CALPINE CORPORATION AMENDED AND RESTATED CHIEF EXECUTIVE OFFICER EMERGENCE RESTRICTED STOCK AGREEMENT (Pursuant to the 2008 Equity Incentive Plan) RECITALS
EXHIBIT
10.2.2
CALPINE
CORPORATION
AMENDED AND
RESTATED
CHIEF
EXECUTIVE OFFICER
EMERGENCE
RESTRICTED
STOCK AGREEMENT
(Pursuant
to the 2008 Equity Incentive Plan)
RECITALS
WHEREAS,
on February 6, 2008 (the "Grant Date"), Calpine Corporation, a Delaware
Corporation (the "Company") granted (the "Grant") to ▇▇▇▇▇▇ ▇. May (the
"Employee") 547,600 shares (the "Shares") of common stock, $0.001 par value of
the Company ("Common Stock") which are subject to certain restrictions on
transferability ("Restrictions") as set forth in the Chief Executive Officer
Emergence Restricted Stock Agreement ("Restricted Stock Agreement") issued under
the Corporation's 2008 Equity Incentive Plan ("Plan"); and
WHEREAS,
the Restricted Stock Agreement provides that the Restrictions on the Shares will
lapse so long as the Employee remains continuously employed by the Company for
eighteen months from the Grant Date for 50% of the Shares and thirty-six months
from the Grant Date for the remaining 50% of the Shares.
WHEREAS,
it is the desire of the Company and the Employee to amend and restate the
Restricted Stock Agreement to provide that (i) Employee agrees to relinquish his
right to 474,600 of the number of Shares so that the Grant hereafter is 73,000
shares of Common Stock ("Amended Shares"), (ii) the Amended Shares shall no
longer be subject to the requirement that Grantee be continuously employed for
eighteen and/or thirty-six months, and (iii) the Grant will terminate upon
the occurrence of certain events described hereunder.
NOW,
THEREFORE, for and in consideration of these premises it is agreed as
follows:
1. Release. Employee
on Employee's own behalf and on behalf of Employee's related persons, KNOWINGLY
AND VOLUNTARILY RELEASES, ACQUITS AND FOREVER DISCHARGES the Company from any
and all claims, obligations or liabilities related to Employee's right to
474,600 of the number of the Shares granted under the Restricted Stock
Agreement, and Employee does hereby surrender and release to the Company 474,600
of the number of Shares granted to Employee under the Restricted Stock
Agreement. The 474,600 of the number of Shares are hereby cancelled
and rendered null and void.
2. Amended Grant/Award of
Common Stock. The Company and Employee agree that from this
day forth the number of shares of common stock subject to the Grant under the
Restricted Stock Agreement is for no more than 73,000 shares of Common Stock,
the Amended Shares (hereinafter referred to as the "Shares"), which shall be
subject to the restrictions on transferability set forth in Section 3(d)
(hereinafter referred to as the "Restrictions") and to the other provisions of
the Restricted Stock Agreement (hereinafter referred to as
"Agreement").
3. Restricted
Period.
(a) For
a period commencing on the Grant Date and ending at 5:00 p.m. Central Time on
December 31, 2008 (the “Restricted Period”), the Shares shall be subject to the
Restrictions and any other restrictions as set forth herein. The
Shares which are subject to the Restrictions shall hereinafter be referred to as
“Restricted Shares.” The Shares which are no longer subject to the
Restrictions as set forth above and in paragraphs (e) and (f) below shall
hereinafter be referred to as “Transferable Shares.”
(b) The
Company shall effect the issuance of the Shares out of authorized but unissued
shares of Common Stock or out of treasury shares of Common Stock and shall also
effect the issuance of a certificate or certificates for the
Shares. Each certificate issued for Restricted Shares to the Employee
shall be registered in Employee’s name and shall be either deposited with the
Secretary of the Company or its designee in an escrow account or held by the
Secretary of the Company, at the election of the Company, together with stock
powers or other instruments of transfer appropriately endorsed in blank by
Employee (Employee hereby agreeing to execute such stock powers or other
instruments of transfer as requested by the Company). Such
certificate or certificates shall remain in such escrow account or with the
Secretary of the Company until the corresponding Restricted Shares become
Transferable Shares as set forth in paragraphs (e) and (f)
below. Certificates representing the Restricted Shares shall bear a
legend in substantially the following form:
“THE
TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF STOCK REPRESENTED HEREBY
ARE SUBJECT TO THE TERMS AND CONDITIONS (INCLUDING FORFEITURE) OF THE CALPINE
CORPORATION 2008 EQUITY INCENTIVE PLAN AND AN AWARD AGREEMENT. COPIES
OF SUCH PLAN AND AGREEMENT ARE ON FILE AT THE OFFICES OF CALPINE CORPORATION,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
The
Company may place appropriate stop transfer instructions with respect to the
Restricted Shares with the transfer agent for the Common Stock. Upon
Restricted Shares becoming Transferable Shares, the Company shall effect, in
exchange for the legended certificates, the issuance and delivery of a
certificate or certificates for such Shares to the Employee free of the legend
set forth above.
