FORM OF ALLIANT ENERGY CORPORATION PERFORMANCE CONTINGENT RESTRICTED STOCK AGREEMENT
Exhibit
10.4f
FORM
OF
ALLIANT
ENERGY CORPORATION
THIS
PERFORMANCE CONTINGENT RESTRICTED STOCK AGREEMENT (this “Agreement”) is
made and entered into as of the ___ 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”), which provides for, among other
things, the issuance of shares of common stock, par value $0.01 per share
(“Stock”), of the Company to a Key Employee (as defined in the Plan), at the
discretion of the Compensation and Personnel Committee of the Board of Directors
of the Company (the “Committee”); and
WHEREAS,
the Committee has authorized the grant of shares of Stock to the Employee,
subject to the restrictions provided herein; and
WHEREAS,
the Company and the Employee desire to memorialize this grant of Stock made to
the Employee under the Plan.
A
G R E E M E N T
NOW,
THEREFORE, in consideration of the promises and of the covenants and
agreements herein set forth, the parties hereto mutually covenant and agree as
follows:
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1.
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Award
of Restricted Stock. Subject to the terms and conditions
of this Agreement, the Employee is granted _______
shares of Stock (the “Restricted Shares”), subject to adjustment in
accordance with the terms of the
Plan.
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2.
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Restricted
Shares. The Employee hereby accepts the Restricted
Shares when issued and agrees with respect thereto as
follows:
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(a)
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Performance
Period. The “Performance Period” is the period beginning
on January 1, 2010 and ending on December 31, 2011, December 31, 2012, or
December 31, 2013, as applicable to satisfy the Performance
Contingency.
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(b)
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Performance
Contingency. The “Performance Contingency” is satisfied
if for the second year, for the third year or for the fourth year of the
Performance Period, the Company’s annual adjusted Net Income from
Continuing Operations (“Net Income from Continuing Operations”) is at
least 119% of the adjusted Net Income from Continuing Operations for the
year ending immediately prior to the beginning of the Performance Period
(based on compounded annual Net Income growth from Continuing Operations
of 6% per year over three years). More specifically, the
Performance Contingency is satisfied if on December 31, 2011, or on
December 31, 2012, or on December 31, 2013, the Company’s adjusted Net
Income from Continuing operations is at least 119% of the 2009 year-end
adjusted Net Income from Continuing Operations, as adjusted to exclude
such events as approved by the
Committee.
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(c)
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Forfeiture
Restrictions. Except as otherwise provided herein, the
Employee may not sell, assign, pledge, exchange, hypothecate or otherwise
transfer, encumber or dispose of the Restricted Shares other than by
transferring them to the Company or by will or by the laws of descent and
distribution; provided, however, that the Employee may designate a
beneficiary or beneficiaries to exercise the Employee’s rights and to
receive the Restricted Shares upon the Employee’s death. If the
Performance Contingency is not satisfied by the end of the fourth year of
the Performance Period, then the Employee shall forfeit and surrender the
Restricted Shares for no consideration. The foregoing
prohibition against transfer and the obligation to forfeit and surrender
the Restricted Shares if the Performance Contingency is not satisfied are
herein referred to as the “Forfeiture
Restrictions.”
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(d)
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Acceleration
of Forfeiture Restrictions—Certain Terminations of Employment During
Performance Period. If the Participant’s employment with
the Company terminates during the Performance Period for any reason other
than the Participant’s Retirement, Disability, Involuntary Termination
without Cause, or death, the Restricted 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 waive such automatic forfeiture and determine that the
Participant will be entitled to receive a pro rata or other portion of the
Restricted Shares if the Performance Contingency is
satisfied.
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(e)
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Lapse
of Forfeiture Restrictions—Certain Special Events During Performance
Period. If the Performance Contingency is satisfied and
if the Participant’s employment with the Company terminates during the
Performance Period because of the Participant’s Retirement, Disability,
Involuntary Termination without Cause, or death, the Participant shall be
entitled to a prorated number of the Restricted Shares based on the ratio
of the number of months the Participant was employed during the
Performance Period to the total number of months in the Performance
Period. The remaining Restricted Shares shall be
forfeited.
