RESTRICTED STOCK AWARD AGREEMENT
Exhibit 10.13
THIS RESTRICTED STOCK AWARD AGREEMENT (this “Agreement”) is made as of the 6th day of March,
2008, between DYNEGY INC., a Delaware corporation (“Dynegy”), and all of its Affiliates
(collectively, the “Company”), and the named employee (the “Employee”). A copy of the Dynegy Inc.
2001 Long Term Incentive Plan (the “Plan”) is annexed to this Agreement and shall be deemed a part
hereof as if fully set forth herein. Unless the context otherwise requires, all terms that are not
defined in this Agreement but which are defined in the Plan shall have the same meaning given to
them in the Plan when used herein.
1. Award. Pursuant to the Plan, as of the date of this Agreement (the “Grant Date”), a
designated number of restricted shares (the “Restricted Shares”) of Dynegy’s Class A common stock,
$0.01 par value per share (“Common Stock”), shall be issued as hereinafter provided in the
Employee’s name subject to certain restrictions thereon. The Restricted Shares shall be issued
upon acceptance hereof by the Employee and upon satisfaction of the conditions of this Agreement.
The Employee acknowledges receipt of a copy of the Plan, and agrees that this award of Restricted
Shares shall be subject to all of the terms and provisions of the Plan, including future amendments
thereto, if any, pursuant to the terms thereof, and to all of the terms and conditions of this
Agreement. If it is subsequently determined by the Committee, in its sole discretion, that the
terms and conditions of this Agreement and/or the Plan are not compliant with Code Section 409A, or
any Treasury regulations or Internal Revenue Service guidance promulgated thereunder, this
Agreement and/or the Plan may be amended accordingly.
2. Restricted Shares. The Employee hereby accepts the Restricted Shares when issued and
agrees with respect thereto as follows:
(a) Forfeiture Restrictions. The Restricted Shares may not be sold, assigned,
pledged, exchanged, hypothecated or otherwise transferred, encumbered or otherwise disposed
of (any such sale, assignment, pledge, exchange, hypothecation or other transfer,
encumbrance or disposition being referred to herein as a “Transfer”) to the extent then
subject to the Forfeiture Restrictions (as hereinafter defined), and in the event of
termination of the Employee’s employment with the Company for any reason whatsoever, the
Employee shall, for no consideration, forfeit to the Company all Restricted Shares then
subject to the Forfeiture Restrictions, except to the extent that such Forfeiture
Restrictions lapse upon such termination in accordance with Section 2(b) hereof. The
prohibition against Transfer and the obligation to forfeit and surrender Restricted Shares
to the Company upon termination of employment are herein referred to as the “Forfeiture
Restrictions.” The Forfeiture Restrictions shall be binding upon and enforceable against
any transferee of Restricted Shares. For purposes of this Agreement, the following terms
shall have the meanings indicated below:
(i) “Committee” shall mean the committee that administers the Plan.
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(ii) “Cause” shall mean, and hence arise where, as determined by the Committee in its sole
discretion, the Employee (A) has been convicted of a misdemeanor involving moral turpitude or a
felony; (B) has failed to substantially perform the duties of such Employee to the Company (other
than such failure resulting from the Employee’s incapacity due to physical or mental condition)
which results in a materially adverse effect upon the Company, financial or otherwise; (C) has
refused without proper legal reason to perform the Employee’s duties and responsibilities to the
Company; or (D) has breached any material corporate policy maintained and established by the
Company that is applicable to the Employee, provided such breach results in a materially adverse
effect upon the Company, financial or otherwise.
(iii) “Change in Control” shall mean the occurrence of any of the following events: (A) a
merger of Dynegy with another entity, a consolidation involving Dynegy, or the sale of all or
substantially all of the assets or equity interests of Dynegy to another entity if, in any such
case, (I) the holders of equity securities of Dynegy immediately prior to such event do not
beneficially own immediately after such event equity securities of the resulting entity entitled to
fifty-one percent (51%) or more of the votes then eligible to be cast in the election of directors
(or comparable governing body) of the resulting entity in substantially the same proportions that
they owned the equity securities of Dynegy immediately prior to such event or (II) the persons who
were members of the Board immediately prior to such event do not constitute at least a majority of
the board of directors of the resulting entity immediately after such event; (B) the dissolution or
liquidation of Dynegy, but excluding a reorganization pursuant to chapter 11 of Title 11, U.S.