(c) The
Employee shall, during the Restricted Period, have all of the other rights of a
stockholder with respect to the Shares including, but not limited to, the right
to receive dividends, if any, as may be declared on such Restricted Shares from
time to time, and the right to vote (in person or by proxy) such Restricted
Shares at any meeting of stockholders of the Company. Any shares of
Common Stock received as a dividend on or in connection with a stock split of
the Shares shall be subject to the same restrictions as the Shares underlying
such shares of Common Stock received on account of such stock dividend or
split.
(d) The
Restricted Shares and the right to vote the Restricted Shares and to receive
dividends thereon, may not be sold, assigned, transferred, exchanged, pledged,
hypothecated, or otherwise encumbered and no such sale, assignment, transfer,
exchange, pledge, hypothecation, or encumbrance, whether made or created by
voluntary act of Employee or any agent of Employee or by operation of law, shall
be recognized by, or be binding upon, or
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shall in
any manner affect the rights of, the Company or any agent or any custodian
holding certificates for the Restricted Shares during the Restricted Period,
unless the Restrictions have then expired pursuant to the provisions paragraphs
(e) and (f) below. This provision shall not prohibit Employee from
granting revocable proxies in customary form to vote the Shares.
(e) If
the status of employment (hereinafter referred to as “employment”) of Employee
with the Company or its Affiliates (as defined in the Plan) shall terminate,
prior to the expiration of the Restricted Period where (i) the Company or its
Affiliates terminates the Employee's employment with the Company or its
Affiliates for "Cause" (as defined in the Plan) or (ii) the Employee terminates
his employment with the Company or its Affiliates other than for "Good Reason"
(as defined in Exhibit "A" attached hereto), then, in those events, any
Restricted Shares outstanding shall thereupon be forfeited by Employee to the
Company, without payment of any consideration or further consideration by the
Company, and neither the Employee nor any successors, heirs, assigns or legal
representatives of Employee shall thereafter have any further rights or interest
in the Restricted Shares or certificates therefor, and Employee’s name shall
thereupon be deleted from the list of the Company’s stockholders with respect to
the Restricted Shares.
(f) In
the event the Employee’s employment with the Company is terminated by reason of
(i) the death of the Employee, (ii) the Company or its Affiliates terminates the
Employee's employment without "Cause," or (iii) the Employee terminates his
employment with the Company or its Affiliates for "Good Reason" at any time
during the Restricted Period, all restrictions imposed on the Restricted Shares
in accordance with the terms of the Plan and this Agreement shall lapse and the
Restricted Shares shall thereby be Transferable Shares.
(g) If
the employment of Employee with the Company shall terminate prior to the
expiration of the Restricted Period, and there exists a dispute between Employee
and the Company as to the satisfaction of the conditions to the release of the
Shares from the Restrictions hereunder or the terms and conditions of the Grant,
the Shares shall remain subject to the Restrictions until the resolution of such
dispute, regardless of any intervening expiration of the Restricted Period,
except that any dividends that may be payable to the holders of record of Common
Stock as of a date during the period from termination of Employee’s employment
to the resolution of such dispute shall:
(1) to
the extent to which such dividends would have been payable to Employee on the
Shares, be held by the Company as part of its general funds (unless such action
would detrimentally affect Employee under Section 409A of the Code), and shall
be paid to or for the account of Employee only upon, and in the event of, a
resolution of such dispute in a manner favorable to Employee, and
(2) be
canceled upon, and in the event of, a resolution of such dispute in a manner
unfavorable to Employee.
4. Taxes.
(a) To
the extent that the receipt of the Restricted Shares, Transferable Shares, or
the lapse of any Restrictions results in income to Employee for federal or state
income tax purposes, Employee shall deliver to the Company at the time of such
receipt or lapse, as the case may be, such amount of money or, if the Company so
determines, shares of unrestricted
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Common
Stock as the Company may require to meet its obligation under applicable tax
laws or regulations, and, if Employee fails to do so, the Company is authorized
to withhold from any cash or Common Stock remuneration then or thereafter
payable to Employee any tax required to be withheld by reasons of such resulting
compensation income.
