EXHIBIT 10.3
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Calpine Corporation
Notice of Grant of Restricted Stock and ID: 77-0212977
Restricted Stock Agreement 50 West San Fernando Street
Suite 550
San Jose, California 95113
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Name of Grant Recipient
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Address
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Date of Grant
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Plan from which Award Is Made 1996 Stock Incentive Plan -
Stock Issuance Program
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Number of Shares Granted
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Grant Expiration Date
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Vesting Schedule:
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Percent Vested Vesting Event
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By your signature and the Company's signature below, you and the Company agree
that these shares of restricted stock are granted under and governed by the
terms and conditions of the Plan specified above and the Restricted Stock
Agreement attached to this document.
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Calpine Corporation Date
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Recipient Date
CALPINE CORPORATION
1996 STOCK INCENTIVE PLAN
FORM OF RESTRICTED STOCK AGREEMENT
RECITALS
A. The Board has adopted the Plan for the purpose of retaining the
services of selected Employees, non-employee members of the Board or of the
board of directors of any Parent or Subsidiary, and consultants and other
independent advisors who provide services to the Corporation (or any Parent or
Subsidiary).
B. The Participant has rendered and is to render valuable services to
the Corporation (or a Parent or Subsidiary), and this Agreement is executed
pursuant to, and is intended to carry out the purposes of, the Plan in
connection with the Corporation's grant of restricted stock to the Participant.
C. All capitalized terms in this Agreement shall have the meaning
assigned to them in the attached Appendix.
NOW, THEREFORE, it is hereby agreed as follows:
1. Grant of Restricted Stock
The Corporation hereby grants to the Participant, as of the Grant
Date, the number of shares of Common Stock specified in the Grant Notice,
subject to the restrictions stated in the Grant Notice. The Purchase Price of
the restricted stock shall be the Fair Market Value per share of Common Stock on
the date of grant and is payable in past services, unless otherwise specified in
the Grant Notice.
2. Stockholder Rights
The Participant shall have full stockholder rights with respect to any
shares of Common Stock issued to the Participant under this Agreement, whether
or not the Participant's interest in those shares is vested. Accordingly, the
Participant shall have the right to vote such shares and to receive any regular
cash dividends paid on such shares. Any dividend payable with respect to
unvested Common Stock shall be paid to the Participant no later than 2 1/2
months after the end of the calendar year in which the record date for the
dividend occurs.
3. Additional Property
Any new, substituted, or additional securities or other property
(including money paid other than as a regular cash dividend) that the
Participant receives with respect to the Participant's unvested shares of Common
Stock by reason of any stock dividend, stock split, recapitalization,
combination of shares, exchange of shares, or similar event shall be issued
subject to the same vesting requirements and other restrictions that are
applicable to the Participant's unvested shares of Common Stock under this
Agreement.
4. Vesting and Forfeiture
(a) The shares of Common Stock granted under this Agreement shall vest
in one or more installments when the conditions specified in the Grant Notice
are satisfied, unless the shares are previously forfeited as provided below.
(b) If the Participant's Service terminates for any reason other than
death, Permanent Disability, or Retirement, the Participant shall forfeit any
shares that have not vested when the Participant's Service terminates, except as
provided in the Grant Notice.
(c) If the Participant's Service terminates as a result of the
Participant's death, the shares of Common Stock granted under this Agreement
that have not vested when the Participant dies shall remain outstanding until
the earlier of (i) the expiration of the twelve (12)- month period measured from
the date of the Participant's death or (ii) the date on which the grant expires.
(d) If the Participant's Service terminates as a result of the
Participant's Permanent Disability, the shares of Common Stock granted under
this Agreement that have not vested when the Participant becomes Permanently
Disabled shall remain outstanding until the earlier of (i) the expiration of the
twelve (12)- month period measured from the date the Participant becomes
Permanently Disabled or (ii) the date on which the grant expires.
(e) If the Participant's Service terminates as a result of the
Participant's Retirement, the shares of Common Stock granted under this
Agreement that have not vested when the Participant Retires shall remain
outstanding until the date the grant expires.
(f) The Participant shall immediately surrender any forfeited shares
to the Corporation for cancellation, and shall have no further stockholder
rights with respect to those shares. To the extent the Participant paid cash or
cash equivalent for the shares when they were awarded, the Corporation shall
return to the Participant the consideration paid for the surrendered shares (or,
if less, the fair market value of the shares on the date when they are
surrendered).
5. No Transfer or Assignment
While the shares of Common Stock granted under this Agreement remain
unvested, the shares shall be neither transferable nor assignable by the
Participant. Calpine shall not be required to transfer on its books any of the
shares of Common Stock that the Participant has attempted to sell or transfer in
violation of any of the provisions set forth in this Agreement, or to treat as
the owner of such shares of Common Stock any person or entity to whom the
Participant has attempted to sell or transfer the shares.
