Exhibit 10.11
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
SPECIAL EXECUTIVE RETIREMENT PLAN
(As Amended And Restated Effective As Of April 1, 1995)
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CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
SPECIAL EXECUTIVE RETIREMENT PLAN
(As Amended And Restated Effective As Of April 1, 1995)
The Central Illinois Public Service Company Special
Executive Retirement Plan (the "Plan") was established by Central
Illinois Public Service Company (the "Company") effective as of
February 3, 1987, for eligible participants. The terms and
conditions of the Plan, as amended and restated effective as of
April 1, 1995, are hereinafter set forth.
The Plan is not a qualified plan for purposes of Section
401(a) of the Internal Revenue Code of 1986, as amended (the
"Code"). The purpose of the Plan is to provide retirement benefit
payments to eligible participants, as defined in Article I, in
addition to the payments provided under the Central Illinois
Public Service Company Retirement Income Plan ("Retirement Income
Plan").
For purposes of the Plan, the term "Employer" shall mean
the Company and any affiliated employer to which the Plan is
extended by the Board of Directors of the Company (the "Board of
Directors") and which adopts the Plan.
ARTICLE I.
Eligible Participants
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An "eligible participant" shall mean an employee of an
Employer who was hired from outside the Employer, including from
outside any affiliate of the Employer, as a senior officer of the
Employer and who is a participant in and qualifies for a benefit
under the Retirement Income Plan at his Termination Date. For
this purpose, a senior officer shall include the President, a
Vice-President and such other officer of an Employer as shall be
designated from time to time by the Board of Directors of the
Employer, and Termination Date shall mean the date an employee
terminates his employment with the Employers and affiliates of the
Employers due to death, disability, retirement at or after his
Normal Retirement Date as defined in the Retirement Income Plan,
retirement prior to his Normal Retirement Date with the consent of
the Board of Directors of the Employer, or termination for any
reason within the two year period beginning on the date of the
occurrence of a Change in Control (as defined in paragraph 4(c) of
Article III.B).
ARTICLE II.
Supplemental Benefits
Subject to the provisions of Article III hereof, an
eligible participant shall be entitled to receive a monthly
benefit under the Plan in the amount of the excess of (a) over
(b), where (a) equals the amount of monthly benefit which would
have been paid or payable to such eligible participant under the
Retirement Income Plan if retirement benefit payments under the
Retirement Income Plan were computed (i) without regard to the
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limitations imposed by Sections 401(a)(17) and 415 of the Code and
(ii) as though Credited Service, as defined in the Retirement
Income Plan, has been accrued as hereinafter provided, and (b)
equals the sum of (i) the amount of monthly benefit that is paid
or payable to such eligible participant under the Retirement
Income Plan, (ii) the amount of monthly benefit paid or payable
from any other defined benefit pension plan as a result of the
eligible participant's prior employment with any employer which is
not an Employer as defined in the Retirement Income Plan, (iii)
the amount of monthly benefit paid or payable under the Central
Illinois Public Service Company Excess Benefit Plan, and (iv) the
amount of monthly benefit paid or payable after his Termination
Date under any employment contract between the eligible
participant and an Employer (specifically, excluding, however, any
amount paid or payable under any Management Continuity Agreement"
that becomes operative only on a change in control). The amount
of monthly benefit under (b)(ii), (iii) or (iv) shall be an amount
determined by the Committee, applying uniform standards, which
shall be equal to the amount of monthly benefit which would be
yielded by the present value of the expected payments to be made
and/or which have been made under such other plans or contracts
over the projected period of payment of benefit, and in the
projected form of benefit, under the Retirement Income Plan. For
purposes of this paragraph, any benefit referred to in (a) or (b)
shall be determined without regard to the provisions of any
applicable "qualified domestic relations order" as defined in
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Section 414(p) of the Code.
