Exhibit (10)-2a
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT by and between WISCONSIN ENERGY
CORPORATION, a Wisconsin corporation (the "Company"), and XXXXXX
X. XXXXXXXXX (the "Executive"), dated as of the 26th day of
April, 2000.
W I T N E S S E T H
WHEREAS, pursuant to an Agreement and Plan of Merger, dated
as of June 27, 1999, as amended (the "Merger Agreement"), among
the Company, WICOR, Inc. and CEW Acquisition, Inc., WICOR, Inc.
has become a wholly-owned subsidiary of the Company; and
WHEREAS, the Company further wishes to provide for the
employment by it of the Executive, and the Executive wishes to
serve the Company, in the capacities and on the terms and
conditions set forth in this Agreement:
NOW, THEREFORE, it is hereby agreed as follows:
1. Employment Period. The Company shall employ the
Executive, and the Executive shall serve the Company, on the
terms and conditions set forth in this Agreement, for the period
(the "Employment Period") beginning at the Effective Time of
Merger as defined in the Merger Agreement (the "Effective Time")
and ending the last day of the 24th calendar month commencing on
or immediately after the Effective Time.
2. Position and Duties.
(a) The Executive shall serve as the Vice Chairman of
the Board of Directors of the Company (the "Board") during
the Employment Period, being consulted by the Chairman of
the Board and providing advice to the Chairman with respect
to the integration of the WICOR businesses with the Company
and the Company's organizational structure, staffing and
future business strategy, and with such duties and
responsibilities as are customarily assigned to such
position, and such other duties and responsibilities not
inconsistent therewith as may from time to time be assigned
to him by the Board or by the Chairman. The Executive shall
be a member of the Board on the first day of the Employment
Period and the Board shall propose the Executive for
re-election to the Board throughout the Employment Period.
(b) During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is
entitled, the Executive shall devote reasonable attention
and time during normal business hours to the business and
affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive
under this Agreement, use the Executive's reasonable best
efforts to carry out such responsibilities faithfully and
efficiently. It shall not be considered a violation of the
foregoing for the Executive to serve on corporate, industry,
civic or charitable boards or committees, so long as such
activities do not significantly interfere with the
performance of the Executive's responsibilities as an
employee of the Company in accordance with this Agreement.
3. Compensation.
(a) Base Salary. The Executive's compensation during
the Employment Period shall be determined by the Board upon
the recommendation of the Compensation Committee of the
Board (the "Compensation Committee"), subject to the next
sentence and Section 3(b). During the Employment Period,
the Executive shall receive an annual base salary ("Annual
Base Salary") of not less than the greater of (i) his annual
base salary from WICOR, Inc. as in effect immediately before
the Effective Time or (ii) 90% of the base salary paid to
the Chairman of the Board of the Company during such period.
The Annual Base Salary shall be payable in accordance with
the Company's regular payroll practice for its senior
executives, as in effect from time to time. During the
Employment Period, the Annual Base Salary shall be reviewed
by the Compensation Committee for possible increase at least
annually. Any increase in the Annual Base Salary shall not
limit or reduce any other obligation of the Company under
this Agreement. The Annual Base Salary shall not be reduced
after any such increase, and the term "Annual Base Salary"
shall thereafter refer to the Annual Base Salary as so
increased.
(b) Incentive Compensation. During the Employment
Period, the Executive shall participate in short-term
incentive compensation plans and long-term incentive
compensation plans (the latter to consist of plans offering
stock options, restricted stock and other long-term
incentive compensation, as adopted and approved by the Board
or the Compensation Committee from time to time) providing
him with an opportunity to earn short-term and long-term
incentive compensation (the "Incentive Compensation") on a
basis commensurate with other senior officers of the
Company, subject to the next sentence hereof, provided that
he shall receive an initial grant of non-qualified stock
options covering 100,000 shares of Company stock as of the
start of the Employment Period with an exercise price equal
to the then fair market value, vesting over a 3-year period
at the rate of one-third (_) of such shares each year, based
on his continuation of service either as an officer or as a
director of the Company, to be exercisable over a 5-year
period, to the extent vested, after the later of his
cessation of service as an officer or director of the
Company. The Executive shall receive an annual award under
such short-term incentive plans at least equal to 90% of the
annual award made to the Chairman of the Board during the
Employment Period (prorated for any period of participation
in such plans which is for less than one full year, whether
at the inception or on termination of the Employment Period)
under such plans; provided, however, that in no event shall
the award be less than an amount which when added to the
Annual Base Salary is less on an annualized basis than the
salary and bonus actually received by the Executive from
WICOR, Inc. for the calendar year ending coincident with or
immediately prior to the Effective Date.
