Exhibit 10.05


 


XCEL ENERGY SENIOR EXECUTIVE SEVERANCE AND

CHANGE-IN-CONTROL POLICY


 


(2009 AMENDMENT AND RESTATEMENT)


 


Introduction


 


The Xcel Energy Senior Executive Severance Policy
expired August 18, 2003. Effective as of such date, all rights and entitlements
of participants under such policy ceased.


 


ARTICLE I


ESTABLISHMENT
OF POLICY


 


The Corporation hereby establishes, effective as of October 22,
2003, a separation compensation policy known as the Xcel Energy Senior
Executive Severance and Change-in-Control Policy. The Policy is hereby amended
and restated to take into account changes since the October 22, 2003
effective date including the First and Second Amendments, and the changes
required by section 409A of the Internal Revenue Code.


 


ARTICLE II


DEFINITIONS


 


As used herein the following words and phrases shall
have the following respective meanings unless the context clearly indicates
otherwise.  (In addition, certain terms
used in Section 4.5 of this Policy are defined in Section 4.5.)


 


(a)           Annual
Salary.  The Participant’s regular
annual rate of base salary payable by the Participant’s Employer, including
base salary converted to other benefits under a flexible pay arrangement
maintained by the Corporation or a Subsidiary or deferred pursuant to a written
plan or agreement with the Corporation or a Subsidiary, but excluding overtime
pay, allowances, premium pay, compensation paid or payable under any
Corporation or Subsidiary long-term or short-term incentive plan or any similar
payment.


 


(b)           Board.  The Board of Directors of the Corporation.


 


(c)           Change-in-Control.  Is the occurrence on or after the Effective
Date of any of the events described in subsections (i) through (iv),
below:


 


(i)            An acquisition by an individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of
the Securities Exchange Act of 1934, as amended) (a “Person”) of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the Exchange
Act) of twenty percent (20%) or more of either (1) the then outstanding
shares of common stock of the Corporation (the “Outstanding Corporation Common
Stock”), or (2) the combined voting power of the then outstanding voting
securities of the Corporation entitled to vote generally in the election of 


 

















 


directors (the “Outstanding Corporation Voting
Securities”); excluding, however, the following: (A) any acquisition
directly from the Corporation, other than an acquisition by virtue of the
exercise of a conversion privilege unless the security being so converted was
itself acquired directly from the Corporation, (B) any acquisition by the
Corporation, (C) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Corporation or any corporation controlled
by the Corporation, or (D) any acquisition by any corporation pursuant to
a transaction which complies with clauses (1), (2) and (3) of
subsection (iii) of this definition; or


 


(ii)           A change in the composition of the
Board such that the individuals who, as of the Effective Date, constitute the
Board (the “Incumbent Board”) cease for any reason to constitute at least a
majority of the Board; provided, however, that any individual who becomes a
member of the Board subsequent to the Effective Date whose election, or
nomination for election by the Corporation’s shareholders, was approved by a
vote of at least a majority of those individuals then comprising the Incumbent
Board shall be considered as though such individual were a member of the
Incumbent Board; but, provided further, that any such individual whose initial
assumption of office occurs as a result of either an actual or threatened
election contest with respect to the election or removal of directors or other
actual or threatened solicitation of proxies or consents by or on behalf of a
Person other than the Board shall not be so considered as a member of the
Incumbent Board; or


 


(iii)          The approval by the shareholders of
the Corporation of a reorganization, merger, consolidation, share exchange or
sale or other disposition of all or substantially all of the assets of the
Corporation (“Corporate Transaction”) or, if consummation of such Corporate
Transaction is subject, at the time of such approval by shareholders, to the
consent of any government or governmental agency, the obtaining of such consent
(either explicitly or implicitly by consummation); excluding, however, such a
Corporate Transaction pursuant to which (1) all or substantially all of
the individuals and entities who are the beneficial owners, respectively, of
the Outstanding Corporation Common Stock and Outstanding Corporation Voting
Securities immediately prior to such Corporate Transaction will beneficially
own, directly or indirectly, more than sixty percent (60%) of, respectively,
the outstanding shares of common stock, and the combined voting power of the
then outstanding voting securities entitled to vote generally in the election
of directors, as the case may be, of the corporation resulting from such
Corporate Transaction (including, without limitation, a corporation which as a
result of such transaction owns the Corporation or all or substantially all of
the Corporation’s assets either directly or through one or more subsidiaries)
in substantially the same proportions as their ownership, immediately prior to
such Corporate Transaction, of the Outstanding Corporation Common 


 


2

















 


Stock and Outstanding Corporation Voting Securities,
as the case may be, (2) no Person (other than the Corporation, any
employee benefit plan (or related trust) of the Corporation or such corporation
resulting from such Corporate Transaction) will beneficially own, directly or
indirectly, twenty percent (20%) or more of, respectively, the outstanding
shares of common stock of the corporation resulting from such Corporate
Transaction or the combined voting power of the outstanding voting securities
of such corporation entitled to vote generally in the election of directors
except to the extent that such ownership existed prior to the Corporate Transaction
and (3) individuals who were members of the board of directors of the
Incumbent Board will constitute at least a majority of the members of the board
of directors of the corporation resulting from such Corporate Transaction; or


 


(iv)          The approval by the shareholders of
the Corporation of a complete liquidation or dissolution of the Corporation.


 


(d)           Change-in-Control
Multiple.  For each Participant the
number set forth opposite the Participant’s name in the column titled
Change-in-Control Multiple on the Schedule I hereto.


 


(e)           Code.  The Internal Revenue Code of 1986, as amended
from time to time.


 


(f)            Committee.  The Governance, Compensation and Nominating
Committee of the Board or any successor to such committee.


 


(g)           Corporation.  Xcel Energy Inc.  and
any successor thereto.


 


(h)           Date
of Termination.  The date on which a
Participant ceases to be an Employee and has a “separation from service” as
defined in section 409A of the Code.


 


(i)            Effective
Date.  The effective date of this
amended and restated Policy, or January 1, 2009.


 


(j)            Employee.  Any full-time, regular-benefit,
non-bargaining employee of an Employer. 
The term shall exclude all individuals employed as independent
contractors, temporary employees, other benefit employees, non-benefit employees
or leased employees, even if it is subsequently determined that such
classification is incorrect.


 


(k)           Employer.  The Corporation or a Subsidiary, which has
adopted the Policy pursuant to Article V hereof.  Notwithstanding the provisions of Article V,
however, if an Employee is transferred to a Subsidiary that is not otherwise an
Employer, such Subsidiary shall be deemed, effective as of the effective time
of such transfer, an Employer with respect to the Participant for all purposes
of this Policy even though it has not otherwise adopted the Policy pursuant to Article V.


 


(l)            Good
Reason.       Any one or more of the
following conditions arising without the consent of the Participant as a result
of any action or inaction by the Employer or any of its 


 


3

















 


affiliates: (i) a material diminution of the
Participant’s base compensation, or (ii) a material diminution in the
Participant’s authority, duties or responsibilities.


 


(m)          Participant.  An Employee who is designated as such
pursuant to Section 3.1.


 


(n)           Policy.  The Xcel Energy Senior Executive Severance
and Change-in-Control Policy, as it may, from time to time, be amended.


