EXHIBIT 10.01
E.ON SHARE PERFORMANCE-PLAN
TERMS AND CONDITIONS FOR THE 1. TRANCHE (2006-2008)
(DATE: JUNE 2006)
PREAMBLE
E.ON Group's long-term and sustainable success is largely determined by
the commitment of its employees. Because of their role in fundamental
strategic decisions, managers and top executives are responsible for promoting
the company's sustainable success and the positive long-term performance
of E.ON stock.
In order to provide the necessary incentives for managers and top executives
and in order to reward for positive performance of the E.ON stock in
the capital markets, E.ON began as early as seven years ago to extend the
scope of its compensation systems on an annual basis by including a long-
term compensation component. Participation in the Share Performance
Plan is a voluntary benefit offered by E.ON. Beneficiaries do not acquire a
claim to any future participation in the Plan. E.ON will examine regularly
which type of long-term incentive (LTI) is most effective in supporting the
E.ON Group's compensation philosophy.
Beginning in 2006, the LTI will be designed as a share performance plan
based on virtual stocks. The changes relative to the previous plan's design
were made primarily in order to be in line with current market practice, and
to more effectively meet the requirements of corporate governance and the
rules on insider trading. The changes adopted to this effect include the
introduction of the relative stock price performance as a value-determining
element, the stipulation of a three-year time to maturity, and the elimination
of personal exercise decisions in favor of simultaneous centralized settlement.
In future, the calculation of the amount to be paid out will be based
on the stock's value upon maturity, instead of the stock price gains during
the time to maturity.
Because of their three-year time to maturity, the virtual stocks are tied to
the company's long-term success. Their dependence on the stock price
performance creates an identity of interests and objectives for executives
and shareholders. This effect is further enhanced by the personal investment
that executives have to make in E.ON AG shares during the maturity
period of the Share Performance Plan. In addition, the fact that the
performance of the stock is benchmarked against the performance of an
industry index amplifies the element of risk. There will be no payments under
the Plan unless a minimum performance is achieved relative to this defined
benchmark.
Managers and top executives are awarded performance rights in writing,
accompanied by the Supplementary Terms and Conditions describing the
specifics of the tranche concerned and specifying the number of performance
rights awarded to an executive. In addition, the Supplementary
Terms and Conditions specify the number of E.ON stocks that beneficiaries
must hold as a personal investment before they can be awarded performance
rights. The Terms and Conditions for the plan as well as the
Supplementary Terms and Conditions both form integral parts of the
performance rights awarded.
There is a "Technical Annex", which is an integral part of the Terms and
Conditions. This Technical Annex provides more detailed information
relating to the Terms and Conditions and contains not only explanatory
comments but also the mathematical formulas and definitions required for
the calculation of the amount to be paid.
1 PERFORMANCE RIGHT, CASH AMOUNT
(1) Within the framework of this Share Performance Plan, the company
("Company") mentioned in the Supplementary Terms and Conditions shall
award performance rights ("Performance Rights") of stock of E.ON AG,
Dusseldorf ("E.ON AG"); beneficiaries shall be entitled to receive a given
number of Performance Rights as determined in the Supplementary Terms
and Conditions. In accordance with said terms and conditions, the holder of
a Performance Right (the "Beneficiary") shall be entitled to payment by the
Company of the amount per Performance Right (the "Cash Amount") determined
at the end of the maturity period (as defined in Article 2 below).
Additional rights such as voting or dividend rights shall not be associated
with Performance Rights.
(2) The Cash Amount shall be determined by the Calculation Agent (as defined
in Article 6 below) and shall be equivalent to the product (rounded off to
the second decimal) of the Closing Price (as defined in Article 3 below) and
the Performance Factor (as defined in Article 4 below). The maximum
Cash Amount to be paid to Beneficiaries shall be the triple of the stock's
initial value (E-O) as specified in the Supplementary Terms and Conditions.
(3) Performance Rights shall be awarded free of charge.
2 TIME TO MATURITY
The time to maturity of Performance Rights shall be three years; it shall
begin on January 1 of the year in which they are awarded ("start of maturity
period") and shall end on December 31 of the second calendar year following
the calendar year in which they were awarded ("end of maturity period").