(c) Other Benefits. During the Employment Period and
thereafter: (1) the Executive shall be entitled to
participate in all applicable savings and retirement plans
(including non-qualified supplemental executive retirement
plans and specifically including Benefits A and B under the
Company's Supplemental Executive Retirement Plan),
practices, policies and programs of the Company to the same
extent as other senior executives of the Company, (2) the
Executive and/or the Executive's eligible dependents, as the
case may be, shall be eligible for participation in, and
shall receive all benefits under, all applicable welfare
benefit plans, practices, policies and programs provided by
the Company, other than severance plans, practices, policies
and programs but including, without limitation, medical,
prescription, dental, disability, employee life insurance,
group life insurance, accidental death and travel accident
insurance plans and programs, and retiree welfare benefits
on a basis commensurate with other long-term senior officers
of the Company and (3) the Executive shall be entitled to
past service credit under the Company's Supplemental
Executive Retirement Plan (the "SERP"), Benefit A,
calculated as if his participation in the Company's
tax-qualified defined benefit pension plan had commenced on
the first day of the month following his attainment of age
25 and as if the benefit formula under such pension plan for
all periods before December 31, 1995 was the same as that in
effect on December 31, 1995, and for all periods after
December 31, 1995, pursuant to the actual benefit formula
used in such pension plan (including the grandfathered
minimum benefit provisions thereof), offset by the actuarial
equivalent of any benefits payable to the Executive at age
65 or any later age at which such benefits commence from any
qualified or non-qualified defined benefit pension plans of
WICOR, Inc. Actuarial equivalency for this purpose shall be
determined using the interest rate and mortality table then
in use for determining optional forms of annuity under the
Company's tax-qualified defined benefit pension plan, or, if
Benefit A is to be payable in a lump sum, actuarial
equivalency shall be determined by using the interest rate
and mortality table referenced in Article VIII of the SERP.
(d) Fringe Benefits. During the Employment Period,
the Executive shall be entitled to receive fringe benefits
on a basis commensurate with other senior officers of the
Company.
4. Termination of Employment.
(a) Death or Disability. The Executive's employment
shall terminate automatically upon the Executive's death
during the Employment Period. The Company shall be entitled
to terminate the Executive's employment because of the
Executive's Disability during the Employment Period.
"Disability" means that (i) the Executive has been unable,
for the period specified in the Company's disability plan
for senior executives, but not less than a period of 90
consecutive business days, to perform the Executive's duties
under this Agreement, as a result of physical or mental
illness or injury, and (ii) a physician selected by the
Company or its insurers, and acceptable to the Executive or
the Executive's legal representative, has determined that
the Executive is disabled within the meaning of the
applicable disability plan for senior executives. A
termination of the Executive's employment by the Company for
Disability shall be communicated to the Executive by written
notice, and shall be effective on the 30th day after receipt
of such notice by the Executive (the "Disability Effective
Date"), unless the Executive returns to full-time
performance of the Executive's duties before the Disability
Effective Date.
(b) Termination by the Company.
(i) The Company may terminate the Executive's
employment during the Employment Period for
Cause or without Cause. "Cause" means the
willful and continued failure of the
Executive to substantially perform his duties
under this Agreement (other than as a result
of physical or mental injury) after the Board
delivers to the Executive a written demand
for substantial performance that specifically
identifies the manner in which the Board
believes that the Executive has not
substantially performed the Executive's
duties, or illegal or gross misconduct by the
Executive in connection with his employment
by the Company, in either case that is
willful and results in material and
demonstrable damage to the business or the
reputation of the Company. No act or failure
to act on the part of the Executive shall be
considered "willful" unless it is done, or
omitted to be done, by the Executive in bad
faith or without reasonable belief that the
Executive's action or omission was in the
best interests of the Company. Any act or
failure to act that is based upon authority
given pursuant to a resolution duly adopted
by the Board, or the advice of counsel for
the Company, shall be conclusively presumed
to be done, or omitted to be done, by the
Executive in good faith and in the best
interests of the Company.
