Exhibit 10(a)
EXECUTIVE CHANGE OF CONTROL SEVERANCE AGREEMENT
This Agreement made effective as of November 10, 1995 by and
between ___________ (hereinafter referred to as the "Executive") and IES
INDUSTRIES INC., an Iowa corporation (hereinafter referred to as the
"Company"), by and on behalf of itself and, if the Executive is not an
employee of IES INDUSTRIES INC., by and on behalf of the affiliate
company that is the employer of the Executive, which company shall
specifically include IES UTILITIES INC., an Iowa corporation. The term
"Company" shall specifically include IES INDUSTRIES INC. and the
affiliate company of IES INDUSTRIES INC., if different from IES
INDUSTRIES INC., that is the employer of the Executive.
WHEREAS, the Company believes it to be in its best interest to
attract and to continue to employ key executives who can approach major
business development decisions objectively and without concern for their
own personal situation;
WHEREAS, the Company has designated the Executive as a key
executive within the Company;
WHEREAS, the Company and Executive have entered into certain
agreements during the course of the Executive's employment with the
Company that contain provisions inconsistent with certain provisions of
this Agreement;
WHEREAS, the Company believes that the level of protection for
the Executive should increase based on the years of service to the
Company and the Executive's age;
WHEREAS, the Company and Executive intend that the provisions
set forth in this Agreement shall amend the language of other agreements
between the Company and the Executive, other than the Key Employee
Deferred Compensation Agreement and any qualified plans as defined under
Section 401 of the Internal Revenue Code of 1986, as amended, applicable
to the Executive, to the extent necessary to conform those agreements
with the terms of this Agreement, which agreements include but are not
limited to the Amended and Restated Supplemental Retirement Agreement
(hereinafter referred to as the "Supplemental Retirement Agreement") and
the Long-Term Incentive Plan of 1987, as amended (the "Long-Term
Incentive Plan"); and
WHEREAS, the Company and the Executive wish to supersede,
amend and replace in all respects the prior Executive Change of Control
Severance Agreements that have been in existence between the Executive
and IES Industries Inc.
NOW, THEREFORE, it is agreed:
1. Change of Control and Termination. On a "Termination" of
the Executive's employment (as that term is defined in Paragraph 3 of
this Agreement) during the period commencing one hundred eighty (180)
days prior to a "Change of Control" (as that term is defined in
Paragraph 4 of this Agreement) and ending on the third anniversary of
the date of such Change of Control (the "Protected Period"), the
Executive shall be entitled for the period set forth in subparagraph (h)
of this Paragraph (the "Continuation Period") to receive from the
Company the amounts and benefits set forth in subparagraphs (a), (b),
(c) and (d) of this Paragraph and shall be entitled to the rights set
forth in subparagraphs (f) and (g) of this Paragraph (with certain of
the rights under subparagraph (g) taking effect on the commencement of
the Protected Period and others on Termination), as follows:
(a) A payment in each calendar year falling within the
Continuation Period in an amount equal to the most recent monthly
base salary approved by the Board of Directors for payment to such
Executive as of the day immediately prior to Termination times the
number of months of such calendar year which fall within the
Continuation Period.
(b) Subject to the provisions and limitations under (3) below
of this subparagraph, group term life insurance (life insurance as
used in this subparagraph excludes life insurance owned by the
Company to fund benefits for the Executive under other plans
between the Executive and the Company), health/medical and dental
insurance at:
(1) The same levels (individual or family) provided
prior to the Executive's Termination.
(2) The coverage and benefit levels then being
provided to comparable executives by the Company, if greater.
(3) Life insurance being provided to the Executive
on a group term basis under the provisions of Section 79 of
the Internal Revenue Code of 1986, as amended, shall terminate
prior to the Continuation Period if so required by the
contract in existence between the Company and an insurance
carrier on date of Termination.
(4) Upon termination of the benefits provided under
subparagraph (b) of this Paragraph, the Executive shall have
all the rights available to him under COBRA or similar
provisions relating to continuation of fringe benefits and, in
addition, the Executive shall be permitted to purchase at the
Company's group rates the same medical and dental insurance
then being provided to comparable executives of the Company or
by any successor organization of the Company, with the Company
or any successor organization being responsible for the
additional cost, if any, in providing such benefits to the
Executive above the group rates then applicable. The right to
purchase the medical and dental insurance (no right shall
exist for the Executive to continue to pay premiums on life
insurance) shall continue until the Executive is entitled to
receive retirement coverage for such benefits under the
Company's plan for retired Executives.
