Exhibit 10.37
SECOND AMENDED AND RESTATED
AMEREN CORPORATION
CHANGE OF CONTROL SEVERANCE
PLAN
Introduction
The Board of Directors of Ameren
Corporation recognizes that, as is the case with many publicly held
corporations, there exists the possibility of a Change of Control
of the Company. This possibility and the uncertainty it creates may
result in the loss or distraction of senior executives of the
Company, to the detriment of the Company and its
shareholders.
The Board considers the avoidance of
such loss and distraction to be essential to protecting and
enhancing the best interests of the Company and its shareholders.
The Board also believes that when a Change of Control is perceived
as imminent, or is occurring, the Board should be able to receive
and rely on impartial service from senior executives regarding the
best interests of the Company and its shareholders, without concern
that senior executives might be distracted or concerned by the
personal uncertainties and risks created by the perception of an
imminent or occurring Change of Control.
In addition, the Board believes that
it is consistent with the Company’s employment practices and
policies and in the best interests of the Company and its
shareholders to treat fairly its employees whose employment
terminates in connection with or following a Change of
Control.
Accordingly, the Board has
determined that appropriate steps should be taken to assure the
Company of the continued employment and attention and dedication to
duty of its senior executives and to seek to ensure the
availability of their continued service, notwithstanding the
possibility, threat or occurrence of a Change of
Control.
Therefore, in order to fulfill the
above purposes, the following plan has been developed and is hereby
adopted.
ARTICLE I
ESTABLISHMENT OF
PLAN
As of the Effective Date, the
Company hereby amends and restates the Ameren Corporation Change of
Control Severance Plan, as set forth in this document.
ARTICLE II
DEFINITIONS
As used herein, the following words
and phrases shall have the following respective meanings unless the
context clearly indicates otherwise.
(a) Annual Bonus Award . The
target annual cash bonus that a Participant is eligible to earn for
the year in which a Change in Control occurs pursuant to the
Company’s Executive Incentive Plan, the Ameren Corporation
2006 Omnibus Incentive Compensation Plan, or any successor to
either such plan.
(b) Annual Salary . The
Participant’s regular annual base salary immediately prior to
his or her termination of employment, including compensation
converted to other benefits under a flexible pay arrangement
maintained by any Employer or deferred pursuant to a written plan
or agreement with any Employer.
(c) Board . The Board of
Directors of the Company.
(d) Cause . The occurrence of
any one or more of the following:
(i) The Participant’s willful
failure to substantially perform his duties with the Company (other
than any such failure resulting from the Participant’s
Disability), after a written demand for substantial performance is
delivered to the Participant that specifically identifies the
manner in which the Committee believes that the Participant has not
substantially performed his duties, and the Participant has failed
to remedy the situation within fifteen (15) business days of
such written notice from the Company;
(ii) Gross negligence in the
performance of the Participant’s duties which results in
material financial harm to the Company;
(iii) The Participant’s
conviction of, or plea of guilty or nolo contendere , to any
felony or any other crime involving the personal enrichment of the
Participant at the expense of the Company or shareholders of the
Company; or
(iv) The Participant’s willful
engagement in conduct that is demonstrably and materially injurious
to the Company, monetarily or otherwise.
(e) Change of Control . The
occurrence of any of the following events after the Effective Date
of this Plan:
(i) The acquisition by any
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 (the “Exchange Act”)) (a
“Person”) of beneficial ownership (within the meaning
of Rule 13d-3 promulgated under the Exchange Act) of 20% or more of
either (x) the then outstanding shares of common stock of the
Company (the “Outstanding Company Common Stock”) or
(y) the combined voting power of the then outstanding voting
securities of the Company entitled to vote generally in the
election of directors (the “Outstanding Company Voting
Securities”); provided, however, that for purposes of this
subsection (i), the following acquisitions shall not constitute a
Change of Control: (A) any acquisition directly from the
Company, (B) any acquisition by the Company, (C) any
acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation
controlled by the Company or (D) any acquisition by any
corporation pursuant to a transaction which complies with clauses
(A), (B) and (C) of paragraph (iii) below;
or
(ii) Individuals who, as of the
Effective Date of this Plan, constitute the Board (the
“Incumbent Board”) cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the Effective Date
whose election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least a majority of the
directors then comprising the Incumbent Board shall be considered
as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial
assumption of office occurs as a result of (A) 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 or
(B) any agreement intended to avoid or settle any election
contest; or
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(iii) Consummation of a
reorganization, merger or consolidation or sale or other
disposition of all or substantially all of the assets of the
Company or the acquisition of assets of another corporation (a
“Business Combination”), in each case, unless,
following such Business Combination, (A) all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities immediately prior to such
Business Combination beneficially own, directly or indirectly, more
than 60% of, respectively, the then 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 Business
Combination (including, without limitation, a corporation which as
a result of such transaction owns the Company or all or
substantially all of the Company’s assets either directly or
through one or more subsidiaries) in substantially the same
proportions as their ownership, immediately prior to such Business
Combination of the Outstanding Company Common Stock and Outstanding
Company Voting Securities, as the case may be, (B) no Person
(excluding any corporation resulting from such Business Combination
or any employee benefit plan (or related trust) of the Company or
such corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such Business Combination or the
combined voting power of the then outstanding voting securities of
such corporation except to the extent that such ownership existed
prior to the Business Combination and (C) at least a majority
of the members of the board of directors of the corporation
resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such
Business Combination; or
(iv) Approval by the shareholders of
the Company of a complete liquidation or dissolution of the
Company.