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(f)
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Lapse
of Forfeiture Restrictions—Change in Control. If a
Change in Control occurs during the Performance Period and at least 180
days after the date the Restricted Shares were granted, and the
Participant’s termination does not occur before the Change in Control
date, the Participant shall be entitled to a prorated number of the
Restricted Shares based on the ratio of the number of months the
Participant was employed during the Performance Period up to the Change in
Control to 36 (unless the Performance Period was already into its fourth
year, in which case the denominator would be 48). For the
Participants entitled to prorata vesting, the remaining Restricted Shares
shall be forfeited.
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(g)
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Lapse
of Forfeiture Restrictions—End of Performance
Period. Subject to paragraphs (d), (e) and (f) of this
Section 2, the Forfeiture Restrictions shall lapse as to all of the
Restricted Shares as of the end of the Performance Period if the
Performance Contingency has been
satisfied.
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(h)
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Definitions. The
following sets forth definitions of certain terms used in this
Agreement:
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(i) 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.
(ii) Change
in Control. The term “Change in Control” means the occurrence
of any one of the events set forth in the following paragraphs:
(1) 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
(2) 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
(3) 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
(4) 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.
(iii) Disability. “Disability”
shall have the meaning provided in the Alliant Energy Cash Balance
Plan.
(iv) 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.
(v) Retirement. “Retirement” of the
Participant shall mean the Participant’s employment terminates (with the consent
of the Company) after he or she has reached age 55 with 10 years of
service.
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3.
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Book
Entry. The Restricted Shares will be held in book entry
by the Company’s transfer agent in the name of the Employee for that
number of Restricted Shares issued to the
Employee.
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4.
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Transfer
After Lapse of Restrictions. To
the extent the Forfeiture Restrictions have lapsed, the
Restricted Shares shall thereafter be freely transferable by the Employee,
provided that the Employee agrees for himself or herself and his or her
heirs, legatees and legal representatives, with respect to all shares of
Stock acquired pursuant to the terms and conditions of this Agreement (or
any shares of Stock issued pursuant to a stock dividend or stock split
thereon or any securities issued in lieu thereof or in substitution or
exchange therefor), that he or she and his or her heirs, legatees and
legal representatives will not sell or otherwise dispose of such shares
except pursuant to a registration statement filed by the Company that has
been declared effective by the Securities and Exchange Commission under
the Securities Act of 1933, as amended (the “Act”), or except in a
transaction which is determined by counsel to the Company to be exempt
from registration under the Act and any applicable state securities laws;
and to execute and deliver to the Company such investment representations
and warranties, and to take such other actions, as counsel for the Company
determines may be necessary or appropriate for compliance with the Act and
any other applicable securities laws. The Employee agrees that
the certificates representing any of the shares of Stock acquired pursuant
to the terms and conditions of this Agreement may bear such legend or
legends as the Company deems appropriate in order to assure compliance
with applicable securities laws.
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5.
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Voting
Rights, Dividends and Other Distributions. Following the issuance
of the Restricted Shares under Section 3 and while the Restricted Shares
are subject to the Forfeiture Restrictions of Section
2:
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(a)
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The Employee shall
be entitled to exercise full voting rights with respect to such Restricted
Shares.
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(b)
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The Employee shall
be entitled to receive any cash dividends (whether regular or otherwise),
stock dividends and other distributions (whether paid in cash or
securities) paid or made with respect to the Restricted Shares, provided,
however, that any such dividends or distributions shall be held in the
custody of the Company and shall be subject to the same restrictions on
transferability and forfeitability that apply to the corresponding
Restricted Shares. All dividends or distributions credited to
the Employee shall be paid to the Employee within forty-five (45) days
following the full vesting of the Restricted Shares with respect to which
such dividends or distributions were
made.
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Notwithstanding the
foregoing, no dividends or distributions shall be payable to the Employee with
respect to, and the Employee shall not have the right to vote the Restricted
Shares with respect to, record dates occurring prior to the Grant Date, or with
respect to record dates occurring on or after the date, if any, on which the
Employee has forfeited the Restricted Shares.
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6.
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Beneficiary
Designation. 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 that the Committee receives 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. 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, then the Employee’s estate shall be entitled to
receive the Restricted Shares following the death of the
Employee. If the Committee is in doubt as to the right of any
person to receive the Restricted Shares, then the Company may retain the
Restricted Shares, without liability for any interest thereon, until the
Committee determines the person entitled thereto, or the Company may
deliver the Restricted Shares to any court of appropriate jurisdiction,
and such delivery shall be a complete discharge of the liability of the
Company therefor.
