EXHIBIT 10.3
ALLIANT SERVICES COMPANY GRANTOR TRUST
FOR DEFERRED COMPENSATION AGREEMENTS
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THIS AGREEMENT, made this ______ day of __________________, 2000, by
and between ALLIANT SERVICES COMPANY (the "Company") and MARSHALL & ILSLEY
TRUST COMPANY (the "Trustee");
W I T N E S S E T H:
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WHEREAS, the Company has adopted or entered into the nonqualified
deferred compensation plans and agreements (the "Plans") listed in Appendix A;
WHEREAS, the Company has incurred or expects to incur liability under
the terms of such Plans with respect to the individuals participating in such
Plans;
WHEREAS, the Company wishes to establish a trust (the "Trust") and to
contribute to the Trust assets that shall be held therein, subject to the
claims of the Company's creditors in the event of the Company's Insolvency,
as herein defined, until paid to Plan participants and their beneficiaries in
such manner and at such times as specified in the Plans;
WHEREAS, it is the intention of the parties that this Trust shall
constitute an unfunded arrangement and shall not affect the status of the
Plans as unfunded plans maintained for the purpose of providing deferred
compensation for a select group of management or highly compensated employees
for purposes of Title I of the Employee Retirement Income Security Act of
1974; and
WHEREAS, it is the intention of the Company to make contributions to
the Trust to provide itself with a source of funds to assist it in the
meeting of its liabilities under the Plans;
NOW, THEREFORE, the parties do hereby establish the Trust and agree
that the Trust shall be comprised, held and disposed of as follows:
SECTION 1
ESTABLISHMENT OF TRUST
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1.1 The Company hereby deposits with the Trustee, in trust, the sum of
$1,000, which shall become the principal of the Trust to be held, administered
and disposed of by the Trustee as provided in this Trust Agreement.
1.2 The Trust hereby established shall be irrevocable.
1.3 The Trust is intended to be a grantor trust, of which the Company is
the grantor, within the meaning of subpart E, part I, subchapter J, chapter 1,
subtitle A of the Internal Revenue Code of 1986, as amended, and shall be
construed accordingly.
1.4 The principal of the Trust, and any earnings thereon, shall be held
separate and apart from other funds of the Company and shall be used exclusively
for the uses and purposes of Plan participants and general creditors as herein
set forth. Plan participants and their beneficiaries shall have no preferred
claim on, or any beneficial ownership interest in, any assets of the Trust. Any
rights created under the Plans and this Trust Agreement shall be mere unsecured
contractual rights of Plan participants and their beneficiaries against the
Company. Any assets held by the Trust will be subject to the claims of the
Company's general creditors under federal and state law in the event of
Insolvency, as defined in Section 3.1 herein.
1.5 Within ten business days following a Change in Control, the Company
shall make an irrevocable contribution to the Trust in an amount that is equal
to the sum of the participants' and beneficiaries' account balances established
pursuant to the terms of the Plans as of the date of the Change in Control.
1.6 As of each December 31 following a Change in Control ("Valuation
Date"), the Company shall determine the amount of the contribution which would
have been required pursuant to Section 1.5 if the Change in Control had occurred
on such Valuation Date. If the amount so determined exceeds the fair market
value of the Trust assets on such Valuation Date, the Company shall, within ten
business days following such Valuation Date, make an irrevocable contribution to
the Trust in an amount which is not less than such excess.
1.7 The Company, in its sole discretion, may at any time, or from time to
time, make additional deposits of cash or other property in trust with the
Trustee to augment the principal to be held, administered and disposed of by the
Trustee as provided in this Trust Agreement. The Plan participants and their
beneficiaries shall have no right to compel any such discretionary deposits.
1.8 The Trustee shall have no obligation to compel any deposits that are
required pursuant to this Agreement.
SECTION 2
PAYMENTS TO PLAN PARTICIPANTS AND THEIR BENEFICIARIES
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2.1 The Company shall deliver to the Trustee a schedule (the "Payment
Schedule") that indicates the amounts payable in respect of each Plan
participant (and his or her beneficiaries), or that provides a formula or other
instructions acceptable to the Trustee for determining the amounts so payable,
the form in which such amounts are to be paid (as provided for or available
under the Plans), and the time of commencement for payment of such amounts.
