Award Agreement
Exhibit
10.4
Performance
Share Unit
Award
Agreement
Ameren
Corporation
2006
Omnibus Incentive Compensation Plan
____________
2006
Ameren
Corporation
THIS
AGREEMENT, effective ____________, 2006, represents the grant of Performance
Share Units by Ameren Corporation (the “Company”), to the Participant named
below, pursuant to the provisions of the Ameren Corporation 2006 Omnibus
Incentive Compensation Plan (the “Plan”). This Award is expressly conditioned on
shareholder approval of the Plan, and this Award shall be forfeited if
shareholders do not approve the Plan. The number of Shares ultimately earned
and
paid, if any, for such Performance Share Units will be determined pursuant
to
Section 3 of this Agreement.
The
Plan
provides a complete description of the terms and conditions governing the
Performance Share Units. If there is any inconsistency between the terms
of this
Agreement and the terms of the Plan, the Plan’s terms will completely supersede
and replace the conflicting terms of this Agreement. All capitalized terms
will
have the meanings ascribed to them in the Plan, unless specifically set forth
otherwise herein. The parties hereto agree as follows:
1.
Grant
Information.
The
individual named below has been selected to be a Participant in the Plan,
as
specified below:
(a) Participant:
_________________
(b) Target
Number of Performance Share Units:
_____
2.
Performance
Period.
The
performance period begins on January 1, 2006, and ends on December 31, 2008
(“Performance Period”).
3.
Performance
Grid.
The
number of Performance Share Units earned by the Participant under this Agreement
will be determined in accordance with the following grid. If the actual
performance results fall between two of the categories listed below,
straight-line interpolation will be used to determine the amount earned.
Payouts
that otherwise would have been more than 100% of Target will be capped at
Target
if the Company’s total shareholder return (“TSR”) is negative over the
three-year period. TSR shall be calculated in the manner set forth in Exhibit
1
hereto and compared to the peer group identified in Exhibit
1.
|
Ameren’s
Percentile in
Total
Shareholder Return vs. Utility Peers
During
the Performance Period
|
Payout—Percent
of Target
Performance
Share Units
Granted
|
|
90th
percentile +
|
200%
|
|
70th
percentile
|
150%
|
|
50th
percentile
|
100%
|
|
30th
percentile
|
50%
|
|
<30th
percentile but Earnings Per Share in each year of the Performance
Period
is $2.54 or greater
|
30%
|
|
<30th
percentile and Earnings Per Share in each year of the Performance
Period
is not $2.54 or greater
|
0%
(no payout)
|
4.
Calculation
of Earned Performance Share Units.
The
Committee, in its sole discretion, will determine the number of Performance
Share Units earned by the Participant at the end of the Performance Period
based
on the performance of the Company, calculated using the performance grid
set
forth in Section 3 of this Agreement.
5.
Vesting
of Performance Share Units.
Subject
to provisions set forth in Section 9 of this Agreement related to a Change
of
Control (as defined in the Amended and Restated Ameren Corporation Change
of
Control Severance Plan (“the Change of Control Severance Plan”)) of the Company
and Section 10 relating to termination for Cause (as defined in the Change
of
Control Severance Plan), the Performance Share Units will vest as set forth
below:
|
(a)
|
Provided
the Participant has continued employment through such date, one
hundred
percent (100%) of the earned Performance Share Units will vest
on December
31, 2008; or
|
|
(b)
|
Provided
the Participant has continued employment through the date of
his death and
such death occurs prior to December 31, 2008, the Participant
will be
entitled to a prorated award based on the Target Number of Performance
Share Units set forth in Section 1(b) of this Agreement plus
accrued
dividends, with such prorated number equal to the total number
of days the
Participant worked during the Performance Period;
or
|
|
(c)
|
Provided
the Participant has continued employment through the date of
his
Disability (as defined in Code Section 409A), and such Disability
occurs
prior to December 31, 2008, one hundred percent (100%) of the
Performance
Share Units he would have earned had he remained employed by
the Company
for the entire Performance Period will vest on December 31, 2008;
or
|
|
(d)
|
Provided
the Participant has continued employment through the date of
retirement
(as described below) and such retirement occurs before December
31, 2008,
the following vesting schedule shall be applicable to the Performance
Share Units:
|
|
(i)
|
If
the Participant retires at an age of 55 to 61 with five (5) years
of
service— the Participant is entitled to receive a prorated portion of
the
Performance Share Units that would have been earned had the Participant
remained employed by the Company for the entire Performance Period,
based
on the actual performance of the Company during the entire Performance
Period, with the prorated number equal to the total number of
days the
Participant worked during the Performance Period;
or
|
|
(ii)
|
If
the Participant retires after reaching age 62 with five (5) years
of
service— the Participant is entitled to receive one hundred percent (100%)
of the Performance Share Units that would have been earned had
the
Participant remained employed by the Company for the entire Performance
Period based on the actual performance of the Company during
the entire
Performance Period.
|
Termination
of employment during the Performance Period for any reason other than death,
Disability, retirement as described above, or on or after a Change of Control
in
accordance with Section 9 will require forfeiture of this entire award,
with no
payment to the Participant.