(c) A payment in each calendar year falling within the
Continuation Period equal to the product of (i) one-twelfth (1/12)
of the average incentive awards (both annual incentive awards under
the Company's Management Incentive Compensation Plan and long-term
incentive awards under the Long-Term Incentive Plan) paid each year
to executives of the same or comparable designation as that of the
Executive by the Company during the three (3) year period
immediately preceding the Change of Control under any annual or
long-term incentive or award programs adopted by the Company to
reward individual performance times (ii) the number of months of
such calendar year which fall within the Continuation Period. For
this purpose, the value of any non-cash awards shall be determined
on a cash equivalent basis as of the time of award.
(d) The Company shall pay all expenses, as they become due,
relating to outplacement services provided to the Executive by an
outplacement firm reasonably acceptable to Executive, and shall
pay, as they become due, all legal fees and related expenses
(including the costs of experts, evidence and counsel) incurred by
the Executive (or his surviving spouse or estate) as a result of
such party seeking to obtain or enforce any right or benefit
provided by this Agreement (including the right to payment of such
legal fees and related expenses), provided that the aggregate
payments made by the Company pursuant to this subparagraph (d)
shall not exceed fifteen percent (15%) of Executive's then most
recent annual base salary.
(e) In the event of the death of Executive during the period
that the Company is obligated to continue the Executive's salary
under subparagraphs (a) and (h) of this Paragraph, the Company
shall:
(1) continue to pay such salary to the Executive's
surviving spouse, or his estate if the Executive leaves no
surviving spouse,
(2) provide the same levels of medical and dental
care being provided to such Executive at death under
subparagraph (b) to his family (spouse and family members
eligible under the insurance contract then existing between
the Company and the insurance company providing medical
coverage for the Company's employees), and
(3) pay such amounts as would be payable under
subparagraph (c) of this Paragraph to the surviving spouse of
the Executive or his estate in the event the Executive leaves
no surviving spouse.
(f) The Executive shall immediately become vested in (the
term "vested in" as used in this subparagraph means the Executive's
rights to benefits and account balances become nonforfeitable) and
entitled to receive all awards of restricted stock (all
restrictions shall lapse and shall not be subject to forfeiture),
stock options (the options shall be immediately exercisable at the
exercise price and for the term established for each option),
performance units (become entitled to the immediate payment of
performance units) and limited stock appreciation rights (the
rights shall become immediately exercisable at the exercise price
and shall not be subject to cancellation) and all other rights
granted to the Executive under the Long-Term Incentive Plan or
other comparable or similar plans that may now be in effect or
subsequently adopted by the Company. Performance units shall be
paid at the higher of the "planned" level (the Executive being
deemed to have met and satisfied all performance objectives) or the
projected value based upon the performance to the date of the
Termination of the Executive. All defined terms under the Long-
Term Incentive Plan, including Change of Control, shall be deemed
amended consistent with the provisions of this Agreement upon the
occurrence of the Termination of the Executive during the Protected
Period.
(g) The Supplemental Retirement Agreement between the
Executive and the Company is specifically amended to provide that
effective as of the commencement of the Protected Period:
(1) the Executive (or his designated beneficiary)
shall become immediately fully vested in and entitled to
receive, at Normal Retirement Age, amounts payable under the
terms of the Supplemental Retirement Agreement for the Normal
Retirement Benefit, at a level equal to seventy-five percent
(75%) of the "Annual Salary", as that term "Annual Salary" is
defined in such Supplemental Retirement Agreement.
(2) The Executive, his Designated Beneficiary or
estate, shall be entitled to receive the "Death Benefit" on
the Executive's death based on the "Annual Salary" as
determined under (1) of this subparagraph (g) and for purposes
of Paragraph 9.1 of the Supplemental Retirement Agreement, the
Executive shall be treated as receiving or having received the
"Supplemental Benefit" portion of the Normal Retirement
Benefit under Paragraph 3.1 of Article III of that Agreement.
(3) Upon Termination of the Executive during the
Protected Period, the Board of Directors of the Company shall
be deemed to have consented to the Executive's Normal
Retirement Age under the terms of the Supplemental Retirement
Agreement being the earlier of the date the Executive attains
age sixty-five (65) or the date the Company's obligation to
pay the Executive's salary under this Paragraph of this
Agreement terminates, and that the Executive's benefits shall
be computed under the provisions of Paragraphs 2.6 of Article
II, 3.1, 3.2 and 3.3 of Article III and 4.1 of Article IV of
the Supplemental Retirement Agreement and not under Paragraphs
6.1, 6.2 and 6.3 of Article VI and 7.1, 7.2 and 7.3 of Article
VII of the Supplemental Retirement Agreement.
