EX-10.20.2






Exhibit 10.20.2




US POWER GENERATING COMPANY




2007 Stock Incentive Plan

(the “Plan”)




Restricted Stock Units Agreement




     This Restricted Stock Units Agreement (the “Agreement”) confirms the grant on                     ,
200___ (the “Grant Date”) by US POWER GENERATING COMPANY, a Delaware corporation (the “Company”), to
«First_Name» «Last_Name» (“Employee”), for the purpose set forth in Section 1 of the Plan, of
Restricted Stock Units (the “RSUs”), pursuant to Section 6(d) of the Plan, as follows:



	 	 	 
	Number granted:

	 	«Final_Approved_Grant» RSUs
	 
	 	 
	RSUs vest:

	 	All RSUs, if not previously forfeited, will vest the “Stated Vesting
Date” as follows:






	 	 	 	 	 
	 

	 	Stated Vesting Date
	 	Vested Percentage or Number of RSUs Vested
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 





	 	 	 
	 

	 	Provided, however, that such RSUs will become immediately vested upon
a Change in Control or vested as provided in Section 4 hereof upon
the occurrence of certain events relating to Termination of
Employment (as defined below).
	 
	 	 
	Settlement:

	 	RSUs granted hereunder will be settled by delivery of one share of the Company’s
Common Stock, par value $0.00001 per share (a “Share”), for each RSU being settled.
Such settlement shall occur at or within 15 days after the Stated Vesting Date of each
RSU as specified above, except settlement may occur prior to the Stated Vesting Date as
specified in Section 4 hereof:






 









 





* * * * * *




     The RSUs are subject to the terms and conditions of the Plan and this Agreement, including the
Terms and Conditions of Restricted Stock Units attached hereto. The number of RSUs and the kind of
Shares deliverable in settlement of RSUs are subject to adjustment in accordance with Section 5
hereof and Section 11(c) of the Plan.



     Employee acknowledges and agrees that (i) the RSUs are nontransferable, except as provided in
Section 3 hereof and Section 11(b) of the Plan, (ii) the RSUs, and certain amounts of gain realized
upon settlement of the RSUs, are subject to forfeiture in the event Employee fails to meet
applicable requirements relating to non-competition, confidentiality, non-solicitation of
customers, suppliers, business associates, employees and service providers, non-disparagement and
cooperation in litigation with respect to the Company and its subsidiaries and affiliates, and in
the event of financial reporting misconduct in specified circumstances, as set forth in Section 6
hereof and Section 10 of the Plan, (iii) the RSUs are subject to forfeiture in the event of
Employee’s Termination of Employment in certain circumstances, as provided in Section 4 hereof,
(iv) sales of Shares delivered in settlement of the RSUs will be subject to the Company’s policies
regulating securities trading by employees and the securities laws of the United States and (v) a
copy of the Plan has previously been delivered to Employee or is available as specified in Section
1 below.



     IN WITNESS WHEREOF, US Power Generating Company has caused this Agreement to be executed by
its officer thereunto duly authorized, and Employee has duly executed this Agreement, as of the
Grant Date, both parties intending to be legally bound hereby.



	 	 	 
	Employee

	 	US POWER GENERATING COMPANY
	 
	 	 
	 
	 	 
	 

	 	By:
	 

	 	 
	«First_Name» «Last_Name»

	 	[Name]
	 

	 	[Title]






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TERMS AND CONDITIONS OF RESTRICTED STOCK UNITS




     The following Terms and Conditions apply to the RSUs granted to Employee by the Company, as
specified on the preceding page. Certain specific terms of the RSUs, including the number of RSUs
granted, vesting date(s) and settlement date(s), are set forth on the preceding pages.



     1. General. The RSUs are granted to Employee under the Company’s 2007 Stock Incentive Plan
(the “Plan”), a copy of which is available for review, along with other documents relating to the
Plan, on the Company’s intranet site. All of the applicable terms, conditions and other
provisions of the Plan are incorporated by reference herein. Capitalized terms used in this
Agreement but not defined herein (or on the preceding pages) shall have the same meanings as in the
Plan. If there is any conflict between the provisions of this document and mandatory provisions of
the Plan, the provisions of the Plan govern. By accepting the grant of the RSUs, Employee agrees
to be bound by all of the terms and provisions of the Plan (as presently in effect or later
amended), the rules and regulations under the Plan adopted from time to time, and the decisions and
determinations of the Company’s Compensation Committee (the “Committee”) made from time to time,
provided that no such Plan amendment, rule or regulation or Committee decision or determination
shall materially and adversely affect the rights of the Employee with respect to outstanding RSUs
without the Employee’s consent.



