Exhibit 10.2
RABBI TRUST AGREEMENT
AGREEMENT made as of December 1, 2000, by and among
Wisconsin Energy Corporation, a corporation organized under
the laws of the State of Wisconsin or any successor
corporation (hereinafter referred to as the "Company"), and
The Northern Trust Company, an Illinois corporation, of
Chicago, Illinois (hereinafter referred to as the
"Trustee").
WITNESSETH:
WHEREAS, the Company has adopted the nonqualified
deferred compensation plans listed in attached Exhibit A
(hereinafter referred to collectively as "Plans");
WHEREAS, the Company and certain of its subsidiaries
have incurred or expect to incur liability under the terms
of such Plans with respect to the individuals participating
in such Plans (hereinafter referred to as the
"Participants"); and
WHEREAS, the Company has previously established a
grantor trust (hereinafter referred to as the "Trust") for
the purpose of accumulating assets to assist it in
fulfilling its obligations under the Plans, to which Trust
the Company shall make contributions in the amounts
determined in accordance with the terms of the Plans and the
Company now wishes to amend and restate that trust into the
form of this Agreement; and
WHEREAS, the Company desires the Trustee to hold all
funds contributed by the Company and the Trustee is willing
to hold and administer such funds pursuant to the terms of
this Agreement; and
WHEREAS, the Company will establish separate accounts
(hereinafter referred to as "Accounts") with respect to each
Participant in the Plans to provide a source of payments of
the Company's obligations to Participants under the Plans;
and
WHEREAS, the Company desires that the assets of the
Trust should be available to satisfy the claims of the
Company's or its subsidiaries' general creditors in case of
Insolvency, as defined in Article SEVENTH hereof.
NOW, THEREFORE, in consideration of the premises and of
the mutual covenants herein contained, the Company and the
Trustee do hereby covenant and agree as follows:
FIRST
The Trustee shall receive any contributions paid to it
in cash or in other property acceptable to it, which shall
from time to time be transferred to the Trustee by the
Company. All contributions so received together with the
income therefrom and any other increment thereon
(hereinafter referred to as the "Trust Fund") shall be held,
managed and administered by the Trustee pursuant to the
terms of this Agreement. The amount of contributions by the
Company to the Trust Fund shall be determined in accordance
with the provisions of Article SECOND hereof, and the
Trustee shall have no duty or responsibility with respect
thereto. The Trustee may maintain one or more separate
investment funds in the Trust Fund, and it may commingle the
assets of the Plans; provided, however, that the Company
reserves the right to designate a specific asset or amount
as belonging to a particular fund at the time such asset or
amount is contributed to or acquired by the Trust Fund.
The Company shall create a separate Account for each
Participant under each Plan, where appropriate as determined
by the Company, based upon the contributions for the
Participant from the Company. The rights of each
Participant may not be assigned, pledged, alienated, or
conveyed and are not subject to attachment, garnishment or
execution.
The Trustee shall revalue the Trust Fund as of the last
business day of each calendar month at current market
values, as determined by the Trustee. The Trustee may rely
conclusively upon the determination of the Company with
respect to the fair market value of any Trust assets which
the Trustee deems not to have a readily ascertainable fair
market value and upon the determination of the issuer of any
insurance contracts/policies with respect to the fair market
value of such insurance contracts/policies. Net investment
gains and losses (i.e., appreciation or depreciation in the
value of assets, income and losses) shall be allocated by
the Company proportionately among Participants' Accounts as
of the end of each calendar month ("Accounting Date"). The
Company shall maintain the record of the Accounts of each
Participant in the Trust Fund based on the information
provided by the Trustee regarding net investment gains and
losses and on information provided by the Company regarding
aggregate contributions to and distributions from the Trust
Fund with respect to each Participant.
SECOND
The Company shall pay to the Trustee such amount as may
be considered appropriate to provide for the payment of
benefits under the Plans and the expenses of administration
of the Trust.