Except as otherwise provided herein, the Trustee shall make payments to the Plan
participants and their beneficiaries in accordance with the most recent Payment
Schedule received by the Trustee. Based exclusively upon direction from the
Company as to time and amounts, the Trustee shall make provision for the
reporting and withholding of any federal, state or local taxes that may be
required to be withheld with respect to the payment of benefits pursuant to the
terms of the Plans and, based exclusively upon direction from the Company, shall
pay amounts withheld to taxing authorities. The Trustee acts solely as the
Company's agent for purposes of reporting and withholding on payments from the
Trust, and the Company shall be solely responsible for determining that such
amounts have been reported, withheld and paid to appropriate taxing authorities
in a timely manner.
2.2 The entitlement of a Plan participant or his or her beneficiaries to
benefits under the Plans shall be determined by the Company or such party as it
shall designate under the Plans, and any claim for such benefits shall be
considered and reviewed under the procedures set out in the Plans.
2.3 The Company may make payment of benefits directly to Plan participants
or their beneficiaries as they become due under the terms of the Plans. The
Company shall notify the Trustee of its decision to make payment of benefits
directly prior to the time amounts are payable to participants or their
beneficiaries. In addition, if the principal of the Trust, and any earnings
thereon, are not sufficient to make payments of benefits in accordance with the
terms of the Plans, the Company shall make the balance of each such payment as
it falls due. The Trustee shall notify the Company where principal and earnings
are not sufficient.
SECTION 3
TRUSTEE RESPONSIBILITY REGARDING PAYMENTS
TO TRUST BENEFICIARY WHEN COMPANY IS INSOLVENT
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3.1 The Trustee shall cease payment of benefits to Plan participants and
their beneficiaries if the Company is Insolvent. The Company shall be considered
"Insolvent" for purposes of this Trust Agreement if it is unable to pay its
debts as they become due, or if it is subject to a pending proceeding as a
debtor under the United States Bankruptcy Code.
3.2 At all times during the continuance of this Trust, as provided in
Section 1.4 hereof, the principal and income of the Trust shall be subject to
claims of general creditors of the Company under federal and state law as set
forth below.
3.3 The Board of Directors and the Chief Executive Officer of the Company
shall have the duty to inform the Trustee in writing of the Company's
Insolvency. If a person claiming to be a creditor of the Company alleges in
writing to the Trustee that the Company has become Insolvent, the Trustee shall
determine whether the Company is Insolvent and, pending such determination, the
Trustee shall discontinue payment of benefits to Plan participants or their
beneficiaries.
3.4 Unless the Trustee has actual knowledge of the Company's Insolvency, or
has received notice from the Company or a person claiming to be a creditor
alleging that the Company is Insolvent, the Trustee shall have no duty to
inquire whether the Company is Insolvent. The Trustee may in all events rely on
such evidence concerning the Company's solvency as may be furnished to the
Trustee and that provides the Trustee with a reasonable basis for making a
determination concerning the Company's solvency.
(a) If at any time the Trustee has determined that the Company is
Insolvent, the Trustee shall discontinue payments to Plan participants or
their beneficiaries and shall hold the assets of the Trust for the benefit
of the Company's general creditors. Nothing in this Trust Agreement shall
in any way diminish any rights of Plan participants or their beneficiaries
to pursue their rights as general creditors of the Company with respect to
benefits due under the Plans or otherwise.
(b) The Trustee shall resume the payment of benefits to Plan participants
or their beneficiaries in accordance with Section 2 of this Trust Agreement
only after the Trustee has determined that the Company is not Insolvent (or
is no longer Insolvent).
3.5 Provided that there are sufficient assets, if the Trustee discontinues
the payment of benefits from the Trust pursuant to Section 3.2 hereof and
subsequently resumes such payments, the first payment following such
discontinuance shall include the aggregate amount of all payments due to Plan
participants or their beneficiaries under the terms of the Plans for the period
of such discontinuance, less the aggregate amount of any payments made to Plan
participants or their beneficiaries by the Company in lieu of the payments
provided for hereunder during any such period of discontinuance.
