Exhibit 10-E
CHANGE IN CONTROL
SEVERANCE AGREEMENT
This Agreement is made as of the ________ day of ____________________,
between Otter Tail Corporation , a Minnesota corporation, with its principal
offices at 000 Xxxxx Xxxxxxx Xxxxxx, X.X. Xxx 000, Xxxxxx Xxxxx, Xxxxxxxxx
00000-0000 (the "Corporation ") and _____________________ ("Employee"), residing
at _____________________________.
WITNESSETH THAT:
WHEREAS, this Agreement is intended to specify the financial
arrangements that the Corporation will provide to Employee upon Employee's
separation from employment with the Corporation under any of the circumstances
described herein; and
WHEREAS, this Agreement is entered into by the Corporation in the
belief that it is in the best interests of the Corporation and its shareholders
to provide stable conditions of employment for Employee notwithstanding the
possibility, threat or occurrence of certain types of change in control, thereby
enhancing the Corporation 's ability to attract and retain highly qualified
people.
NOW, THEREFORE, to assure the Corporation that it will have the
continued dedication of Employee notwithstanding the possibility, threat or
occurrence of a bid to take over control of the Corporation , and to induce
Employee to remain in the employ of the Corporation , and for other good and
valuable consideration, the Corporation and Employee agree as follows:
1. Term of Agreement. The term of this Agreement shall commence on the
date hereof as first written above and shall continue through April 1, 2003;
provided that commencing on March 31, 2003 and each March 31 thereafter, the
term of this Agreement shall automatically be extended for one additional year
unless 360 days prior to March 31, the Corporation shall have given notice that
it does not wish to extend this Agreement, and provided, further, that
notwithstanding any such notice by the Corporation not to extend, this Agreement
shall continue in effect for a period of 36 months beyond the term provided
herein if a Change in Control (as defined in Section 3(i) hereof) shall have
occurred during such term.
2. Termination of Employment.
(i) Prior to a Change in Control. Employee's rights upon termination of
employment prior to a Change in Control (as defined in Section 3(i) hereof)
shall be governed by the Corporation 's standard employment termination policy
applicable to Employee in effect at the time of termination or the Employee's
Employment Agreement.
(ii) After a Change in Control.
(a) From and after the date of a Change in Control (as defined
in Section 3(i) hereof) during the term of this Agreement, the Corporation shall
not terminate Employee from employment with the Corporation except as provided
in this Section 2(ii) or as a result of Employee's Disability (as defined in
Section 3(iv) hereof) or death.
(b) From and after the date of a Change in Control (as defined
in Section 3(i) hereof) during the term of this Agreement, the Corporation shall
have the right to terminate Employee from employment with the Corporation at any
time during the term of this Agreement for Cause (as defined in Section 3(iii)
hereof), by written notice to Employee, specifying the particulars of the
conduct of Employee forming the basis for such termination.
(c) From and after the date of a Change in Control (as defined
in Section 3(i) hereof) during the term of this Agreement: (x) the Corporation
shall have the right to terminate Employee's employment without Cause (as
defined in Section 3(iii) hereof), at any time; and (y) Employee shall, upon the
occurrence of such a termination by the Corporation without Cause, or upon the
voluntary termination of Employee's employment by Employee for Good Reason (as
defined in Section 3(ii) hereof), be entitled to receive the benefits provided
in Section 4 hereof. Employee shall evidence a voluntary termination for Good
Reason by written notice to the Corporation given within 60 days after the date
of the occurrence of any event that Employee knows or should reasonably have
known constitutes Good Reason for voluntary termination. Such notice need only
identify Employee and set forth in reasonable detail the facts and circumstances
claimed by Employee to constitute Good Reason.
Any notice given by Employee pursuant to this Section 2 shall be
effective five business days after the date it is given by Employee.
3. Definitions
(i) A "Change in Control" shall mean:
(a) a change in control of a nature that would be required to
be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or successor provision thereto, whether or not the Corporation is then
subject to such reporting requirement;
(b) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) is or becomes the "beneficial owner" (as defined in
Rule 13d-3 promulgated under the Exchange Act), directly or indirectly, of
securities of the Corporation representing 35% or more of the combined voting
power of the Corporation 's then outstanding securities;
(c) the Continuing Directors (as defined in Section 3(v)
hereof) cease to constitute a majority of the Corporation 's Board of Directors;
provided that such change is the
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direct or indirect result of a proxy fight and contested election or elections
for positions on the Board of Directors; or
(d) the majority of the Continuing Directors (as defined in
Section 3(v) hereof) determine in their sole and absolute discretion that there
has been a change in control of the Corporation .