Code, as amended; (C) a circumstance where any person or entity, including a “group” as
contemplated by Section 13(d)(3) of the Exchange Act, acquires or gains ownership or control
(including, without limitation, power to vote) of fifty percent (50%) or more of the combined
voting power of the outstanding securities of, (I) if Dynegy has not engaged in a merger or
consolidation, Dynegy, or (II) if Dynegy has engaged in a merger or consolidation, the resulting
entity; (D) circumstances where, as a result of or in connection with, a contested election of
directors, the persons who were members of the Board immediately before such election shall cease
to constitute a majority of the Board; or (E) the Board (or the Committee) adopts a resolution
declaring that a Change in Control has occurred. For purposes of the “Change in Control”
definition, (1) “resulting entity” in the context of an event that is a merger, consolidation or
sale of all or substantially all of the subject assets or equity interests shall mean the surviving
entity (or acquiring entity in the case of an asset or equity interest sale), unless the surviving
entity (or acquiring entity in the case of an asset sale) is a subsidiary of another entity and the
holders of common stock of Dynegy receive capital stock of such other entity in such transaction or
event, in
which event the resulting entity shall be such other entity, and (2) subsequent to
the consummation of a merger or consolidation that does not constitute a Change in
Control, the term “Dynegy” shall refer to the resulting entity and the term “Board”
shall refer to the board of directors (or comparable governing body) of the
resulting entity.
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(iv) “Involuntary Termination” shall mean any termination of Employee’s
employment with the Company that:
(A) does not result from (1) a termination for Cause of Employee, (2)
Employee’s death or disability (as defined in Section 2(b)(iii)(A) below)
or (3) a voluntary resignation by Employee from the Company (other than a
resignation pursuant to clause (B) of this Section 2(a)(iv)), or
(B) results from a resignation by Employee on or before the date which
is sixty (60) days after the date that Employee first receives written
notice from or on behalf of the Company of (x) a change in the location of
Employee’s principal place of employment by fifty (50) miles or more from
the location where Employee was principally employed immediately prior to
the date on which the Change in Control occurs or (y) Employee’s offer of,
assignment to, or placement in a position within the Company that provides
a base salary materially lower than Employee’s base salary on Employee’s
termination date, all as determined by the Committee in its sole
discretion.
(b) Lapse of Forfeiture Restrictions. The Forfeiture Restrictions shall lapse as to the
Restricted Shares in three equal annual installments on anniversaries of the Grant Date as follows,
provided that the Employee has been continuously employed by the Company from the date of this
Agreement through such lapse date:
(i) on the first anniversary of the Grant Date, the Forfeiture Restrictions
shall lapse as to one-third of the aggregate number of the Restricted Shares
without further action by the Committee;
(ii) on the second anniversary of the Grant Date, the Forfeiture Restrictions
shall lapse as to an additional one-third of the aggregate number of Restricted
Shares without further action by the Committee; and
(iii) on the third anniversary of the Grant Date, the Forfeiture Restrictions
shall lapse as to the remaining one-third of the aggregate number of Restricted
Shares without further action by the Committee.
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Notwithstanding the foregoing:
(A) if the Employee is determined to be disabled (as defined in the Company’s
long term disability program or plan in which the Employee is a participant or, if
the Employee does not participate in any such plan, as defined in the Dynegy Inc.
