Exhibit 10.36
2007 Award
PERFORMANCE UNITS AGREEMENT
THIS AGREEMENT , dated
January 2, 2007 (the “ Grant Date ”), is
made by and between PEABODY ENERGY CORPORATION, a Delaware
corporation (the “ Company ”), and the
undersigned employee of the Company or a Subsidiary (as defined
below) or an Affiliate (as defined below) of the Company (“
Grantee ”).
WHEREAS , the Company wishes
to afford the Grantee the opportunity to participate in future
increases in Company value;
WHEREAS , the Company wishes
to carry out the Plan (as hereinafter defined), the terms of which
are hereby incorporated by reference and made a part of this
Agreement; and
WHEREAS , the Committee (as
hereinafter defined) appointed to administer the Plan has
determined that it would be to the advantage and best interest of
the Company and its stockholders to grant the Performance Units
provided for herein to the Grantee as an incentive for increased
efforts during his or her term of office with the Company or its
Subsidiaries or Affiliates, and has advised the Company thereof and
instructed the undersigned officer to issue said Performance
Units;
NOW, THEREFORE , in
consideration of the mutual covenants herein contained and other
good and valuable consideration, receipt of which is hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Whenever the following terms are used
in this Agreement, they shall have the meanings specified below.
Capitalized terms not otherwise defined in this Agreement shall
have the meanings specified in the Plan.
Section 1.1 — “
Affiliate ” shall mean any other Person directly or
indirectly controlling, controlled by, or under common control with
the Company. For the purposes of this definition, the term “
control ” (including, with correlative meanings, the
terms “ controlling ”, “ controlled
by ” and “ under common control with
”), as applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the
ownership of voting securities, by contract or otherwise.
Section 1.2 — “
Board of Directors ” or “ Board ”
shall mean the Board of Directors of the Company.
Section 1.3 — “
Cause ” shall mean (i) any material and
uncorrected breach by Grantee of the terms of his or her employment
agreement with the Company, if any, including, but not limited to,
engaging in action in violation of any restrictive covenants
therein, (ii) any willful fraud or dishonesty of Grantee
involving the property or business of the Company, (iii) a
deliberate or willful refusal or failure of Grantee to comply with
any major corporate policy of the Company that is communicated to
Grantee in writing or (iv) Grantee’s conviction of, or
plea of nolo contendere to, any felony if such conviction
shall result in his or her imprisonment;
provided
that, with respect to clauses (i), (ii) and (iii) above,
Grantee shall have 10 days following written notice of the
conduct which is the basis for the potential termination for Cause
within which to cure such conduct to prevent termination for Cause
by the Company. In the event that Grantee is terminated for failure
to meet performance goals, as determined by the CEO, such
termination shall be considered a termination for Cause for all
purposes relating to these Performance Units.
Section 1.4 — “
Committee ” shall mean the Compensation Committee of
the Company, duly appointed by the Board as the Administrator under
Section 2 of the Plan.
Section 1.5 — “
Common Stock ” shall mean the common stock of the
Company, par value $0.01.
Section 1.6 — “
FMV per Share ” shall mean the average of the closing
prices of the shares of Common Stock for the 4 weeks
immediately preceding the Determination Date (as defined below);
notwithstanding the foregoing, in the event of a Change of Control,
“FMV per Share” shall mean the per share value of
equity based on amounts paid in the Change of Control.
Section 1.7 — “
Good Reason ” shall mean (i) a reduction by the
Company in Grantee’s base salary, (ii) a material
reduction in the aggregate program of employee benefits and
perquisites to which Grantee is entitled (other than a reduction
which affects all executives), (iii) relocation by more than
50 miles from Grantee’s workplace, (iv) any material
diminution or material adverse change in Grantee’s duties,
responsibilities or reporting relationships, which causes Grantee
to fall below the level of the executive team, or (v) a
material decline in Grantee’s bonus opportunity.
Section 1.8 — “
Incentive Amount ” shall mean the Dollar amount
payable to Grantee hereunder with respect to the Performance Units,
if any, as calculated in Article IV.