Immediately prior to the occurrence of a Change in
Control or on the occurrence of a Potential Change in
Control (as defined in Article FIFTEENTH of this Trust
Agreement), the Company shall make an irrevocable
contribution to the Trust in an amount that is sufficient to
pay each Plan participant or beneficiary one hundred and ten
percent (110%) of the benefits to which Plan participants or
beneficiaries would be entitled pursuant to the terms of the
Plans(s) as of the date of the Change in Control or
Potential Change in Control, and the Company shall make a
contribution during each January thereafter (the date of
such contribution being referenced to as the "January
Contribution Date") in an amount which, when taken together
with the assets of the trust as of such January Contribution
Date, is sufficient to pay each Plan participant or
beneficiary 110% of the benefits to which Plan participants
or beneficiaries would be entitled pursuant to the terms of
the Plan(s) as of the preceding December 31.
Notwithstanding any other provision of this Trust Agreement,
if no Change in Control has occurred during the period
beginning on the occurrence of a Potential Change in Control
and ending on the date which is six months following such
Potential Change in Control (such period being referred to
as the "Six-Month Period") any amounts contributed by the
Company to the Trust during the Six-Month Period shall be
returned to the Company by the Trustee.
The Trustee shall have no duty to determine the
adequacy of or enforce any funding obligations of the
Company, and the duties of the Trustee shall be governed
solely by the terms of the Trust without reference to the
terms of the Plans.
THIRD
The Trustee shall from time to time, upon the direction
of the Company, make distributions or payments out of the
Trust Fund, to such persons, in such manner and in such
amounts as the Company shall deem necessary to satisfy the
Company's obligation to provide benefits under the Plans,
and the Company shall charge Participants' Accounts
accordingly. The Trustee shall not be liable for the proper
application of any part of the Trust Fund and shall not be
liable for any distribution made in good faith at the
direction of the Company without actual notice or knowledge
of the changed status or condition of any recipient.
The Trustee shall withhold such amounts from
distributions as the Company directs and shall follow the
instructions of the Company with respect to remission of
such withheld amounts to the Company or to the appropriate
governmental authorities. The Company shall have sole
responsibility for any withholding related filings or
reports.
Nothing in this Agreement shall relieve the Company of
its liabilities to pay the benefits provided under the Plans
except to the extent such liabilities are met by the
application of Trust Fund assets. It is the intention of
the Company to have each Account established hereunder
treated as a separate account designed to satisfy the
Company's legal liability under the applicable Plan in
respect of the Participant for whom such Account has been
established, provided, however, that if a Participant's
benefits under each of the Plans are paid directly by the
Company, the balance of his Accounts shall revert to the
Company pursuant to direction of the Company upon
certification by the Company to the Trustee that the
Company's legal liabilities to such Participant under each
of the Plans have been satisfied.
This Trust is intended to be a grantor trust of
which the Company is the grantor, within the meaning of the
applicable provisions of the Internal Revenue code. The
Company therefore agrees that all income, deductions and
credits of each such Account belong to it as owner for
income tax purposes and will be included on the Company's
income tax returns.
FOURTH
The "Trust Fund" as of any date will consist of all
property of every kind then held by the Trustee.
FIFTH
Subject to investment guidelines which may be issued by
the Company to the Trustee from time to time and subject to
Article SIXTH hereof, the Trustee shall have the following
powers and authority in the administration of the Trust
Fund:
(a) To invest and reinvest the Trust Fund without
distinction between principal and income in any kind of
property, real, personal or mixed, tangible or intangible,
and in any kind of investment, security or obligation,
including any pooled fund or other commingled investment
fund maintained by the Trustee or any other bank or entity
for trust investment purposes or any mutual fund (including
those for which it or any of its affiliates serves as
investment advisor);
(b) To sell for cash or on credit, to grant options,
convert, redeem, exchange for other securities or other
property, or otherwise to dispose of any securities or other
property at any time held;
(c) To settle, compromise, contest, prosecute, abandon
or submit to arbitration, any claims, debts or damages, due
or owing to or from the Trust;
(d) To exercise any conversion privilege and/or
subscription right available in connection with any
securities or other property at any time held; to oppose or
to consent to the reorganization, consolidation, merger, or
readjustment of the finances of any corporation, company or
association or to the sale, mortgage, pledge or lease of the
property of any corporation, company or association any of
the securities of which may at any time be held and to do
any act with reference thereto, including the exercise of
options, the making of agreements or subscriptions, which
may be deemed necessary or advisable in connection
therewith, and to hold and retain any securities or other
property so acquired;
(e) To exercise, personally or by general or by
limited power of attorney, any right, including the right to
vote, appurtenant to any securities or other property held
at any time;
(f) To borrow money from any lender in such amounts
and upon such terms and conditions as shall be deemed
advisable or proper to carry out the purposes of the Trust
and to pledge any securities or other property for the
repayment of any such loan;
(g) To hold cash uninvested for a reasonable period
of time under the circumstances without liability for
interest, pending investment thereof or the payment of expenses
or making distributions therewith;
(h) To form corporations and to create trusts to hold
title to any securities or other property, all upon such
terms and conditions as may be deemed advisable;
(i) To employ suitable agents and counsel and to pay
their reasonable expenses and compensation;
(j) To register any securities held hereunder in the
name of the Trustee or in the name of a nominee with or
without the addition of words indicating that such
securities are held in a fiduciary capacity and to hold any
securities in bearer form.