SECTION 4
PAYMENTS TO COMPANY
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Except as provided in Section 3 hereof, after the Trust has become
irrevocable, 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.
SECTION 5
INVESTMENT AUTHORITY
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5.1 The Trustee shall have the following powers and duties with respect to
the investment of the assets of the Trust:
(a) Except as otherwise specifically provided herein, and subject to such
investment guidelines as may be adopted by the Company and delivered to the
Trustee, the Trustee may invest, reinvest, and hold the assets of the Trust
in whatever form of investment the Trustee may see fit (including, but not
limited to, contracts or policies of insurance), and in making or holding
such investments, the Trustee shall not be restricted to those investments
which are authorized by the laws of any state for the investment of trust
funds.
(b) In addition to the general investment powers set forth above in this
Section 5.1, the following provisions shall apply:
(i) Investment Guidelines and Directives. Prior to the occurrence of a
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Change in Control, and subject to the Company's authority to appoint
an investment manager, the Trustee shall manage, acquire, or dispose
of the assets of the Trust in accordance with this Agreement and the
directions of the Company or its designee. To the extent permitted by
law, the Trustee shall not be liable for any investment made pursuant
to the Company's or its designee's direction.
(ii) Trustee Powers. The Trustee shall have the following powers,
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rights and duties subject to Section 8 and the other provisions of
this Trust Agreement. The Trustee shall exercise such powers only upon
the direction of an investment manager, where such powers relate to an
investment manager Account, upon the direction of the Company or its
designee prior to a Change in Control, and in its sole discretion
otherwise:
(A) To receive and hold all contributions paid to it by the
Company; provided, however, that the Trustee shall have no duty
to require any contributions to be made to it;
(B) To effectuate the written investment instructions given by
the Company or its designee without regard to any law now or
hereafter in force limiting investments of fiduciaries;
(C) To retain in the Trust for investment, any property deposited
with the Trustee hereunder;
(D) To have the authority to invest and reinvest assets of the
Trust in shares of common or preferred stock, bonds, notes,
debentures, short-term securities, mutual funds (including any
such fund from which the Trustee or any affiliate thereof
receives an investment management fee or any other fee), common
Trust funds, and other property, real or personal, of any kind;
to purchase and sell "put" or "call" options on publicly traded
securities; and to acquire, hold, manage, operate, sell, contract
to sell, grant options with respect to, convey, exchange,
transfer, abandon, lease, manage, and otherwise deal with respect
to assets of the Trust;
(E) To acquire, hold or dispose of insurance or annuity contracts
as directed by the Company or its designee;
(F) To borrow from anyone such amount or amounts of money
necessary to carry out the purpose of this Trust and for that
purpose to mortgage or pledge all or any part of the Trust;
(G) To retain in the Trust for investment or pending
distributions, any portion of the Trust in cash deemed
appropriate by the Trustee;
(H) To establish accounts in any affiliate of the Trustee and in
such other banks and financial institutions as the Trustee deems
appropriate to carry out the purposes of the Trust;
(I) To deposit securities with a clearing corporation as defined
in Article Eight of the Uniform Commercial Code; to hold the
certificates representing securities, including those in bearer
form, in bulk form with and to merge such certificates into
certificates of the same class of the same issuer which
constitutes assets of other accounts or owners, without
certification as to the ownership attached; and to utilize a
book-entry system for the transfer or pledge of securities held
by the Trustee or by a clearing corporation, provided that the
records of the Trustee shall indicate the actual ownership of the
securities and other property of the Trust Fund;
(J) To participate in and use the Federal book-entry Account
system, a service provided by the Federal Reserve Bank for its
member banks for deposit of Treasury securities; and
(K) To hold securities or property in the name of the Trustee or
its nominee or nominees or in such other form as it deems best
with or without disclosing the Trust relationship, providing the
records of the Trust shall indicate the actual ownership of such
securities or other property.