(4) The term "vested in" as used in this
subparagraph (g) shall mean that the Executive shall be deemed
to have satisfied all eligibility requirements (including
employment to date of retirement) to receive normal retirement
benefits on attaining Normal Retirement Age (as Normal
Retirement Age has been modified by this Agreement) and that
the Company shall not have the right under Paragraph 12.1 of
Article XII or any other provision of the Supplemental
Retirement Agreement to modify the eligibility requirements to
deny that the Executive failed to satisfy any eligibility
requirements required to receive Normal Retirement Benefits
under the Supplemental Retirement Agreement.
(h) The Executive, his surviving spouse, if any, or his
estate shall be entitled to receive the amounts and the benefits
payable under subparagraphs (a), (b), (c), (d) and (e) of this
Paragraph for a period of thirty-six (36) months. Annual payments
required under subparagraphs (a) and (c) shall be paid on January 2
of each calendar during the thirty-six (36) month period, except
that the first annual payment shall be made within ten (10) days of
the Executive's Termination.
2. Deemed Continuation of Employment During the Continuation
Period. In determining the level of any benefits that the Executive is
entitled to receive from the Company under any qualified or nonqualified
plan, the Executive shall be deemed to have been employed by the Company
until the end of the Continuation Period.
3. Definition of "Termination". For purposes of this
Agreement, the term "Termination" shall mean termination of the
employment of the Executive with the Company for any reason other than
death, normal retirement, late retirement or voluntary early retirement
as those terms are defined in the Company's Qualified Defined Benefit
Plan, disability as that term is defined in the Company's Qualified
Defined Benefit Plan, termination for Cause as defined below, or
voluntary resignation by the Executive for other than Good Reason (a
voluntary resignation by the Executive for Good Reason shall constitute
a "Termination"). The term "Cause" means gross misconduct or willful
and material breach of the Executive's duties as an employee of the
Company. The term "Good Reason" shall mean, during the Protected
Period, the occurrence without the Executive's express written consent
of:
(a) Except in connection with the Termination of the Executive's
employment for Cause or because of the death, disability, normal
retirement, late retirement or voluntary early retirement by the
Executive:
(1) the assignment to the Executive of any duties
inconsistent with the Executive's duties, responsibilities and
status with the Company immediately prior to the commencement of
the Protected Period; or
(2) a change in the Executive's reporting
responsibilities titles or offices as in effect immediately prior
to the commencement of the Protected Period or any removal of the
Executive from or any failure to re-elect the Executive to any of
such positions.
(b) A reduction in the Executive's annual salary in effect
immediately prior to the commencement of the Protected Period or as the
same may be increased from time to time thereafter.
(c) The Company requiring, through a change of the
Executive's principal office, that the Executive be based anywhere
other than the metropolitan area in which the Executive was based
immediately preceding the commencement of the Protected Period
except for required travel or business to an extent substantially
consistent with the business travel obligation of the Executive
immediately preceding the commencement of the Protected Period.
(d) The failure by the Company to include the Executive in
any benefit or compensation plan or arrangement in which the
Executive was a participant immediately preceding the commencement
of the Protected Period (unless such plans are terminated for all
executives of the Company) or the failure to include such Executive
in any subsequent compensation or benefit program initiated for the
benefit of other executives of the Company.
(e) As a result of a change in circumstances during the
Protected Period relating to the Change of Control significantly
affecting the Executive's position, the Executive is unable to
exercise the authorities, powers, functions or duties attached to
his position immediately preceding the commencement of the
Protected Period.
A voluntary resignation by the Executive for Good Reason shall
be effectuated by giving the Company written notice of the termination
[during the Protected Period and] within ninety (90) days after the date
that the existence of the event constituting Good Reason first becomes
known to the Executive (or if later, the date of the Change of Control),
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 voluntary resignation by the
Executive for Good Reason shall be effective on the date set forth in
such notice (which date shall in no event be later than sixty (60) days
after the notice is given).
4. Definition of "Change of Control". A Change of Control
involving the Company (for purposes of this Paragraph 4, the term
"Company" shall only have reference to IES Industries Inc.) shall
constitute a Change of Control. A Change of Control shall mean a
business combination as defined in the Eighth Article of the Restated
Articles of Incorporation of IES Industries Inc. (Amended and Restated
as of May 4, 1993) approved by the Company's Board of Directors on May
4, 1993 which superseded the Amended and Restated Articles of
Incorporation approved by the Company's shareholders at the 1987 Annual
Meeting of the Company's shareholders (the May 4, 1993 Restated Articles
of Incorporation did not require shareholder approval and did not amend
the Eighth Article), or if subsequent to such approval the Articles of
Incorporation are amended to delete or change the Eighth Article, then
as defined in Exhibit "A" attached hereto and made a part of this
Agreement. In addition, for purposes of this Agreement a Change of
Control shall be deemed to have occurred if (a) in any merger,
consolidation or corporate reorganization the owners of the capital
stock entitled to vote in the election of directors of the Company prior
to said combination own less than seventy-five percent (75%) of the
resulting entity's voting stock; or (b) during any period of two (2)
consecutive years, individuals who at the beginning of such period
constitute the Board of Directors of the Company cease for any reason to
constitute at least a majority of the Board of Directors of any
successor organization.