 


(o)           Release Agreement.  An agreement substantially in the form set
forth in Exhibit A to this Policy, with such amendments as the Committee
may determine to be necessary in order for such agreement to constitute a valid
release by the Participant in question of all claims described therein.


 


(p)           Separation Benefits.  The payments and benefits described in Section 4.3
or Section 4.4, whichever applies, that are provided to qualifying
Participants under the Policy.


 


(q)           Separation Period.  The period beginning on a Participant’s Date
of Termination and ending upon expiration of the number of consecutive 12-month
periods computed with reference to such Date of Termination and anniversaries
thereof that are equal to the Participant’s Severance Multiple.


 


(r)            Severance Multiple. For each
Participant the number set forth opposite the Participant’s name in the column
titled Severance Multiple on the Schedule I hereto.


 


(s)           Subsidiary.  Any corporation or other entity in which the
Corporation, directly or indirectly, holds a majority of the voting power of
such corporation’s or entity’s outstanding shares of capital stock or ownership
interests. An “affiliate” for purposes of this Policy means with respect to the
Corporation or any other entity, an entity that directly, or indirectly through
one or more intermediaries, controls, is controlled by, or is under common
control with, the Corporation or such other entity.


 


(t)            Target Annual Incentive.  The Annual Incentive Award under the Xcel
Energy Inc. Executive Annual Incentive Award Plan or successor thereto that the
Participant would have earned for the year in which his or her Date of
Termination occurs, if the target goals for such year had been achieved.


 


ARTICLE III


ELIGIBILITY


 


3.1                                Participation.  Each of the Employees named on Schedule I
hereto shall be a Participant in the Policy as of the Effective Date.  Schedule I may be amended by the Board or by
the Committee from time to time to add Employees as Participants.


 


3.2                                Duration
of Participation.  A Participant
shall only cease to be a Participant in the Policy as a result of an amendment
or termination of the Policy complying with Article VII of the Policy, or
when he or she ceases to be an Employee, unless, at the time he or she ceases
to be an Employee, such Participant is entitled to payment of Separation
Benefits as provided in the 


 


4

















 


Policy or there has been an event or occurrence
described in Section 4.2(b) which would enable the Participant to
terminate employment and receive Separation Benefits.  A Participant entitled to payment of Separation
Benefits or any other amounts under the Policy shall remain a Participant in
the Policy until the full amount of the Separation Benefits and any other
amounts payable under the Policy have been paid to the Participant.


 


ARTICLE IV


SEPARATION
BENEFITS


 


4.1                                Right
to Separation Benefit.  A Participant
shall be entitled to receive Separation Benefits in accordance with Section 4.3
or Section 4.4, whichever applies, if the Participant’s Date of
Termination occurs in the circumstances set forth in Section 4.2(a) or
Section 4.2(b).


 


4.2                                Termination
of Employment.


 


(a)           Other
than Change-in-Control.  Except as
set forth in subsection (c) below, a Participant shall be entitled to
Separation Benefits if, at any time, other than during the period beginning on
the effective date of the occurrence of a Change-in-Control and ending on the
day before the second anniversary thereof, the Participant’s Date of
Termination occurs because the Participant ceases to be an Employee by action
of the Employer or any of its affiliates (excluding any transfer to another
Employer or a Subsidiary);


 


(b)           Change-in-Control.  Except as set forth in subsection (c) below,
a Participant shall be entitled to Separation Benefits if at any time beginning
on the effective date of the occurrence of a Change in Control and ending on
the day before the second anniversary thereof, if the Participant’s Date of
Termination occurs in the following circumstances:


 


(i)            the Participant
ceases to be an Employee by action of the Employer or any of its affiliates
(excluding any transfer to another Employer or a Subsidiary); or


 


(ii)           a Good Reason
arises and the Participant voluntarily terminates within 130 days after the
occurrence of such Good Reason;


 


With respect to a termination by the Participant
pursuant to clause (ii) of this Section 4.2(b), such termination
shall be effective for purposes of this Section 4.2(b), if and only if the
Participant has given written notice to his or her Employer of his or her
intent to terminate for Good Reason 
(stating the condition(s) relied upon for such Good Reason) within
90 days of initial existence of the condition(s) which constitute Good
Reason, and the Employer or an affiliate of the Employer, as the case may be,
has failed to remedy such condition(s) specified in such notice which
constitute Good Reason  within the 30 day
period following receipt of such notice.


 


(c)           Terminations
Which Do Not Give Rise to Separation Benefits Under This Policy.  If a Participant ceases to be an Employee and
incurs a Date of Termination because the Participant’s employment is terminated
for Cause, or by death, disability, or retirement, or due to a qualified sale
of business (as those terms are defined below), or voluntarily by the
Participant unless, if a Change-in-Control has occurred, the termination meets
the requirements of 


 


5

















 


subsection  (b)(ii) of
this Section 4.2, the Participant shall not be entitled to Separation
Benefits under the Policy.


 


(i)            A termination by
disability shall have occurred where a Participant is terminated because of an
illness or injury and the Participant has become eligible to receive long-term
disability benefits under the Corporation’s or a Subsidiary’s long-term
disability plan, as it exists at the time of termination of employment.


 


(ii)           A termination by
retirement shall have occurred where a Participant’s termination is due to his
voluntary late, normal or early retirement under a defined benefit pension plan
sponsored by his Employer or its affiliates, as “late”, “normal” or “early”
retirement may be defined in such plan.


 


(iii)          A termination for
Cause shall have occurred where a Participant is terminated because of:


 


(A)          the willful and
continued failure of the Participant to perform substantially the Participant’s
duties with the Corporation or one of its Subsidiaries (other than any such
failure resulting from incapacity due to physical or mental illness), after a
written demand for substantial performance is delivered to the Participant by
the Board which specifically identifies the manner in which the Board believes
that the Participant has not substantially performed the Participant’s duties,
or


 


(B)           the willful engaging
by the Participant in illegal conduct or gross misconduct which is materially and
demonstrably injurious to the Corporation, Subsidiaries or one of its
affiliates.


 


For purposes of this provision, no act or failure to
act, on the part of the Participant, shall be considered “willful” unless it is
done, or omitted to be done, by the Participant in bad faith or without
reasonable belief that the Participant’s action or omission was in the best
interests of the Corporation, Subsidiaries or its affiliates, as the case may
be.  Any act, or failure to act, based
upon authority given pursuant to a resolution duly adopted by the Board, or
upon the advice of counsel for the Corporation, shall be conclusively presumed
to be done, or omitted to be done, by the Participant in good faith and in the
best interests of the Corporation, Subsidiaries or its affiliates.