2
6.
Form
and Timing of Payment.
All
payments of vested Performance Share Units pursuant to this Agreement will
be
made in the form of Shares. Except as otherwise provided in this Agreement,
payment will be made upon the earliest to occur of the following:
|
(a)
|
January
1, 2011 or as soon as practicable thereafter;
|
|
(b)
|
The
Participant’s death;
|
|
(c)
|
Disability:
|
|
(i)
|
If
the Participant becomes disabled during the Performance Period,
January 1,
2009 or as soon as practicable
thereafter.
|
|
(ii)
|
If
the Participant becomes disabled after the Performance Period,
upon the
Participant’s Disability.
|
|
(d)
|
Retirement
as described in Section 5(d):
|
|
(i)
|
If
the Participant retires during the Performance Period, January
1, 2009 or
as soon as practicable thereafter.
|
|
(ii)
|
If
the Participant retires after the Performance Period, upon the
Participant’s retirement.
|
|
If,
however, the Participant is a “Key Employee” (as defined in Code Section
409A) on the date of his retirement distribution of the Shares
shall be
made no earlier than the date six (6) months following the date
of the
Participant’s retirement. Notwithstanding the foregoing, if the final
regulations to Code Section 409A prevent Participants who retire
from
receiving payment of their Shares as set forth above in 6(d),
the
Participant shall receive such payment as set forth in Section
6(a)(b) or
(c), as applicable.
|
7.
Right
as Shareholder.
Except
as specifically set forth in this Agreement, the Participant shall not
have
voting or any other rights as a shareholder of the Company with respect
to
Performance Share Units. The Participant will obtain full voting and other
rights as a shareholder of the Company upon the payment of the Performance
Share
Units in Shares as provided in Section 6 or 9.
8.
Dividends.
The
Participant shall be entitled to receive dividend equivalents, which represent
the right to receive cash payments or Shares measured by the dividend payable
with respect to the corresponding number of Performance Share Units. Dividend
equivalents on Performance Share Units will accrue and be reinvested into
additional Performance Share Units throughout the three-year Performance
Period.
The additional Shares will be paid as set forth in Section 6 or 9 of this
Agreement. During the two-year period following the Performance Period,
dividend
equivalents will be paid on earned Performance Share Units on a current
basis.
The dividend equivalents will be paid to the Participant at the end of
each
calendar quarter with such payment equal to any dividend declared by the
Company
during such calendar quarter, multiplied by the number of earned Performance
Share Units held by the Participant pursuant to this Agreement.
3
9.
Change
of
Control.
(a)
Company
No Longer Exists.
Upon a
Change of Control which occurs on or before December 31, 2008 in which
the
Company ceases to exist or is no longer publicly traded on the New York
Stock
Exchange or the NASDAQ Stock Market, the Target Number of Performance
Share
Units awarded as set forth in Section 1(b) of this Agreement plus the
accrued
dividends shall be converted to nonqualified deferred compensation with
the
following features:
|
(i)
|
The
initial amount of the nonqualified deferred compensation shall
equal the
value of one Share based on the closing price on the New York
Stock
Exchange on the last trading day prior to the date of the Change
of
Control multiplied by the sum of the Target Number of Performance
Share
Units awarded as set forth in section 1(b) of this Agreement
plus the
additional Performance Share Units attributable to accrued
dividends;
|
|
(ii)
|
Interest
on the nonqualified deferred compensation shall accrue based
on the prime
rate (adjusted on the first day of each calendar quarter) as
published in
the “Money Rates” section in the Wall
Street Journal from
the date of the Change of Control until such nonqualified deferred
compensation is distributed or forfeited;
|
|
(iii)
|
If
the Participant remains employed with the Company or its successor
until
the last day of the Performance Period, the nonqualified deferred
compensation, plus interest, shall be paid to the Participant
in an
immediate lump sum on the last day of the Performance Period;
|
|
(iv)
|
If
the Participant remains employed with the Company or its successor
until
his death or Disability which occurs before the last day of
the
Performance Period, the Participant (or his estate or designated
beneficiary) shall immediately receive the nonqualified deferred
compensation, plus interest,
upon such death or Disability;
|
|
(v)
|
If
the Participant has a qualifying termination (as defined in
Section 9(c))
before the last day of the Performance Period, the Participant
shall
immediately receive the nonqualified deferred compensation,
plus interest,
upon such termination; provided that such distribution shall
be deferred
until the date which is six months following the Participant’s termination
of employment to the extent required by Code Section 409A;
and
|
|
(vi)
|
In
the event the Participant terminates employment before the
end of the
Performance Period for any reason other than described in Sections
(iv) or
(v) above, the nonqualified deferred compensation, plus interest,
will
immediately be forfeited.