3 DETERMINATION OF THE CLOSING PRICE
The Closing Price (EON-PAY) shall be the arithmetic mean (expressed in
euros ("EUR") and adjusted for Capital Measures during the performance
rights' time to maturity) of the closing prices as determined and published
by Deutsche Borse AG in the XETRA(R) electronic trading system (Exchange
Electronic Trading) during the preceding 60 trading days within the
plan's time to maturity of the no par bearer share of common stock of
E.ON AG (the "E.ON Stock") which has an accounting par value of EUR 2.60.
The Closing Price shall be calculated as specified in (1) of the Technical
Annex.
4 DETERMINATION OF THE PERFORMANCE FACTOR
The "Performance Factor" shall depend on the Total Shareholder Return
("TSR") of the E.ON Stock and the Dow Jones STOXX Utility EUR Return
Index, referred to as the "Index" (as explained in greater detail in (2) of
the Technical Annex). This factor shall be determined at the end of the
maturity period and shall take into account not only the stock performance
but also dividend payouts and capital measures. The Performance Factor
shall be 1 if the performance of the TSR of the E.ON Stock is identical with
that of the Index. If the E.ON Stock outperforms the Index, the Performance
Factor shall increase proportionately. If the E.ON Stock underperforms
the Index, the Performance Factor shall be reduced by the quintuple of the
underperformance. The Performance Factor shall be 0 if the total
underperformance amounts to 20 percentage points or more. The Performance
Factor shall be calculated as specified in (3) of the Technical Annex.
5 CAPITAL MEASURES OF E.ON AG, DIVIDEND PAYMENTS AND TRANSFORMATION OF
E.ON AG
(1) If E.ON AG implements Capital Measures and distributes Special Dividends
(both terms as defined in (4)(a) of the Technical Annex) during the
Performance Rights' maturity period, the economic effects that such measures
have on the value of the Performance Rights shall be offset. To this
end, so-called Capital Adjustment Factors (KAF-PAY-T-I, KAF-PERF-T-I) shall
be taken into account when determining the Closing Price and the Performance
Factor. The Capital Adjustment Factors shall be calculated as specified
in (4)(b) of the Technical Annex.
(2) In order to compensate for the economic effects of dividend payments by
E.ON AG that do not qualify as Special Dividends, a so-called Dividend
Factor (DF-T-I) shall be taken into account when determining the Performance
Factor. The Dividend Factor shall be calculated as specified in (5) of
the Technical Annex.
(3) Should E.ON AG carry out capital measures other than those specified in
(1) above in conjunction with (4)(a) of the Technical Annex, or should
E.ON AG be transformed in accordance with the provisions of the German
Conversion Act (see (4)(c) of the Technical Annex), without this event
triggering an extraordinary settlement of the Performance Rights (as
specified in Article 8(1) below), these Terms and Conditions shall
be adjusted in such a way that the economic effects that the cited measures
have on the value of the Performance Rights will be offset. Adjustments
of the Terms and Conditions shall be jointly agreed upon by the
Calculation Agent and E.ON AG and shall be communicated to the
Beneficiaries by the Company. Adjustments made by the Calculation Agent and
E.ON AG shall be binding on the Company and the Beneficiaries in the
absence of manifest errors.
6 CALCULATION AGENT
(1) HSBC Trinkaus & Burkhardt KGaA, Dusseldorf, shall be the "Calculation
Agent". E.ON AG shall be entitled to appoint a new Calculation Agent for
compelling reasons. However, E.ON AG shall ensure that a Calculation
Agent is appointed at any time during the entire maturity period of the
Performance Rights. Should the Calculation Agent cease to perform its
function or should it no longer be able or willing to perform its
function, E.ON AG shall be obliged to appoint another leading bank in
the stock options business. If another Calculation Agent is appointed,
the Beneficiaries shall be notified by the Company without undue delay.
(2) All calculation data provided and decisions made by the Calculation
Agent for the purposes defined in the present Terms and Conditions shall
(in the absence of a manifest error) be binding upon the Company and the
Beneficiaries. Notwithstanding the aforementioned provisions, any claims
by Beneficiaries may be lodged only against the Company.
7 PAYMENT OF CASH AMOUNT
(1) The Company shall deposit the Cash Amount accrued on the full number of
a Beneficiary's Performance Rights to the Beneficiary's payroll account in
connection with the next possible salary or pension payment after the end
of the maturity period.