(k) To stop making payments to Participants or
beneficiaries and hold Trust Fund assets for the benefit of
the creditors of the Company or its subsidiaries and to
deliver assets to satisfy such creditor's claims as directed
by a regulatory agency or court of competent jurisdiction,
all pursuant to Article SEVENTH below;
(l) To make, execute and deliver, as Trustee, any and
all conveyances, contracts, waivers, releases or other
instruments in writing necessary or proper for the
accomplishment of any of the foregoing powers, and
(m) To perform other acts necessary or appropriate
for the proper administration of the Trust Fund.
SIXTH
The Trustee shall purchase or continue in effect such
insurance contracts, including annuity contracts and
policies of life insurance, as the Company shall direct, and
the Trustee shall act with respect to those contracts only
as directed by the Company and shall have no investment
responsibility for such contracts.
SEVENTH
Notwithstanding any provision in this Agreement to the
contrary, if at any time while the Trust is still in
existence the Trustee receives a written notice from the
Company or written allegations from a third party as
provided below that the Company has become Insolvent (as
defined herein), the Trustee shall suspend the payment of
all benefits from the Trust Fund and shall, except as
provided below, thereafter hold the Trust Fund in suspense
until it receives an order from a regulatory agency or court
of competent jurisdiction directing the disposition of the
Trust Fund ("Order"); provided, however, that the Trustee
may deduct or continue to deduct its fees and expenses and
other expenses of the Trust, including taxes, pending the
receipt of an Order. The Company shall be considered to be
Insolvent if it (a) is unable to pay its debts as they fall
due or (b) is subject to a pending proceeding as a debtor
under the United States Bankruptcy Code.
By its approval and execution of this Agreement, the
Company represents and agrees that its Board of Directors
and Chief Executive Officer, as from time to time acting,
shall have the fiduciary duty and responsibility on behalf
of the Company's creditors to give to the Trustee prompt
written notice of the Company's Insolvency, and the Trustee
shall be entitled to rely thereon to the exclusion of all
subsequent directions or claims to pay benefits. If after
notice to the Trustee of Insolvency by the Company, the
Company, in the absence of an Order, alleges that it is no
longer Insolvent, or if the Trust Department of the Trustee
receives written allegations of an event of Insolvency from
a third party, the Trustee shall appoint an independent
accounting firm to determine whether the Company is
Insolvent. In no event shall knowledge of the Company's
credit status held by banking officers or employees of The
Northern Trust Company be imputed to the Trustee. In the
absence of an Order to the contrary, the Trustee shall
resume distributions hereunder upon receipt of written
certification from such accounting firm that the Company was
not or is no longer Insolvent. The Trustee's only
responsibility shall be the prudent selection of such
accounting firm.
Participants and beneficiaries have only the Company's
unsecured promise to pay benefits under the terms of the
Plans and the status of an unsecured general creditor of the
Company. Participants and beneficiaries receive and have no
security interest in assets of the Trust.
EIGHTH
The Trustee shall pay out of the Trust Fund all taxes
of any and all kinds levied or assessed under existing or
future laws against the Trustee in its capacity as such or
against the Trust Fund.