(ii) "Good Reason" shall mean the occurrence of any of the following
events, except for the occurrence of such an event in connection with the
termination or reassignment of Employee's employment by the Corporation for
Cause (as defined in Section 3(iii) hereof), for Disability (as defined in
Section 3(iv) hereof) or for death:
(a) the assignment to Employee of employment responsibilities
which are not of comparable responsibility and status as the employment
responsibilities held by Employee immediately prior to a Change in Control;
(b) a reduction by the Corporation in Employee's base salary
as in effect immediately prior to a Change in Control;
(c) an amendment or modification of the Corporation 's
incentive compensation program (except as may be required by applicable law)
which affects the terms or administration of the program in a manner adverse to
the interest of Employee as compared to the terms and administration of such
program immediately prior to a Change in Control;
(d) the Corporation 's requiring Employee to be based anywhere
other than within 50 miles of Employee's office location immediately prior to a
Change in Control, except for requirements of temporary travel on the
Corporation 's business to an extent substantially consistent with Employee's
business travel obligations immediately prior to a Change in Control;
(e) except to the extent otherwise required by applicable law,
the failure by the Corporation to continue in effect any benefit or compensation
plan, stock ownership plan, stock purchase plan, stock incentive plan, bonus
plan, life insurance plan, health-and-accident plan, or disability plan in which
Employee is participating immediately prior to a Change in Control (or plans
providing Employee with substantially similar benefits), the taking of any
action by the Corporation which would adversely affect Employee's participation
in, or materially reduce Employee's benefits under, any of such plans or deprive
Employee of any material fringe benefit enjoyed by Employee immediately prior to
such Change in Control, or the failure by the Corporation to provide Employee
with the number of paid vacation days to which Employee is entitled immediately
prior to such Change in Control in accordance with the Corporation 's vacation
policy as then in effect; or
(f) the failure by the Corporation to obtain, as specified in
Section 6(i) hereof, an assumption of the obligations of the Corporation to
perform this Agreement by any successor to the Corporation .
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(iii) "Cause" shall mean termination by the Corporation of Employee's
employment based upon (a) the willful and continued failure by Employee
substantially to perform Employee's duties and obligations (other than any such
failure resulting from Employee's incapacity due to physical or mental illness
or any such actual or anticipated failure resulting from Employee's termination
for Good Reason) or (b) the willful engaging by Employee in misconduct which is
materially injurious to the Corporation , monetarily or otherwise. For purposes
of this Section 3(iii), no action or failure to act on Employee's part shall be
considered "willful" unless done, or omitted to be done, by Employee in bad
faith and without reasonable belief that such action or omission was in the best
interests of the Corporation .
(iv) "Disability" shall mean any physical or mental condition which
would qualify Employee for a disability benefit under the Corporation 's
long-term disability plan.
(v) "Continuing Director" shall mean any person who is a member of the
Board of Directors of the Corporation , while such person is a member of the
Board of Directors, who is not an Acquiring Person (as hereinafter defined) or
an Affiliate or Associate (as hereinafter defined) of an Acquiring Person, or a
representative of an Acquiring Person or of any such Affiliate or Associate, and
who (a) was a member of the Board of Directors on the date of this Agreement as
first written above or (b) subsequently becomes a member of the Board of
Directors, if such person's nomination for election or initial election to the
Board of Directors is recommended or approved by a majority of the Continuing
Directors. For purposes of this Section 3(v): "Acquiring Person" shall mean any
"person" (as such term is used in Sections 13(d) and 14(d) of the Exchange Act)
who or which, together with all Affiliates and Associates of such person, is the
"beneficial owner" (as defined in Rule 13d-3 promulgated under the Exchange Act)
of 20% or more of the shares of Common Stock of the Corporation then
outstanding, but shall not include the Corporation , any subsidiary of the
Corporation or any employee benefit plan of the Corporation or of any subsidiary
of the Corporation or any entity holding shares of Common Stock organized,
appointed or established for, or pursuant to the terms of, any such plan; and
"Affiliate" and "Associate" shall have the respective meanings ascribed to such
terms in Rule 12b-2 promulgated under the Exchange Act.
