on January 1, 2010 and ending on December 31,
2012.
|
|
3.
|
Settlement
of Awards. The Company shall deliver to the Employee one
share of Common Stock (or cash equal to the fair market value of one share
of Common Stock) for each Performance Share earned by the Employee, as
determined in accordance with the provisions of Exhibit 1, which is
attached to and forms a part of this Agreement. The earned
Performance Shares payable to the Employee in accordance with the
provisions of this Paragraph 3 shall be paid solely in shares of Common
Stock, solely in cash based on the fair market value of the Common Stock
(determined based on the average of the high and low sales prices for the
Common Stock on the first business day next following the last day of the
Performance Period, as reported on the New York Stock Exchange), or in a
combination of the two, as determined by the Committee in its sole
discretion, except that cash shall be distributed in lieu of any
fractional share of Common Stock.
|
|
4.
|
Time
of Payment. Except as otherwise provided in this
Agreement, payment of Performance Shares earned in accordance with the
provisions of Paragraph 3 will be delivered as soon as practicable after
the end of the Performance Period, subject to the Committee certifying in
writing as to the satisfaction of the requisite Performance Goal or Goals,
provided, however, the payment is made not later than 75 days following
the Performance Period.
|
|
5.
|
Retirement,
Disability, or Death During Performance Period. If the
Employee’s employment with the Company and its Affiliates terminates
during the Performance Period because of the Employee’s Retirement,
Disability, Involuntary Termination without Cause, or death, the Employee
shall be entitled to a prorated value of the Performance Shares earned in
accordance with Exhibit 1, determined at the end of the Performance
Period, and based on the ratio of the number of months the Employee was
employed during the Performance Period to the total number of months in
the Performance Period.
|
|
6.
|
Other
Terminations of Employment During Performance Period. If
the Employee’s employment with the Company and its Affiliates terminates
during the Performance Period for any reason other than the Employee’s
Retirement, Disability, Involuntary Termination without Cause, or death,
the Performance Shares granted under this Agreement will be forfeited on
the date of such termination of employment; provided,
however,
that in such circumstances, the Committee, in its discretion, may
determine that the Employee will be entitled to receive a pro rata or
other portion of the Performance Shares as determined at the end of the
Performance Period in accordance with Exhibit
1.
|
|
7.
|
Change
in Control. If a Change in Control occurs during the
Performance Period and at least 180 days after the date the Performance
Shares were granted, and the Employee’s termination does not occur before
the Change in Control date, then the Employee shall earn the Performance
Shares that would have been earned by the Employee in accordance with
Exhibit 1 as if 100% of the Performance Goal or Goals set forth in Exhibit
1 for the Performance Period had been achieved, but prorated based on the
ratio of the number of months the Employee is employed during the
Performance Period through the date of the Change in Control, to the total
number of months in the Performance Period. The value of
Performance Shares earned in accordance with the foregoing provisions of
this Paragraph 7 shall be delivered to the Employee in a lump sum cash
payment as soon as practicable after the occurrence of the Change in
Control, with the value of a Performance Share equal to the fair market
value of a share of Common Stock determined under the provisions of
Paragraph 3 as of the date of the Change in Control. For the
Participants entitled to prorata vesting, the remaining Performance Shares
shall be forfeited.
|
|
8.
|
Definitions. The
following sets forth definitions of certain terms used in this
Agreement:
|
|
(a)
|
Cause. The
term “Cause” means, but is not limited to, (1) embezzlement of funds of
the Company or an Affiliate, (2) fraud, (3) the engaging by the Employee
in conduct not taken in good faith which has caused demonstrable financial
or reputational harm to the Company, (4) commission of a felony which
impairs the Employee’s ability to perform the Employee’s duties and
responsibilities and (5) continuing willful and unreasonable refusal by
the Employee to perform Employee’s duties or
responsibilities. . The Board of Directors of the
Company (the “Board”), by a majority vote, shall make the determination of
whether Cause exists.