Long Term Disability Plan, as amended, or the successor plan thereto) or in the
event of the death of the Employee, then the Forfeiture Restrictions shall lapse
with respect to all Restricted Shares to the extent then subject to the Forfeiture
Restrictions as of the date of such determination or death, as applicable; and
(B) if the Employee’s employment with the Company terminates by reason of
resignation by the Employee (except as otherwise provided in Section 2(b)(E) below)
or dismissal by the Company for Cause, then the Employee shall immediately, for no
consideration, forfeit to the Company all Restricted Shares to the extent then
subject to the Forfeiture Restrictions; and
(C) if the Employee’s employment with the Company terminates by reason of
retirement by the Employee following (I) the date on which such Employee has
reached sixty (60) years of age and (II) at least ten (10) years of service as an
employee of the Company, then the Forfeiture Restrictions shall lapse as to the
Restricted Shares awarded to the Employee hereunder as of the date of such
termination; and
(D) if the Employee’s employment with the Company terminates by reason of
dismissal by the Company other than for Cause, then the Forfeiture Restrictions
shall lapse, as of the date of such termination, with respect to a number of
Restricted Shares (rounded down to the nearest whole number) equal to (I) the
number of Restricted Shares then subject to the Forfeiture Restrictions multiplied
by (II) a fraction, the numerator of which shall be the number of calendar days
which have lapsed since the later of the Grant Date or most recent anniversary
thereof and the denominator of which shall be the number of calendar days from the
later of the Grant Date or the most recent anniversary thereof until the third
anniversary of the Grant Date; and
(E) if the Employee’s employment with the Company terminates as a result of an
Involuntary Termination occurring in connection with, but in no event earlier than
sixty (60) days prior to, a Change in Control, then the Forfeiture Restrictions
shall lapse with respect to 100% of the Restricted Shares awarded to the Employee
hereunder as of the date of such Change in Control; and
(F) if the Employee is employed by the Company (or a successor thereto) on the
date of a Change in Control, then the Forfeiture
Restrictions shall lapse with respect to 100% of the Restricted Shares awarded to
the Employee hereunder as of the date of such Change in Control.
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Any shares with respect to which the Forfeiture Restrictions do not lapse in accordance with the
preceding provisions of this Section 2(b) shall be forfeited to the Company for no consideration as
of the date of the termination of the Employee’s employment with the Company.
(c) Shareholder Rights & Certificates. The Employee shall have all of the rights of a
shareholder of the Company with respect to the Restricted Shares, including, without limitation,
voting rights and the right to receive dividends (provided, however, that dividends paid in shares
of the Company’s stock shall be subject to the Forfeiture Restrictions), but the Employee may not
Transfer the Restricted Shares until the Forfeiture Restrictions have expired, and a breach of the
terms of this Agreement or the Plan shall cause a forfeiture of the Restricted Shares. Any
certificate issued by the Company evidencing the Restricted Shares shall bear appropriate legends
in accordance with Section 4 below and shall be delivered upon issuance to the Secretary of the
Company or to such other depository as may be designated by the Committee as a depository for
safekeeping until the forfeiture of such Restricted Shares occurs or the Forfeiture Restrictions
lapse pursuant to the terms of the Plan and this award. In the event a certificate evidencing the
Employee’s Restricted Shares is issued by the Company prior to the lapse of the Forfeiture
Restrictions, the Employee shall promptly deliver to the Company a stock power, endorsed in blank,
relating to the Restricted Shares. Upon the lapse of the Forfeiture Restrictions without
forfeiture, the Company shall, promptly following receipt of a written request from the Employee,
cause a certificate or certificates evidencing the shares of Common Stock awarded to the Employee
hereunder (and with respect to which the Forfeiture Restrictions have lapsed) to be issued without
legend (except for any legend required pursuant to applicable securities laws or any other
agreement to which the Employee is a party) in the name of the Employee in exchange for the
certificate, if any, evidencing the Restricted Shares.
(d) Corporate Acts. The existence of the Restricted Shares shall not affect in any way the
right or power of the Board of Directors of the Company or the shareholders of the Company to make
or authorize any adjustment, recapitalization, reorganization or other change in the Company’s
capital structure or its business, any merger or consolidation of the Company, any issue of debt or
equity securities, the dissolution or liquidation of the Company or any sale, lease, exchange or
other disposition of all or any part of its assets or business or any other corporate act or
proceeding. The prohibitions of Section 2(a) hereof shall not apply to the Transfer of Restricted
Shares pursuant to a plan of reorganization of the Company, but the stock, securities or other
property received in exchange therefore shall also become subject to the Forfeiture Restrictions
and provisions governing the lapsing of such Forfeiture Restrictions applicable to the original
Restricted Shares for all purposes of this Agreement and the certificates, if any, representing
such stock, securities or other property shall be legended to show such restrictions.