5.2 Prior to the occurrence of a Change in Control, the Company may at any
time, and from time to time, appoint one or more investment managers to manage
and control all or any part of the Trust's assets. Any such investment manager
shall be a registered investment adviser under the Investment Advisers Act of
1940; a bank, as defined in that Act; or an insurance company that is qualified
to manage, acquire or dispose of the Plans' assets under the laws of more than
one state. The Company shall notify the Trustee of any appointment of an
investment manager by delivery to the Trustee of a copy of the document under
which the investment manager was appointed to act as such hereunder and shall
specify to the Trustee that portion of the Trust Fund which shall be an
"Investment Manager Account." Upon receipt of written notice of the appointment
of an investment manager, the Trustee shall segregate the portion of the assets
of the Trust to be managed by the investment manager into a separate Investment
Manager Account. During the term of such appointment, the investment manager
with respect to its Investment Manager Account shall have the sole
responsibility for the investment and reinvestment of the Investment Manager
Account subject to its investment management, and shall certify in writing to
the Trustee the identity of the person or persons authorized to give
instructions or directions on its behalf. The Trustee shall follow such
directions and shall be under no duty to review any investment to be acquired,
held or disposed of pursuant to such directions nor to make any recommendation
with respect to the disposition or continued retention of any such investment.
The Trustee shall have no liability for acting without question on the direction
of, or failing to act in the absence of any direction from an investment
manager. The Trustee and any investment manager appointed hereunder shall each
exercise their respective fiduciary responsibilities with respect to the assets
of the Plan, including (without limitation) any responsibility of
diversification, as if the portion of the Trust Fund under its management
constituted the entirety of the assets of the Plan. The Company, or some other
fiduciary named by it, shall be responsible for the overall diversification of
the entire Trust Fund.
Notwithstanding the foregoing, any appointment by the Company of an
investment manager shall terminate upon the occurrence of a Change in
Control, and neither the Company, nor any successor to the Company, shall
thereafter have any power to appoint an investment manager with respect to
any portion of the assets of the Trust.
In the event that an investment manager appointed hereunder should
resign or be removed, or upon the termination of the appointment of an
investment manager due to the occurrence of a Change in Control, the Trustee
shall, upon receiving written notice thereof, manage the investment of that
portion of the Trust Fund which was an Investment Manager Account under the
management of such investment manager at the time of such resignation,
removal or termination, unless and until the Trustee shall be notified of the
appointment of another investment manager.
5.3 The Trustee may invest in shares of the Common Stock, $.01 par value,
of Alliant Energy Corporation ("Company Stock"). All rights associated with
shares of Company Stock that are held by the Trust shall be exercised by the
Trustee, and shall in no event be exercisable by or rest with Plan participants.
5.4 The Company shall have the right at any time, and from time to time in
its sole discretion, to substitute assets of equal fair market value for any
asset held by the Trust. This right is exercisable by the Company in a
nonfiduciary capacity without the approval or consent of any person in a
fiduciary capacity.
SECTION 6
DISPOSITION OF INCOME
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During the term of this Trust, all income received by the Trust, net of
expenses and taxes, shall be accumulated and reinvested.
SECTION 7
ACCOUNTING BY TRUSTEE
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The Trustee shall keep accurate and detailed records of all investments,
receipts, disbursements, and all other transactions required to be made,
including such specific records as shall be agreed upon in writing between
the Company and the Trustee. Within 60 days following the close of each
calendar year, and within 60 days after the removal or resignation of the
Trustee, the Trustee shall deliver to the Company a written account of its
administration of the Trust during such year or during the period from the
close of the last preceding year to the date of such removal or resignation,
setting forth all investments, receipts, disbursements and other transactions
effected by it, including a description of all securities and investments
purchased and sold with the cost or net proceeds of such purchases or sales
(accrued interest paid or receivable being shown separately), and showing all
cash, securities and other property held in the Trust at the end of such year
or as of the date of such removal or resignation, as the case may be.
SECTION 8
RESPONSIBILITY OF TRUSTEE
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8.1 The Trustee shall act with the care, skill, prudence and diligence
under the circumstances then prevailing that a prudent person acting in like
capacity and familiar with such matters would use in the conduct of an
enterprise of a like character and with like aims; provided, however, that the
Trustee shall incur no liability to any person for any action taken pursuant to
a direction, request or approval given by the Company or an investment manager
which is contemplated by, and in conformity with, the terms of the Plans or this
Trust and is given in writing by the Company or such investment manager. In the
event of a dispute between the Company and a party, the Trustee may apply to a
court of competent jurisdiction to resolve the dispute.