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6. Escrow or Restrictive Legends
Unvested shares may, in the Plan Administrator's discretion, be held
in escrow by the Corporation until the Participant's interest in such shares
vests, or may be issued directly to the Participant with the following
restrictive legend:
"These shares of Common Stock have been issued or transferred subject
to a Restricted Stock Agreement between Calpine and the registered
owner of such shares, and are subject to substantial restrictions,
including (but not limited to) a prohibition against transfer, either
voluntary or involuntary, and a provision requiring the transfer of
these shares to Calpine without any payment in the event of the
registered owner's termination of service, all as more particularly
set forth in the aforementioned Restricted Stock Agreement, a copy of
which is on file with Calpine and its transfer agent."
When the shares of Common Stock granted under this Agreement vest, the
Participant may tender to Calpine the certificates containing the legend
described above and receive new certificates not containing this legend.
7. Withholding
As a condition to the delivery of a certificate for shares of Common
Stock subject to this Agreement that bear no legend (or, if the Participant
makes the election permitted by Section 83(b) of the Internal Revenue Code, as a
condition to the initial delivery of a certificate for shares of Common Stock
bearing such legend), Calpine may, by notice to the Participant, require that
Calpine be paid the amount of any federal, state, or local taxes required by law
to be withheld.
8. Corporate Transaction
All of the shares of Common Stock granted under this Agreement shall
immediately vest in full in the event of any Corporate Transaction, except to
the extent the Corporation's rights and obligations under this Agreement are to
be assigned to the successor corporation (or parent thereof) in connection with
such Corporate Transaction. The Corporation may assign its rights under this
Agreement to a successor corporation (or the parent thereof) without the consent
of the Participant.
9. Notices
Any notice required to be given or delivered to the Corporation under
the terms of this Agreement shall be in writing and addressed to the Corporation
at its principal corporate offices. Any notice required to be given or delivered
to the Participant shall be in writing and addressed to the Participant at the
address indicated in the Grant Notice. All notices shall be deemed effective
upon personal delivery or upon deposit in the U.S. mail, postage prepaid and
properly addressed to the party to be notified.
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10. Construction
This Agreement and the restricted stock award evidenced hereby are
made and granted pursuant to the Plan and are in all respects limited by and
subject to the terms of the Plan. All decisions of the Plan Administrator with
respect to any question or issue arising under the Plan or this Agreement shall
be conclusive and binding on all persons having an interest in this award.
11. Governing Law
The interpretation, performance and enforcement of this Agreement
shall be governed by the laws of the State of California without resort to that
State's conflict-of-laws rules.
12. Excess Shares
If the shares covered by this Agreement exceed, as of the Grant Date,
the number of shares of Common Stock which may without stockholder approval be
issued under the Plan, then this award shall be void with respect to those
excess shares, unless stockholder approval of an amendment sufficiently
increasing the number of shares of Common Stock issuable under the Plan is
obtained in accordance with the provisions of the Plan.
13. Amendment
Calpine may revoke this Agreement at any time with respect to unvested
shares of Common Stock if Calpine determines that the Agreement is contrary to
law; and, in that event, Calpine may give notice to the Participant that the
unvested shares of Common Stock subject to the Agreement are to be delivered to
Calpine as though the Participant's Service with Calpine had terminated on the
date of the notice. Calpine may also modify this Agreement to the extent
necessary to bring the Agreement and the issuance or transfer of the shares of
Common Stock into compliance with any applicable law or regulation now or
hereafter promulgated by any governmental agency, including, but not limited to,
the provisions in Section 409A of the Internal Revenue Code governing deferred
compensation. By entering into this Agreement and accepting the issuance or
transfer of shares of Common Stock under this Agreement, the Participant agrees
that, upon request in writing by Calpine, the Participant will tender any
certificates for shares of Common Stock subject to this Agreement for amendment
of the legend or for change in the number of shares of Common Stock issued or
transferred as Calpine deems necessary in light of the amendment to this
Agreement. Except as otherwise provided in the first two sentences of this
Section 13 or in the Plan, the Plan Administrator shall obtain the Participant's
consent before it amends this Agreement in a manner that significantly reduces
the Participant's rights or benefits under this Agreement.
14. Waiver
The waiver by Calpine or the Plan Administrator of any vesting
condition or other provision of this Agreement at any time or for any purpose
shall not operate as, or be construed to be, a waiver of the same or any other
provision of this Agreement at any subsequent time or for any other purpose.
