Award Agreement Ameren Corporation March 2, 2009
Exhibit 10.1
Performance
Share Unit
Award
Agreement
Ameren
Corporation
2006
Omnibus Incentive Compensation Plan
March 2,
2009
Ameren
Corporation
THIS
AGREEMENT, effective March 2, 2009, 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”). 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, 2009, and
ends on December 31, 2011 (“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.
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Ameren’s
Percentile in
Total
Shareholder Return vs. Utility Peers
During
the Performance Period
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Payout—Percent
of Target
Performance
Share Units Granted
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90th
percentile +
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200%
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70th
percentile
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150%
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50th
percentile
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100%
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30th
percentile
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50%
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<30th
percentile but Earnings Per Share in each year of
the Performance Period is $2.54 or greater
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30%
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<30th
percentile and Earnings Per Share in each year of
the Performance Period is not $2.54 or greater
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0%
(no payout)
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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 Second 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:
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(a)
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Provided
the Participant has continued employment through such date, one hundred
percent (100%) of the earned Performance Share Units will vest on December
31, 2011; or
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(b)
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Provided
the Participant has continued employment through the date of his death and
such death occurs prior to December 31, 2011, 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 as of the date of his death, with such prorated number based
upon the total number of days the Participant worked during the
Performance Period; or
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(c)
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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, 2011, 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, 2011;
or
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(d)
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Provided
the Participant has continued employment through the date of retirement
(as described below) and such retirement occurs before December 31, 2011,
the following vesting schedule shall be applicable to the Performance
Share Units:
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(i)
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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 based upon the total number of days the
Participant worked during the Performance Period;
or
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(ii)
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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.
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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.
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:
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(a)
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January
1, 2012 or as soon as practicable
thereafter;
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(b)
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The
Participant’s death or as soon as practicable
thereafter.
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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 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.
9. Change of
Control.
(a) Company No Longer
Exists. Upon a Change of Control which occurs on or before
December 31, 2011 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 as of the date of the Change of Control
shall be converted to nonqualified deferred compensation with the following
features:
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(i)
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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;
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(ii)
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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;
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(iii)
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If
the Participant remains employed with the Company or its successor until
the last day of the Performance Period, the nonqualified deferred
compensation, plus
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interest, shall be paid to the Participant in an immediate lump
sum on January 1, 2012, or as soon as practicable thereafter.
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(iv)
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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;
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(v)
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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
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(vi)
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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.
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(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 Exchange or the NASDAQ Stock Market, the Performance Share Units will
pay out upon the earliest to occur of the following:
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(i)
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As
set forth in Section 6 (“Form and Timing of Payments”) of this Agreement;
or
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(ii)
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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, 2012, 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, 2011
and the vested Performance Share Units will be paid in Shares on January
1, 2012 or as soon as practicable
thereafter.
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(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, 2011, then the Participant shall receive (i) upon a
Change of Control described in Section 9(a), an
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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.
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 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.
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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 substantially 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.
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 March 2, 2009.
Ameren Corporation
Senior
Vice President and Chief
Human
Resources Officer—
By:__________________________________
Participant
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EXHIBIT
1
Total
Shareholder Return
Total
Shareholder Return shall be calculated as follows:
*In
practice, dividends will be treated as having been reinvested
quarterly.
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.
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Company
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Ticker
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Company
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Ticker
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AMERICAN
ELECTRIC POWER CO
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AEP
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NORTHEAST
UTILITIES
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NU
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ALLIANT
ENERGY CORPORATION
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LNT
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NSTAR
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NST
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CONSOLIDATED
EDISON INC
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XX
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XXX
ENERGY
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OGE
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DOMINION
RESOURCES INC
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D
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PEPCO
HOLDINGS INC
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POM
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DTE
ENERGY CO
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DTE
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PINNACLE
WEST CAPITAL CORP
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PNW
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DUKE
ENERGY
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DUK
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PROGRESS
ENERGY
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PGN
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EDISON
INTERNATIONAL
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EIX
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SCANA
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SCG
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FIRSTENERGY
CORP
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FE
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SOUTHERN
CO
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SO
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FPL
GROUP INC
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FPL
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WESTAR
ENERGY, INC.
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WR
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GREAT
PLAINS ENERGY INC
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GXP
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WISCONSIN
ENERGY
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WEC
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INTEGRYS
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TEG
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XCEL
ENERGY INC
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XEL
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