8.2 If the Trustee undertakes or defends any litigation arising in
connection with this Trust, the Company agrees to indemnify the Trustee against
the Trustee's costs, expenses and liabilities (including, without limitation,
attorneys' fees and expenses) relating thereto and to be primarily liable for
such payments. If the Company does not pay such costs, expenses and liabilities
in a reasonably timely manner, the Trustee may obtain payment from the Trust.
8.3 The Trustee may consult with legal counsel (who may also be counsel for
the Company generally) with respect to any of its duties or obligations
hereunder.
8.4 The Trustee may hire agents, accountants, actuaries, investment
advisors, financial consultants or other professionals to assist it in
performing any of its duties or obligations hereunder, and may reasonably
compensate them out of the Trust assets.
8.5 The Trustee shall have, without exclusion, all powers conferred on
trustees by applicable law, unless expressly provided otherwise herein;
provided, however, that if an insurance policy is held as an asset of the Trust,
the Trustee shall have no power to name a beneficiary of the policy other than
the Trust, to assign the policy (as distinct from conversion of the policy to a
different form) other than to a successor Trustee, or to loan to any person the
proceeds of any borrowing against such policy.
8.6 Notwithstanding any powers granted to the Trustee pursuant to this
Trust Agreement or to applicable law, the Trustee shall not have any power that
could give this Trust the objective of carrying on a business and dividing the
gains therefrom, within the meaning of section 301.7700-2 of the Procedure and
Administrative Regulations promulgated pursuant to the Internal Revenue Code.
8.7 If the Trustee is at any time acting as a successor trustee or succeeds
to responsibilities hereunder for management of part or all of the assets
constituting the Trust Fund, the Company hereby agrees to hold the Trustee
harmless from and against all claims, expenses (including reasonable counsel
fees), liabilities, damages, actions, or other charges incurred or assessed
against it as successor trustee, as a direct or indirect result of any act or
omission of a predecessor trustee or any other person charged under any
agreement affecting the assets of the Trust for investment responsibility with
respect to such assets.
8.8 The Company recognizes that a burden of litigation may be imposed on
the Trustee, as a result of some act or transaction for which it has no
responsibility or over which it has no control under this Agreement.
Accordingly, and in consideration of the Trustee's agreement to act as trustee
hereunder, the Company hereby agrees to indemnify and hold the Trustee and its
affiliates, directors, officers, and employees harmless from and against all
claims, expenses (including reasonable counsel fees), liabilities, damages,
actions, or other charges incurred by or assessed against the Trustee, as a
direct or indirect result of anything done or omitted by Trustee in reliance
upon the directions (or absence of directions) of the Company or any investment
manager.
SECTION 9
COMPENSATION AND EXPENSES OF TRUSTEE
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The Company shall pay all administrative and the Trustee's fees and
expenses. If not so paid, the fees and expenses shall be paid from the Trust.
SECTION 10
RESIGNATION OR REMOVAL OF TRUSTEE
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10.1 The Trustee may resign at any time by written notice to the Company,
which shall be effective 30 days after receipt of such notice unless the Company
and the Trustee agree otherwise.
10.2 Prior to a Change in Control, the Trustee may be removed by the
Company on 30 days notice or upon shorter notice accepted by the Trustee.
Following a Change in Control, the Trustee may not be removed by the Company
unless 65% of all employees or former employees of the Company who are or may
become entitled to the payment of benefits pursuant to the Plans consent in
writing to such removal.
10.3 Upon resignation or removal of the Trustee and appointment of a
successor Trustee, all assets shall subsequently be transferred to the successor
Trustee. The transfer shall be completed within 30 days after receipt of notice
of resignation, removal or transfer, unless the Company extends the time limit.
10.4 If the Trustee resigns or is removed, a successor shall be appointed,
in accordance with Section 11 hereof, by the effective date of resignation or
removal under Section 10.1 or 10.2 of this section. If no such appointment has
been made, the Trustee may appoint a successor Trustee or it may apply to a
court of competent jurisdiction for appointment of a successor or for
instructions. All expenses of the Trustee in connection with the proceeding
shall be allowed as administrative expenses of the Trust.