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4. Benefits upon Termination under Section 2(ii)(c)
(i) Upon the termination (voluntary or involuntary) of the employment
of Employee pursuant to Section 2(ii)(c) hereof, Employee shall be entitled to
receive the benefits specified in this Section 4. The amounts due to Employee
under subparagraph (a) of this Section 4(i) shall be paid to Employee, at
Employee's election as specified in a written notice delivered by Employee to
the Corporation on the date of this Agreement and which is attached hereto as
Exhibit A and made a part hereof, either (a) in a lump sum not later than one
business day prior to the date that the termination of Employee's employment
becomes effective or (b) in 36 equal installments payable monthly, on the last
business day of the month, for 36 consecutive months following the date that the
termination of Employee's employment becomes effective. The amounts due to
Employee under subparagraphs (b), (c) and (d) of this Section 4(i) shall be paid
to Employee not later than one business day prior to the date that the
termination of Employee's employment becomes effective. Subject to the
provisions of Section 4(ii) hereof, all benefits to Employee pursuant to this
Section 4(i) shall be subject to any applicable payroll or other taxes required
by law to be withheld.
(a) The Corporation shall pay as severance pay to Employee an
amount equal to three times the sum of (1) Employee's highest annual rate of
salary from the Corporation in effect at any time during the 36 months preceding
the date that the termination of Employee's employment became effective and (2)
the average of the annual bonus paid or to be paid to Employee in respect of
each of the three fiscal years preceding the fiscal year when the termination of
Employee's employment became effective.
(b) For a period of 36 months following the date that the
termination of Employee's employment became effective or until Employee reaches
age 65 or dies, whichever is the shorter period, the Corporation shall continue
for Employee, at the Corporation 's expense, the health, disability and life
insurance coverage in effect for Employee immediately prior to the date that the
termination of Employee's employment became effective under the plans provided
by the Corporation for its executive personnel generally or, if such coverage
cannot by the terms of such plans be provided thereunder, then the Corporation
shall provide equivalent insurance coverage for Employee for such period under
specially obtained policies of insurance.
(c) The Corporation shall pay to Employee (1) any amount
earned by Employee as a bonus with respect to the fiscal year of the Corporation
preceding the termination of Employee's employment if such bonus has not
theretofore been paid to Employee, and (2) an amount representing credit for any
vacation earned or accrued by him but not taken.
(d) The Corporation shall also pay to Employee all legal fees
and expenses incurred by Employee as a result of such termination of employment
(including all fees and expenses, if any, incurred by Employee in seeking to
obtain or enforce any right or benefit provided to Employee by this Agreement
whether by arbitration or otherwise); and
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(e) Any and all contracts, agreements or arrangements between
the Corporation and Employee prohibiting or restricting Employee from owning,
operating, participating in, or providing employment or consulting services to,
any business or company competitive with the Corporation at any time or during
any period after the date the termination of Employee's employment becomes
effective, shall be deemed terminated and of no further force or effect as of
the date the termination of Employee's employment becomes effective, to the
extent, but only to the extent, such contracts, agreements or arrangements so
prohibit or restrict Employee; provided that the foregoing provision shall not
constitute a license or right to use any proprietary information of the
Corporation and shall in no way affect any such contracts, agreements or
arrangements insofar as they relate to nondisclosure and nonuse of proprietary
information of the Corporation notwithstanding the fact that such nondisclosure
and nonuse may prohibit or restrict Employee in certain competitive activities.
(ii) In the event that any payment or benefit received or to be
received by Employee in connection with a Change in Control of the Corporation
or termination of Employee's employment (whether payable pursuant to the terms
of this Agreement or any other plan, contract, agreement or arrangement with the
Corporation , with any person whose actions result in a Change in Control of the
Corporation or with any person constituting a member of an "affiliated group" as
defined in Section 280G(d)(5) of the Internal Revenue Code of 1986, as amended
(the "Code"), with the Corporation or with any person whose actions result in a
Change in Control of the Corporation (collectively, the "Total Payments")) would
be subject to the excise tax imposed by Section 4999 of the Code or any
interest, penalties or additions to tax with respect to such excise tax (such
excise tax, together with any such interest, penalties or additions to tax, are
collectively referred to as the "Excise Tax"), then Employee shall be entitled
to receive from the Corporation an additional cash payment (a "Gross-Up
Payment") within thirty business days of such determination in an amount such
that after payment by Employee of all taxes (including any interest, penalties
or additions to tax imposed with respect to such taxes), including any Excise
Tax, imposed upon the Gross-Up Payment, Employee retains an amount of the
Gross-Up Payment equal to the Excise Tax imposed upon the Total Payments. All
determinations required to be made under this Section 4(ii), including whether a
Gross-Up Payment is required and the amount of such Gross-Up Payment, shall be
made by the independent accounting firm retained by the Corporation on the date
of the Change in Control (the "Accounting Firm"), which shall provide detailed
supporting calculations both to the Corporation and Employee within 15 business
days of the date that the termination of Employee's employment becomes
effective, or such earlier time as is requested by the Corporation . If the
Accounting Firm determines that no Excise Tax is payable by Employee, it shall
furnish Employee with an opinion that Employee has substantial authority not to
report any Excise Tax on Employee's federal income tax return.