For purposes of the preceding paragraph, Credited
Service means 35 years of Credited Service, provided, however,
that if the eligible participant terminates his employment with
the Company and its affiliates for any reason, including
retirement or death, prior to his Normal Retirement Date as
defined in the Retirement Income Plan, such Credited Service shall
be the number of years of Credited Service obtained by multiplying
35 by a fraction, the numerator of which is the eligible
participant's number of years of Credited Service computed under
the Retirement Income Plan without regard to the provisions of
this Plan and the denominator of which is the number of years of
Credited Service the eligible participant would have had under the
Retirement Income Plan had he continued in full-time employment
with the Company and its affiliates until his Normal Retirement
Date.
Upon the death of the eligible participant, a monthly
benefit shall be paid under the Plan to his Eligible Spouse, as
defined under the applicable provisions of the Retirement Income
Plan; provided, however, that such Eligible Spouse is married to
the eligible participant on his date of death. The monthly
benefit payable under the Plan to the Eligible Spouse shall be a
percentage of the benefit provided under the Plan for the eligible
participant. The percentage shall be determined in accordance
with the provisions of the Retirement Income Plan for computing
the benefit of an Eligible Spouse.
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ARTICLE III.
General Provisions
A. Reference to the Retirement Income Plan - The Retirement
Income Plan, whenever referred to in the Plan, shall mean the
Retirement Income Plan as in effect on the eligible
participant's Termination Date or other date of
determination.
B. Payment of Benefits -
1. In General - Except as provided in paragraph 4 of
this Article III.B., benefits payable under the Plan shall be
paid in the same manner and form and shall be subject to the
same options, conditions, privileges, reductions, limitations
and restrictions (other than those contained in the
Retirement Income Plan relating to the limitations of
Sections 401(a)(17) and 415 of the Code) as are applicable to
the benefits payable under the Retirement Income Plan.
2. Time of Payment - Except as provided in paragraph 4
of this Article III.B., the benefits under the Plan shall
become payable when an eligible participant or his Eligible
Spouse, as the case may be, begins to receive payments under
the Retirement Income Plan and shall be paid at the same time
as under the Retirement Income Plan.
3. Withholding - Notwithstanding any provision of the
Plan to the contrary, amounts payable under the Plan shall be
reduced to the extent of amounts required to be withheld by
the Employer under federal, state or local law.
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4. Lump Sum Payment -
(a) Notwithstanding any other provision of the Plan to
the contrary, in the event a "Change in Control" (as defined
below) occurs, (i) the benefits payable under the Plan:
(A) to any eligible participants receiving benefits
under the Plan as of the date of the occurrence of the Change
in Control,
(B) to or in respect of an eligible participant who had
terminated employment with the Company and its affiliates
prior to the occurrence of the Change in Control under
circumstances such that the participant or his Eligible
Spouse is entitled to a benefit under Article II of the Plan
which at the time of the Change in Control has not begun to
be paid, and
(C) to any eligible participant who within the two year
period beginning on the date of the occurrence of the Change
in Control terminates employment with the Company and its
affiliates for reasons other than death,
shall, in each case, be paid by the Employer in a lump sum in the
amount equal to the actuarially determined present value of the
benefits (or remaining benefits in the case of an eligible
participant or Eligible Spouse receiving benefits under the Plan
as of the date of the occurrence of the Change in Control) payable
to or in respect of the eligible participant under the Plan
(including survivor benefits, if applicable), and (ii) the
benefits payable under the Plan to an Eligible Spouse upon the
death of an eligible participant who terminates employment with
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the Company and its affiliates within the two year period
beginning on the date of the occurrence of the Change in Control
by reason of death shall be paid by the Employer in a lump sum in
an amount equal to the actuarially determined present value of the
benefits payable to the Eligible Spouse under the Plan. In
addition, in the event any payment to an eligible participant or
Eligible Spouse by the Employer pursuant to the terms of this
paragraph 4 of the Plan and the terms of any similar provision of
the Central Illinois Public Service Company Excess Benefit Plan
(individually and collectively a "Payment") would be subject to
the excise tax imposed by Section 4999 of the Code (or any