SECTION 11
APPOINTMENT OF SUCCESSOR
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11.1 If the Trustee resigns or is removed in accordance with Section 10.1
or 10.2 hereof, the Company, or if a Change in Control shall previously have
occurred the Company and at least 65% of all employees or former employees of
the Company who are or may become entitled to the payment of benefits pursuant
to the Plans, may appoint any third party, such as a bank trust department or
other party that may be granted corporate trustee powers under state law, as a
successor to replace the Trustee upon resignation or removal. The appointment
shall be effective when accepted in writing by the new Trustee, who shall have
all of the rights and powers of the former Trustee, including ownership rights
in the Trust assets. The former Trustee shall execute any instrument necessary
or reasonably requested by the Company or the successor Trustee to evidence the
transfer.
11.2 The successor Trustee need not examine the records and acts of any
prior Trustee and may retain or dispose of existing Trust assets, subject to
Sections 7 and 8 hereof. The successor Trustee shall not be responsible for and
the Company shall indemnify and defend the successor Trustee from any claim or
liability resulting from any action or inaction of any prior Trustee or from any
other past event or any condition existing at the time it becomes a successor
Trustee.
SECTION 12
AMENDMENT OR TERMINATION
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12.1 This Trust Agreement may be amended by a written instrument executed
by the Trustee and the Company. Notwithstanding the foregoing, no such amendment
shall conflict with the terms of the Plans or shall make the Trust revocable
after it has become irrevocable in accordance with Section 1.2 hereof.
12.2 The Trust shall not terminate until the date on which Plan
participants and their beneficiaries are no longer entitled to benefits pursuant
to the terms of the Plans. Upon termination of the Trust any assets remaining in
the Trust shall be returned to the Company.
12.3 Notwithstanding the foregoing:
(a) This Trust Agreement may not be amended by the Company prior to a
Change in Control without the written approval of any Plan participant or
beneficiary whose rights or protections under a Plan or this Agreement may
be reduced, impaired, or otherwise adversely affected by the amendment.
(b) This Trust Agreement may not be amended by the Company following a
Change in Control without the written approval of all employees or former
employees of the Company who are, or may become, entitled to the payment of
benefits pursuant to the Plans.
(c) The Company may terminate this Trust prior to the date specified in
Section 12.2 upon the written approval of all employees or former employees
of the Company who are or may become entitled to the payment of benefits
pursuant to the Plans.
SECTION 13
MISCELLANEOUS
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13.1 Any provision of this Trust Agreement prohibited by law shall be
ineffective to the extent of any such prohibition, without invalidating the
remaining provisions hereof.
13.2 Benefits payable to Plan participants and their beneficiaries under
this Trust Agreement may not be anticipated, assigned (either at law or in
equity), alienated, pledged, encumbered or subjected to attachment, garnishment,
levy, execution or other legal or equitable process.
13.3 This Trust Agreement shall be governed by and construed in accordance
with the laws of the State of Wisconsin, except to the extent the same are
preempted by federal law.
13.4 This Trust Agreement shall be binding upon, and shall inure to the
benefit of, any successor (whether direct or indirect, by purchase, merger,
consolidation, or otherwise) to all or substantially all of the business or
assets of the Company. The Company (and any successor to the Company) may not
otherwise assign its obligations under this Trust Agreement without the prior
written approval of all employees or former employees of the Company who are, or
may become, entitled to the payment of benefits pursuant to the Plans.