     2. Account for Employee. The Company shall maintain a bookkeeping account for Employee (the
“Account”) reflecting the number of RSUs then credited to Employee hereunder as a result of such
grant of RSUs.



     3. Nontransferability. Until RSUs become settleable in accordance with the terms of this
Agreement, Employee may not transfer RSUs or any rights hereunder to any third party other than by
will or the applicable laws of descent and distribution, except for transfers to a Beneficiary or
otherwise if and to the extent permitted under Section 11(b) of the Plan and subject to the
conditions specified in Section 11(b) of the Plan and otherwise specified by the Company.



     4. Termination Provisions; Change in Control. The following provisions will govern the vesting
and forfeiture of the RSUs in the event of Employee’s Termination of Employment (as defined below),
unless otherwise determined by the Committee (subject to Section 9(a) hereof):




     (a) Death or Disability. Subject to Section 3 above, in the event of Employee’s
Termination of Employment due to death or Disability (as defined below) all of the RSUs, to
the extent then outstanding but not previously vested, will vest and become non-forfeitable
immediately, and such RSUs, together with any then-outstanding RSUs that previously became
vested and non-forfeitable, will be settled within 60 days thereafter if not previously
settled.




     (b) Retirement. In the event of Employee’s Termination of Employment due to Retirement
(as defined below), the RSUs, to the extent outstanding but not previously vested or
otherwise forfeited, will continue to be outstanding and will be not be forfeited solely as
a result of such Retirement. Until such RSUs become vested, they will remain subject to
forfeiture if there occurs a Forfeiture Event as defined in Section 10 of the Plan (without
limiting the effect of Section 10 with respect to other periods). Subject to Section 3
above, such RSUs will be settled at or within 15 days after the earliest of the original
settlement date as provide herein, the occurrence of death or Disability, or as provided
under Section 4(d).




     (c) Termination by the Company or Termination Voluntarily by Employee. In the event of
Employee’s Termination of Employment by the Company, with or without Cause, or by Employee
voluntarily (other than a Retirement), the outstanding RSUs not vested at the date of
termination will be forfeited (unless otherwise determined by the Committee in the case of a
Termination by the Company not for Cause), and the portion of the then-outstanding RSUs that
is vested and non-forfeitable at the date of Termination of Employment and not previously
settled will be settled within 15 days after the earliest of the original settlement date as
provided herein, the occurrence of death or Disability, or as provided under Section 4(d).



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     (d) Change in Control. Upon a Change in Control, vesting of RSUs shall occur as
specified on the cover page hereof. RSUs that are vested but not previously settled will be
settled immediately upon the occurrence of the Change in Control, except that, in the case
of any RSU that constitutes a deferral of compensation for purposes of Section 409A of the
Internal Revenue Code, if the Change in Control does not include an event that constitutes a
change in ownership or effective control of the Company or a change in the ownership of a
substantial portion of the assets of the Company within the meaning of Treas. Reg. §
1.409A-3(i)(5), such RSUs will be settled at the earliest date thereafter at which the RSUs
otherwise would have been settled hereunder.




     (e) Certain Definitions. The following definitions apply for purposes of this
Agreement:




     (i) “Cause” has the meaning set forth in the Plan.




     (ii) “Disability” means a disability as defined under Treas. Reg. §
1.409A-3(i)(4), as determined by the Company based upon written evidence of such
disability from a medical doctor in a form satisfactory to the Company.




     (iii) “Retirement” means Termination of Employment by either the Company or
Employee either (A) at or after Employee has attained age 62 or (B) at or after
Employee has attained age 60 with at least ten years of service to the Company,
provided that a Termination of Employment by the Company for Cause shall not be
deemed a Retirement. For this purpose, any period of service by Employee to a
predecessor of the Company or to a company that has been acquired by the Company
shall be counted toward years of service with the Company.