The Trustee shall be paid such reasonable compensation
as shall from time to time be agreed upon by the Company and
the Trustee. Such compensation and all expenses of
administration of the Trust, including attorneys' fees,
shall be withdrawn by the Trustee out of the Trust Fund
unless paid by the Company.
NINTH
The Trustee shall keep accurate and detailed accounts
of all investments, receipts, disbursements and other
transactions hereunder, and all accounts, books and records
relating thereto shall be open to inspection and audit at
all reasonable times by any person designated by the
Company. Within 30 days after the close of each fiscal year
(or such other date as may be agreed upon in writing between
the Company and the Trustee), and within 60 days after the
effective date of the resignation or removal of the Trustee
as provided in Article ELEVENTH hereof, the Trustee shall
file with the Company a written account setting forth all
investments, receipts, disbursements and other transactions
effected by it during the year ending on such date (but not
including any part of such year for which such an account
has previously been filed) and certified as to the accuracy
of the information set forth therein. Such account may
incorporate by reference any and all schedules and other
statements setting forth investments, receipts,
disbursements and other transactions effected during the
period for which such account is rendered which the Trustee
has furnished to the Company prior to the filing of such
account. Each account so filed (and copies of any schedules
and statements incorporated therein by reference as
aforesaid) shall be open to inspection during business hours
by any Participant in a Plan and any person designated by
such Participant for a period of 60 days immediately
following the date on which the account is filed with the
Company. The Company may approve such accounts by an
instrument in writing delivered to the Trustee. In the
absence of the filing in writing with the Trustee by the
Company of exceptions or objections to any such account
within 6 months of the completion of the Plan(s) annual
audit by the Company or its appointed auditor, the Company
shall be deemed to have approved such account; and in such
case, or upon the written approval of the Company of any
such account, the Trustee shall be released, relieved and
discharged with respect to all matters and things set forth
in such account as though such account had been settled by
the decree of a court of competent jurisdiction except with
respect to claims of fraud or willful misconduct.
TENTH
The Trustee shall be fully protected in relying upon a
certification of an authorized representative of the Company
with respect to any instruction, direction or approval of
the Company, and protected also in relying upon the
certification until a subsequent certification is filed with
the Trustee.
The Trustee shall be fully protected in acting upon
any instrument, certificate, or paper believed by it to be,
genuine and to be signed or presented by the proper person
or persons, and the Trustee shall be under no duty to make
any investigation or inquiry as to any statement contained
in any such writing but may accept the same as conclusive
evidence of the truth and accuracy of the statements therein
contained.
All persons dealing with the Trustee are released from
inquiry into the decision or authority of the Trustee and
from seeing to the application of any moneys, securities or
other property paid or delivered to the Trustee.
The Trustee shall not be liable hereunder for any loss
or diminution of the Trust Fund resulting from any action
taken at the direction of the Company, or omitted because of
the lack of any direction from the Company.
The Company (which has the authority to do so under the
laws of its state of incorporation) shall indemnify The
Northern Trust Company and defend it and hold it harmless
from and against any and all liabilities, losses, claims,
suits or expenses (including attorneys' fees) of whatsoever
kind and nature which may be imposed upon, asserted against
or incurred by The Northern Trust Company at any time (1) by
reason of its carrying out its responsibilities or providing
services hereunder, or its status as Trustee, or by reason
of any act or failure to act under this Agreement, except to
the extent that any such liability, loss, claim, suit or
expense arises directly from the Trustee's gross negligence
or willful misconduct in the performance of responsibilities
specifically allocated to it under this Agreement, or (2) by
reason of the Trust's failure to qualify as a grantor rabbi
trust exempt from the Employee Retirement Income Security
Act. This paragraph shall survive the termination of this
Agreement.
The duties of Trustee shall be governed solely by the
terms of this Agreement without reference to the terms of
the Plans. Trustee shall not be liable for any delay in
performance, or non-performance, of any obligation hereunder
to the extent that such obligation is due to forces beyond
Trustee's reasonable control, including but not limited to
delays, errors or interruptions caused by Trustee or third
parties; any industrial, juridical, governmental, civil or
military action; acts of terrorism, insurrection or
revolution; nuclear fusion, fission or radiation; failure or
fluctuation in electrical power, heat, light, air
conditioning or telecommunications equipment; or acts of
God.
