CALPINE CORPORATION DIRECTOR'S RESTRICTED STOCK AGREEMENT (Pursuant to the 2008 Director Incentive Plan)
EXHIBIT
10.4.5
CALPINE
CORPORATION
DIRECTOR'S
(Pursuant
to the 2008 Director Incentive Plan)
This
Restricted Stock Agreement ("Agreement"), entered into on the ____ day of
___________, 20___ (the "Grant Date"), which is the date on which the Award
described below was approved in accordance with the Plan (as defined below),
between Calpine Corporation, a Delaware corporation (the "Company"), and
____________________, (the "Director"). Except as otherwise provided herein, or
unless the context clearly indicates otherwise, capitalized terms not otherwise
defined herein shall have the same definitions as provided in the
Plan.
WHEREAS,
to carry out the purposes of the Calpine Corporation 2008 Director Incentive
Plan (the "Plan"), shares of restricted Common Stock (as defined below) are
hereby granted to the Director in accordance with this Agreement;
and
WHEREAS,
the Company and Director agree as follows:
1.
Award of Common
Stock. The Company hereby grants (the "Grant") to Director
________ shares (the "Shares") of common stock, $.001 par value, of the Company
("Common Stock"), which shall be subject to the restrictions on transferability
set forth in Section 2(d) herein (the "Restrictions") and to the other
provisions of this Agreement.
2.
Restricted
Period.
(a)
For a
period of one (1) year commencing on the Grant Date (the "Restricted Period"),
the Shares shall be subject to the Restrictions and any other restrictions as
set forth herein. Except as otherwise provided herein, the
Restrictions shall lapse and expire as to the Shares in accordance with the
following schedule provided the Director has continuously served on the Board of
Directors of the Company ("Board") from the Grant Date through the lapse
date:
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Lapse Date
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Percentage
of Total
Number
of Shares as to
Which Forfeiture
Restrictions Lapse
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First
Anniversary of the Grant Date
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100%
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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 (f) and (g) 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 Director shall be registered in
Director'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 Director (Director 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 paragraph (a) above
or paragraphs (f) and (g) 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 DIRECTOR 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 Director free of the legend
set forth above.
(c)
The
Director 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 Director or any agent of Director or by operation of law, shall
be recognized by, or be binding upon, or 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 of paragraph (a) above or paragraphs (f)
and (g) below. This provision shall not prohibit Director from
granting revocable proxies in customary form to vote the Shares.
(e)
Except as
provided in paragraphs (f) and (g) below, if Director shall cease to serve on
the Board prior to the expiration of the Restricted Period for any reason, then,
in that event, any Restricted Shares outstanding shall thereupon be forfeited by
Director to the Company, without payment of any consideration or further
consideration by the Company, and neither the Director nor any successors,
heirs, assigns or legal representatives of Director shall
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thereafter
have any further rights or interest in the Restricted Shares or certificates
therefor, and Director'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 Director's service on the Board is terminated by reason of Disability
(as defined in Section 17 of the Plan) or death at any time during the
Restricted Period, all restrictions imposed on the Shares in accordance with the
terms of the Plan and this Agreement shall lapse and the Restricted Shares shall
thereby be Transferable Shares.
(g)
Upon the
occurrence of a Change in Control (as defined in Section 16 of the Plan), any
Restrictions on the Restricted Shares set forth in this Agreement shall be
deemed to have expired, and the Restricted Shares shall thereby be Transferable
Shares.
(h)
If the
Director's service on the Board shall terminate prior to the expiration of the
Restricted Period, and there exists a dispute between Director 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 Director's termination of service on the Board to
the resolution of such dispute shall:
(1)
to the
extent to which such dividends would have been payable to Director on the
Shares, be held by the Company as part of its general funds (unless such action
would detrimentally affect Director under Section 409A of the Code), and shall
be paid to or for the account of Director only upon, and in the event of, a
resolution of such dispute in a manner favorable to Director, and
(2)
be
canceled upon, and in the event of, a resolution of such dispute in a manner
unfavorable to Director.
3.
Taxes. Director
understands that Director 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. DIRECTOR
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 DIRECTOR; AND THAT
DIRECTOR IS SOLELY RESPONSIBLE FOR MAKING SUCH ELECTION. Director
agrees to notify the Company promptly of any tax election made by Director with
respect to the Shares.
4.
Adjustments/Changes in
Capitalization. This award is subject to the adjustment
provisions set forth in the Plan.
5.
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
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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 Director 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 Director hereby acknowledges that he or she is prepared to hold such shares
of Common Stock for an indefinite period and that the Director 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 Director 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 Director acknowledges and
understands that the Company may not be satisfying the current public
information requirement of Rule 144 at the time the Director 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 Director
understands that Director 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 Director's acquisition
of the shares of Common Stock issued pursuant to this Agreement, the Director
acquired sufficient information about the Company to reach an informed
knowledgeable decision to acquire such shares of Common Stock. The
Director has such knowledge and experience in financial and business matters as
to make the Director capable of utilizing said information to evaluate the risks
of the prospective investment and to make an informed investment
decision. The Director is able to bear the economic risk of his or
her investment in the shares of Common Stock issued pursuant to this
Agreement. The Director 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
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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.
6.
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 Director, including, without limitation, Director's estate and the executors,
administrators, or trustees thereof, heirs and legatees, and any receiver,
trustee in bankruptcy, or representative of creditors of
Director. This Agreement shall be binding upon and inure to the
benefit of any successors to the Company.
7.
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 to this
Agreement agrees to inform the other party immediately upon a change of
address. All notices shall be deemed delivered when
received.
8.
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 arbitrator's
award in any court having jurisdiction.
9.
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.
10.
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.
11.
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.
12.
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 Director 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: ________________________________________
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Authorized
Officer
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Calpine
Corporation
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▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
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EMPLOYEE
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____________________________________________
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Name:
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Address:
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____________________________________________
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____________________________________________
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____________________________________________
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