(b) Employee
understands that Employee may elect to be taxed at the Grant Date rather
than at the time the Restrictions lapse with respect to the Shares by filing an
election under Section 83(b) of the Code with the Internal Revenue Service and
by providing a copy of the election to the Company. EMPLOYEE
ACKNOWLEDGES THAT HE OR SHE HAS BEEN INFORMED OF THE AVAILABILITY OF MAKING AN
ELECTION IN ACCORDANCE WITH SECTION 83(b) OF THE CODE; THAT SUCH ELECTION MUST
BE FILED WITH THE INTERNAL REVENUE SERVICE (AND A COPY OF THE ELECTION GIVEN TO
THE COMPANY) WITHIN 30 DAYS OF THE GRANT OF AWARDED SHARES TO EMPLOYEE; AND THAT
EMPLOYEE IS SOLELY RESPONSIBLE FOR MAKING SUCH ELECTION. Employee
agrees to notify the Company promptly of any tax election made by Employee with
respect to the Shares.
5. Adjustments/Changes in
Capitalization. This award is subject to the adjustment
provisions set forth in the Plan.
6. Compliance with Securities
Laws. The Company shall make reasonable efforts to comply with
all applicable federal and state securities laws; provided, however,
notwithstanding any other provision of this Agreement, the Company shall not be
obligated to issue any restricted or unrestricted common stock or other
securities pursuant to this Agreement if the issuance thereof would result in a
violation of any such law.
(a) Restricted
Securities. If the shares of Common Stock issued pursuant to this
Agreement have not been registered under the Securities Act of 1933, as amended
(the “1933 Act”), then the Employee hereby confirms that he or she has been
informed that the shares of Common Stock issued pursuant to this Agreement are
restricted securities under the 1933 Act and may not be resold or transferred
unless such shares are first registered under the federal securities laws or
unless an exemption from such registration is available. Accordingly,
the Employee hereby acknowledges that he or she is prepared to hold such shares
of Common Stock for an indefinite period and that the Employee is aware that
Rule 144 promulgated by the SEC is not presently available to exempt the resale
of the shares of Common Stock issued pursuant to this Agreement from the
registration requirements of the 1933 Act. The Employee is aware of
the adoption of Rule 144 by the SEC, promulgated under the 1933 Act, which
permits limited public resales of securities acquired in a nonpublic offering,
subject to the satisfaction of certain conditions. The Employee acknowledges and
understands that the Company may not be satisfying the current public
information requirement of Rule 144 at the time the Employee wishes to sell the
shares of Common Stock issued pursuant to this Agreement or other conditions
under Rule 144 which are required of the Company. If so, the Employee
understands that Employee will be precluded from selling the securities under
Rule 144 even if the one-year holding period (or any modification thereof under
the Rule) of said Rule has been satisfied. Prior to the Employee’s acquisition
of the shares of Common Stock issued pursuant to this Agreement, the Employee
acquired sufficient information about the Company to reach an informed
knowledgeable decision to acquire such shares of Common Stock. The
Employee has such knowledge and experience in financial and business matters as
to make the Employee capable of utilizing said information to evaluate the risks
of the prospective investment and to make an
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informed
investment decision. The Employee is able to bear the economic risk
of his or her investment in the shares of Common Stock issued pursuant to this
Agreement. The Employee agrees not to make, without the prior written
consent of the Company, any public offering or sale of the Shares although
permitted to do so pursuant to Rule 144(k) promulgated under the 1933 Act, until
all applicable conditions and requirements of the Rule (or registration of the
shares of common stock issued pursuant to this Agreement under the ▇▇▇▇ ▇▇▇) and
this Agreement have been satisfied.
(b) Restrictive
Legends. In order to reflect the restrictions on disposition of the
shares of Common Stock issued pursuant to this Agreement, the stock certificates
for the shares of Common Stock issued pursuant to this Agreement may be endorsed
with a restrictive legend, in substantially the following form:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) AND ARE “RESTRICTED SECURITIES”
AS DEFINED IN RULE 144 PROMULGATED UNDER THE ACT. THEY MAY NOT BE
SOLD OR OFFERED FOR SALE OR OTHERWISE DISTRIBUTED EXCEPT (1) IN CONJUNCTION WITH
AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE ACT, OR
EVIDENCE SATISFACTORY TO THE COMPANY OF AN EXEMPTION THEREFROM, AND (2) IN
COMPLIANCE WITH THE DISPOSITION PROVISIONS OF A WRITTEN AGREEMENT BETWEEN THE
COMPANY AND THE REGISTERED HOLDER OF THE SHARES (OR THE PREDECESSOR IN INTEREST
TO THE SHARES). SUCH AGREEMENT IMPOSES CERTAIN RESTRICTIONS IN
CONNECTION WITH THE DISPOSITION OF THE SHARES. THE SECRETARY OF THE COMPANY
WILL, UPON WRITTEN REQUEST, FURNISH A COPY OF SUCH AGREEMENT TO THE HOLDER
HEREOF WITHOUT CHARGE.