5. Effect of This Agreement on Other Agreements. All
compensation and related employment agreements between the Company and
the Executive, except the Key Employee Deferred Compensation Agreement
and any qualified plans, are hereby modified to reflect the terms of
this Agreement and shall be subject to and shall be interpreted
consistent with the terms of this Agreement. In the event of any
dispute concerning the terms of this Agreement and the amendments that
this Agreement is intended to make to other agreements between the
Company and the Executive, the intention of the parties shall be that
the Executive shall be protected in his rights under those agreements
and those rights shall be consistent with the Executive receiving the
same benefits that he would have received if he had remained employed
with the Company until the Normal Retirement Age specified in each of
those agreements.
6. Term of Agreement. This Agreement shall be effective for
a three (3) year period from the effective date set forth above and
thereafter the agreement shall be considered automatically extended for
additional one (1) year periods thereafter unless the Board of Directors
of the Company shall specifically, by resolution adopted at least sixty
(60) days prior to the end of the period, terminate this Agreement.
7. Amendments. Except as provided in Paragraph 6 above, this
Agreement may be amended or canceled only by mutual agreement of the
parties in writing. Except as otherwise provided herein, the Agreement
shall be binding upon the Company, its assigns or any successors in
interest of the Company and shall inure to the benefit of the Executive
and his heirs.
8. Headings. Headings in this Agreement are for convenience
only and shall not be used to interpret or construe its provisions.
9. Notices. All notices required under this Agreement except
that this Agreement shall be extended automatically without written
notice as set forth in Paragraph 6, shall be in writing and delivered
personally or mailed by certified mail, postage prepaid, addressed to
the parties at their last known address as set forth in the Company's
records.
10. Unenforceability of Provisions. In the event any
provisions or portions of this Agreement shall be determined to be
invalid or unenforceable for any reason, the remaining provisions shall
be unaffected thereby and shall remain in full force and effect.
11. Applicable Law. The provisions of this Agreement shall
be construed in accordance with the laws of the State of Iowa.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed.
IES INDUSTRIES INC.
By_____________________________
Name:
Title:
________________________________
EXHIBIT A
EIGHTH: Changes in corporate control through certain
Business Combinations shall be effected solely in accordance with this
Article.
SECTION 1. Vote Required for Certain Business Combinations.
In addition to any affirmative vote required by law or these Articles of
Incorporation, and except as otherwise expressly provided in Section 2
of this Article:
(i) any merger or consolidation of the corporation or any
Subsidiary (as hereinafter defined) with (a) any 5%
Shareholder (as hereinafter defined) or (b) any other
corporation (whether or not itself a 5% shareholder) which is,
or after such merger or consolidation would be, an Affiliate
(as hereinafter defined) of a 5% Shareholder; or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition (in one transaction or a series of transactions)
to or with any 5% Shareholder or any Affiliate of any 5%
Shareholder of a major part of the assets of the corporation
or any Subsidiary; or
(iii) the issuance or transfer by the corporation or any Subsidiary
of any securities of the corporation or any Subsidiary to any
5% Shareholder or any Affiliate of any 5% Shareholder in
exchange for cash, securities or other property; or
(iv) the adoption of any plan or proposal for the liquidation or
dissolution of the corporation proposed by or on behalf of a
5% Shareholder or any Affiliate of any 5% Shareholder; or
(v) any reclassification of securities (including any reverse
stock split), or recapitalization of the corporation, or any
merger or consolidation of the corporation with any of its
Subsidiaries or any other transaction (whether or not with or
into or otherwise involving a 5% Shareholder) which has the
effect, directly or indirectly, of increasing the
proportionate share of the outstanding share of any class of
equity or convertible securities of the corporation or any
Subsidiary which is directly or indirectly owned any 5%
Shareholder or any Affiliate of any 5% Shareholder;
shall require the affirmative vote of the holders of at least 80% of the
voting power of the then outstanding shares of capital stock of the
corporation entitled to vote generally in the election of directors (the
"Voting Stock"), voting together as a single class. Such affirmative
vote shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage may be specified, by law or in any
agreement with any national securities exchange or otherwise.
Definition of "Business Combination." The term "Business Combination"
as used in this Article shall mean any transaction which is referred to
in any one or more of clauses (i) through (v) of this Section 1.