 


(iv)          A termination due to
a qualified sale of business shall have occurred where an Employer or an
affiliate of an Employer has sold, distributed or otherwise disposed of the
subsidiary, branch or other business unit in which the Participant was employed
immediately before such sale, distribution or disposition and the Participant
has been offered employment with the purchaser of such subsidiary, branch or
other business unit or the corporation or other entity which is the owner
thereof on substantially the same terms and conditions under


 


6














 


which he or she
worked for the Employer or Subsidiary (including, without limitation, duties
and responsibilities, and the aggregate of the Participant’s base salary and
program of benefits).  Such terms and
conditions shall include, without limitation, a legally binding agreement or
plan covering such Participant, providing that upon a termination of employment
with the subsidiary, branch or business unit (or the corporation or other
entity which is the owner thereof) or any successor thereto of the kind described
in Article VI of this Policy, that would have entitled the Participant to
Separation Benefits by reason of Section 4.2(a) of this Policy had
the Participant still been a Participant herein, at any time before the third
anniversary of the date of the sale, distribution or disposition, the
Participant’s employer or any successor will pay to such former Participant an
amount equal to the Separation Benefits under Section 4.3 of this Policy
that such former Participant would have received under the Policy had he or she
been a Participant at the time of such termination and been entitled to
Separation Benefits thereunder.  For
purposes of this subsection, the new employer plan or agreement must treat
service with any Employer (irrespective of whether the Employer was an
affiliate of the Corporation or the Employee was a Participant at the time of
such service) and the new employer as continuous service for purposes of
calculating separation benefits.


 


4.3                                Separation
Benefits (non Change-in-Control).


 


(a)                                 If
a Participant’s ceases to be an Employee in circumstances entitling him to
Separation Benefits as provided in Section 4.2(a), and the Participant
executes within 45 days after the Participant’s Date of Termination and does
not revoke a Release Agreement, the Participant’s Employer shall pay such
Participant, within fifteen days of the Date of Termination, or if later, upon
the date such Release Agreement becomes irrevocable, a cash lump sum as set
forth in subsection (b) below and the continued benefits set forth in
subsection (c) of Section 4.3, below, subject to Section 4.6
below.


 


(b)                                The
cash lump sum referred to in Section 4.3(a) shall equal the aggregate
of the following amounts:


 


(i)            the sum of (1) the
Participant’s Annual Salary through the Date of Termination to the extent not
theretofore paid, (2) the product of (x) the Target Annual Incentive
and (y) a fraction, the numerator of which is the number of days in such
year through the Date of Termination, and the denominator of which is 365, and (3) any
accrued vacation pay, in each case to the extent not theretofore paid and in
full satisfaction of the rights of the Participant thereto;


 


(ii)           an amount equal to
the product of (1) the Participant’s Severance Multiple and (2) the
sum of (x) the Participant’s Annual Salary as in effect immediately prior
to his or her Date of Termination, and (y) the Target Annual Incentive;


 


(iii)          an amount equal to (A) minus
(B), where (A) is the accrued pension benefit under the qualified and
non-qualified pension plans sponsored by 


 


7

















 


the Employer in
which the Participant participates, with the addition of credited service
during the Separation Period, and (B) is the accrued pension benefit under
the qualified and non-qualified pension plans sponsored by the Employer in
which the Participant participates as of the Date of Termination; and


 


(iv)          the sum of the
additional contributions (other than pre-tax salary deferral contributions by
the Participant) that would have been made or credited by the Employers to the
Participant’s accounts, whether or not the Participant was vested therein,
under each qualified defined contribution plan and non-qualified supplemental
executive savings plan, if any, that covered the Participant on the day
immediately proceeding the Date of Termination determined by assuming that:


 


(A)          The Participant’s
employment had continued for the Separation Period and the Participant
continued as an active participant in such plans;


 


(B)           The Participant’s
rate of compensation being recognized by each plan immediately prior to the
Date of Termination had continued in effect during the Separation Period;


 


(C)           In the case of
matching contributions, the Participant’s rate of pre-tax salary deferral
contributions in effect on the day immediately prior to the Date of Termination
had remained in effect throughout the Separation Period; and


 


(D)          In the case of
discretionary contributions by the Employers, the Employers continued to make
such contributions during the Separation Period at the rate that applied to the
most recent plan year that ended prior to the Date of Termination.


 


(v)           the sum of the Executive’s “flexible
perquisite allowance” through the Separation Period


 


(c)                                 The
continued benefits referred to above shall be as follows:


 


(i)            During the
Separation Period, the Participant and his family shall be provided with
medical, dental and life insurance benefits as if the Participant’s employment
as an Employee had not terminated; provided, however, that if the Participant
becomes reemployed with another employer and is eligible to receive such
medical or other welfare benefits under another employer-provided plan, the
medical and other welfare benefits described herein shall be secondary to those
provided under such other plan during such applicable period of eligibility,
and provided further, that with respect to any such benefits providing for the
reimbursement of medical expenses referred to in Section 105(b) of
the Code under a self-insured medical reimbursement plan (within the meaning of
Code Section 105(h)), including, without limitation, medical or dental
benefits, that are incurred following the period the Participant would be
entitled (or would, but for 


 


8

















 


this Section 4.3(c)(i),
be entitled) to continuation coverage under such plan under Code Section 4980B
(COBRA) if the Participant had elected such coverage and paid the applicable
premiums, the reimbursement of an eligible medical expense must be made on or
before the last day of the calendar year following the calendar year in which
the expense was incurred and the amount of such expenses eligible for
reimbursement in one year may not affect the amount of expenses eligible for
payment, or in-kind benefits to be provided, in any other taxable year except
as otherwise provided in Section 409A of the Code and the regulations
thereunder.; and for purposes of determining eligibility (but not the time of
commencement of benefits) of the Participant for retiree medical, dental and
life insurance benefits under the Corporation’s or its Subsidiaries’ plans,
practices, programs and policies, the Participant shall be considered to have
remained employed during the Separation Period and to have retired on the last
day of such period;


 


(ii)           The Employer shall,
at its sole expense as incurred, provide the Participant with outplacement
services the scope and provider of which shall be selected by the Participant
in his or her sole discretion (but at a cost to the Employer of not more than
$30,000), provided that, such services must be provided and the expenses
therefore incurred prior to the end of the second calendar year following the
calendar year in which the Date of Termination occurs, and provided further, that
the Employer shall pay all reimbursements for such expenses so incurred not
later than the end of the third calendar year following the calendar year in
which the Date of Termination occurs;


 


To the extent any benefits described in this Section 4.3(c) cannot
be provided pursuant to the appropriate plan or program maintained for
Employees, the Employer shall provide such benefits outside such plan or
program at no additional cost (including without limitation tax cost) to the
Participant, provided however, that any tax gross-up provided shall be paid to
the Participant no later than the end of the calendar year next following the
calendar year in which the Participant incurs the related tax, but in no event
shall it be paid prior to the first day of the seventh month following the Date
of Termination.  Notwithstanding the
foregoing, if a group insurance carrier refuses to provide the coverage
described in this Section 4.3(c) under its contract issued to the
Corporation or a Subsidiary, as the case may be, or if the Corporation
reasonably determines that the coverage required under this Section 4.3(c) would
cause a welfare plan sponsored by the Corporation or a Subsidiary to violate
any provision of the Code prohibiting discrimination in favor of highly compensated
employees or key employees, the Employer will use its best efforts to obtain
for the Participant an individual insurance policy providing comparable
coverage.  However, if the Corporation
determines in good faith that comparable coverage cannot be obtained for less
than two times the premium or premium equivalent for such coverage under the
applicable Corporation or Subsidiary welfare plan or plans, the Employer’s sole
obligation under this Section 4.3(c) with respect to that coverage
will be limited to paying the Participant a monthly amount equal to two times
the monthly premium or premium equivalent for that coverage under the
applicable Corporation or Subsidiary’s plans, provided however, that that any
amount otherwise payable during the first six months following a Date of
Termination shall be paid as of the first day of the seventh month following
the Date of Termination.