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APPENDIX
The following definitions shall be in effect under the Agreement:
A. Agreement shall mean this Restricted Stock Agreement.
B. Board shall mean the Corporation's Board of Directors.
C. Common Stock shall mean the Corporation's common stock.
D. Corporate Transaction shall mean either of the following
stockholder-approved transactions to which the Corporation is a party:
(i) a merger or consolidation in which securities possessing more than
fifty percent (50%) of the total combined voting power of the Corporation's
outstanding securities are transferred to a person or persons different
from the persons holding those securities immediately prior to such
transaction, or
(ii) the sale, transfer or other disposition of all or substantially
all of the Corporation's assets in complete liquidation or dissolution of
the Corporation.
E. Corporation shall mean Calpine Corporation, a Delaware corporation.
F. Employee shall mean an individual who is in the employ of the
Corporation (or any Parent or Subsidiary), subject to the control and direction
of the employer entity as to both the work to be performed and the manner and
method of performance.
G. Grant Date shall mean the date of grant of the restricted stock as
specified in the Grant Notice.
H. Grant Notice shall mean the Notice of Grant of Restricted Stock
accompanying the Agreement, pursuant to which the Participant has been informed
of the basic terms of the restricted stock award evidenced hereby. The Grant
Notice shall be part of the Agreement, and shall be subject to all of the terms
and conditions stated in the Agreement and in the Plan.
I. Participant shall mean the person to whom the restricted stock award is
granted as specified in the Grant Notice.
J. Parent shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations ending with the Corporation, provided each
corporation in the unbroken chain (other than the Corporation) owns, at the time
of the determination, stock possessing fifty percent (50%) or more of the total
combined voting power of all classes of stock in one of the other corporations
in such chain.
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K. Permanent Disability shall mean the inability of the Participant to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which is expected to result in death
or has lasted or can be expected to last for a continuous period of twelve (12)
months or more.
L. Plan shall mean the Corporation's 1996 Stock Incentive Plan.
M. Plan Administrator shall mean either the Board or a committee of the
Board acting in its administrative capacity under the Plan.
N. Retirement shall mean voluntary termination of Service by the
Participant after meeting either of the following criteria: (i) attainment of
age 60 and completion of 10 years of Service, or (ii) attainment of age 55 and
completion of a number of years of Service that, when added to current age,
equals at least 70.
O. Service shall mean the Participant's performance of services for the
Corporation (or any Parent or Subsidiary) in the capacity of an Employee, a
non-employee member of the board of directors, or a consultant or independent
advisor.
P. Subsidiary shall mean any corporation (other than the Corporation) in an
unbroken chain of corporations beginning with the Corporation, provided each
corporation (other than the last corporation) in the unbroken chain owns, at the
time of the determination, stock possessing fifty percent (50%) or more of the
total combined voting power of all classes of stock in one of the other
corporations in such chain.
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SECTION 83(b) ELECTION
1. Nature of Election. The undersigned hereby elects, pursuant to Section 83(b)
of the Internal Revenue Code of 1986 and Treasury Regulation ss. 1.83-2, to
include the value of the restricted property described below in gross income in
the year of transfer.
2. Identity of Taxpayer.
Name:
Address:
Taxpayer Identification Number:
3. Description of Property. This election is made with respect to
_______________ shares of the common stock of Calpine Corporation.
4. Date of Award. The property covered by this election was transferred to the
taxpayer on March 8, 2005.
5. Taxable Year of Election. This election relates to calendar year 2005.
6. Nature of Restrictions. The property covered by this election is subject to
the following restrictions:
If the taxpayer's service with Calpine Corporation terminates before the
vesting conditions specified in the award agreement have been satisfied,
Calpine Corporation has the right to repurchase the shares at a price per
share equal to the lower of (1) the purchase price per share paid by the
taxpayer, or (2) the fair market value of the shares on the repurchase date.
7. Fair Market Value of Property. The fair market value of the property on the
date when it was transferred to the taxpayer was $3.32 per share. This fair
market value is determined without regard to any restrictions other than
restrictions that, by their terms, will never lapse.
8. Amount Paid for Property. The taxpayer paid $______________ per share for the
property covered by this election.
9. Statement to Employer. The taxpayer received the property covered by this
election in connection with services that the taxpayer has performed or will
perform for Calpine Corporation. The taxpayer has furnished a copy of this
statement to Calpine Corporation.
Date:___________________________ Signature:__________________________
File the original of this statement with the Internal Revenue Service office
where you file your tax return not later than 30 days after the date on which
you received a restricted stock award, and provide a copy of the statement to
Calpine. Attach a copy of this statement to your tax return for the year in
which you received the restricted stock award.