(2) Any (income) taxes, levies and employee social security contributions
arising from the Cash Amount shall be borne by the Beneficiary.
(3) Should a Beneficiary's salary or pension be paid in a currency other than
EUR, the Company shall be entitled at its reasonable discretion to translate
the EUR Cash Amount accrued on the full number of Performance Rights
of the Beneficiary concerned into the required currency based on the exchange
rate effective on the cut-off date. The relevant exchange rate for the
currency translation shall be the exchange rate effective at the end of the
maturity period or, in the cases specified in Article 8 below, the exchange
rate effective on the date of the event triggering the extraordinary
settlement.
8 EXTRAORDINARY SETTLEMENT OF PERFORMANCE RIGHTS
(1) Following a "Change-in-Control" event (as defined below) regarding E.ON
AG, the time to maturity of the Performance Rights shall end prematurely
on the date of occurrence of such an event. The Beneficiary shall receive
from the Company the Cash Amount which shall be determined by analogy
in accordance with Articles 1(2), 3 and 4. In this event, Article 7 shall
apply mutatis mutandis.
An event is a "Change-in-Control" event regarding E.ON if:
a) E.ON AG is notified by a third party, under Section 21 of the German
Securities Trading Act (WpHG), that said party has acquired 25 percent
or more of the voting rights of E.ON AG, or
b) a third party, either on its own or by virtue of voting rights
attributable to said party in accordance with Section 22 WpHG, has
acquired a share in voting rights which at an Annual Shareholders Meeting
of E.ON AG has represented, or which at E.ON AG's last Annual Shareholders
Meeting would have represented, at least half of E.ON AG's
voting capital present at such a Meeting, or
c) an affiliation agreement has been concluded with E.ON AG as a
controlled company, in accordance with Sections 291 ff. of the German
Stock Corporation Act (AktG), or
d) E.ON AG is integrated into another company, in accordance with Sections
319 ff. of the German Stock Corporation Act (AktG), or
e) E.ON AG changes its legal form in accordance with Sections 190 ff. of
the German Conversion Act (UmwG) (except for a conversion into a
European Company), or
f) the stock of E.ON AG is no longer admitted for stock exchange trading
in an organized market, or
g) E.ON AG is merged with another legal entity in accordance with Sections
2 ff. of the German Conversion Act (UmwG), provided that the
enterprise value of the other legal entity is less than 20 percent of
E.ON AG's enterprise value at the time when a resolution to this effect
is adopted by E.ON AG. The valuation methods acknowledged by the
professional association of certified public accountants (Standard 1 of
2005 as published by the Institut der Wirtschaftsprufer "Grundsatze
zur Durchfuhrung von Unternehmensbewertungen" as well as the professional
association's more recent pronouncements) shall be used to
determine the value of both entities, provided that both enterprise values
are determined in accordance with said principles in connection
with the merger. Otherwise, the market capitalization of both legal entities
at the time when the resolution is adopted by E.ON AG shall be
deemed to be their respective enterprise values. If a market capitalization
cannot be determined, the enterprise values agreed between the
two legal entities shall be deemed to be the effective enterprise values.
E.ON AG shall notify Beneficiaries without undue delay of any "Change-in-
Control" event regarding E.ON AG.
(2) If the Company ceases to be an affiliated company of E.ON AG, as defined
in Section 15 of the German Stock Corporation Act (AktG) ("Change-in-
Control" event regarding the Company), the time to maturity of the
Performance Rights shall end prematurely on the date of occurrence of such
an event. The Beneficiary shall receive from the Company the Cash Amount
which shall be determined by analogy in accordance with Articles 1(2), 3
and 4. In this event, Article 7 shall apply mutatis mutandis.
The Company shall notify Beneficiaries without undue delay of any "Change-
in-Control" event regarding the Company.
(3) The following provisions shall apply if the employment contract of a
Beneficiary terminates prior to the end of the Performance Rights' maturity
period due to
a) the Beneficiary's retirement,
b) the Beneficiary's death,
c) the termination of a fixed-term employment contract,
d) contractual notice of termination being given by the Company,
e) behavior-related contractual notice of termination or summary termination
of the employment contract for cause (as defined in Section 622(1)
of the German Civil Code) by the Company, or
f) the termination of the employment contract by the Beneficiary.