 


9

















 


4.4           Separation
Benefits (Change-in-Control).  If a
Participant’s ceases to be an Employee in circumstances entitling him or her to
Separation Benefits as provided in Section 4.2(b), and the Participant
executes within 45 days after the Participant’s date of termination and does
not revoke a Release Agreement, the Participant’s Employer shall pay such
Participant, within fifteen days of the Date of Termination, or if later, upon
the date such Release Agreement becomes irrevocable, a cash lump sum as set
forth in subsections (b)(i) through (b)(iv) of Section 4.3
above, together with continued benefits as set forth in Section 4.3(c) above
(subject to Section 4.6 below), provided however, that a Participant’s
Change in Control Multiple shall be substituted for his Severance Multiple in
applying the provisions of said subsections (including in determining the
length of the Separation Period as used therein).  For purposes of determining the cash lump sum
and continued benefits set forth in subsection (b) and (c) of Section 4.3,
if on or after the occurrence of a Change-in-Control a reduction of the
Participant’s Annual Salary or benefits has occurred which would entitle the
Participant to terminate employment and receive Separation Benefits under this Section 4.4,
such reduction shall be ignored.


 


4.4A       Other Benefits Payable.  The cash lump sum and continuing benefits
described in Sections 4.3 or 4.4 above shall be payable in addition to, and not
in lieu of, all other accrued, vested and earned but deferred compensation,
rights, options or other benefits which may be owed to a Participant upon or
following termination, including but not limited to accrued vacation or sick
pay, amounts or benefits payable under any bonus or other compensation plans,
stock option plan, stock ownership plan, stock purchase plan, life insurance
plan, health plan, disability plan or similar or successor plan, except to the
extent paid as provided in Section 4.3(b)(i) or Section 4.4 (by
incorporation of Section 4.3(b)(i)) above or as provided in Section 4.6
below.


 


4.5           Certain
Additional Payments or Reductions in Payments. Eligibility for the Gross-Up
Payment in Section 4.5(a) below is limited to those Participants who
have been designated as “Tier I Participants” listed on Schedule I herein.  Participants designated as “Tier II
Participants” shall be entitled to receive the full payment of such Separation
Payments if the Parachute Value of all Payments to which they are entitled
exceeds 110% of the Safe Harbor Amount, but will not receive a Gross-Up Payment
described below. Those Tier II Participants entitled to receive Payments the
Parachute Value of which exceeds the Safe Harbor Amount, but is equal to or
less than 110% of the Safe Harbor Amount, shall have their Separation Payments
reduced (but not below zero) so that the Parachute Value of all Payments to
which they are entitled equals the Safe Harbor Amount; provided, however, that
the reduction shall be made in such a manner as to maximize the Value of
Payments actually made to the Participant.


 


(a)                                 Gross-Up
or Reduction.


 


(i)            In the event it
shall be determined that any Payment would be subject to the Excise Tax, then
except to the extent provided below in this Section 4.5(a), the
Participant shall be entitled to receive an additional payment (a “Gross-Up
Payment”) in an amount such that after payment by the Participant of all taxes
(including any interest or penalties imposed with respect to such taxes),
including, without limitation, any income taxes (and any interest and penalties
imposed with respect thereto) and Excise Tax imposed upon the Gross-Up Payment,
the 


 


10

















 


Participant
retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon
the Payments.


 


(ii)           Notwithstanding Section 4.5(a)(i),
if it shall be determined that the Participant is entitled to a Gross-Up
Payment pursuant to Section 4.5(a)(i) (before application of Sections
4.5(a)(ii), (iii) and (iv)), but that the Parachute Value of the Payments
does not exceed 110% of the Safe Harbor Amount, then no Gross-Up Payment shall
be made to the Participant and the Separation Payments, in the aggregate, shall
be reduced (but not below zero) such that the Parachute Value of all Payments
equals the Safe Harbor Amount, determined in such a manner as to maximize the
Value of all Payments actually made to the Participant.


 


(iii)          If it shall be
determined that the Participant is entitled to a Gross-Up Payment pursuant to Section 4.5(a)(i) and
the Payments are not reduced pursuant to Section 4.5(a)(ii), but one or
more of the Payments that is determined to be subject to the Excise Tax
consists of the accelerated vesting of a stock award under the Xcel Energy Inc.
Omnibus Incentive Plan or any successor thereto, then the Gross-Up Payment
shall be reduced by the portion thereof that is allocable to such accelerated
vesting.  The allocation of the Gross-Up
Payment to the individual Payments shall be made on a pro-rata basis using the
methodology set forth in Q&A 38 of Treasury Regulations Section 1.280G-1
or any comparable provision of any successor proposed or final regulations
under Sections 280G and 4999 of the Code.


 


(iv)          If it shall be
determined that a Participant is entitled to receive a Gross-Up Payment after
application of Sections 4.5(a)(i), (ii) and (iii), then a determination
shall be made whether it is possible to reduce the Separation Payments (but not
below zero) such that the Net After-Tax Amount of all the Payments (taking into
account such reduction) exceeds the Net After-Tax Amount of all the Payments
(not taking into account such reduction) plus the Gross-Up Payment.  If such a reduction is possible, then no
Gross-Up Payment shall be made and the aggregate Separation Payments shall be
so reduced (but not below zero); provided, that
the reduction shall be made in such a manner as to maximize the Value of all
Payments actually made to the Participant.


 


(b)                                Procedures.


 


(i)            All determinations
required to be made under Section 4.5, including whether and when a
Gross-Up Payment or a reduction in Separation Payments is required, the amount
of such Gross-Up Payment or reduction, and the assumptions to be utilized in arriving
at such determination, shall be made by a nationally recognized public
accounting firm or benefits consulting firm selected by the Corporation (the “Accounting/Consulting
Firm”), which shall provide detailed supporting calculations both to the
Corporation and the Participant within 15 business days of the receipt of
notice from the Participant that there has been a Payment, or such earlier time
as is requested by the Corporation; provided, that
if the Accounting/Consulting Firm determines that a Participant’s Separation 


 


11

















 


Payments are
required to be reduced pursuant to this Section 4.5, including Section 4.5(a)(ii) or
(iv), and there is a choice to be made as to which Separation Payments shall be
reduced consistent with maximizing the Value of all Payments to the
Participant, the reduction shall be made first from cash payments under section
4.3(b) and then from payments in the following order: 4.3(c)(ii), then
4.3(c)(i).  All fees and expenses of the
Accounting/Consulting Firm shall be borne solely by the Corporation.  Any Gross-Up Payment, as determined pursuant
to this Section 4.5, shall be paid or caused to be paid by the Corporation
to the Participant within five days of the receipt of the Accounting/Consulting
Firm’s determination, but in no event later than the end of the calendar year
next following the calendar year in which the Participant remits the related
taxes to the taxing authority; provided, however, that the portion, if any, of
any Gross-Up Payment attributable to a Separation Payment shall not be paid
earlier than the first day of the seventh month following the Participant’s
Date of Termination (or the Participant’s earlier death).  Any determination by the
Accounting/Consulting Firm shall be binding upon the Corporation and the
Participant.