(ii) A termination of the Executive's employment
for Cause shall not be effective unless it is
accomplished in accordance with the following
procedures. The Company shall give the
Executive written notice ("Notice of
Termination for Cause") of its intention to
terminate the Executive's employment for
Cause, setting forth in reasonable detail the
specific conduct of the Executive that it
considers to constitute Cause and the
specific provision(s) of this Agreement on
which it relies, and stating the date, time
and place of the Special Board Meeting for
Cause. The "Special Board Meeting for Cause"
means a meeting of the Board called and held
specifically for the purpose of considering
the Executive's termination for Cause, that
takes place not less than 10 nor more than 20
business days after the Executive receives
the Notice of Termination for Cause. The
Executive shall be given an opportunity,
together with counsel, to be heard at the
Special Board Meeting for Cause. The
Executive's termination for Cause shall be
effective when and if a resolution is duly
adopted at the Special Board Meeting for
Cause by affirmative vote of a majority of
the entire membership of the Board, excluding
employee directors, stating that, in the good
faith opinion of the Board, the Executive is
guilty of the conduct described in the Notice
of Termination for Cause and that such
conduct constitutes Cause under this
Agreement.
(c) Good Reason.
(i) The Executive may terminate employment for
Good Reason or without Good Reason. "Good
Reason" means:
A. the assignment to the Executive of any
duties or responsibilities inconsistent in any
respect with Section 2(a) of this Agreement, or
any other action by the Company that results in a
diminution in the Executive's position, authority,
duties or responsibilities, other than an
isolated, insubstantial and inadvertent action
that is not taken in bad faith and is remedied by
the Company promptly after receipt of notice
thereof from the Executive;
B. any failure by the Company to comply
with any provision of Section 3 of this Agreement,
other than an isolated, insubstantial and
inadvertent failure that is not taken in bad faith
and is remedied by the Company promptly after
receipt of notice thereof from the Executive;
C. any requirement by the Company that the
Executive's services be rendered primarily at a
location or locations other than the Milwaukee,
Wisconsin general metropolitan area.
D. any failure by the Company to comply
with paragraph (c) of Section 10 of this
Agreement; or
E. any other substantial breach of this
Agreement by the Company that is not remedied by
the Company promptly after receipt of notice
thereof from the Executive.
(ii) A termination of employment by the Executive
for Good Reason shall be effectuated by
giving the Company written notice ("Notice of
Termination for Good Reason") of the
termination, setting forth in reasonable
detail the specific conduct of the Company
that constitutes Good Reason and the specific
provision(s) of this Agreement on which the
Executive relies. A termination of
employment by the Executive for Good Reason
shall be effective on the 5th business day
following the date when the Notice of
Termination for Good Reason is given, unless
the notice sets forth a later date (which
date shall in no event be later than 30 days
after the notice is given).
(iii) A termination of the Executive's
employment by the Executive without Good
Reason shall be effected by giving the
Company written notice of the termination.
(d) The failure to set forth any fact or circumstance
in a Notice of Termination for Cause or a Notice of
Termination for Good Reason shall not constitute a waiver of
the right to assert, and shall not preclude the party giving
notice from asserting, such fact or circumstance in an
attempt to enforce any right under or provision of this
Agreement.
(e) Date of Termination. The "Date of Termination"
means the date of the Executive's death, the Disability
Effective Date, the date on which the termination of the
Executive's employment by the Company for Cause or without
Cause or by the Executive for Good Reason is effective, or
the date on which the Executive gives the Company notice of
a termination of employment without Good Reason, as the case
may be.