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3. Withholding of Tax. To the extent that the receipt of the Restricted Shares or the lapse of
any Forfeiture Restrictions results in compensation income to the Employee for federal or state
income tax purposes, the Employee shall deliver to the Company at the time of such receipt or
lapse, as the case may be, such amount of money as the Company may require to meet its obligation
under applicable tax laws or regulations, and if the Employee fails to do so, the Company is
authorized to withhold from any cash or stock remuneration (including withholding any Restricted
Shares distributable to the Employee under this Agreement) then or thereafter payable to the
Employee any tax required to be withheld by reason of such resulting compensation income.
4. Status of Stock. The Employee agrees that the Restricted Shares issued under this Agreement
will not be sold or otherwise disposed of in any manner which would constitute a violation of any
applicable federal or state securities laws. The Employee also agrees that (a) in the event a
certificate representing the Restricted Shares is issued, such certificate may bear such legend or
legends as the Committee deems appropriate in order to reflect the Forfeiture Restrictions and to
assure compliance with applicable securities laws, (b) the Company may refuse to register the
Transfer of the Restricted Shares on the stock transfer records of the Company if such proposed
Transfer would constitute a violation of the Forfeiture Restrictions or, in the opinion of counsel
satisfactory to the Company, of any applicable securities law, and (c) the Company may give related
instructions to its transfer agent, if any, to stop registration of the Transfer of the Restricted
Shares.
5. Employment Relationship. For purposes of this Agreement, the Employee shall be considered
to be in the employment of the Company as long as the Employee remains an employee of either the
Company or an Affiliate (as such term is defined in the Plan). Nothing in the adoption of the Plan
or the award of the Restricted Shares thereunder pursuant to this Agreement shall confer upon the
Employee the right to continued employment by the Company or affect in any way the right of the
Company to terminate such employment at any time. Unless otherwise provided in a written employment
agreement or by applicable law, the Employee’s employment by the Company shall be on an at-will
basis, and the employment relationship may be terminated at any time by either the Employee or the
Company for any reason whatsoever, with or without cause. Any question as to whether and when there
has been a termination of such employment, and the cause of such termination, shall be determined
by the Committee, and its determination shall be final.
6. Notices. Any notices or other communications provided for in this Agreement shall be
sufficient if in writing. In the case of the Employee, such notices or communications shall be
effectively delivered when hand delivered to the Employee at his or her principal place of
employment or when sent by registered or certified mail to the Employee at the last address the
Employee has filed with the Company. In the case of the Company, such notices or communications
shall be effectively delivered when sent by registered or certified mail to the Company at its
principal executive offices.
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7. Entire Agreement; Amendment. This Agreement replaces and merges all previous agreements
and discussions relating to the same or similar subject matters between the Employee and the
Company and constitutes the entire agreement between the Employee and the
Company with respect to the subject matter of this Agreement. This Agreement may not be modified
in any respect by any verbal statement, representation or agreement made by any employee, officer,
or representative of the Company or by any written agreement unless signed by an officer of the
Company who is expressly authorized by the Company to execute such document.
8. Binding Effect. This Agreement shall be binding upon and inure to the benefit of any
successors to the Company and all persons lawfully claiming under the Employee.
9. Miscellaneous. In the event of any conflict or inconsistency between the terms of this
Agreement and the terms of the Plan, the terms of the Plan shall be controlling. In the event of
any conflict or inconsistency between the terms of this Agreement and the terms of the Dynegy Inc.
Severance Pay Plan, including any amendments or supplements thereto, the terms of this Agreement
shall be controlling.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by an officer
thereunto duly authorized, and the Employee has agreed to and accepted the terms of this
Agreement*, all as of the date first above written.
| DYNEGY INC. |
||||
| By: | /s/ J. Xxxxx Xxxxxxxx | |||
| Name: | J. Xxxxx Xxxxxxxx | |||
| Title: | General Counsel & EVP, Administration | |||
| * | Employee has agreed to and accepted the terms of this Agreement utilizing online grant acceptance
capabilities with E*Trade Financial, the Company’s restricted stock administrator. |
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