|
Upon
such
a Change of Control that occurs after December 31, 2008, the Participant
will
receive an immediate distribution of cash equal to the value of one Share
based
on the closing price on the New York Stock Exchange on the last trading
day
prior to the date of the Change of Control multiplied by the earned Performance
Share Units.
(b)
Company
Continues to Exist.
If
there is a Change of Control of the Company but the Company continues in
existence and remains a publicly traded company on the New York Stock
4
Exchange
or the NASDAQ Stock Market, the Performance Share Units will pay out
upon the
earliest to occur of the following:
(i)
As
set
forth in Section 6 (“Form and Timing of Payments”) of this Agreement; or
(ii)
If
the
Participant experiences a qualifying termination (as defined in Section
9(c))
during the two-year period following the Change of Control and the termination
occurs prior to January 1, 2009, one hundred percent (100%) of the Performance
Share Units he would have earned had he remained employed for the entire
Performance Period will vest on December 31, 2008 and the vested Performance
Share Units will be paid in Shares on January 1, 2009 or as soon as practicable
thereafter. If the Participant experiences a qualifying termination during
the
two-year period following the Change of Control but the termination occurs
after
December 31, 2008, the Participant will receive an immediate distribution
of the
earned Shares. Notwithstanding the foregoing, to the extent required by
Code
Section 409A, distribution of the Shares shall be made no earlier than
the date
six (6) months following the date of the Participant’s termination of
employment.
(c)
Qualifying
Termination.
For
purposes of Sections 9(a)(v) and 9(b)(ii), a qualifying termination means
(i) an
involuntary termination without Cause, (ii) for Change of Control Severance
Plan
participants, a voluntary termination of employment for Good Reason (as
defined
in the Change of Control Severance Plan) or (iii) a voluntary termination
that
qualifies for severance under the Ameren Corporation Severance Plan for
Management Employees (as in effect immediately prior to the Change of Control).
(d)
Termination
in Anticipation of Change of Control.
If a
Participant qualifies for benefits as provided in the last sentence of
Section
4.1 of the Change of Control Severance Plan, or if a Participant is not
a
Participant in the Change of Control Severance Plan but is terminated within
six
(6) months prior to the Change of Control and qualifies for severance benefits
under the Company’s general severance plan and the Participant’s termination of
employment occurs before December 31, 2008, then the Participant shall
receive (i) upon a Change of Control described in Section 9(a), an immediate
cash payout equal to the value of one Share based on the closing price
on the
New York Stock Exchange on the last trading day prior to the date of the
Change
of Control multiplied by the sum of the Target Number of Performance Share
Units
awarded as set forth in Section 1(b) of this Agreement plus the additional
Performance Share Units attributable to accrued dividends or (ii) upon
a Change
of Control described in Section 9(b), the payout provided for in Section
9(b).
10.
Termination
for Cause. Termination
of employment for Cause at any time prior to payout of the Shares will
require
forfeiture of the entire Performance Share Unit Award, with no distribution
of
any Shares to the Participant.
11.
Nontransferability.
Performance Share Units awarded pursuant to this Agreement may not be sold,
transferred, pledged, assigned or otherwise alienated or hypothecated (a
“Transfer”) other than by will or by the laws of descent and distribution,
except as provided in the Plan. If any Transfer, whether voluntary or
involuntary, of Performance Share Units is made, or if any attachment,
execution, garnishment, or lien will be issued against or placed upon the
Performance Share Units, the Participant’s right to such Performance Share Units
will be immediately forfeited to the Company, and this Agreement will
lapse.
5
12.
Requirements
of Law.
The
granting of Performance Share Units under the Plan will be subject to all
applicable laws, rules, and regulations, and to such approvals by any
governmental agencies or national securities exchanges as may be
required.
13.
Tax
Withholding.
The
Company will have the power and the right to deduct or withhold, or require
the
Participant or the Participant’s beneficiary to remit to the Company, an amount
sufficient to satisfy federal, state, and local taxes, domestic or foreign,
required by law or regulation to be withheld with respect to any taxable
event
arising as a result of this Agreement.
14.
Stock
Withholding.