successor provision thereto) by reason of being considered
"contingent on a change in ownership or control" of the Company or
of its parent, CIPSCO Incorporated ("CIPSCO ), within the meaning
of Section 28OG of the Code (or any successor provision thereto),
or to any similar tax imposed by state or local law, or any
interest or penalties with respect to such taxes (such taxes,
together with any such interest and penalties, being hereafter
collectively referred to as the "Excise Tax"), then the eligible
participant or Eligible Spouse shall be entitled to receive an
additional payment (a "Gross-Up Payment") under this paragraph 4
of the Plan to the extent such additional payment is not otherwise
made (or included in any payment otherwise made) to the eligible
participant or Eligible Spouse under any employment agreement or
other agreement, policy, plan, program or arrangement of the
Company or any affiliate thereof. The Gross-Up Payment shall be
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in an amount such that, after payment by the eligible participant
or Eligible Spouse of all taxes (including any interest or
penalties imposed with respect to such taxes), including the
Excise Tax imposed on the Gross-Up Payment, the eligible
participant or Eligible Spouse retains an amount of the Gross-Up
Payment equal to the Excise Tax imposed upon the Payment. Upon
the foregoing payments, no further benefits shall be payable under
the Plan to such eligible participant (or upon his death to his
Eligible Spouse) or to such Eligible Spouse. Payments under this
paragraph 4 to or in respect of an eligible participant or
Eligible Spouse shall be made within [30] days after the date on
which the Change in Control occurs or, if later, the date the
eligible participant terminates employment with the Company and
its affiliates. In the event an individual entitled to payment
under this paragraph 4 dies after the later of such dates but
prior to payment, the payments under this paragraph 4 shall be
made to the individuals surviving spouse, if any, or to the
executor or administrator of the individuals estate in the event
the individual does not have a surviving spouse.
(b) The amount of lump sum payment and additional
payment under this paragraph 4 shall be determined by the
Committee using, in the case of the lump sum payment, the
applicable mortality table and the applicable interest rate
provided under Section 417(e)(3)(A) of the Code, or any
successor provision thereto, and the regulations, rulings and
announcements issued thereunder.
(c) For purposes of the Plan, "Change in Control" shall
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mean the occurrence of any of the following events:
(1) CIPSCO is merged, consolidated or reorganized
into or with another corporation or other legal person, and
immediately after such merger, consolidation or
reorganization less than a majority of the combined voting
power of the then outstanding securities of such corporation
or person immediately after such transaction are held in the
aggregate by the holders of Voting Stock (as that term is
hereafter defined) of CIPSCO immediately prior to such
transaction;
(2) The Company is merged, consolidated or
reorganized into or with another corporation or other legal
person, and immediately after such merger, consolidation or
reorganization less than a majority of the combined voting
power of the then outstanding securities of such corporation
or person immediately after such transaction are held by
CIPSCO or held in the aggregate by the holders of Voting
Stock of CIPSCO immediately prior to such transaction;
(3) CIPSCO sells all or substantially all of its
assets to any other corporation or other legal person and
less than a majority of the combined voting power of the
then-outstanding securities of such corporation or person
immediately after such sale are held in the aggregate by the
holders of Voting Stock of CIPSCO immediately prior to such
sale;
(4) The Company sells all or substantially all of
its assets to any other corporation or other legal person and
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less than a majority of the combined voting power of the then
outstanding securities of such corporation or person
immediately after such sale are held by CIPSCO or held in
the aggregate by the holders of Voting Stock of CIPSCO
immediately prior to such sale;
(5) There is a report filed on Schedule 13D or
Schedule 14D-1 (or any successor schedule, form or report),
each as promulgated pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), disclosing that any
person (as the term "person" is used in Section 13(d)(3) or
Section 14(d)(2) of the Exchange Act) has become the
beneficial owner (as the term "beneficial owner" is defined
under Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act) of securities
representing 20% or more of the combined voting power of the
then-outstanding securities entitled to vote generally in the
election of directors of CIPSCO ("Voting Stock");
(6) There is a report filed on Schedule 13D or
