Exhibit 10.4
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT (the "Agreement") is made and entered
into as of this ____ day of __________, 200_, by and between TXU CORP., a Texas
corporation (the "Company"), and ________________ ("Participant").
WHEREAS, the Company has adopted the TXU Long-Term Incentive Compensation
Plan (the "Plan"), the purpose of which is to assist the Company in attracting,
retaining and motivating executive officers and other key employees essential to
the success of the Company through performance-related incentives linked to
long-range performance goals; and
WHEREAS, the Plan provides for various types of stock-based incentive
compensation awards to be made to Key Employees of the Company and its
Subsidiaries, all as determined in the sole discretion of the Organization and
Compensation Committee of the Board of Directors of the Company (the
"Committee"), which administers the Plan; and
WHEREAS, in accordance with such delegation, the Committee has designated
Participant as a Key Employee under the Plan and desires to award Participant
shares of Restricted Stock in order to carry out the intent and purposes of the
Plan all as set forth herein; and
WHEREAS, this Agreement constitutes part of a prospectus covering the
Restricted Shares (as defined below) which are being awarded hereunder, which
such Restricted Shares have been registered under the Securities Act of 1933.
NOW THEREFORE, in consideration of the covenants herein set forth and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Award of Restricted Stock. The Company hereby awards to Participant
______ shares of the Company's common stock, without par value (the "Restricted
Shares") pursuant to the terms and subject to the conditions and restrictions
set forth herein.
2. Restriction Period and Vesting of Restricted Shares. The Restricted
Shares shall vest and be distributed in accordance with the following schedule:
Date of Vesting And
Distribution
Number of Shares
------------------------- ----------------------
Each of the foregoing dates is referred to herein as a "Distribution Date."
If Participant continues to be in the employment of the Company or one of its
Subsidiaries on a Distribution Date, or if Participant ceases employment prior
to a Distribution Date due to death or disability, all of the of the Restricted
Exhibit 10.4
Shares shall become unrestricted on such Distribution Date, and be distributed
without any restrictive legend to Participant or, in the event of Participant's
death, to Participant's beneficiary, as soon as is administratively practicable
after such Distribution Date.
3. Maintenance of Restricted Share Certificates. Prior to each
Distribution Date and prior to the vesting and distribution of the Restricted
Shares provided for above, all certificates representing the Restricted Shares
shall be maintained by the Secretary of the Company or such other person or
entity acting on behalf of the Company as the Committee may designate.
Participant shall deliver to the Secretary of the Company, for each such
certificate, a duly executed stock power authorizing any officer of the Company
to effect the transfer of such Restricted Shares on the books of the Company in
accordance with the terms of this Agreement and the Plan.
4. Forfeiture of Restricted Shares Under Certain Circumstances.
(1) Cessation of Employment During Performance Period. If Participant
shall, at any time during the Restriction Period, cease to be an employee of the
Company or a Subsidiary for any reason whatsoever other than Participant's death
or total disability, all Restricted Shares shall immediately be forfeited by
Participant. If, during the Restriction Period, Participant shall cease to be an
employee of the Company or a Subsidiary due to Participant's death or total
disability, the Restricted Shares shall not be forfeited and shall vest and be
distributed at the time provided for in Section 2 hereof.
(2) Effect of Forfeiture. Upon any forfeiture of Restricted Shares,
Participant shall have no further right, title or interest in or to the
Restricted Shares so forfeited (including any and all dividends on such
forfeited Restricted Shares which have been paid in stock and any and all
dividends thereon which have been paid in cash and reinvested in accordance with
Section 7 hereof), and the forfeited Restricted Shares shall become available
for subsequent Awards under the Plan.
5. Nontransferability. The Restricted Shares may not be sold,
transferred, pledged, assigned or otherwise alienated, hypothecated or disposed
of unless and until the Restricted Shares have vested and been distributed in
accordance with this Agreement. Any attempt to effect any such sale, transfer,
pledge, assignment or disposition of the Restricted Shares or any portion
thereof shall be null and void and of no force or effect whatsoever.
6. Voting Rights. From and after the date hereof, and unless and until
the Restricted Shares are forfeited in accordance with this Agreement,
Participant shall have, and shall be entitled to exercise, full voting rights
with respect to the Restricted Shares.
7. Dividends. Prior to the vesting and distribution of the Restricted
Shares, any and all dividends paid with respect to Restricted Shares shall be
reinvested under the Company's Direct Stock Purchase and Dividend Reinvestment
Plan ("DRP"). On each Distribution Date, if the Restricted Shares become
unrestricted and are distributed in accordance with the provisions of Section 2
of this Agreement, the Shares acquired with such reinvested dividends shall also
be distributed to Participant concurrently with the distribution of the
Restricted Shares.