     (iv) “Termination of Employment” means the event by which Employee ceases to be
employed by the Company or any subsidiary of the Company and, immediately
thereafter, is not employed by or providing substantial services to any of the
Company or a subsidiary of the Company. If Employee is granted a leave of absence
for military or governmental service or other purposes approved by the Board, he or
she shall be considered as continuing in the employ of the Company, or of a
subsidiary of the Company, for the purpose of this subsection, while on such
authorized leave of absence.




     5. Dividends Equivalents and Adjustments.




     (a) Dividend Equivalents. Dividend Equivalents will be credited on RSUs (other than
RSUs that, at the relevant record date, previously have been settled or forfeited) and
deemed reinvested in additional RSUs. Such crediting shall be as follows, except that the
Company may vary the manner of crediting (for example, by crediting cash Dividend
Equivalents rather than additional RSUs) for administrative convenience:




     (i) Cash Dividends. If the Company declares and pays a dividend or
distribution on Shares in the form of cash, then additional RSUs shall be credited
to Employee’s Account in lieu of payment or crediting of cash Dividend Equivalents
equal to the number of RSUs credited to Employee’s Account as of the relevant record
date multiplied by the amount of cash paid per Share in such dividend or
distribution divided by the Fair Market Value of a Share at the payment date for
such dividend or distribution.




     (ii) Non-Common Stock Dividends. If the Company declares and pays a non-cash
dividend or distribution on Shares in the form of property other than Shares, then a
number of additional RSUs shall be credited to Employee’s Account as of the payment
date for such dividend or distribution equal to the number of RSUs credited to
Employee’s Account as of the record date for such dividend or distribution
multiplied by the fair market value of such property actually paid as a dividend or
distribution on each outstanding Share at such payment date, divided by the Fair
Market Value of a Share at such payment date.



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     (iii) Common Stock Dividends and Splits. If the Company declares and pays a
dividend or distribution on Shares in the form of additional Shares, or there occurs
a forward split of Shares, then a number of additional RSUs shall be credited to
Employee’s Account as of the payment date for such dividend or distribution or
forward split equal to the number of RSUs credited to Employee’s Account as of the
record date for such dividend or distribution or split multiplied by the number of
additional Shares actually paid as a dividend or distribution or issued in such
split in respect of each outstanding Share.




     (b) Adjustments. The number of RSUs credited to Employee’s Account and/or the property
deliverable upon settlement of RSUs shall be appropriately adjusted (taking into account any
Dividend Equivalents credited under Section 5(a)) in order to prevent dilution or
enlargement of Employee’s rights with respect to RSUs in connection with, or to reflect any
changes in the number and kind of outstanding Shares resulting from, any corporate
transaction or event referred to in the first sentence of Section 11(c) of the Plan.




     (c) Risk of Forfeiture and Settlement of RSUs Resulting from Adjustments. RSUs (and
other property deliverable in settlement of RSUs) which directly or indirectly result from
the crediting of Dividend Equivalents under Section 5(a) or adjustments to RSUs under
Section 5(b) shall be subject to the same risk of forfeiture (including additional
forfeiture terms of Section 10 of the Plan) as applies to the original granted RSU and will
be settled at the same time as such original granted RSU.



     6. Additional Forfeiture Provisions. Employee agrees that, by signing this Agreement and
accepting the grant of the RSUs, the forfeiture conditions set forth in Section 10 of the Plan
shall apply to all RSUs hereunder and to gains realized upon the vesting of the RSUs. For the
purpose of the forfeiture conditions set forth in Section 10 of the Plan, gains will be deemed to
be realized at the time of vesting for any RSUs the settlement of which is deferred at the election
of Employee.



     7. Employee Representations and Warranties, Consents and Acknowledgements.




     (a) General. As a condition to the settlement of the RSUs, the Company may require
Employee to make any representation or warranty to the Company as may be required under any
applicable law or regulation, and to make a representation and warranty that no Forfeiture
Event has occurred or is contemplated within the meaning of Section 5(b) hereof and Section
10 of the Plan.