Schedule 14D-1 (or any successor schedule, form or report),
each as promulgated pursuant to the Exchange Act, disclosing
that any person (as the term "person" is used in Section
13(d)(3) or Section 14(d)(2) of the Exchange Act) other than
CIPSCO has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange
Act) of securities representing 20% or more of the combined
voting power of the then-outstanding securities entitled to
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vote generally in the election of directors of the Company
("Company Voting Stock");
(7) CIPSCO files a report or proxy statement with
the Securities and Exchange Commission pursuant to the
Exchange Act disclosing in response to Form 8-K or Schedule
14A (or any successor schedule, form or report or item
therein) that a Change in Control of CIPSCO has or may have
occurred or will or may occur in the future pursuant to any
then-existing contract or transaction;
(8) The Company files a report or proxy statement
with the Securities and Exchange Commission pursuant to the
Exchange Act disclosing in response to Form 8-K or Schedule
14A (or any successor schedule, form or report or item
therein) that a Change in Control of the Company has or may
have occurred or will or may occur in the future pursuant to
any then-existing contract or transaction;
(9) If during any period of two consecutive years,
individuals who at the beginning of any such period
constitute the Directors of CIPSCO cease for any reason to
constitute at least a majority thereof, provided, however,
that for purposes of this clause 9 each Director who is first
elected, or first nominated for election by CIPSCO's
stockholders, by a vote of at least two-thirds of the
Directors of CIPSCO (or a committee thereof) then still in
office who were Directors of CIPSCO at the beginning of any
such period will be deemed to have been a Director of CIPSCO
at the beginning of such period; or
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(10) If during any period of two consecutive
years, individuals who at the beginning of any such period
constitute the Directors of the Company cease for any reason
to constitute at least a majority thereof, provided, however,
that for purposes of this clause 10, each Director who is
first elected, or first nominated for election by Company s
stockholders, by a vote of at least two-thirds of the
Directors of the Company (or a committee thereof) then still
in office who were Directors of Company at the beginning of
any such period will be deemed to have been a Director of
Company at the beginning of such period.
Notwithstanding the foregoing provisions of subparagraph
4(c)(5), 4(c)(6), 4(c)(7) or 4(c)(8) hereof, unless otherwise
determined in a specific case by majority vote of the Board
of Directors of CIPSCO, a "Change in Control" shall not be
deemed to have occurred for purposes of this Plan solely
because (i) CIPSCO, (ii) an entity in which CIPSCO directly
or indirectly beneficially owns 50% or more of the voting
securities (a "Subsidiary"), or (iii) any CIPSCO or
Subsidiary-sponsored employee stock ownership plan or any
other employee benefit plan of CIPSCO or a Subsidiary, either
files or becomes obligated to file a report or a proxy
statement under or in response to Schedule 13D, Schedule 14D-
1, Form 8-K or Schedule 14A (or any successor schedule, form
or report or item therein) under the Exchange Act, disclosing
beneficial ownership by it of shares of Voting Stock or
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Company Voting Stock, whether in excess of 20% or otherwise,
or because CIPSCO or a Subsidiary reports that a Change in
Control of the Company or CIPSCO has or may have occurred or
will or may occur in the future by reason of such beneficial
ownership.
C. Amendment and Discontinuance - The Plan is expected to
continue indefinitely. However, it may be amended or
discontinued at any time by the Board of Directors in its
sole discretion; provided, however, no such amendment or the
termination of the Plan shall adversely affect the rights of
any person without his prior written consent if such person
(i) is receiving benefits under the Plan, (ii) would be
entitled to a benefit under the Plan if such person
terminated employment immediately prior to the date of
adoption of such amendment or termination, or (iii) is
entitled to receive benefits under the Plan on account of a
prior termination of employment.
D. Financing of Benefits - Benefits payable under the Plan to an
eligible participant or, in the event of his death, to his
Eligible Spouse, shall be paid by the eligible participant's
Employer from its general assets. The payment of benefits
under the Plan represents an unfunded, unsecured obligation
of the Employer. Notwithstanding the foregoing, nothing in
the Plan shall preclude an Employer from segregating assets
which are intended to be a source for payment of benefits
under the Plan, including by deposit in trust pursuant to one
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or more trust agreements to which the Employer shall be a
party.