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7.
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Adjustments. The
Committee may adjust the number of shares subject to this Agreement in
accordance with and pursuant to Section 4(b) of the
Plan.
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8.
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Withholding
of Tax. To the extent that the receipt of the Restricted
Shares or dividends or the lapse of any Forfeiture Restrictions results in
income to the Employee for any federal or state income tax purposes, no
later than the date as of which such tax withholding is first required,
the Employee shall pay to the Company, or make arrangements satisfactory
to the Company regarding the payment of, any federal or state income tax
required to be withheld with respect to such amount. If the
Employee fails to do so, then the Company is authorized to withhold from
any cash remuneration then or thereafter payable to the Employee any tax
required to be withheld by reason of such resulting compensation
income. If the Employee does not make an election under Section
83(b) of the Internal Revenue Code of 1986, as amended, with respect to
the Restricted Shares, then the Employee shall be allowed to satisfy the
tax withholding obligations arising with respect to the Restricted Shares
with shares of Stock (including Restricted Shares upon which the
restrictions have lapsed but excluding Restricted Securities (as defined
in the Plan)) having a fair market value equal to the minimum statutory
total tax required to be withheld.
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9.
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Powers
of Company Not Affected. The existence of this Agreement
or the Restricted Shares herein granted shall not affect in any way the
right or power of the Company or its shareholders 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 ahead of or affecting the Stock or
the rights thereof, or dissolution or liquidation of the Company, or any
sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or
otherwise.
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10.
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Employment. The
granting of Restricted Shares under this Agreement shall not be construed
as granting to the Employee any right with respect to continued employment
by the Company. Any question as to whether and when there has
been a termination of the Employee’s employment with the Company shall be
determined by the Committee in its sole
discretion.
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11.
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Interpretation. As
a condition of the granting of the Restricted Shares, the Employee agrees
for himself or herself and his or her legal heirs, legatees or
representatives, that any dispute or disagreement that may arise under or
as a result of or pursuant to this Agreement shall be determined by the
Committee in its sole discretion, and any interpretation by the Committee
of the terms of this Agreement or the Plan shall be final, binding and
conclusive.
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12.
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Successors
and Assigns. This Agreement shall be binding upon, and
inure to the benefit of, the Company its successors and assigns, and upon
any person acquiring, whether by merger, consolidation, purchase of assets
or otherwise, all or substantially all of the Company’s assets and
business. This Agreement shall be binding upon, and inure to
the benefit of the Employee, his or her legal heirs, legatees and
representatives. Except for the designation of a beneficiary as
provided herein, this Agreement may not be assigned by the Employee, and
any attempted assignment shall be null and void and of no legal
effect.
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13.
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Amendment
or Modification. Except as otherwise provided herein, no
term or provision of this Agreement may be amended, modified or
supplemented orally, but only by an instrument in writing signed by the
parties.
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14.
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Governing
Law. The validity, construction, and effect of the this
Agreement shall be determined in accordance with the internal laws of the
State of Wisconsin, without reference to conflict of law principles
thereof, and applicable federal
law.
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15.
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Headings. Headings
are used in this Agreement solely as a convenience to facilitate
reference. Such headings shall not be deemed in any way
material or relevant to the construction or interpretation of this
Agreement.
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16.
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No
Fractional Shares. No fractional shares of Stock or
other securities shall be issued or delivered pursuant to this Agreement,
and the Committee in its sole discretion shall determine (except as
otherwise provided in the Plan) whether cash, other securities, or other
property shall be paid or transferred in lieu of any fractional shares of
Stock or other securities, or whether such fractional shares of Stock or
other securities or any rights thereto shall be canceled, terminated, or
otherwise eliminated.
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17.
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Subject
to Plan. This Agreement is subject in all respects to
the terms and conditions of the
Plan.
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* *
*
[The
signatures to this Agreement are on the next page.]
IN
WITNESS WHEREOF, the Company has caused this instrument 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.
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ALLIANT
ENERGY CORPORATION
(the
"Company")
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By:
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Its:
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Executive Vice
President, General Counsel and Chief Administrative
Officer
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EMPLOYEE
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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:
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Primary
Beneficiary:
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Contingent
Beneficiary:
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Name:
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Address:
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Relationship
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(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)