     (b) Securities Law Compliance. Neither the RSUs nor the Shares issuable in settlement
of the RSUs have been registered under the Securities Act of 1933, or any state securities
laws. No Shares may be issued hereunder if the issuance of such Shares would constitute a
violation of any applicable federal, state or foreign securities laws or other law or
regulations or the requirements of any stock exchange or market system upon which the Shares
may then be listed or quoted. As a condition to the settlement of the RSUs, the Company may
require Employee (or other person entitled to settlement) to satisfy any qualifications that
may be necessary or appropriate, to evidence compliance with any applicable law or
regulation.




     Employee acknowledges and agrees that Employee is acquiring the RSUs and underlying
Shares for investment and not with a view to distribution. Employee, by acceptance hereof,
consents to the placement of the following restrictive legends, or substantially similar
legends, on each certificate to be issued by the Company representing Shares issued in
settlement of the RSUs:




THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR QUALIFIED UNDER ANY STATE SECURITIES LAW, AND
MAY NOT BE OFFERED, SOLD, TRANSFERRED, ASSIGNED OR HYPOTHECATED UNLESS (A) THERE IS
AN EFFECTIVE REGISTRATION STATEMENT COVERING SUCH SECURITIES UNDER SUCH ACT AND
QUALIFICATION UNDER SUCH STATE SECURITIES LAWS OR (B)



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THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY STATING
THAT SUCH TRANSACTION IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SUCH ACT AND THE QUALIFICATION REQUIREMENTS UNDER APPLICABLE STATE
LAW.




The Company may also impose stop-transfer instructions with respect to the Shares subject to
the foregoing restrictions




     (c) Lock-Up for Initial Public Offering. In connection with the first underwritten
registration of the Company’s securities, Employee agrees that, upon the request of the
Company and the underwriters managing such underwritten offering of the Company’s
securities, Employee (or other person entitled to settlement of the RSUs) will not to sell,
make any short sale of, loan, grant any option for the purchase of, or otherwise dispose of
any of the Shares acquired hereunder (other than those included in the registration) without
the prior written consent of the Company and such underwriters, as the case may be, for such
period of time, not to exceed 180 days, from the effective date of such registration as the
underwriters may specify. The Company and underwriters may request such additional written
agreements in furtherance of such lock-up agreement in the form reasonably satisfactory to
the Company and such underwriter. The Company may also impose stop-transfer instructions
with respect to the Shares subject to the foregoing restrictions until the end of the
applicable lock-up period.




     (d) Consent Relating to Personal Data. By signing this Agreement, Employee voluntarily
acknowledges and consents to the collection, use, processing and transfer of personal data
as described in this Section 7(d). Employee is not obliged to consent to such collection,
use, processing and transfer of personal data. The Company and its subsidiaries hold, for
the purpose of managing and administering the Plan, certain personal information about
Employee, including Employee’s name, home address and telephone number, date of birth,
social security number or other employee identification number, salary, nationality, job
title, any Shares or directorships held in the Company, details of all RSUs and other equity
awards or any other entitlement to Shares awarded, canceled, purchased, vested, unvested or
outstanding in Employee’s favor (“Data”). The Company and/or its subsidiaries will transfer
Data among themselves as necessary for the purpose of implementation, administration and
management of Employee’s participation in the Plan and the Company and/or any of its
subsidiaries may each further transfer Data to any third parties assisting the Company in
the implementation, administration and management of the Plan. These recipients may be
located throughout the world, including the United States. Employee authorizes them to
receive, possess, use, retain and transfer the Data, in electronic or other form, for the
purposes of implementing, administering and managing Employee’s participation in the Plan,
including any requisite transfer of such Data as may be required for the administration of
the Plan and/or the subsequent holding of Shares on Employee’s behalf to a broker or other
third party with whom Employee may elect to deposit any Shares acquired pursuant to the
Plan. Employee may, at any time, review Data, require any necessary amendments to it or
withdraw the consents herein in writing by contacting the Company.




     (e) RSUs Represent Extraordinary Compensation Item. Employee’s participation in the
Plan is voluntary. The value of the RSUs is an extraordinary item of compensation. As
such, the RSUs are not part of normal or expected compensation for purposes of calculating
any severance, resignation, redundancy, end of service payments, bonuses, long-service
awards, pension or retirement benefits or similar payments. Rather, the awarding of the
RSUs to Employee under the Plan represents a mere investment opportunity.