Notwithstanding the foregoing, a
Change of Control shall not be deemed to occur solely because any
Person (the “Subject Person”) acquired beneficial
ownership of more than the permitted amount of the then Outstanding
Company Common Stock or the Outstanding Company Voting Securities
as a result of the acquisition of shares of common stock or voting
securities by the Company which, by reducing the number of shares
of Outstanding Company Common Stock or the Outstanding Company
Voting Securities, increases the proportional number of shares
beneficially owned by the Subject Persons, provided that if a
Change of Control would occur (but for the operation of this
sentence) as a result of the acquisition of shares of Outstanding
Company Common Stock or the Outstanding Company Voting Securities
by the Company, and after such share acquisition by the Company,
the Subject Person becomes the beneficial owner of any additional
shares of Outstanding Company Common Stock or the Outstanding
Company Voting Securities which increases the percentage of the
then Outstanding Company Common Stock or the Outstanding Company
Voting Securities beneficially owned by the Subject Person, then a
Change of Control shall occur.
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(f) Code . The Internal
Revenue Code of 1986, as amended from time to time.
(g) Committee . The Human
Resources Committee of the Board.
(h) Company . Ameren
Corporation and any successors thereto.
(i) Date of the Change of
Control . The date on which a Change of Control
occurs.
(j) Date of Termination . The
date on which a Participant ceases to be an Employee.
(k) Disability . A
termination of a Participant’s Employment for Disability
shall have occurred if the Termination occurs because of a
disability which qualifies the Participant for benefits under the
Company’s long-term disability plan.
(l) Effective Date .
October 1, 2008.
(m) Employee . Any full-time,
regular-benefit, non-bargaining employee of the Company or any
other Employer.
(n) Employer . The Company or
any subsidiary of the Company.
(o) Employment . The state of
being an Employee.
(p) ERISA . The Employee
Retirement Income Security Act of 1974, as amended, and the
regulations thereunder.
(q) Good Reason . The
occurrence after a Change in Control of the Company of any one or
more of the following without the Participant’s express
written consent:
(i) A net reduction of the
Participant’s authorities, duties, or responsibilities as an
executive and/or officer of the Company from those in effect prior
to the Change in Control, other than an insubstantial and
inadvertent reduction that is remedied by the Company promptly
after receipt of notice thereof given by the
Participant;
(ii) The Company’s requiring
the Participant to be based at a location in excess of fifty
(50) miles from the location of the Participant’s
principal job location or office immediately prior to the Change of
Control; except for required travel on the Company’s business
to an extent substantially consistent with the Participant’s
then present business travel obligations;
(iii) Any material reduction by the
Company of the Participant’s Base Salary or targeted Annual
Bonus Awards, in effect on the Date of the Change of Control, or as
the same shall be increased from time to time;
(iv) The failure to provide the
Participant with an annualized long-term incentive opportunity
which is either essentially equivalent in value to or greater in
value than the Participant’s regular annualized long-term
incentive opportunity in effect on
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the Date of the Change of Control
(for this purpose, the permissible floor value is intended to
reference normal long-term incentive awards made as a part of the
regular annual pay package, and not special awards that are not
made on a regular basis) when calculated on a grant date basis
using widely recognized valuation methodologies (e.g.,
Black-Scholes for options);
(v) The failure of the Company to
continue in effect the aggregate value in any of the employee
benefit or retirement plans in which the Participant participates
prior to the Change in Control of the Company;
(vi) The failure of the Company to
obtain a satisfactory agreement from any successor to the Company
to assume and agree to perform the Company’s obligations
under this Plan, as contemplated in Article V herein;
and
(vii) A material breach of this Plan
by the Company which is not remedied by the Company within ten
(10) business days of receipt of written notice of such breach
delivered by the Participant to the Company.