5. Obligations of the Company Upon Termination.
(a) Other Than For Cause, Death or Disability, or For
Good Reason. If, during the Employment Period, the Company
terminates the Executive's employment for any reason other
than Cause, death or Disability, or the Executive terminates
employment for Good Reason, the Company shall continue to
provide the Executive with the compensation and benefits set
forth in paragraphs (a), (b) and (c) of Section 3 and the
continuing protection of Section 5(d) as if he had remained
employed by the Company through the end of the Employment
Period and then retired. The Incentive Compensation for
such period shall be equal to the maximum Incentive
Compensation that the Executive would have been eligible to
earn for such period. In lieu of stock options, restricted
stock and other stock-based awards, the Executive shall be
paid cash equal to the fair market value (without regard to
any restrictions) of the stock options, restricted stock and
other stock-based awards that would otherwise have been
granted. To the extent that any benefits described in
Section 3(c) cannot be provided pursuant to the plan or
program provided by the Company for its executives, the
Company shall provide such benefits outside such plan or
program at no additional cost (including without limitation
tax cost) to the Executive and his family. Finally, during
any period when the Executive is eligible to receive
medical, prescription or dental benefits under another
employer-provided plan, the benefits provided by the Company
under this Section 5(a) may be made secondary to those
provided under such other plan. In addition to the
foregoing, any restricted stock outstanding on the Date of
Termination and all options outstanding on the Date of
Termination shall be fully vested and exercisable and shall
remain in effect and exercisable until the end of the
Employment Period (absent the prior death of the Executive)
as if the Executive remained employed until then and shall
thereafter remain exercisable in accordance with the
applicable terms respecting retired employees. The payments
and benefits provided pursuant to this Section 5(a) are
intended as liquidated damages for a termination of the
Executive's employment by the Company other than for Cause
or Disability or for the actions of the Company leading to a
termination of the Executive's employment by the Executive
for Good Reason, and shall be the sole and exclusive remedy
therefor.
(b) Death and Disability. If the Executive's
employment is terminated by reason of the Executive's death
or Disability during the Employment Period, the Company
shall pay to the Executive or, in the case of the
Executive's death, to the Executive's designated
beneficiaries (or, if there is no such beneficiary, to the
Executive's estate or legal representative), in a lump sum
in cash within 30 days after the Date of Termination, the
sum of the following amounts (the "Accrued Obligations"):
(1) any portion of the Executive's Annual Base Salary
through the Date of Termination that has not yet been paid;
(2) an amount equal to the product of (A) the maximum annual
bonus that the Executive would have been eligible to earn
for the period during which such termination occurs, and (B)
a fraction, the numerator of which is the number of days in
such period through the Date of Termination, and the
denominator of which is the total number of days in the
relevant period; and (3) any accrued but unpaid Incentive
Compensation and vacation pay. The Company shall have no
further obligations under this Agreement, except as
specified in Section 5(d) which shall continue to apply and
in Section 6 below.
(c) By the Company For Cause; By the Executive Other
Than For Good Reason. If the Executive's employment is
terminated by the Company for Cause during the Employment
Period, the Company shall pay to the Executive the Annual
Base Salary through the Date of Termination and all
compensation and benefits payable to the Executive under the
terms of the Company's compensation and benefit plans,
programs or arrangements as in effect immediately prior to
the Date of Termination. If the Executive voluntarily
terminates employment during the Employment Period other
than for Good Reason, the Executive shall have no liability
to the Company for breach of this Agreement and the Company
shall pay the Accrued Obligations to the Executive in a lump
sum in cash within 30 days of the Date of Termination and
the Company shall have no further obligations under this
Agreement, except as specified in Section 6 below; provided
that if such voluntary termination by the Executive occurs
after completion of six months of service, but not
otherwise, Section 5(d) shall also continue to apply.
(d) Certain Increase in Payments.
(i) Notwithstanding any other provision of this
Agreement, if any portion of any payment
under this Agreement, or under any other
agreement with or plan of the Company or its
affiliates (in the aggregate "Total
Payments"), would constitute an "excess
parachute payment," Executive shall be paid
an additional amount (the "Gross-Up Payment")
such that the net amount retained by
Executive after deduction of any excise tax
imposed under Section 4999 of the Internal
Revenue Code of 1986, as amended (the
"Code"), any interest charges or penalties in
respect of the imposition of such excise tax
(but not any federal, state or local income
tax, or employment tax) on the Total
Payments, any federal, state and local income
tax, employment tax, and excise tax upon the
payment provided for by this paragraph (i) of
Section 5(d), shall be equal to the Total
Payments. For purposes of determining the
amount of the Gross-Up Payment, Executive
shall be deemed to pay federal income tax and
employment taxes at the highest marginal rate
of federal income and employment taxation in
the calendar year in which the Gross-Up
Payment is to be made and state and local
income taxes at the highest marginal rate of
taxation in the state and locality of
Executive's domicile for income tax purposes
on the date the Gross-Up Payment is made, net
of the maximum reduction in federal income
taxes that may be obtained from the deduction
of such state and local taxes.