In making payments to service providers pursuant to
authorized directions, the Company acknowledges that the
Trustee is acting as paying agent, and not as the payor, for
tax information reporting and withholding purposes.
ELEVENTH
The Trustee acting hereunder may resign or the Company
may remove the Trustee at any time by giving at least 60
days written notice to the other. In the case of the
resignation or removal of the Trustee the Company shall
appoint a successor Trustee, which shall be a bank or trust
company. Any successor Trustee shall have the same
obligations, powers and duties as those conferred upon the
Trustee hereunder unless otherwise specified in an agreement
between the Company and the successor Trustee and the
appointment of a new Trustee shall be by a written
instrument delivered to the Trustee acting hereunder. Upon
receipt of such written instrument executed by the Company
and a written instrument executed by the successor Trustee
accepting the appointment, the Trustee shall deliver the
assets of the Trust Fund to the successor Trustee but may
reserve such reasonable amount as the Trustee may deem
necessary for outstanding and accrued charges against the
Trust Fund with written notice to the Company of the reasons
for reserving such amounts.
TWELFTH
This Agreement and the Trust created hereby shall be
irrevocable; provided, however, that any property held in
the Trust Fund shall be subject to the claims of general
creditors of the Company and its subsidiaries under the
Federal or state law in the event of Insolvency. In the
event that the Company certifies to the Trustee that the
Plans are terminated and there are no remaining Participants
or beneficiaries entitled to benefits thereunder, this Trust
shall terminate and, subject to the Trustee's right to
reserve such reasonable amount as it may deem necessary for
outstanding and accrued charges against the Trust Fund with
written notice to the Company of the reasons for reserving
such amounts, title to any remaining assets shall revert to
the Company. Except as provided in Articles SECOND, THIRD
and SEVENTH, the Company shall have no right or power to
direct the Trustee to return to the Company or to divert to
others any of the Trust assets before all payment of
benefits have been made to Plan participants and their
beneficiaries pursuant to the terms of the Plans, as
certified to in writing by the Company (upon which
certification the Trustee may conclusively rely without
further action).
THIRTEENTH
This Agreement and the Trust created herein shall be
construed, regulated and administered under the laws of the
State of Illinois. All contributions to the Trustee shall
be deemed to take place in the State of Illinois. The
Trustee may at any time initiate an action or proceeding for
the settlement of its accounts or for the determination of
any question of construction which may arise or for
instructions, and the only necessary party defendant to such
action shall be the Company, except that the Trustee may, if
it so elects, bring in as parties defendant any other person
or persons.
FOURTEENTH
Company may amend this Agreement at any time pursuant
to a resolution of the Board of Directors or a written
instrument executed by its designee and delivery to the
Trustee of a certified copy of such resolution and a written
instrument duly executed and acknowledged in the same form
as this Agreement; provided, however, that the duties and
responsibilities of the Trustee shall not be affected
without the Trustee's written consent, respectively, and,
provided further, that no amendment shall reduce a
Participant's benefits to less than the amount he would be
entitled to receive on the date before the amendment.
Notwithstanding the foregoing, no such amendment shall (a)
conflict with the terms of the Plans, or, following a Change
in Control, adversely affect the rights of Plan participants
and beneficiaries, as certified to in writing by the Company
(upon which certification the Trustee may conclusively
rely), or (b) make the Trust revocable.