 


(ii)           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/Consulting Firm hereunder, it is
possible that amounts will have been paid or distributed to or for the benefit
of a Participant pursuant to this Policy which should not have been so paid or
distributed (“Overpayment”) or that additional amounts which will have not been
paid or distributed to or for the benefit of a Participant pursuant to this
Policy could have been so paid or distributed (“Underpayment”), in each case,
consistent with the requirements of this Section 4.5.  In the event that the Accounting/Consulting
Firm, based upon the assertion of a deficiency by the Internal Revenue Service
against either an Employer or the Participant which the Accounting/Consulting
Firm believes has a high probability of success determines that an Overpayment
has been made, any such Overpayment paid or distributed to or for the benefit
of a Participant shall be treated for all purposes as a loan to the Participant
which the Participant shall repay to the Employer together with interest at the
applicable federal rate provided for in Section 7872(f)(2) of the
Code; provided, however, that no such loan
shall be deemed to have been made and no amount shall be payable by a
Participant if and to the extent such deemed loan and payment would not either
reduce the amount on which the Participant is subject to tax under Section 1
and Section 4999 of the Code or generate a refund of such taxes or would
be a prohibited loan under Section 402 of the Sarbanes-Oxley Act of 2002,
as amended.  In the event that the Accounting/Consulting
Firm, based upon controlling precedent or substantial authority, determines
that an Underpayment has occurred, any such Underpayment shall be promptly paid
or caused to be paid by the Corporation to or for the benefit of the Participant
together with interest at the applicable federal rate provided for in Section 7872(f)(2) of
the Code, but in no event shall the Underpayment be paid no later than the end
of the first calendar year in which the calculation of the Underpayment is
administratively practicable..


 


12

















 


(iii)          The Participant
shall notify the Corporation in writing of any claim by the Internal Revenue
Service that, if successful, could require the payment of the Gross-Up
Payment.  Such notification shall be
given as soon as practicable but no later than ten business days after the
Participant is informed in writing of such claim and shall apprise the
Corporation of the nature of such claim and the date on which such claim is
requested to be paid.  The Participant
shall not pay such claim prior to the expiration of the 30-day period following
the date on which it gives such notice to the Corporation (or such shorter
period ending on the date that any payment of taxes with respect to such claim
is due).  If the Corporation notifies the
Participant in writing prior to the expiration of such period that it desires
to contest such claim, the Participant shall:


 


(A)          give the Corporation
any information reasonably requested by the Corporation relating to such claim,


 


(B)           take such action in
connection with contesting such claim as the Corporation shall reasonably
request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Corporation,


 


(C)           cooperate with the
Corporation in good faith in order to contest such claim effectively, and


 


(D)          permit the
Corporation to participate in any proceedings relating to such claim;


 


provided,
however, that the Corporation shall bear and pay directly all
costs and expenses (including additional interest and penalties) incurred in
connection with such contest and shall indemnify and hold the Participant
harmless, on an after-tax basis, for any Excise Tax or income tax (including
interest and penalties with respect thereto) imposed as a result of such
representation and payment of costs and expenses; and provided further that
such costs and expenses and indemnification of taxes shall be paid no later
than the end of the calendar year following the calendar year in which the
claim is resolved by the remitting to the applicable taxing authority the taxes
subject of the claim or, where as a result of the claim no taxes are remitted,
in which the audit is completed or there is a final and non-appealable
settlement or other resolution of the claim, except that, in no event shall any
such costs, expenses or taxes to the extent attributable to a Separation
Payment, be paid earlier than the first day of the seventh month after the Date
of Termination (or the Participant’s earlier death)..  Without limitation on the foregoing
provisions of this Section 4.5(b), the Corporation shall control all
proceedings taken in connection with such contest and, at its sole option, may pursue
or forgo any and all administrative appeals, proceedings, hearings and
conferences with the taxing authority in respect of such claim and may, at its
sole option, either direct the Participant to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner, and the Participant
agrees to prosecute such contest to a determination before any administrative
tribunal, in a 


 


13

















 


court
of initial jurisdiction and in one or more appellate courts, as the Corporation
shall determine; provided, however, that if the Corporation directs the
Participant to pay such claim and sue for a refund, the Corporation shall
advance the amount of such payment to the Participant, on an interest-free basis
and shall indemnify and hold the Participant harmless, on an after-tax basis,
from any Excise Tax or income tax (including interest or penalties with respect
thereto) imposed with respect to such advance or with respect to any imputed income
with respect to such advance, except that the Corporation shall not direct the
Participant to pay such claim and sue for a refund if such advance would be a
prohibited loan under Section 402 of Sarbanes-Oxley Act of 2002, as
amended; and further provided that (i) any extension of the statute of
limitations relating to payment of taxes for the taxable year of the
Participant with respect to which such contested amount is claimed to be due is
limited solely to such contested amount, and (ii) any such indemnification
for any Excise Tax or income tax shall be made not later than the end of the
calendar year following the calendar year in which such taxes are remitted, and
if attributable to a Separation Payment, in no event earlier than the first day
of the seventh month after the Date of Termination (or the Participant’s
earlier death)..  Furthermore, the
Corporation’s control of the contest shall be limited to issues with respect to
which a Gross-Up Payment would be payable hereunder and the Participant shall
be entitled to settle or contest, as the case may be, any other issue raised by
the Internal Revenue Service or any other taxing authority.


 


(iv)          If, after the
receipt by the Participant of an amount advanced by the Corporation pursuant to
Section 4.5(b)(iii), the Participant becomes entitled to receive any
refund with respect to such claim, the Participant shall (subject to the
Corporation’s complying with the requirements of Section 4.5(b)(iii))
promptly pay to the Corporation the amount of such refund (together with any
interest paid or credited thereon after taxes applicable thereto).  If, after the receipt by the Participant of
an amount advanced by the Corporation pursuant to Section 4.5(b)(iii), a
determination is made that the Participant shall not be entitled to any refund
with respect to such claim and the Corporation does not notify the Participant
in writing of its intent to contest such denial of refund prior to the
expiration of 30 days after such determination, then such advance shall be
forgiven and shall not be required to be repaid and the amount of such advance
shall offset, to the extent thereof, the amount of the Gross-Up Payment
required to be paid.


 


(c)                                 Definitions.  The following terms shall have the following
meanings for purposes of this Section 4.5.


 


(i)            “Excise Tax” shall
mean the aggregate of the excise taxes imposed by Section 4999 of the Code
or by similar state or local law, together with any interest or penalties
imposed with respect to such excise taxes.


 


(ii)           The “Net After-Tax
Amount” of a Payment shall mean the Value of a Payment net of all taxes imposed
on a Participant with respect thereto under 


 


14

















 


Sections 1
and 4999 of the Code and applicable state and local law, determined by applying
the highest marginal rates that are expected to apply to the Participant’s
taxable income for the taxable year in which the Payment is made.


 


(iii)          “Parachute Value”
of a Payment shall mean the present value as of the date of the
Change-in-Control or other applicable date of the portion of such Payment that
constitutes a “parachute payment” under Section 280G(b)(2), or under any
similar state or local law, as determined by the Accounting/Consulting Firm for
purposes of determining whether and to what extent the Excise Tax will apply to
such Payment.