|
|
(b)
|
Change
in Control. The term “Change in Control” means the
occurrence of any one of the events set forth in the following
paragraphs:
|
|
(i)
|
any Person (other
than (A) the Company or any subsidiary of the Company (each a
“Subsidiary”), (B) a trustee or other fiduciary holding securities under
any employee benefit plan of the Company or any Subsidiary, (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 the Company in substantially the same proportions as their
ownership of stock in the Company (“Excluded Persons”)) is or becomes the
beneficial owner, directly or indirectly, of securities of the Company
(not including in the securities beneficially owned by such Person any
securities acquired directly from the Company or its affiliates after the
Grant 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 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 the Company then serving: (A) individuals who, on
the Grant 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 proxy or consent solicitation for the purpose of
opposing a solicitation by the Company 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 the Grant 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 the Company (or any Subsidiary)
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 the Company 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, the subsequent
qualification of such Persons as Continuing Directors shall not alter the
fact that a Change in Control occurred;
or
|
|
(iii)
|
the Company after
the Grant Date, consummates a merger, consolidation or share exchange with
any other corporation or issues voting securities in connection with a
merger, consolidation or share exchange involving the Company (or any
Subsidiary), other than (A) a merger, consolidation or share exchange
which results in the voting securities of the Company 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 the Company 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 the Company (or similar transaction) in
which no Person (other than an Excluded Person) is or becomes the
beneficial owner, directly or indirectly, of securities of the Company
(not including in the securities beneficially owned by such Person any
securities acquired directly from the Company or its affiliates after the
Grant 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 or the combined voting power of the
Company’s then outstanding voting securities;
or
|
|
(iv)
|
the shareowners of
the Company approve a plan of complete liquidation or dissolution of the
Company or the Company effects a sale or disposition of all or
substantially all of its assets (in one transaction or a series of related
transactions within any period of 24 consecutive months), other than a
sale or disposition by the Company 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 the Company immediately prior to
such sale.
|
Notwithstanding the
foregoing, no “Change in Control” 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 shares of Common Stock 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 the
Company immediately following such transaction or series of
transactions.
|
(c)
|
Disability. “Disability”
shall have the meaning provided in the Alliant Energy Cash Balance
Plan.
|
|
(d)
|
Involuntary
Termination without Cause. “Involuntary Termination
without Cause” shall mean that an Employee has been notified in writing
that his or her position is being eliminated or significantly altered as a
result of a substantial diminishment of responsibility or salary or as a
result of a structured job elimination program implemented by management
of the Company.
|
|
(e)
|
Retirement. “Retirement”
of the Employee shall mean the Employee’s employment terminates (with the
consent of the Company) after he or she has reached age 55 with 10 years
of service.
|
|
9.
|
Nontransferability
of Performance Shares. The Performance Shares shall not
be assignable, alienable, saleable or transferable by the Employee other
than by will or the laws of descent and distribution prior to settlement
of the awards pursuant to Section 3; provided,
however,
that the Employee shall be entitled, in the manner provided in Paragraph
11 hereof, to designate a beneficiary to exercise his or her rights, and
to receive any shares of Common Stock issuable, with respect to the
Performance Shares upon the death of the Employee. The
Performance Shares may be exercised during the lifetime of the Employee
only by the Employee or, if permitted by applicable law, the Employee’s
guardian or legal representative.
|
|
10.
|
Dividends
and Voting Rights. This Award of Performance Shares does
not entitle Employee to any rights as a shareowner of the Company,
including voting rights and the right to receive dividends or
distributions of any kind. Employee will not have rights as a
shareowner until the Performance Shares
vest.
|
|
11.