Any uncertainty in the application of Section 4999 of the Code at the
time of the initial determination by the Accounting Firm hereunder shall be
resolved in favor of Employee. As a result of the uncertainty in the application
of Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that at a later time there will be a
determination that the Gross-Up Payments made by the Corporation were less than
the Gross-Up Payments that should have been made by the Corporation
("Underpayment"), consistent with the
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calculations required to be made hereunder. In the event that Employee is
required to make a payment of any Excise Tax, the Accounting Firm shall
determine the amount of the Underpayment, if any, that has occurred and any such
Underpayment shall be promptly paid by the Corporation to or for the benefit of
Employee. As a result of the uncertainty in the application of Section 4999 of
the Code at the time of the initial determination by the Accounting Firm
hereunder, it is possible that at a later time there will be a determination
that the Gross-Up Payments made by the Corporation were more than the Gross-Up
Payments that should have been made by the Corporation ("Overpayment"),
consistent with the calculations required to be made hereunder. Employee agrees
to refund to the Corporation the amount of any Overpayment that the Accounting
Firm shall determine has occurred hereunder. Any determination by the Accounting
firm as to the amount of any Gross-Up Payment, including the amount of any
Underpayment or Overpayment, shall be binding upon the Corporation and Employee.
(iii) Any payment not made to Employee when due hereunder shall
thereafter, until paid in full, bear interest at the rate of interest equal to
the reference rate announced from time to time by U.S. Bank National
Association, plus two percent, with such interest to be paid to Employee upon
demand or monthly in the absence of a demand.
(iv) Employee shall not be required to mitigate the amount of any
payment provided for in this Section 4 by seeking other employment or otherwise.
The amount of any payment or benefit provided in this Section 4 shall not be
reduced by any compensation earned by Employee as a result of any employment by
another employer.
5. Employee's Agreements.
Employee agrees that:
(i) Without the consent of the Corporation , Employee will not
terminate employment with the Corporation without giving 60 days prior notice to
the Corporation , and during such 60-day period Employee will assist the
Corporation , as and to the extent reasonably requested by the Corporation , in
training the successor to Employee's position with the Corporation . The
provisions of this Section 5(i) shall not apply to any termination (voluntary or
involuntary) of the employment of Employee pursuant to Section 2(ii)(c) hereof.
(ii) Without the consent of the Corporation or except as may be
required by law, Employee will not at any time after termination of his
employment with the Corporation disclose to any person, corporation, firm, or
other entity, confidential information concerning the Corporation of which
Employee has gained knowledge during employment with the Corporation .
(iii) In the event that Employee has received any benefits from the
Corporation under Section 4 of this Agreement, then, during the period of 36
months following the date that the termination of Employee's employment became
effective, Employee, upon request by the Corporation:
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(a) Will consult with one or more of the executive officers
concerning the business and affairs of the Corporation for not to exceed four
hours in any month at times and places selected by Employee as being convenient
to him, all without compensation other than what is provided for in Section 4 of
this Agreement; and
(b) Will testify as a witness on behalf of the Corporation in
any legal proceedings involving the Corporation which arise out of events or
circumstances that occurred or existed prior to the date that the termination of
Employee's employment became effective (except for any such proceedings relating
to this Agreement), without compensation other than what is provided for in
Section 4 of this Agreement, provided that all out-of-pocket expenses incurred
by Employee in connection with serving as a witness shall be paid by the
Corporation .
Employee shall not required to perform Employee's obligations under
this Section 5(iii) if and so long as the Corporation is in default with respect
to performance of any of its obligations under this Agreement.