 


(iv)          A “Payment” shall
mean any payment or distribution by the Corporation or any affiliates in the
nature of compensation to or for the benefit of a Participant, whether paid or
payable pursuant to this Policy or otherwise, including, without limitation,
the lapse or termination of any restriction on or the vesting or exercisability
of any benefits or right thereto.


 


(v)           The “Safe Harbor
Amount” means the maximum Parachute Value of all Payments that a Participant
can receive without any Payments being subject to the Excise Tax.


 


(vi)          A “Separation
Payment” shall mean a Payment paid or payable pursuant to this Policy
(disregarding this Section 4.5).


 


(vii)         “Value” of a Payment
shall mean the economic present value of a Payment as of the date of
Change-in-Control or other applicable date, as determined by the
Accounting/Consulting Firm using the discount rate required by Section 280G(d)(4) of
the Code.


 


4.6                                Conditions
to Payment Obligations.


 


(a)           Except
as provided in Section 4.6(b) below, the obligations of the
Corporation and the Employers to pay the Separation Benefits and the Gross-Up
Payment and other payments described in Section 4.5 shall be absolute and
unconditional and shall not be affected by any circumstances, including,
without limitation, any set-off, counterclaim, recoupment, defense or other
right which the Corporation or any of its Subsidiaries may have against any
Participant.


 


(b)           Notwithstanding
any other provision of this Policy or any other plan, program, practice or
policy of any Employer:  (i) any
cash Separation Benefits that a Participant becomes entitled to receive under Section 4.3(b) or
Section 4.4 of this Policy shall be reduced (but not below zero) by the
aggregate amount of cash severance, separation, or similar benefits that the
Participant may be entitled to receive under any other plan, program, policy,
contract, agreement or arrangement of any Employer or Subsidiary, except to the
extent the Participant waives his or her right thereto, and by the aggregate
amount of such cash benefits or pay in lieu of notice that the Participant may
be entitled to receive under applicable law; and (ii) any continued
benefits that a Participant becomes entitled to receive under Section 4.3(c) or
Section 4.4 of this Policy shall be provided concurrently (not
consecutively) with any such benefits that such Participant may be entitled to
receive under any other plan, program, policy, contract, agreement or 


 


15

















 


arrangement of any Employer or Subsidiary or
applicable law (including without limitation the health continuation coverage
required by Section 4980B of the Code and Section 601 et seq. of the
Employee Retirement Income Security Act of 1974, as amended).  In no event shall a Participant be obligated
to seek other employment or take any other action by way of mitigation of the
amounts payable to a Participant under any of the provisions of this Policy,
nor shall the amount of any payment hereunder be reduced by any compensation
earned by a Participant as a result of employment by another employer, except
as specifically provided in Section 4.3(c)(i) or Section 4.4 (by
incorporation of Section 4.3(c)(i)).


 


ARTICLE V


PARTICIPATING
EMPLOYERS


 


With the consent of the Board, this Policy may be
adopted by any Subsidiary of the Corporation. 
Upon such adoption, the Subsidiary shall become an Employer hereunder
and the provisions of the Policy shall be fully applicable to the Employees of
that Subsidiary who are Participants pursuant to Section 3.1.


 


ARTICLE VI


SUCCESSOR
TO CORPORATION


 


This Policy shall bind any successor of the
Corporation or other Employer, its assets or its businesses (whether direct or
indirect, by purchase, merger, consolidation or otherwise), in the same manner
and to the same extent that the Corporation or Employer would be obligated
under this Policy if no succession had taken place.


 


In the case of any transaction in which a successor
would not by the foregoing provision or by operation of law be bound by this
Policy, the Corporation shall require such successor expressly and
unconditionally to assume and agree to perform the Corporation’s or Employer’s
obligations under this Policy, in the same manner and to the same extent that
the Corporation or Employer would be required to perform if no such succession
had taken place.  The term “Corporation,”
as used in this Policy, shall mean the Corporation as hereinbefore defined and
any successor or assignee to the business or assets, which by reason hereof,
becomes bound by this Policy.


 


ARTICLE VII


DURATION,
AMENDMENT AND TERMINATION


 


7.1                                Amendment
and Termination.


 


(a)                                 Subject
to the provisions of Article VII, the Policy may be amended by the Board
at any time or from time to time and may be terminated by the Board at any
time. To the extent applicable, such amendment or termination shall comply with
section 409A of the Code. No amendment or termination, however, may adversely
affect the rights of any Participant without the Participant’s written consent
if such person (i) is then receiving Separation Benefits or other payments
under the Policy, (ii) upon termination of employment would become
entitled to receive Separation Benefits or other payments under the Policy on
account of a prior event or occurrence described in Section 4.2(b), or (iii) is
entitled to receive Separation Benefits or other payments under the Policy on
account of a prior termination of employment.


 


16














 


(b)           Notwithstanding
the provisions of Section 7.1(a), during the period commencing on October 22,
2003 and ending at the close of business on October 21, 2006 (the “Term”),
the Policy may not be amended or terminated in any way, whether or not a
Change-in-Control has occurred, that would adversely affect the rights of any
person, without such person’s written consent; provided, however, that on October 22,
2004 and on each October 22 thereafter, the Term shall automatically be
extended for an additional year unless, not later than the immediately
preceding July 22, the Corporation shall give notice to Participants that
it does not wish to have the Term extended; and provided further, however, that
if a Change-in-Control shall have occurred during the Term, the Term shall
expire no earlier than the second anniversary of the date on which the
Change-in-Control occurred


 


7.2                                 Duration.  Notwithstanding Section 7.1, this Policy
shall continue in full force and effect and shall not terminate or expire until
after all Participants who become entitled to any payments hereunder shall have
received such payments in full and all payments and adjustments required to be
made pursuant to Section 4.5 have been made.


 


7.3                                 Form of
Amendment.  The form of any amendment
of the Policy shall be a written instrument signed by a duly authorized officer
or officers of the Corporation, certifying that the amendment has been approved
by the Board.


 


ARTICLE VIII


MISCELLANEOUS


 


8.1                                 Employment
Status.  This Policy does not
constitute a contract of employment or impose on the Participant or the
Participant’s Employer any obligation to retain the Participant as an Employee,
to change the status of the Participant’s employment, or to change the
Corporation’s policies or those of its Subsidiaries regarding termination of
employment.