(ii) For purposes of this Agreement, the terms "excess
parachute payment" and "parachute payments" shall have
the meanings assigned to them in Section 280G of the
Code 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 20 business days following notice
from either party to the other of the belief that there
is a payment or benefit due the Executive which will
result in an excess parachute payment as defined in
Section 280G of the Code, the Executive and the
Company, at the Company's expense, shall obtain the
opinion (which need not be unqualified) of nationally
recognized tax counsel ("National Tax Counsel")
selected by the Company's independent auditors and
reasonably acceptable to the Executive (which may be
regular outside counsel to the Company), which opinion
sets forth (i) the amount of the Base Period Income,
(ii) the amount and present value of Total Payments and
(iii) the amount and present value of any excess
parachute payments. As used in this Agreement, the
term "Base Period Income" means an amount equal to the
Executive's "annualized includible compensation for the
base period" as defined in Section 280G(d)(1) of the
Code. For purposes of such opinion, the value of any
noncash benefits or any deferred payment or benefit
shall be determined by the Company's independent
auditors in accordance with the principles of
Section 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 Company and the Executive. The opinion of
National Tax Counsel shall be addressed to the Company
and the Executive and shall be binding upon the Company
and the Executive. If such National Tax Counsel so
requests in connection with the opinion required by
this paragraph (ii) of Section 5(d), the Executive and
the Company shall obtain the advice of a firm of
recognized executive compensation consultants as to the
reasonableness of any item of compensation to be
received by the Executive solely with respect to its
status under Section 280G of the Code and the
regulations thereunder. Within 5 days after the
National Tax Counsel's opinion is received by the
Company and the Executive, the Company shall pay (or
cause to be paid) or distribute (or cause to
distribute) to or for the benefit of Executive such
amounts as are then due to Executive under this
Agreement.
(iii)In the event that upon any audit by the Internal
Revenue Service, or by a state or local taxing
authority, of the Total Payments or Gross-Up Payment, a
change is finally determined to be required in the
amount of taxes paid by Executive, appropriate
adjustments shall be made under this Agreement such
that the net amount which is payable to the Executive
after taking into account the provisions of
Section 4999 of the Code shall reflect the intent of
the parties as expressed in paragraph (i) above, in the
manner determined by the National Tax Counsel.
(iv) The Company agrees to bear all costs associated with,
and to indemnify and hold harmless, the National Tax
Counsel of and from any and all claims, damages, and
expenses resulting from or relating to its
determinations pursuant to paragraphs (ii) and (iii)
above, except for claims, damages or expenses resulting
from the gross negligence or willful misconduct of such
firm.
6. Non-Exclusivity of Rights. Nothing in this Agreement
shall prevent or limit the Executive's continuing or future
participation in any plan, program, policy or practice provided
by the Company or any of its affiliated companies for which the
Executive may qualify, nor, subject to Section 11(f), shall
anything in this Agreement limit or otherwise affect such rights
as the Executive may have under any contract or agreement with
the Company or any of its affiliated companies. However, the Key
Executive Employment and Severance Agreement between WICOR, Inc.
and the Executive dated as of July 1, 1997 is expressly
terminated as a result of the execution of this Agreement and the
Executive hereby waives all rights thereunder. Vested benefits
and other amounts that the Executive is otherwise entitled to
receive under the Incentive Compensation, the SERP (including the
SERP benefits described in Section 3(c)(1) and (3)), or any other
plan, policy, practice or program of, or any contract or
agreement with, the Company or any of its affiliated companies on
or after the Date of Termination shall be payable in accordance
with the terms of each such plan, policy, practice, program,
contract or agreement, as the case may be, except as explicitly
modified by this Agreement.
7. Full Settlement. The Company's obligation to make the
payments provided for in, and otherwise to perform its
obligations under, this Agreement shall not be affected by any
set-off, counterclaim, recoupment, defense or other claim, right
or action that the Company may have against the Executive or
others. In no event shall the Executive be obligated to seek
other employment or take any other action by way of mitigation of
the amounts payable to the Executive under any of the provisions
of this Agreement and, except as specifically provided in Section
5(a), such amounts shall not be reduced, regardless of whether
the Executive obtains other employment.
8. Confidential Information. The Executive shall hold in
a fiduciary capacity for the benefit of the Company all secret or
confidential information, knowledge or data relating to the
Company or any of its affiliated companies and their respective
businesses that the Executive obtains during the Executive's
employment by the Company or any of its affiliated companies and
that is not public knowledge (other than as a result of the
Executive's violation of this Section 8) ("Confidential
Information"). The Executive shall not communicate, divulge or
disseminate Confidential Information at any time during or after
the Executive's employment with the Company, except with the
prior written consent of the Company or as otherwise required by
law or legal process. In no event shall any asserted violation
of the provisions of this Section 8 constitute a basis for
deferring or withholding any amounts otherwise payable to the
Executive under this Agreement.