7. Employment
Relationship. Employee shall be considered to be in the
employment of the Company as long as he remains as an employee of the Company or
its Affiliates. Any questions 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 (as defined in the Plan), with the advice of the
employing corporation (if an Affiliate of the Company), and the Committee’s
determination shall be final.
8. Binding
Effect. The terms and conditions hereof shall, in accordance
with their terms, be binding upon, and inure to the benefit of, all successors
of Employee, including, without limitation, Employee’s estate and the executors,
administrators, or trustees thereof, heirs and legatees, and any receiver,
trustee in bankruptcy, or representative of creditors of
Employee. This Agreement shall be binding upon and inure to the
benefit of any successors to the Company.
9. Notice. All
notices required to be given under this Agreement or the Plan shall be in
writing and delivered in person or by registered or certified mail, postage
prepaid, to the other party at the address set out below each party’s signature
to this Agreement or at such other address as each party may designate in
writing from time to time to the other party. Each party
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to this
Agreement agrees to inform the other party immediately upon a change of
address. All notices shall be deemed delivered when
received.
10. Arbitration. Any
dispute or controversy arising under or in connection with this Agreement shall
be settled by binding arbitration in Houston, Texas by one arbitrator appointed
in the manner set forth by the American Arbitration Association. Any
arbitration proceeding pursuant to this paragraph shall be conducted in
accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association. Judgment may be entered on the arbitrators’
award in any court having jurisdiction.
11. Entire Agreement and
Amendments. This Agreement contains the entire agreement of
the parties relating to the matters contained herein and supersedes all prior
agreements and understandings, oral or written, between the parties with respect
to the subject matter hereof. This Agreement may be changed only by
an agreement in writing signed by the party against whom enforcement of any
waiver, change, modification, extension or discharge is sought.
12. Separability. If
any provision of the Agreement is rendered or declared illegal or unenforceable
by reason of any existing or subsequently enacted legislation or by the decision
of any arbitrator or by decree of a court of last resort, the parties shall
promptly meet and negotiate substitute provisions for those rendered or declared
illegal or unenforceable to preserve the original intent of this Agreement to
the extent legally possible, but all other provisions of this Agreement shall
remain in full force and effect.
13. Interpretation of the Plan
and the Grant. In the event there is any inconsistency or
discrepancy between the provisions of this Agreement and the provisions of the
Plan, the provisions of the Plan shall prevail.
14. Governing
Law. The execution, validity, interpretation, and performance
of this Agreement shall be governed by, and construed in accordance with, the
laws of the State of Delaware except to the extent pre-empted by federal
law.
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IN
WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by
one of its officers thereunto duly authorized, and Employee has executed this
Agreement, all as of the day and year first above written.
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CALPINE
CORPORATION
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By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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| Executive Vice President, | ||
| General Counsel and Secretary | ||
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Calpine
Corporation
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▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
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EMPLOYEE
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/s/ ▇▇▇▇▇▇ ▇. May
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Name:
▇▇▇▇▇▇ ▇. May
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Address:
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7
Exhibit
A
"Good
Reason" shall mean, when used with reference to any Employee, any of the
following actions or failures to act, but in each case only if it occurs while
such Employee is employed by the Company and then only if it is not consented to
by such Employee in writing:
(1) assignment
of a position that is of a lesser rank than held by the Employee prior to the
assignment and that results in such Employee ceasing to be an executive officer
of a company with securities registered under the Securities Exchange Act of
1934;
(2) a
material reduction in such Employee's base salary or target bonus opportunity
(including an adverse change in performance criteria or a decrease in ultimate
target bonus opportunity) in effect the day prior to the Effective Date of the
Plan; or
(3) any
change of more than fifty (50) miles in the location of the principal place of
employment of such Employee immediately prior to the effective date of such
change.
For
purposes of this definition, none of the actions described in clauses (i) and
(ii) above shall constitute "Good Reason" with respect to any Employee if it was
an isolated and inadvertent action not taken in bad faith by the Company and if
it is remedied by the Company within thirty (30) days after receipt of written
notice thereof given by such Employee (or, if the matter is not capable of
remedy within thirty (30) days, then within a reasonable period of time
following such thirty (30) day period, provided that the Company has commenced
such remedy within said thirty (30) day period); provided that "Good Reason"
shall cease to exist for any action described in clauses (i) through (iii) above
on the sixtieth (60th) day following the later of the occurrence of such action
or the Employee's knowledge thereof, unless such Employee has given the Company
written notice thereof prior to such date.
Exhibit A-1