FIFTEENTH
For purposes of the Trust, a "Change in Control" with
respect to the Company shall be deemed to have occurred if
the event set forth in any one of the following paragraphs
shall have occurred:
(1) any 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) representing 20% or more of the combined
voting power of the Company's then outstanding securities,
excluding any Person who becomes such a Beneficial Owner in
connection with a transaction described in clause (a) of
paragraph (3) below; or
(2) the following individuals cease for any
reason to constitute a majority of the number of directors
then serving: individuals who, on December 1, 2000,
constitute the Board and any new director (other than a
director whose initial assumption of office is in connection
with an actual or threatened election contest, including but
not limited to a consent solicitation, relating to the
election of directors of the Company) whose appointment or
election by the Board or nomination for election by the
Company's shareholders was approved or recommended by a vote
of at least two-thirds of the directors then still in office
who either were directors on December 1, 2000 or whose
appointment, election or nomination for election was
previously so approved or recommended; or
(3) there is consummated a merger or
consolidation of the Company or any direct or indirect
subsidiary of the Company with any other corporation, other
than (a) a merger or consolidation immediately following
which the directors of the Company immediately prior to such
merger or consolidation continue to constitute at lest a
majority of the board of directors of the Company, the
surviving entity or any parent thereof or (b) a merger or
consolidation effected to implement a recapitalization of
the Company (or similar transaction) in which no 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) representing
20% or more of the combined voting power of the Company's
then outstanding securities; or
(4) the shareholders of the Company approve a
plan of complete liquidation or dissolution of the Company
or there is consummated an agreement (or series of related
agreements) for the sale or disposition by the Company of
all or substantially all of the Company's assets,
disregarding any sale or disposition to a company, at least
a majority of the directors of which were directors of the
Company immediately prior to such sale or disposition; or
(5) the Board of Directors determines in its sole
and absolute discretion that there has been a Change in
Control of the Company.
Further, for purposes of this Trust, a "Potential
Change in Control" with respect to the Company shall be
deemed to have occurred if the event set forth in any one of
the following paragraphs shall have occurred:
(i) the Company enters into an agreement, the
consummation of which would result in the occurrence of a
Change in Control;
(ii) the Company, or any Person publicly
announces an intention to take or to consider taking actions
which, if consummated, would constitute a Change in Control;
(iii) any Person becomes the Beneficial Owner,
directly or indirectly, of securities of the Company
representing 15% of more of either the then outstanding
shares of common stock of the Company or the combined voting
power of the Company's then outstanding securities (not
including in the securities beneficially owned by such
Person any securities acquired directly from the Company or
its affiliates); or
(iv) the Board adopts a resolution to the effect,
that, for purposes of this Agreement, a Potential Change in
Control has occurred.
For purposes of the above definitions of the terms
"Change in Control" and "Potential Change in Control" the
terms set forth below shall have the following meanings:
"Beneficial Owner" shall have the meaning set
forth in Rule 13d-3 under the Exchange Act.
"Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended from time to time.
"Person" shall have the meaning given in Section
3(a)(9) of the Exchange Act, as modified and used in
Sections 13(d) and 14(d) thereof, except that such term
shall not include (i) the Company or any of its
subsidiaries, (ii) a trustee or other fiduciary holding
securities under an employee benefit plan of the Company or
any of its affiliates, (iii) an underwriter temporarily
holding securities pursuant to an offering of such
securities, or (iv) a corporation owned, directly or
indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of
stock in the Company.
The Company shall immediately notify the Trustee in
writing of any Potential Change of Control or Change of
Control. The Trustee may conclusively rely upon such notice
and shall have no duty to determine whether a Potential
Change of Control or Change of Control has occurred.
SIXTEENTH
Actions of the Trustee may be evidenced by a written
instrument signed by the Trustee, and all third parties
shall be entitled to rely on said written instrument.
SEVENTEENTH
This Agreement may be executed in any number of
counterparts, each one of which shall be deemed to be the
original although the others shall not be produced.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this instrument has been executed
as of the day and year first above written.
WISCONSIN ENERGY
CORPORATION
Attest:
______________________________ By: /S/Thomas H. Fehring
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_____________________________
Name: Thomas H. Fehring
Title: Corporate Secretary
The undersigned, Joyce Feaster, does hereby certify
that she is the duly elected, qualified and acting Assistant
Secretary of Wisconsin Energy Corporation (the "Company")
and further certifies that the person whose signature
appears above is a duly elected, qualified and acting
officer of the Company with full power and authority to
execute this Trust Agreement on behalf of the Company and to
take such other actions and execute such other documents as
may be necessary to effectuate this Agreement.
_________________________________
Assistant Corporate Secretary
Wisconsin Energy Corporation
TRUSTEE:
Attest:
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