 


8.2                                 Claim
Procedure.  If an Employee or former
Employee makes a written request alleging a right to receive benefits under
this Policy or alleging a right to receive an adjustment in benefits being paid
under the Policy, the Corporation shall treat it as a claim for benefit.  All claims for benefit under the Policy shall
be sent to the Human Resources Department of the Corporation and must be
received within 30 days after termination of employment or, if earlier, within
30 days after the date as of which the alleged right to receive benefits
arises.  If the Corporation determines
that any individual who has claimed a right to receive benefits, or different
benefits, under the Policy is not entitled to receive all or any part of the
benefits claimed, it will inform the claimant in writing of its determination
and the reasons therefor in terms calculated to be understood by the
claimant.  The notice will be sent within
90 days of the claim unless the Corporation determines additional time, not
exceeding 90 days, is needed.  The notice
shall make specific reference to the pertinent Policy provisions on which the
denial is based, and describe any additional material or information is
necessary.  Such notice shall, in addition,
inform the claimant what procedure the claimant should follow to take advantage
of the review procedures set forth below in the event the claimant desires to
contest the denial of the claim, including a statement of the right to bring a
civil suit under Section 502(a) of the Employee Retirement Income
Security Act of 1974, as amended (“ERISA”). 
The claimant may within 60 days thereafter submit in writing to the
Corporation a notice that the claimant contests the denial of his or her claim
by the Corporation and desires a further review.  The notice may include comments, 


 


17

















 


documents, records and other information relating to
the claim.  The claimant shall be
provided, upon request and free of charge, reasonable access to, and copies of,
all documents, records and other information relevant to the claim for
benefits.  The review will take into
account all comments, documents, records and other information submitted
relating to the claim, without regard to whether such information was submitted
or considered in the initial determination. 
The Corporation will render its final decision with specific reasons
therefor in writing and will transmit it to the claimant within 60 days of the
written request for review, unless the Corporation determines additional time,
not exceeding 60 days, is needed, and so notifies the Participant.  In the case of an adverse benefit
determination, the decision shall set forth, in a manner calculated to be
understood by the claimant, the specific reasons for the adverse determination,
reference to the specific Policy provisions on which the determination is
based, a statement that the claimant is entitled to receive upon request and
free of charge, reasonable access to, and copies of, all documents, records,
and other information relevant to the claim for benefits, and a statement of
the claimant’s right to bring an action under Section 502(a) of
ERISA.


 


8.3                                 Validity
and Severability.  The invalidity or
unenforceability of any provision of the Policy shall not affect the validity
or enforceability of any other provision of the Policy, which shall remain in
full force and effect, and any prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


 


8.4                                 Governing
Law.  The validity, interpretation,
construction and performance of the Policy shall in all respects be governed by
the laws of Minnesota, without reference to principles of conflict of law, except
to the extent pre-empted by federal law. To the extent applicable, the Plan
sponsor intends the Policy to comply with Section 409A of the Code.


 


8.5                                 Withholding.  The Corporation or other applicable Employer
may withhold from any and all amounts payable under this Policy all federal,
state, local and foreign taxes that may be required to be withheld by
applicable laws or regulations.


 


18

















 


	
   

  	
  Xcel Energy Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Richard C. Kelly

  
	
   

  	
   

  	
  Chairman and CEO

  



 


19

















 


SCHEDULE I


 


Participants


 


	
  Employee Name

  	
   

  	
  Tier

  	
   

  	
  Severance Multiple

  	
   

  	
  Change-in-Control

  Multiple

  	
   

  
	
  Fowke
  III, Benjamin

  	
   

  	
  1

  	
   

  	
  1

  	
   

  	
  3

  	
   

  
	
  Gogel,
  Raymond

  	
   

  	
  1

  	
   

  	
  1

  	
   

  	
  3

  	
   

  
	
  Hart,
  Cathy

  	
   

  	
  1

  	
   

  	
  1

  	
   

  	
  3

  	
   

  
	
  Kelly,
  Richard

  	
   

  	
  1

  	
   

  	
  1

  	
   

  	
  3

  	
   

  
	
  Madden,
  Teresa

  	
   

  	
  2

  	
   

  	
  1

  	
   

  	
  2

  	
   

  
	
  Sparby,
  David

  	
   

  	
  2

  	
   

  	
  1

  	
   

  	
  2

  	
   

  
	
  Tyson
  II, George

  	
   

  	
  2

  	
   

  	
  1

  	
   

  	
  2

  	
   

  
	
  Wilks,
  David

  	
   

  	
  1

  	
   

  	
  1

  	
   

  	
  3

  	
   

  
	
  Bonavia,
  Paul

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  *

  	
   

  
	
  Connelly,
  Michael

  	
   

  	
  1

  	
   

  	
  1

  	
   

  	
  3

  	
   

  



 






*              Paul Bonavia shall not be a
Participant in the Policy for purposes of entitlement to Separation Benefits in
accordance with Section 4.3 by reason of ceasing to be an Employee in
circumstances as provided in Section 4.2(a), but shall be a Participant
for purposes of the remaining provisions of the Policy. Notwithstanding any
other provision of the Policy to the contrary, including but not limited to
Sections 4.2, 4.3 or 4.4, a cash payment made under section 4.4 (by
incorporation of Section 4.3(b)) shall not be paid to Mr. Paul
Bonavia until the first day of the seventh month following his date of
termination or on his earlier death.


 

















 


EXHIBIT A


 


FORM OF RELEASE AGREEMENT


 


THIS AGREEMENT is entered into
this _____ day of ____________, 20__ by and between Xcel Energy Inc. (the “Company”),
a Minnesota corporation, and ________________________ (the “Participant”).


 


WHEREAS, the Participant has
become entitled to receive Separation Benefits under the Xcel Energy Senior
Executive Severance and Change-in-Contract Policy (the “Policy”) on the
condition that the Participant enter into this Release Agreement; and


 


NOW, THEREFORE, in consideration
of the Covenant Consideration, the Participant, intending to be legally bound,
agrees as follows:


 


1.             Acknowledgment.


 


(a)           The Participant
understands and agrees that, in addition to the Participant’s below-described
exposure to the Company’s Confidential Information or Trade Secrets, the
Participant may, in his capacity as an employee, at times meet with the Company’s
customers and suppliers, and that as a consequence of using and associating
with the Company’s name, goodwill, and professional reputation, the Participant
will be in a position to develop personal and professional relationships with
the Company’s past, current, and prospective customers and suppliers. The
Participant further acknowledges that during the course and as a result of
employment by the Company, the Participant may be provided certain specialized
training or know-how.  The Participant
understands and agrees that this goodwill and reputation, as well as the
Participant’s knowledge of Confidential Information or Trade Secrets and
specialized training and know-how, could be used unfairly in competition
against the Company.


 


(b)                                 Accordingly,
the Participant agrees that during the period of one year after the Date of
Termination (the “Covenant Period”), the Participant shall not:


 


(i)            Cause or attempt to cause any
existing or prospective customer, client, or account, who then has a
relationship with the Company for current or prospective business, to divert,
terminate, limit or in any manner modify, or fail to enter into any actual or
potential business relationship with the Company; and the Participant and the
Company agree that this clause (i) is reasonably enforced with reference
to any geographic area applicable to such relationships with the Company; and


 


(ii)           Directly or indirectly solicit,
employ or conspire with others to employ any of the Company’s employees; the
term “employ” for purposes of this clause (ii) meaning to enter into an
arrangement for services as a full-time or part-time employee, independent
contractor, consultant, agent or otherwise; and the Participant and the Company
agree that this clause (ii) is reasonably enforced as to any geographic
area.


 

















 


2.             Return of Property.  The Participant agrees that upon the Date of
Termination, the originals and all copies of any and all documents (including
computer data, diskettes, programs, or printouts) that contain any customer
information, financial information, product information, or other information
that in any way relates to the Company, its products or services, its clients,
its suppliers, or other aspects of its business that are in the Participant’s
possession shall be immediately returned to the Company.  The Participant further agrees to not retain
any summary of such information.