E. Governing Law - Except as provided by any federal law, the
provisions of the Plan shall be construed in accordance with
and governed by the laws of the State of Illinois.
F. Administration - The Plan shall be administered by the
Compensation Committee of the Board of Directors (the
"Committee"). Unless otherwise specifically provided herein,
the Committee shall have such duties and powers as may be
necessary to discharge its duties, including, but not by way
of limitation, to construe and interpret the Plan and
determine the amount and time of payment of any benefits
hereunder. The Committee shall have no power to add to,
subtract from or modify any of the terms of the Plan, or to
change or add to any benefits provided under the Plan, or to
waive or fail to apply any requirements or eligibility for a
benefit under the Plan. Unless and to the extent expressly
provided otherwise in any trust agreement established to
secure amounts payable under the Plan as provided in Article
III.D., the Committee's decision in any matter involving the
Plan shall be final and binding on all persons.
G. Facility of Payment - Whenever and as often as any person
entitled to payments under the Plan shall be under a legal
disability or, in the sole judgment of the Committee, shall
otherwise be unable to apply such payments to his own best
interest and advantage, the Committee, in the exercise of its
discretion, may direct all or any portion of such payments to
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be made in any one or more of the following ways: (i)
directly to him; (ii) to his legal guardian or conservator;
or (iii) to his spouse or to any other person, to be expended
for his benefit; and the decision of the Committee shall in
each case be final and binding upon all persons in interest.
H. No Guarantee of Employment - Nothing contained in the Plan
shall be construed as a contract of employment between the
Company or its affiliates and any employee, or as a right of
any employee, to be continued in the employment of the
Company or its affiliates, or as a limitation of the right of
the Company or its affiliates to discharge any of its
employees, with or without cause.
I. Participants' Interests Not Transferable - Prior to payment,
the interests of eligible participants and their Eligible
Spouses under the Plan are not in any way subject to their
debts or other obligations and may not be voluntarily or
involuntarily sold, transferred, alienated, assigned or
encumbered.
J. Plan Administrator - The Company shall be the "Administrator"
under the Plan for purposes of the Employee Retirement Income
Security Act of 1974, as amended from time to time.
K. Claims - The Committee will provide any eligible participant
or his Eligible Spouse whose claim for benefits under the
Plan has been fully or partially denied a written notice
setting forth the specific reasons for such denial. Such
notice shall state that the eligible participant or Eligible
Spouse, as the case may be, is entitled to request a review,
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by the Committee, of the decision denying the claim.
L. Successor - An Employer shall require any successor (whether
direct or indirect, by purchase, merger, consolidation,
reorganization or otherwise) to all or substantially all of
the business and/or assets of the Employer expressly to
assume and to agree to perform this Plan in the same manner
and to the same extent the Employer would be required to
perform if no such succession had taken place. This Plan
shall be binding upon and inure to the benefit of the
Employer and any successor of or to the Employer, including
without limitation any persons acquiring directly or
indirectly all or substantially all of the business and/or
assets of the Employer whether by sale, merger,
consolidation, reorganization or otherwise (and any such
successor to the Company shall thereafter be deemed the
"Company" for the purposes of this Plan) and the heirs,
executors and administrators of each participant.
M. Vested Benefit - Each employee of an Employer on December 31,
1993 who is eligible to take normal or early retirement under
the Retirement Income Plan and who on such retirement would
be an eligible participant as defined in Article I shall be
fully vested in his Accrued Benefit under the Plan as of
December 31, 1993 subject to the terms and conditions of the
Plan. For this purpose, "Accrued Benefit" means the amount
of monthly benefit to which such employee would be entitled
under Article II of the Plan if he terminated his employment
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with the Company and its affiliates as of December 31, 1993.
Such employee's Accrued Benefit shall also include the amount
of monthly benefit to which the employee's Eligible Spouse
would be entitled following his death.
IN WITNESS WHEREOF, Central Illinois Public Service
Company has caused this instrument to be executed in its name by
its President and its Corporate Seal to be hereunto affixed,
attested by its Secretary, on this day of
, 1995.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY
By_____________________________________
Attest:
____________________
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