6. Successors and Binding Agreement.
(i) The Corporation will 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 Corporation ), by
agreement in form and substance satisfactory to Employee, to expressly assume
and agree to perform this Agreement in the same manner and to the same extent
that the Corporation would be required to perform it if no such succession had
taken place. Failure of the Corporation to obtain such agreement prior to the
effectiveness of any such succession shall be a breach of this Agreement and
shall entitle Employee to compensation from the Corporation in the same amount
and on the same terms as Employee would be entitled hereunder if employee
terminated employment after a Change in Control for Good Reason, except that for
purposes of implementing the foregoing, the date on which any such succession
becomes effective shall be deemed the date that the termination of Employee's
employment becomes effective. As used in this Agreement, "Corporation " shall
mean the Corporation and any successor to its business and/or assets which
executes and delivers the agreement provided for in this Section 6(i) or which
otherwise becomes bound by all the terms and provisions of this Agreement by
operation of law.
(ii) This Agreement is personal to Employee, and Employee may not
assign or transfer any part of Employee's rights or duties hereunder, or any
compensation due to him hereunder, to any other person. Notwithstanding the
foregoing, this Agreement shall inure to the benefit of and be enforceable by
Employee's personal or legal representatives, executors, administrators, heirs,
distributees, devisees, and legatees.
7. Arbitration. Any dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
the Fergus Falls area, in accordance with the applicable rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
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8. Modification; Waiver. No provisions of this Agreement may be
modified, waived, or discharged unless such waiver, modification, or discharge
is agreed to in a writing signed by Employee and such officer as may be
specifically designated by the Board of Directors of the Corporation . No waiver
by either party hereto at any time of any breach by the other party hereto of,
or compliance with, any condition or provision of this Agreement to be performed
by such other party shall be deemed a waiver of similar or dissimilar provisions
or conditions at the same or at any prior or subsequent time.
9. Notice. All notices, requests, demands, and all other communications
required or permitted by either party to the other party by this Agreement
(including, without limitation, any notice of termination of employment and any
notice of an intention to arbitrate) shall be in writing and shall be deemed to
have been duly given when delivered personally or received by certified or
registered mail, return receipt requested, postage prepaid, at the address of
the other party, as first written above (directed to the attention of the Board
of Directors and Corporate Secretary in the case of the Corporation ). Either
party hereto may change its address for purposes of this Section 9 by giving 15
days' prior notice to the other party hereto.
10. Severability. If any term or provision of this Agreement or the
application hereof to any person or circumstances shall to any extent be invalid
or unenforceable, the remainder of this Agreement or the application of such
term or provision to persons or circumstances other than those as to which it is
held invalid or unenforceable shall not be affected thereby, and each term and
provision of this Agreement shall be valid and enforceable to the fullest extent
permitted by law.
11. Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12. Governing Law. This Agreement has been executed and delivered in
the State of Minnesota and shall, in all respects, be governed by, and construed
and enforced in accordance with, the laws of the State of Minnesota, including
all matters of construction, validity and performance.
13. Effect of Agreement; Entire Agreement. The Corporation and Employee
understand and agree that this Agreement is intended to reflect their agreement
only with respect to payments and benefits upon termination in certain cases and
is not intended to create any obligation on the part of either party to continue
employment. This Agreement supersedes any and all other oral or written
agreements or policies made relating to the subject matter hereof and
constitutes the entire agreement of the parties relating to the subject matter
hereof; provided that this Agreement shall not supersede or limit in any way
Employee's rights under any benefit plan, program or arrangements in accordance
with their terms.
14. ERISA. For purposes of the Employee Retirement Income Security Act
of 1974, this Agreement is intended to be a severance pay employee welfare
benefit plan, and not an employee pension benefit plan, and shall be construed
and administered with that intention.
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed in its name by a duly authorized director and officer, and Employee has
hereunto set his or her hand, all as of the date first written above.
OTTER TAIL CORPORATION
By
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Its
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EMPLOYEE
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EXHIBIT A
NOTICE
The undersigned ("Employee") does hereby notify Otter Tail Corporation (the
"Corporation ") pursuant to Section 4(i) of that certain Severance Agreement
dated as of the date hereof between the Corporation and Employee (the
"Agreement") that Employee has elected to be paid any amounts which become
payable under Section 4(i)(a) of the Agreement as follows:
(check one)
______ in a lump sum not later than one business day prior to the date
that the termination of Employee's employment becomes effective.
______ in 36 equal installments payable monthly, on the last business
day of the month, for 36 consecutive months following the date that the
termination of Employee's employment becomes effective.
Dated:
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Employee
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