13.5 For the purposes of this Trust Agreement:
(a) "Change in Control" means the occurrence of any one of the events set
forth in the following paragraphs:
(i) any Person (other than (A) Alliant Energy Corporation or any
Subsidiary, (B) a trustee or other fiduciary holding securities
under any employee benefit plan of Alliant Energy Corporation 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 Alliant
Energy Corporation in substantially the same proportions as their
ownership of stock in Alliant Energy Corporation ("Excluded
Persons")) is or becomes the Beneficial Owner, directly or
indirectly, of securities of Alliant Energy Corporation (not
including in the securities beneficially owned by such Person any
securities acquired directly from Alliant Energy Corporation or
its affiliates after January 20, 1999, pursuant to express
authorization by the Board that refers to this exception)
representing 20% or more of either the then outstanding Shares or
the combined voting power of Alliant Energy Corporation's then
outstanding voting securities; or
(ii) the following individuals cease for any reason to constitute
a majority of the number of Directors of Alliant Energy
Corporation then serving: (A) individuals who, on January 20,
1999, 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 election contest, including but not
limited to a consent solicitation, relating to the election of
Directors of Alliant Energy Corporation, as such terms are used
in Rule 14a-11 of Regulation 14A under the Exchange Act) whose
appointment or election by the Board or nomination for election
by Alliant Energy Corporation's shareowners was approved by a
vote of at least two-thirds of the Directors then still in office
who either were Directors on January 20, 1999, 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 Alliant Energy
Corporation (or any Subsidiary) shall not be Continuing Directors
for purposes of the Plan until after such individuals are first
nominated for election by a vote of at least two-thirds of the
then Continuing Directors and are thereafter elected as Directors
by the shareowners of Alliant Energy Corporation 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
(iii) Alliant Energy Corporation after January 20, 1999
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 Alliant
Energy Corporation (or any Subsidiary), other than (A) a merger,
consolidation or share exchange which results in the voting
securities of Alliant Energy Corporation 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 Alliant Energy Corporation 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 Alliant Energy Corporation (or similar
transaction) in which no Person (other than an Excluded Person)
is or becomes the Beneficial Owner, directly or indirectly, of
securities of Alliant Energy Corporation (not including in the
securities beneficially owned by such Person any securities
acquired directly from Alliant Energy Corporation or its
affiliates after January 20, 1999, pursuant to express
authorization by the Board that refers to this exception)
representing 20% or more of either the then outstanding Shares or
the combined voting power of Alliant Energy Corporation's then
outstanding voting securities; or
(iv) the shareowners of Alliant Energy Corporation approve a plan
of complete liquidation or dissolution of Alliant Energy
Corporation or Alliant Energy Corporation 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
Alliant Energy Corporation of all or substantially all of Alliant
Energy Corporation'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 Alliant Energy Corporation 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 immediately prior to such transaction or series of
transactions continue to own, directly or indirectly, in the same
proportions as their ownership in Alliant Energy Corporation, an entity
that owns all or substantially all of the assets or voting securities
of Alliant Energy Corporation immediately following such transaction or
series of transactions.
(b) "Beneficial Owner" shall have the meaning ascribed to such term in Rule
13d-3 of the General Rules and Regulations under the Exchange Act;
provided, however, that a Person shall not be deemed the Beneficial Owner
of, or to beneficially own, any security as a result of an agreement,
arrangement or understanding to vote such security if the agreement,
arrangement or understanding: (i) arises solely from a revocable proxy or
consent given to such Person in response to a public proxy or consent
solicitation made pursuant to, and in accordance with, the applicable rules
and regulations under the Exchange Act and (ii) is not also then reportable
on Schedule 13D under the Exchange Act (or any comparable or successor
report).
(c) "Board" or "Board of Directors" means the Board of Directors of Alliant
Energy Corporation.
(d) "Director" means any individual who is a member of the Board of
Directors of Alliant Energy Corporation.
(e) "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor Act thereto.
(f) "Person" shall have the meaning ascribed to such term in Section
3(a)(9) of the Exchange Act and used in Sections 13(d) and 14(d) thereof,
including a "group" as defined in Section 13(d).
(g) "Shares" means the shares of common stock of Alliant Energy
Corporation.
(h) "Subsidiary" means any corporation, partnership, venture, or other
entity in which Alliant Energy Corporation, directly or indirectly, has at
least an 80% ownership interest.
SECTION 14
EFFECTIVE DATE
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The effective date of this Trust Agreement shall be date first above written.
* * * * *
IN WITNESS WHEREOF, this instrument has been executed as of the date
first above written.
ALLIANT SERVICES COMPANY
By:
______________________________________
As its:
__________________________________
MARSHALL & ILSLEY TRUST COMPANY
By:
______________________________________
As its:
__________________________________
APPENDIX A
PLANS
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The following plans and agreements shall be funded through the Trust:
1. Alliant Services Company Key Employee Deferred Compensation Plan