|
Tax
Withholding. The Company may deduct and withhold from
any cash otherwise payable to the Employee such amount as may be required
for the purpose of satisfying the Company’s obligation to withhold
federal, state or local taxes. Further, in the event the amount
so withheld is insufficient for such purpose, the Company may require that
the Employee pay to the Company upon its demand or otherwise make
arrangements satisfactory to the Company for payment of, such amount as
may be requested by the Company in order to satisfy its obligation to
withhold any such taxes.
|
The
Employee shall be permitted to satisfy the Company’s tax withholding
requirements by making a written election (in accordance with such rules and
regulations and in such form as the Committee may determine) to have the Company
withhold shares of Common Stock otherwise issuable to the Employee (the
“Withholding Election”) having a fair market value on the date income is
recognized (the “Tax Date”) pursuant to the settlement of the Performance Shares
equal to the minimum amount required to be withheld. If the number of
shares of Common Stock withheld to satisfy withholding tax requirements shall
include a fractional share, the number of shares withheld shall be reduced to
the next lower whole number and the Employee shall deliver cash in lieu of such
fractional share, or otherwise make arrangements satisfactory to the Company for
payment of such amount. A Withholding Election must be received by
the Corporate Secretary of the Company on or prior to the Tax Date.
|
12.
|
Designation
of Beneficiary.
|
|
(a)
|
The person whose
name appears on the signature page hereof after the caption “Beneficiary”
or any successor designated by the Employee in accordance herewith (the
person who is the Employee’s beneficiary at the time of his or her death
is herein referred to as the “Beneficiary”) shall be entitled to payouts
hereunder, to the extent they are made, after the death of the
Employee. The Employee may from time to time revoke or change
his or her beneficiary without the consent of any prior beneficiary by
filing a new designation with the Committee. The last such
designation received by the Committee shall be controlling; provided,
however,
that no designation, or change or revocation thereof, shall be effective
unless received by the Committee prior to the Employee’s death, and in no
event shall any designation be effective as of a date prior to such
receipt.
|
|
(b)
|
If no such
Beneficiary designation is in effect at the time of the Employee’s death,
or if no designated Beneficiary survives the Employee or if such
designation conflicts with law, the Employee’s estate acting through his
or her legal representative shall be entitled to receive payouts
hereunder, to the extent they are made, after the death of the
Employee. If the Committee is in doubt as to the right of any
person to the Performance Shares or any payout thereunder, the Company may
refuse to settle such matter, without liability for any interest or
dividends on the Performance Shares, until the Committee determines the
person entitled to the Performance Shares or any payout thereunder, or the
Company may apply to any court of appropriate jurisdiction and such
application shall be a complete discharge of the liability of the Company
therefor.
|
|
13.
|
Transfer
Restriction. Any shares of Common Stock delivered
pursuant to Section 3 hereof may not be sold or offered for sale except
pursuant to an effective registration statement under the Securities Act
of 1933 (the “Act”), as amended, or in a transaction which, in the opinion
of counsel for the Company, is exempt from the registration provisions of
the Act.
|
|
14.
|
Status
of Employee. The Employee shall not be deemed for any
purposes to be a shareowner of the Company with respect to any of the
Performance Shares except to the extent that the Company has delivered
shares of Common Stock pursuant to Section 3 hereof. Neither
the Plan nor the Performance Shares shall confer upon the Employee any
right to continue as an employee of the Company or any of its Affiliates,
nor to interfere in any way with the right of the Company to terminate the
employment or directorship of the Employee at any
time.
|
|
15.
|
Powers
of the Company Not Affected. The existence of the
Performance Shares shall not affect in any way the right or power of the
Company or its shareowners to make or authorize any or all adjustments,
recapitalizations, reorganizations or other changes in the Company’s
capital structure or its business, or any merger or consolidation of the
Company, or any issuance of bonds, debentures, preferred or prior
preference stock senior to or affecting the Common Stock or the rights
thereof, or dissolution or liquidation of the Company, or any sale or
transfer of all or any part of the Company’s assets or business or any
other corporate act or proceeding, whether of a similar character or
otherwise.