In the event it is necessary to
determine the value of a long-term incentive opportunity under
Section q(iv) above or the aggregate value of employee benefit or
retirement plans under Section q(v) above, an outside independent
benefit consulting firm shall be engaged by the Company to make
such determination.
(r) Multiple . With respect
to any Participant, the number set forth opposite the
Participant’s name under the heading “Benefit
Level” on Schedule I hereto.
(s) Participant . An
individual who is designated as such pursuant to
Section 3.1.
(t) Plan . The Ameren
Corporation Change of Control Severance Plan.
(u) Retirement . A
termination by Retirement shall have occurred where a
Participant’s termination is due to his or her late, normal
or early retirement under a pension plan sponsored by the Company
or any of its affiliates, as defined in such plan.
(v) Separation Benefits . The
benefits described in Section 4.2 that are provided to
qualifying Participants under the Plan.
(w) Separation Period . With
respect to any Participant, the period beginning on a
Participant’s Date of Termination and ending after the
expiration of a number of years equal to the Multiple for such
Participant.
ARTICLE III
ELIGIBILITY
3.1 Participants . Each of
the individuals named on Schedule I hereto shall be a Participant
in the Plan.
3.2 Duration of Participation
. A Participant shall only cease to be a Participant in the Plan as
a result of an amendment or termination of the Plan complying with
Article VI of the Plan, or when he ceases to be an Employee,
unless, at the time he ceases to
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be an Employee, such Participant is entitled to
payment of a Separation Benefit as provided in the Plan or there
has been an event or occurrence that constitutes Good Reason which
would enable the Participant to terminate his employment and
receive a Separation Benefit. A Participant entitled to payment of
a Separation Benefit or any other amounts under the Plan shall
remain a Participant in the Plan until the full amount of the
Separation Benefit and any other amounts payable under the Plan
have been paid to the Participant.
ARTICLE IV
SEPARATION
BENEFITS
4.1 Terminations of Employment
Which Give Rise to Separation Benefits Under Plan . A
Participant shall be entitled to Separation Benefits as set forth
in Section 4.2 below if, at any time before the second
anniversary of the Date of the Change of Control, the
Participant’s Employment is terminated (i) by the
Employer for any reason other than Cause or (ii) by the
Participant within 90 days after the occurrence of Good Reason. A
Participant shall not be entitled to Separation Benefits if the
Participant’s Employment is terminated (i) voluntarily
by the Participant without Good Reason (or more than 90 days after
any event which constitutes the occurrence of Good Reason) or
(ii) by reason of death or Disability or (iii) by the
Employer for Cause. In addition, if a Participant’s
employment is terminated by the Company without Cause prior to the
date of a Change of Control, either (i) at the request of a
third party who has indicated an intention or taken steps
reasonably calculated to effect such Change of Control, or
(ii) otherwise in connection with, or in anticipation of, such
a Change of Control which has been threatened or proposed, such
termination shall be deemed to have occurred after a Change of
Control for purposes of this Plan provided a Change of Control
shall actually occur.
4.2 Separation Benefits
.
(a) If a Participant’s
employment is terminated under circumstances entitling him to
Separation Benefits as provided in Section 4.1, the Company
shall pay such Participant, within 30 days of the Date of
Termination, a cash lump sum as set forth in subsection
(b) below and the continued benefits set forth in subsection
(c) below. For purposes of determining the benefits set forth
in subsections (b) and (c), if the termination of the
Participant’s employment is for Good Reason after there has
been a reduction of the Participant’s Annual Salary,
opportunity to earn Annual Bonuses, or other compensation or
employee benefits, such reduction shall be ignored.
(b) The cash lump sum referred to in
Section 4.2(a) is 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 Annual Bonus Award 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, to the extent not theretofore
paid and in full satisfaction of the rights of the Participant
thereto;
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(ii) an amount equal to the product
of (1) the Participant’s Multiple times (2) the sum
of (x) the Participant’s Annual Salary plus (y) the
Participant’s Annual Bonus Award; and
(iii) an amount equal to the
difference between (a) the actuarial equivalent of the benefit
under the qualified defined benefit retirement plans of the
Employer in which the Participant participates (collectively, the
“Retirement Plan”) and any excess or supplemental
retirement plans in which the Participant participates
(collectively, the “SERP”) which the Participant would
receive if his or her employment continued during the
Separ