In case (a) above, the Beneficiary shall be entitled to request from the
Company the premature calculation of the Cash Amount within one month after
the event. If a Beneficiary does not make any use of this right, he or she
shall receive the Cash Amount determined at the end of the maturity period.
In cases (b), (c) and (d) above, the time to maturity shall end prematurely,
either on the monthly cut-off date preceding the termination of the employment
contract, or if the date of the event coincides with a monthly cut-off
date, on that monthly cut-off date. This shall also apply to case (a) above
if a Beneficiary has requested the premature calculation of the Performance
Amount.
In cases (a) to (d) above, the Beneficiary shall receive from the Company the
Cash Amount which shall be determined by analogy in accordance with
Articles 1(2), 3 and 4 above. In this event, Article 7 shall apply mutatis
mutandis.
In cases (e) and (f) above, the Performance Rights awarded to the Beneficiary
shall be lost without compensation when the employment contract is terminated.
(4) If the employment contract between a Beneficiary and the Company is
terminated and if the Beneficiary subsequently enters into an employment
contract with an affiliated company of E.ON AG as defined in Section 15 of
the German Stock Corporation Act (AktG), this shall not affect the
Beneficiary's Performance Rights, except as otherwise provided in the
Beneficiary's personal employment contract.
9 TRANSFERABILITY
Performance Rights may not be assigned or pledged. It shall also be
prohibited to dispose of the Performance Rights in any other form, to
grant sub-participation or to establish a trust. Beneficiaries shall not
be allowed to conduct any back-to-back transactions that are economically
tantamount to selling the Performance Rights. If any of these provisions
are violated, the Performance Rights awarded shall be lost without
compensation.
10 WRITTEN FORM
Amendments and supplements to these Terms and Conditions must be made
in writing. This shall also apply to amendments of the present Article
or the Technical Annex.
11 APPLICABLE LAW, ANNEXES, PLACE OF PERFORMANCE AND JURISDICTION
(1) The form and substance of the Performance Rights, as well as all rights
and duties of Beneficiaries and the Company, shall be governed in every
respect by the law applicable in the Federal Republic of Germany.
(2) The Technical Annex shall form part of these Terms and Conditions.
(3) The place of performance shall be the place where the Company concerned
has its corporate domicile.
(4) The venue for the settlement of disputes arising from matters covered in
these Terms and Conditions shall be Dusseldorf.
12 PARTIAL INVALIDITY
Should any of the provisions of these Terms and Conditions be or become
invalid or impracticable, in whole or in part, this shall not affect the
validity of the other provisions. Any gap resulting from the invalidity or
impracticability of a provision of these Terms and Conditions shall be filled
by additionally interpreting the terms of the contract by analogy, taking
into consideration the interests of the parties involved.
EXHIBIT 10.01 (Continued)
TECHNICAL ANNEX
TO THE TERMS AND CONDITIONS OF THE 1ST TRANCHE (2006-2008)
DATE: JUNE 2006
1. CALCULATION OF THE CLOSING PRICE AS
SPECIFIED IN ART.3 OF THE TERMS AND CONDITIONS
The Closing Price (EON-PAY) shall be calculated as follows:
EON-PAY = (1/60) * [(Sum from I=1 to I=60) of E-T-I] * KAF-PAY-T-I
Where:
E-T-I : is the Closing Price of the E.ON Stock, as determined and pub-
lished by Deutsche Borse AG in the XETRA (R) electronic trading
system during the Averaging Period (as defined below).
KAF-PAY-T-I : is the Capital Adjustment Factor (as defined in (4) below) at the
time T-I .
The "Averaging Period" within the meaning of these Terms and Conditions
shall be the preceding 60 Trading Days (as defined below) within the maturity
period.
"Trading Day" within the meaning of these Terms and Conditions shall be a
day on which Deutsche Borse AG determines and publishes the Closing
Price of the E.ON Stock in the XETRA electronic trading system and on
which the Index Provider determines and publishes the closing price of the
Index.