With
respect to withholding required upon any taxable event arising as a result
of
Performance Share Units granted hereunder, the Company, unless notified
otherwise by the Participant in writing within thirty (30) days prior to
the
taxable event, will satisfy the tax withholding requirement by withholding
Shares having a Fair Market Value or, in the case of dividends payable
after
December 31, 2008, cash equal to the total minimum statutory tax required
to be
withheld on the transaction. The Participant agrees to pay to the Company,
its
Affiliates, and/or its Subsidiaries any amount of tax that the Company,
its
Affiliates, and/or its Subsidiaries may be required to withhold as a result
of
the Participant’s participation in the Plan that cannot be satisfied by the
means previously described.
15.
Administration.
This
Agreement and the Participant’s rights hereunder are subject to all the terms
and conditions of the Plan, as the same may be amended from time to time,
as
well as to such rules and regulations as the Committee may adopt for
administration of the Plan. It is expressly understood that the Committee
is
authorized to administer, construe, and make all determinations necessary
or
appropriate to the administration of the Plan and this Agreement, all of
which
will be binding upon the Participant.
16.
Continuation
of Employment.
This
Agreement will not confer upon the Participant any right to continuation
of
employment by the Company, its Affiliates, and/or its Subsidiaries, nor
will
this Agreement interfere in any way with the Company’s, its Affiliates’, and/or
its Subsidiaries’ right to terminate the Participant’s employment at any
time.
17.
Amendment
to the Plan.
The
Plan is discretionary in nature and the Committee may terminate, amend,
or
modify the Plan; provided, however, that no such termination, amendment,
or
modification of the Plan may in any way adversely affect the Participant’s
rights under this Agreement, without the Participant’s written approval.
18.
Amendment
to this Agreement.
The
Company may amend this Agreement in any manner, provided that no such amendment
may adversely affect the Participant’s rights hereunder without the
Participant’s written approval.
19.
Successor.
All
obligations of the Company under the Plan and this Agreement, with respect
to
the Performance Share Units, will be binding on any successor to the Company,
whether the existence of such successor is the result of a direct or indirect
purchase, merger, consolidation, or otherwise, of all or substan-tially
all of
the business and/or assets of the Company.
20.
Severability.
The
provisions of this Agreement are severable and if any one or more provisions
are
determined to be illegal or otherwise unenforceable, in whole or in part,
the
remaining provisions will nevertheless be binding and
enforceable.
6
21.
Applicable
Laws and Consent to Jurisdiction.
The
validity, construction, interpretation, and enforceability of this Agreement
will be determined and governed by the laws of the State of Missouri without
giving effect to the principles of conflicts of law. For the purpose of
litigating any dispute that arises under this Agreement, the parties hereby
consent to exclusive jurisdiction and agree that such litigation will be
conducted in the federal or state courts of the State of Missouri.
IN
WITNESS
WHEREOF, the parties have caused this Agreement to be executed effective as
of
_______________, 2006.
| Ameren Corporation | ||
| |
|
|
| By: | ||
|
Senior
Vice President and Chief
Human Resources Officer -
Ameren Services
Company
|
||
| |
|
|
| By: | ||
|
Participant |
||
7
Total
Shareholder Return
Total
Shareholder Return shall be calculated as follows:
Peer
Group
Following
are the peer group companies. In order to be counted in the final calculations,
a company must still have a ticker at the end of the performance
period.
|
Company
|
Ticker
|
Company
|
Ticker
|
|
DUKE
ENERGY
|
DUK
|
KEYSPAN
|
KSE
|
|
EXELON
CORP
|
EXC
|
PPL
CORP
|
PPL
|
|
DOMINION
RESOURCES INC
|
D
|
OGE
ENERGY
|
OGE
|
|
FIRSTENERGY
CORP
|
FE
|
WPS
RESOURCES CORP
|
WPS
|
|
SOUTHERN
CO
|
SO
|
ENERGY
EAST
|
EAS
|
|
FPL
GROUP INC
|
FPL
|
SCANA
|
SCG
|
|
ENTERGY
CORP
|
ETR
|
WISCONSIN
ENERGY
|
WEC
|
|
CONSOLIDATED
EDISON INC
|
ED
|
NSTAR
|
NST
|
|
PROGRESS
ENERGY INC
|
PGN
|
PINNACLE
WEST CAPITAL CORP
|
PNW
|
|
XCEL
ENERGY INC
|
XEL
|
PUGET
ENERGY
|
PSD
|
|
PEPCO
HOLDINGS INC
|
POM
|
GREAT
PLAINS ENERGY INC
|
GXP
|
|
DTE
ENERGY CO
|
DTE
|
VECTREN
CORPORATION
|
VVC
|
|
NORTHEAST
UTILITIES
|
NU
|
1