Exhibit 10.4
8. Restrictive Legends. All certificates representing any Shares subject
to the provisions of this Agreement shall have endorsed thereon the following
legends:
(a) "THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF A CERTAIN RESTRICTED STOCK AWARD AGREEMENT WHICH,
AMONG OTHER THINGS, PROHIBITS THE TRANSFER OF THESE SECURITIES PRIOR TO THE
COMPLETION OF A RESTRICTION PERIOD. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION."
(b) Any legend required to be placed thereon by applicable securities
laws.
9. No Obligation to Transfer. The Company shall not be required to (i)
transfer on its books any Restricted Shares which shall have been sold or
transferred in violation of any provision of this Agreement; or (ii) treat as
owner of such Restricted Shares or to accord the right to vote as such owner or
to pay dividends to any transferee to whom such Restricted Shares shall have
been transferred in violation of a provision of this Agreement.
10. Capital Adjustments. The number and class of Restricted Shares shall
be subject to adjustment, if any, as the Committee deems appropriate upon the
occurrence of certain events and in the manner as described in Section 5.4 of
the Plan.
11. No Right to Employment. Neither this Agreement, nor the Award of the
Restricted Shares provided for herein, shall be construed as giving Participant
any right of employment or continued employment with the Company or any
affiliated entity of the Company.
12. Withholding. Participant understands and agrees that the Company shall
have the right to deduct or withhold, or require Participant to remit to the
Company, any taxes required by law to be withheld in connection with the Award
provided for herein. In furtherance, but not in limitation of the foregoing, the
Company may require Participant to remit to the Company the amount of any taxes
required to be withheld or, in lieu thereof, the Company may withhold (or
Participant may, in the discretion of the Company, be given the opportunity to
elect to tender) the number of shares of Common Stock equal in Fair Market Value
to the amount required to be withheld.
13. Subject to Plan. The Award of the Restricted Shares and this Agreement
are subject to all of the terms and conditions of the Plan (as the Plan may be
amended from time to time). In the event of any conflict between the terms and
conditions of the Plan and those set forth herein, the terms and conditions of
the Plan shall control.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED, CONSTRUED,
INTERPRETED AND ADMINISTERED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.
Exhibit 10.4
15. Severability. In the event any provision of this Agreement shall be
held invalid, illegal or unenforceable, in whole or in part, for any reason,
such determination shall not affect the validity, legality or enforceability of
any remaining provision or portion of provision, which shall remain in full
force and effect as if this Agreement had not contained the invalid, illegal or
unenforceable provision or portion.
16. Amendment. The Committee shall have the right at any time and from
time to time, without the approval or consent of Participant, to amend this
Agreement if additions and/or changes are made to the Internal Revenue Code of
1986, as amended, any federal or state securities law, or other law or
regulation applicable to the Award. The Committee shall have the right at any
time, and from time to time, to amend this Agreement for any other reason with
the consent of Participant.
17. Award Not Benefit Eligible. Participant understands and agrees that
the Award of Restricted Shares shall be considered extraordinary, special
incentive compensation and will not be included as "earnings," "wages," "salary"
or "compensation" in any pension, welfare, life insurance, or other employee
benefit plan or arrangement of the Company.
18. Notices. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail, with
postage and fees prepaid, addressed to the other party hereto at the address
shown opposite his signature below or at such other address as such party may
designate by not less than five (5) days' advance written notice to the other
party hereto.
19. Further Assurances. The parties agree to execute such further
instruments and to take such further action as may reasonably be necessary to
carry out the intent of this Agreement.
20. Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof.
21. Binding Effect. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, heirs, executors,
administrators, guardians and personal representatives. Nothing in this
Agreement shall be construed to give any person or entity other than the parties
hereto and their respective successors any legal or equitable right, remedy or
claim under this Agreement.
22. Capitalized Terms. Unless otherwise defined herein, each of the
capitalized terms used herein shall have the meaning given to such term in the
Plan.
23. Headings. Headings of the several sections of this Agreement are
inserted for convenience only and shall not control or affect the meaning or
construction of any of the provisions hereof.
Exhibit 10.4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
TXU CORP.
Address: By:____________________________________
1601 Bryan Street
Dallas, TX 75201
Attn: Corporate Secretary
PARTICIPANT
Address: _______________________________________
_________________________