2. DETERMINATION OF THE REFERENCE INDEX
a) The Dow Jones STOXX Utility EUR Return Index (ISIN code: EU 000
9658970) shall be determined by STOXX Limited, Zurich (hereinafter refer-
red to as the "Index Provider").
b) The items fundamental to the calculation of the Index and the
determination of the Initial Index shall be (i) the concept of the Index as
defined and maintained by the Index Provider, along with (ii) the
calculation, determination, and publication of the Index by the Index
Provider, even if future changes or adjustments are made to the calculation
of the Index, the composition or weighting of prices and stocks used as a
basis to calculate the Index, the manner and means by which it is published,
or if other changes or adjustments are made or measures are taken that
affect the calculation of the Index, unless otherwise specified in the
following provisions.
c) If (i) the fundamental design and/or calculation method or the basis of the
Index is changed in a substantial way so that the continuity or comparability
of the Index calculated on the old basis no longer exists (e.g., if the Index
is significantly altered as a result of a change, adjustment or other measures
although the prices of the various stocks included in the Index and their
weighting have not changed), or if (ii) during the maturity period of the
Performance Rights the Index is no longer regularly determined and published
by the Index Provider or some other legal entity, the Terms and Conditions
shall be adjusted so as to ensure that the indexing concept underlying
the Performance Rights will be preserved, as much as possible, in terms of
its economic effects.
d) Adjustments as specified in (c) above shall have to be jointly agreed upon
by the Calculation Agent and E.ON AG and shall be communicated to the
Beneficiaries by the Company. Adjustments made by the Calculation Agent
and E.ON AG shall be binding on the Company and the Beneficiaries in the
absence of manifest errors.
3. CALCULATION OF THE PERFORMANCE FACTOR AS SPECIFIED
IN ART.4 OF THE TERMS AND CONDITIONS
The Performance Factor (PF) shall be determined on the basis of the Per-
formance (R-S) of the Index, the Total Shareholder Return ("TSR") of the
E.ON Stock (R-EON) and the performance difference (P-DIFF = outperfor-
mance or underperformance of the E.ON Stock relative to the Index as de-
fined in Art. 4 of the Terms and Conditions) between the E.ON Stock and
the Index, which shall be calculated by means of the following formulas,
where T-1,...,T-60 represent the days of the averaging period at the end of
the maturity period.
a) The performance of the Index (R-S) shall be calculated as follows:
R-S = [(1/60) * ((Sum from I=1 to I=60) of S-T-I)] / [(S-O) - 1]
Where:
S-T-I : is the closing price of the Index as determined and published
during the Averaging Period.
S-O : is the arithmetic mean, rounded off to the second decimal, of the
closing indexes as determined and published by the Index Provider
during the preceding 60 Trading Days prior to the maturity period.
b) The TSR of the E.ON Stock (R-EON) shall be calculated, taking into
account dividend payments and Capital Measures, by means of the following
formula:
R-EON = [(1/60) * ((Sum from I=1 to I=60) of E-T-I) * DF-T-I
* KAF-PERF-T-I] / [(E-O) - 1]
Where:
E-T-I : is the Closing Price of the E.ON Stock, as determined and
published by Deutsche Borse AG in the XETRA(R) elec-
tronic trading system during the Averaging Period.
E-O : is the arithmetic mean, rounded off to the second decimal,
of the E.ON Stock's Closing Prices, as determined and
published by Deutsche Borse AG in the XETRA(R) electro-nic trading
system during the preceding 60 Trading Days prior to the maturity period.
DF-T-I : is the Dividend Factor (as defined in Art. 5 of the Terms
and Conditions) at the time T-I.
KAF-PERF-T-I : is the Capital Adjustment Factor (as defined in (4) below)
at the time
c) The performance difference (P-DIFF) shall be calculated as follows:
P-DIFF = R-EON - R-S
d) The Performance Factor (P-F) shall be calculated by means of the
following formula:
PF = 1 + P-DIFF (if P-DIFF >= 0)
PF = max of (1 + (5*P-DIFF) or 0 (if P-DIFF <0)
4. CALCULATION OF THE CAPITAL ADJUSTMENT FACTORS TO REFLECT CAPITAL
MEASURES OR SPECIAL DIVIDENDS BY E.ON AG AS SPECIFIED IN ART.5(1)
OF THE TERMS AND CONDITIONS
a) "Capital Measures" within the meaning of these Terms and Conditions
shall include the following events:
E.ON AG
(i) increases its capital by issuing new shares against contributions
while granting its shareholders direct or indirect subscription rights
("Capital Increase against Contributions"),
(ii) increases its capital out of retained earnings ("Capital
Increase out of Retained Earnings"), or
(iii) directly or indirectly grants its stockholders a right to subscribe
for bonds or other securities with option or conversion rights on stock
("Issuance of Securities with Option or Conversion Rights").