Section 1.9 — “
Performance Units ” shall mean the units granted on a
performance basis under this Agreement. The value of each
Performance Unit shall be equal to the FMV per Share as of the
relevant Determination Date (as defined below).
Section 1.10 — “
Person ” shall mean an individual, partnership,
corporation, business trust, joint stock company, trust,
unincorporated association, joint venture, governmental authority
or other entity of whatever nature.
Section 1.11 — “
Plan ” shall mean the Peabody Energy Corporation 2004
Long-Term Equity Incentive Plan, as from time to time
amended.
Section 1.12 —
Pronouns - The masculine pronoun shall include the feminine
and neuter, and the singular the plural, where the context so
indicates.
Section 1.13 — “
Retirement ” shall mean retirement on or after age 55
with at least ten (10) years of service with the
Company.
Section 1.14 — “
Subsidiary ” shall mean any corporation in an unbroken
chain of corporations beginning with the Company if each of the
corporations, or group of commonly
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controlled corporations other than the last corporation in the
unbroken chain then owns stock possessing 50% or more of the total
combined voting power of all classes of stock in one of the other
corporations in such chain.
Section 1.15 — “
Termination of Employment ” shall mean a termination
of the Grantee’s employment with the Company, a Subsidiary or
an Affiliate (regardless of the reason therefor) that constitutes a
“separation from service” as defined in
Section 409A of the Internal Revenue Code of 1986, as amended,
or applicable guidance or regulations issued thereunder.
ARTICLE II
GRANT OF PERFORMANCE UNITS
Section 2.1 — Grant of
Performance Units . For good and valuable consideration, the
Company hereby grants to the Grantee the number of Performance
Units set forth on the signature page hereof upon the terms and
subject to the conditions set forth in this Agreement.
Section 2.2 — No
Obligation of Employment . Nothing in this Agreement or in the
Plan shall confer upon the Grantee any right to continue in the
employ of the Company or any Subsidiary or Affiliate or interfere
with or restrict in any way the rights of the Company and its
Subsidiaries or Affiliates, which are hereby expressly reserved, to
terminate the employment of the Grantee at any time for any reason
whatsoever, with or without Cause.
Section 2.3 —
Adjustments in Performance Units . In the event that shares
of Common Stock are, from time to time, changed into or exchanged
for a different number or kind of shares of the Company or other
securities of the Company by reason of a merger, consolidation,
recapitalization event, reclassification, stock split, stock
dividend, combination of shares, or otherwise, the Committee shall
make an appropriate and equitable adjustment in the number and kind
of Performance Units, or other consideration payable hereunder, and
the applicable FMV per Share. Any such adjustment made by the
Committee shall be final and binding upon the Grantee, the Company
and all other interested persons.
ARTICLE III
VESTING OF PERFORMANCE UNITS
Section 3.1 —
Performance Units . Unless otherwise provided in this
Article III, the Performance Units shall vest on the 15th of
each calendar month, in equal monthly increments, over the period
beginning on the Grant Date and ending on December 31, 2009
(the “ Performance Cycle ”).
Section 3.2 — Effect of
Certain Events . Notwithstanding the foregoing
Section 3.1, during the Performance Cycle:
(a) upon a Termination of Employment
on account of death or Disability, all Performance Units shall
become immediately vested and the Grantee shall be entitled to the
Incentive Amount calculated pursuant to Section 4.1 hereof
with respect to the vested Performance Units;
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(b) upon the earliest of (i) a
Termination of Employment on account of Retirement, (ii) a
Termination of Employment by the Company without Cause, or by the
Grantee for Good Reason, or (iii) a Change of Control, the
Performance Units shall cease to vest, any and all Performance
Units that remain unvested shall terminate immediately, and the
Grantee shall be entitled to the Incentive Amount calculated
pursuant to Section 4.1 hereof with respect to the vested
Performance Units; and
(c) upon the earlier of (i) a
Termination of Employment by the Company for Cause, and (ii) a
Terminat
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