Exhibit 10.70
FORM OF
NON-QUALIFIED STOCK OPTION AWARD
AGREEMENT
THIS NON-QUALIFIED STOCK OPTION
AWARD AGREEMENT (this
“Agreement”) is made as of the [
] day of April, 2007, between DYNEGY INC., a Delaware
corporation (“Dynegy”), and all of its Affiliates
(collectively, the “Company”), and Bruce A. Williamson
(“Employee”). A copy of the Dynegy Inc. [
] Incentive Plan (the “Plan”) is annexed to this
Agreement and shall be deemed a part of this Agreement as if fully
set forth herein. Unless the context otherwise requires, all terms
that are not defined herein but which are defined in the Plan shall
have the same meaning given to them in the Plan when used
herein.
1. The Grant . The
Compensation and Human Resources Committee of the Board of
Directors (the “Committee”) granted to Employee on
April [
] , 2007 (“Effective Date”), as a matter of
separate inducement and not in lieu of any salary or other
compensation for Employee’s services, the right and option to
purchase (the “Option”), in accordance with the terms
and conditions set forth in the Plan and in this Agreement, an
aggregate number of [
] shares (the “Shares”) of Class A common
stock of Dynegy, $0.01 par value per share (the “Common
Stock”), at a price of $ [
] per share (the “Exercise Price”). Employee
acknowledges receipt of a copy of the Plan, and agrees that the
Option 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. The Option shall not be treated as an incentive stock
option within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the “Code”). The
Exercise Price is, in the judgment of the Committee, not less than
one hundred percent (100%) of the Fair Market Value of a share
of the Common Stock on the Effective Date. 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. Exercise . Subject
to the provisions, limitations and other relevant provisions of the
Plan and of this Agreement, and the earlier expiration of the
Option as herein provided, Employee may exercise the Option to
purchase some or all of the Shares as follows:
(a) The Option shall become
exercisable in three cumulative equal annual installments as
follows:
(i) on the first anniversary of the
Effective Date, the right to purchase one-third of the aggregate
number of Shares shall become exercisable without further action by
the Committee;
(ii) on the second anniversary of
the Effective Date, the right to purchase an additional one-third
of the aggregate number of Shares shall become exercisable without
further action by the Committee; and
(iii) on the third anniversary of
the Effective Date, the right to purchase the remaining one-third
of the aggregate number of Shares shall become exercisable without
further action by the Committee.
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(b) Notwithstanding any other
provision of this Agreement, the unexercised portion of the Option,
if any, will automatically and without notice terminate and become
null and void upon the expiration of ten (10) years from the
Effective Date of the Option.
(c) Any exercise by Employee of the
Option, or portion thereof, shall be conducted by delivery of an
irrevocable notice of exercise to the Company or its designee as
provided in the Plan. In no event shall Employee be entitled to
exercise the Option for less than a whole Share.
(d) Notwithstanding any other
provision of this Agreement, upon the occurrence of a Change in
Control, the Option shall become fully vested and immediately
exercisable in full on the date of the Change in Control. For
purposes hereof, “Change in Control” shall mean the
occurrence of any of the following events: (i) 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,
(A) 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 (B) 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; (ii) the dissolution or
liquidation of Dynegy, but excluding a reorganization pursuant to
chapter 11 of Title 11, U.S. Code, as amended; (iii) 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,
(A) if Dynegy has not engaged in a merger or consolidation,
Dynegy, or (B) if Dynegy has engaged in a merger or
consolidation, the resulting entity; (iv) 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 (v) 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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3. Termination of
Employment . The Option may be exercised only while
Employee remains an employee of the Company and will terminate and
cease to be exercisable upon Employee’s termination of
employment with the Company, except that:
(a) if Employee shall die while in
the employ of the Company, the Option awarded hereunder shall
immediately vest with respect to all of the remaining Shares and
become fully exercisable without further action by the Committee,
and Employee’s legal representative, or the person, if any,
who acquired the Option by bequest or inheritance or by reason of
the death of Employee, may exercise the Option, to the extent not
previously exercised, in respect of any or all such Shares at any
time up to and including the date three (3) years after the
date of death, after which date the Option will automatically and
without notice terminate and become null and void; and
(b) if Employee’s employment
with the Company terminates by reason of disability (as defined in
the Company’s long term disability program or plan in which
Employee is a participant or, if 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), the Option
awarded hereunde