|
|
16.
|
Interpretation
by the Committee. As a condition of the granting of the
Performance Shares, the Employee agrees, for himself or herself and for
his or her legal representatives or guardians, that this Agreement shall
be interpreted by the Committee and that any interpretation by the
Committee of the terms of this Agreement and any determination made by the
Committee pursuant to this Agreement shall be final, binding and
conclusive.
|
|
17.
|
Miscellaneous.
|
|
(a)
|
This Agreement shall
be governed and construed in accordance with the internal laws of the
State of Wisconsin applicable to contracts made and to be performed
therein between residents thereof.
|
|
(b)
|
This Agreement may
not be amended or modified except by the written consent of the parties
hereto.
|
|
(c)
|
The captions of this
Agreement are inserted for convenience of reference only and shall not be
taken into account in construing this
Agreement.
|
IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by
its duly authorized officer and the Employee has hereunto affixed his or her
hand as of the day and year first above written.
|
ALLIANT
ENERGY CORPORATION
(the
"Company")
|
|
By:
|
|
Its:
|
Executive Vice President, General Counsel and Chief Administrative Officer |
|
EMPLOYEE:
|
||
I
understand that I have the right to name one or more primary beneficiaries and
one or more contingent beneficiaries to receive benefits in the event that my
primary beneficiaries die.
I hereby
make the following beneficiary designations:
|
Primary
Beneficiary:
|
Contingent
Beneficiary:
|
||
|
Name:
|
|
Address:
|
|
Relationship:
|
(attach
a piece of paper with the appropriate information for any multiple
beneficiaries, including the manner of splitting the benefit between
beneficiaries of the same class; if not provided otherwise, all sums payable to
more than one beneficiary of the same class shall be paid equally to those
beneficiaries living at the time of your death)
EXHIBIT
1
Performance
Share Grant – PERFORMANCE GOALS
|
1.
|
Purpose: The
purpose of this Exhibit 1 is to set forth the Performance Goal or Goals
that will be applied to determine the amount of the award to be made under
the terms of the attached Performance Share Agreement (the “Agreement”).
This Exhibit 1 is incorporated into and forms a part of the
Agreement.
|
|
[Employee]
|
2010 | ||
|
Fair Market Value as
of January 2, 2010
|
$_____
|
||
|
Date of
Grant
|
02/__/10
|
||
|
Performance Share
Target
|
[Number]
|
||
|
Performance
Cycle
|
January 1, 2010
through December 31, 2012
|
|
2.
|
Performance
Goals: Each performance share award will be based on the
Company’s Total Shareholder Return (TSR) performance (which represents
stock price appreciation plus dividends reinvested) based on the
three-year average relative to an investor-owned utility peer group. The
peer group is defined as companies that comprise the S&P Midcap
Utilities index.
|
|
3.
|
Amount
of Award: Actual awards will be based on company
performance as specified above, and can range from 0 to 200 percent of
target. The amount distributable to the Participant shall be
determined in accordance with the following
schedule:
|
|
3-yr
Total Shareholder Return –
Percentile
Relative to Peer Group*
|
%
of Target Value
Paid
Out
|
||
|
90th
percentile or greater
|
200%
|
||
|
80th
Percentile
|
175%
|
||
|
70th
Percentile
|
150%
|
||
|
60th
Percentile
|
125%
|
||
|
50th
Percentile
|
100%
|
||
|
45th
Percentile
|
75%
|
||
|
40th
Percentile
|
50%
|
||
|
Below 40th
Percentile
|
0%
|
* Peer
Group consists of companies comprising the S&P Mid-Cap
Utilities.
|
4.
|
Performance
Share payout: Subject to the terms of the Plan,
Performance Shares will be paid in Alliant Energy shares, or a combination
of cash and shares, as soon as practicable at the end of each performance
cycle, but not later than seventy-five days following the end of the
performance
cycle.
|