9. Attorneys' Fees. The Company agrees to pay, as
incurred, to the fullest extent permitted by law, all legal fees
and expenses that the Executive may reasonably incur as a result
of any contest (regardless of the outcome) by the Company, the
Executive or others of the validity or enforceability of or
liability under, or otherwise involving, any provision of this
Agreement, together with interest on any delayed payment at the
applicable federal rate provided for in Section 7872(f)(2)(A) of
the Code.
10. Successors.
(a) This Agreement is personal to the Executive and,
without the prior written consent of the Company, shall not
be assignable by the Executive otherwise than by will or the
laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the
Executive's legal representatives.
(b) This Agreement shall inure to the benefit of and
be binding upon the Company and its successors and assigns.
(c) The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business
and/or assets of the Company expressly to assume and agree
to perform this Agreement in the same manner and to the same
extent that the Company would have been required to perform
it if no such succession had taken place. As used in this
Agreement, "Company" shall mean both the Company as defined
above and any such successor that assumes and agrees to
perform this Agreement, by operation of law or otherwise.
11. Miscellaneous.
(a) This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Wisconsin,
without reference to principles of conflict of laws. The
captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement
may not be amended or modified except by a written agreement
executed by the parties hereto or their respective
successors and legal representatives.
(b) All notices and other communications under this
Agreement shall be in writing and shall be given by hand
delivery to the other party or by registered or certified
mail, return receipt requested, postage prepaid, addressed
as follows:
If to the Executive: Xxxxxx X. Xxxxxxxxx
(Home address)
With a Copy to: Xxxxx & Lardner
Attn: Xxxxxx X. Xxxxx, Xx.
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx XX 00000
Fax No.: (000) 000-0000
If to the Company: Wisconsin Energy Corporation
Attn: Xxxxxx X. Xxxxx,
Treasurer
P.O. Box 2949
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
With a Copy to: Xxxxxxx & Xxxxx LLP
Attn: Xxxxxxx X. Xxxx
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax No.: (000) 000-0000
or to such other address as either party furnishes to the other
in writing in accordance with this paragraph (b) of Section 11.
Notices and communications shall be effective when actually
received by the addressee.
(c) The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement. If
any provision of this Agreement shall be held invalid or
unenforceable in part, the remaining portion of such
provision, together with all other provisions of this
Agreement, shall remain valid and enforceable and continue
in full force and effect to the fullest extent consistent
with law.
(d) Notwithstanding any other provision of this
Agreement, the Company may withhold from amounts payable
under this Agreement all federal, state, local and foreign
taxes that are required to be withheld by applicable laws or
regulations.
(e) The Executive's or the Company's failure to insist
upon strict compliance with any provisions of, or to assert,
any right under, this Agreement (including, without
limitation, the right of the Executive to terminate
employment for Good Reason pursuant to paragraph (c) of
Section 4 of this Agreement ) shall not be deemed to be a
waiver of such provision or right or of any other provision
of or right under this Agreement.
(f) The Executive and the Company acknowledge that
this Agreement supersedes any other agreement between them
concerning the subject matter hereof.
(g) The rights and benefits of the Executive under
this Agreement may not be anticipated, assigned, alienated
or subject to attachment, garnishment, levy, execution or
other legal or equitable process except as required by law.
Any attempt by the Executive to anticipate, alienate,
assign, sell, transfer, pledge, encumber or charge the same
shall be void. Payments hereunder shall not be considered
assets of the Executive in the event of insolvency or
bankruptcy.
(h) This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and
said counterparts shall constitute but one and the same
instrument.
IN WITNESS WHEREOF, the Executive has hereunto set the
Executive's hand and, pursuant to the authorization of its Board,
the Company has caused this Agreement to be executed in its name
on its behalf, all as of the day and year first above written.
EXECUTIVE
/s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxxx
WISCONSIN ENERGY CORPORATION
By:/s/ Xxxxxxx X. Xxxxx
---------------------------------
Xxxxxxx X. Xxxxx
Chairman of the Board,
President and Chief Executive
Officer