A "Special Dividend" within the meaning of these Terms and Conditions
shall be defined as follows:
E.ON AG pays its stockholders a dividend that is explicitly referred to
as a special or extraordinary dividend by the annual shareholders
meeting of E.ON AG.
b) In accordance with Art.5(1) of the Terms and Conditions, the Capital
Adjustment Factors (KAF-PERF-T-I, KAF-PAY-T-I) shall be adjusted as of the
cut-off date (T-I) of the Capital Measure or Special Dividend concerned by
applying the same principles that are applied by the Index Provider
(see (2)(a) above) in order to compensate for capital measures and the
distribution of special dividends. These principles are regularly
published at www.stoxx.com ("Index Guides"). The initial value of the
Capital Adjustment Factors (KAF-PERF-T-I, KAF-PAY-T-I) shall be 1.0000000.
The Capital Adjustment Factor KAF-PAY-T-I, which is used to determine the
Closing Price, includes the gross amounts of Special Dividends (i.e. without
deducting withholding taxes), which deviates from the principles applied by
the Index Provider.
Should the E.ON Stock cease to be part of the Index, the Calculation Agent
shall adjust the Capital Adjustment Factors by applying the Index Provider's
adjustment rules mutatis mutandis.
The Capital Adjustment Factors (KAF-PERF-T-I, KAF-PAY-T-I) shall be rounded
off to the seventh decimal.
The "Cut-off Date" for the adjustment of the Capital Adjustment Factors
(KAF-PERF-T-I, KAF-PAY-T-I) shall be the first Trading Day on the Frankfurt
Stock Exchange on which the shares are quoted "ex dividend", "ex
subscription right" or "ex bonus shares".
c) "Transformation" as defined in Art.5(3) of the Terms and Conditions
shall particularly be represented by one of the following measures:
(i) a merger of E.ON AG by way of absorption where E.ON AG is not the
absorbing company, or by way of establishing a new company,
(ii) any other transaction (e.g. split, asset transfer, integration or
restructuring,modification, or exchange of shares) through which or as a
result of which all shares of E.ON AG are irrevocably invalidated,
transferred, scheduled to be transferred, reclassified, or modified
in their legal status, and
(iii) any other transaction that has the same economic effects as the
aforementioned transactions.
5. CALCLULATION OF THE DIVIDEND FACTOR TO REFLECT DIVIDEND PAYMENTS
BY E.ON AG AS SPECIFIED IN ART.5(2) OF THE TERMS AND CONDITIONS
The initial value of the Dividend Factor (DF-T-I) included in the performance
the E.ON Stock shall be 1.0000000, which in the event of dividend
payments by E.ON AG that are not Special Dividends as defined in (4)(a)
above shall be adjusted on each ex-dividend day ( ti ) in accordance with
the principles applied by the Index Provider. These principles are regularly
published at www.stoxx.com ("Index Guides").
Should the E.ON Stock cease to be part of the Index, the Calculation Agent
shall adjust the Dividend Factor (DF-T-I) by applying the Index Provider's
adjustment rules mutatis mutandis.
Following the adjustment, the Dividend Factor (DF-T-I) corresponds to the
number of phantom stocks held at the time T-I as a result of reinvesting the
fictitious net dividend, based on an initial portfolio of one phantom share.
The Dividend Factor (DF-T-I) shall be rounded off to the seventh decimal.
EXHIBIT 10.02
CERTIFICATE OF AWARD
E.ON
Share Performance Plan
2006 - 2008
Share Performance Rights Award
As of January 1, 2006, the Management
Board of E.ON has awarded <# of rights>
Share Performance Rights to
<Officer Name>
with an initial value of 79.22 eurodollars.
Subject to terms and conditions of the
E.ON Share Performance Plan, these Share
Performance Rights are payable in cash
at the end of the maturity period.
Dr. Wulf H. Bernotat
Victor A. Staffieri
<Officer Name>