 


3.             Confidential Information/Trade
Secrets.


 


(a)           The Participant
acknowledges that during the course and as a result of his or her employment,
the Participant may receive or otherwise have access to, or contribute to the
production of, Confidential Information or Trade Secrets.  “Confidential Information or Trade Secrets”
means information that is proprietary to or in the unique knowledge of the
Company (including information discovered or developed in whole or in part by
the Participant); the Company’s business methods and practices; or information
that derives independent economic value, actual or potential, from not being
generally known to, and not being readily ascertainable by proper means by,
other persons who can obtain economic value from its disclosure or use, and is
the subject of efforts that are reasonable under the circumstances to maintain
its secrecy. It includes, among other things, strategies, procedures, manuals,
confidential reports, lists of clients, customers, suppliers, past, current or
possible future products or services, and information concerning research,
development, accounting, marketing, selling or leases and the prices or charges
paid by the Company’s customers to the Company, or by the Company to its
suppliers.  The Participant acknowledges
his continuing agreement to abide by the terms of the Company’s Code of
Conduct.


 


(b)           The Participant
further acknowledges and appreciates that any Confidential Information or Trade
Secret constitutes a valuable asset of the Company and that the Company intends
any such information to remain secret and confidential. The Participant
therefore specifically agrees that except to the extent required by the
Participant’s duties to the Company or as permitted by the express written
consent of the  Board of Directors, the
Participant shall never, either during employment with the Company or at any
time thereafter, directly or indirectly use, discuss or disclose any
Confidential Information or Trade Secrets of the Company or otherwise use such
information to his or her own or a third party’s benefit.


 


4.             Consideration.  The Participant and the Company agree that
the above provisions of this Agreement are reasonable and necessary for the
protection of the Company and its business. 
In exchange for the Participant’s agreement to be bound by the terms of
this Agreement, the Company has provided the Participant the Separation
Benefits under the Policy. The Participant accepts and acknowledges the
adequacy of such consideration for this Agreement.


 


5.             Remedies for Breach.  The Participant acknowledges that a breach of
the above provisions of this Agreement will cause the Company irreparable harm
that would not be fully remedied by monetary damages.  Accordingly, the Participant agrees that the
Company shall, in addition to the requirement to return the Covenant
Consideration to the Company and any relief afforded by law, be entitled to
injunctive relief.  The Participant
agrees that both 


 

















 


damages at law and injunctive relief shall be proper
modes of relief and are not to be considered alternative remedies.


 


6.             Release.


 


(a)           In consideration of
the Separation Benefits, the Participant does hereby fully and completely
release and waive any and all claims, complaints, causes of action or demands
of whatever kind which the Participant has or may have against the Company and
its predecessors, successors, subsidiaries and affiliates and all officers,
employees and agents of those persons and companies arising out of any actions,
conduct, decisions, behavior or events occurring to the date of his or her
execution of this Release of which the Participant is or has been made aware or
has been reasonably put on notice.


 


(b)           The Participant
understands and accepts that this release specifically covers but is not
limited to any and all claims, complaints, causes of action or demands of
whatever kind which the Participant has or may have against the
above-referenced released parties relating in any way to the terms, conditions
and circumstances of his or her employment to date, whether based on statutory,
regulatory or common law claims for employment discrimination, including but
not limited to race, color, religion, sex, age or reprisal discrimination,
arising under the Federal Civil Rights Act of 1964, as amended, the Civil
Rights Act of 1991, the Americans with Disabilities Act,  Executive Order 11246, the Age Discrimination
in Employment Act, as amended, the Colorado Civil Rights Act, Minnesota Human
Rights Act, or any other administrative order, federal or state statute or
local ordinance, wrongful discharge, equal pay claims, breach of contract,
breach of any express or implied promise, misrepresentation, fraud, reprisal,
retaliation, breach of public policy, infliction of emotional distress,
defamation, promissory estoppel, invasion of privacy, negligence, or any other
theory, whether legal or equitable; except that this release will not impair
any existing rights the Participant may have under any presently existing
pension, retirement or employee benefit plan of the Company.


 


(c)           By signing below,
the Participant acknowledges that he or she fully understands and accepts the
terms of this release, and represents and agrees that his or her signature is
freely, voluntarily and knowingly given and that he or she has been provided a
full opportunity to review and reflect on the terms of this release for at
least 21days and to seek the advice of legal
counsel of his or her choice, which advice the Participant has been encouraged
to obtain.


 


7.             The Participant’s Acknowledgment
of Review; Right to Revoke.


 


(a)           The Participant
represents that the Participant has carefully read and fully understands all
provisions of this Agreement and that the Participant has had a full
opportunity to review this Agreement before signing and to have all the terms
of this Agreement explained to him or her by counsel.


 

















 


(b)                                This
Agreement may be revoked by the Participant by written notice given to


 


Michael C. Connelly


Vice President and
General Counsel


Xcel Energy Inc.


414 Nicollet Mall


 


Minneapolis, MN 55401


 


within 15 business days after being signed by the
Participant.


 


8.                                     General
Provisions.  The Participant and
the Company acknowledge and agree as follows:


 


(a)                                 This
Agreement contains the entire understanding of the parties with regard to all
matters contained herein.  There are no
other agreements, conditions, or representations, oral or written, express or
implied, with regard to such matters;


 


(b)                                This
Agreement may be amended or modified only by a writing signed by both parties;


 


(c)                                 Waiver
by either the Company or the Participant of a breach of any provision, term or
condition hereof shall not be deemed or construed as a further or continuing
waiver thereof or a waiver of any breach of any other provision, term or
condition of this Agreement;


 


(d)                                This
Agreement shall inure to the benefit of and be binding upon the Company and its
successors and assigns.  The Company
shall 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 Company expressly to assume and agree to perform this Agreement
in the same manner and to the same extent that the Company would have been
required to perform it if no such succession had taken place.  As used in this Agreement, “the Company”
shall mean the Company and its affiliates or assigns and any such successor
that assumes and agrees to perform this Agreement, by operation of law or
otherwise.  No assignment of this
Agreement shall be made by the Participant, and any purported assignment shall
be null and void;


 


(e)                                 If
any court finds any provision or part of this Agreement to be unreasonable, in
whole or in part, such provision shall be deemed and construed to be reduced to
the maximum duration, scope or subject matter allowable under applicable
law.  Any invalidation of any provision
or part of this Agreement will not invalidate any other part of this Agreement;


 


(f)                                   This
Agreement will be construed and enforced in accordance with the laws and legal
principles of the State of Minnesota. 
The Participant consents to the jurisdiction of the Minnesota courts for
the enforcement of this Agreement; and


 

















 


(g)                                This
Agreement may be executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together will constitute one and the
same instrument.


 


THIS AGREEMENT IS INTENDED TO BE A LEGALLY
BINDING DOCUMENT FULLY ENFORCEABLE IN ACCORDANCE WITH ITS TERMS.  IF IN DOUBT, SEEK COMPETENT LEGAL ADVICE
BEFORE SIGNING.


 


 


	
   

  	
   

  	
   

  
	
  (Participant)

  	
   

  	
  Date

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  XCEL ENERGY INC.

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By

  	
   

  	
   

  	
  Date

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Its

  	
   

  	
   

  	
   

  



 


 


The Participant acknowledges that he or she has
received a copy of this Agreement.