     (f) Consent to Electronic Delivery. EMPLOYEE HEREBY CONSENTS TO ELECTRONIC DELIVERY OF
THE PLAN, ANY DISCLOSURE OR OTHER DOCUMENTS RELATED TO THE PLAN (COLLECTIVELY, THE “PLAN
DOCUMENTS”). THE COMPANY WILL DELIVER THE PLAN DOCUMENTS ELECTRONICALLY TO EMPLOYEE BY
E-MAIL, BY POSTING SUCH DOCUMENTS ON ITS INTRANET WEBSITE OR BY ANOTHER MODE OF ELECTRONIC
DELIVERY AS DETERMINED BY THE COMPANY IN ITS SOLE DISCRETION. THE COMPANY WILL SEND TO
EMPLOYEE AN E-MAIL ANNOUNCEMENT WHEN A NEW PLAN DOCUMENT IS AVAILABLE ELECTRONICALLY FOR
EMPLOYEE’S REVIEW,



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DOWNLOAD OR PRINTING AND WILL PROVIDE INSTRUCTIONS ON WHERE THE PLAN DOCUMENT CAN BE
FOUND. UNLESS OTHERWISE SPECIFIED IN WRITING BY THE COMPANY, EMPLOYEE WILL NOT INCUR ANY
COSTS FOR RECEIVING THE PLAN DOCUMENTS ELECTRONICALLY THROUGH THE COMPANY’S COMPUTER
NETWORK. EMPLOYEE WILL HAVE THE RIGHT TO RECEIVE PAPER COPIES OF ANY PLAN DOCUMENT BY
SENDING A WRITTEN REQUEST FOR A PAPER COPY TO THE ADDRESS SPECIFIED IN SECTION 9(d) HEREOF.
EMPLOYEE’S CONSENT TO ELECTRONIC DELIVERY OF THE PLAN DOCUMENTS WILL BE VALID AND REMAIN
EFFECTIVE UNTIL THE EARLIER OF (I) THE TERMINATION OF EMPLOYEE’S PARTICIPATION IN THE PLAN
AND (II) THE WITHDRAWAL OF EMPLOYEE’S CONSENT TO ELECTRONIC DELIVERY OF THE PLAN DOCUMENTS.
THE COMPANY ACKNOWLEDGES AND AGREES THAT EMPLOYEE HAS THE RIGHT AT ANY TIME TO WITHDRAW HIS
OR HER CONSENT TO ELECTRONIC DELIVERY OF THE PLAN DOCUMENTS BY SENDING A WRITTEN NOTICE OF
WITHDRAWAL TO THE ADDRESS SPECIFIED IN SECTION 9(e) HEREOF. IF EMPLOYEE WITHDRAWS HIS OR
HER CONSENT TO ELECTRONIC DELIVERY, THE COMPANY WILL RESUME SENDING PAPER COPIES OF THE PLAN
DOCUMENTS WITHIN TEN (10) BUSINESS DAYS OF ITS RECEIPT OF THE WITHDRAWAL NOTICE. EMPLOYEE
ACKNOWLEDGES THAT HE OR SHE IS ABLE TO ACCESS, VIEW AND RETAIN AN E-MAIL ANNOUNCEMENT
INFORMING EMPLOYEE THAT THE PLAN DOCUMENTS ARE AVAILABLE IN EITHER HTML, PDF OR SUCH OTHER
FORMAT AS THE COMPANY DETERMINES IN ITS SOLE DISCRETION.



     8. Other Terms Relating to RSUs.




     (a) Fractional RSUs and Shares. The number of RSUs credited to Employee’s Account
shall include fractional RSUs, if any, calculated to at least three decimal places, unless
otherwise determined by the Committee. Unless settlement is effected through a third-party
broker or agent that can accommodate fractional Shares (without requiring issuance of a
fractional Share by the Company), upon settlement of the RSUs Employee shall be paid, in
cash, an amount equal to the value of any fractional Share that would have otherwise been
deliverable in settlement of such RSUs.




     (b) Mandatory Tax Withholding. Unless otherwise determined by the Committee, at the
time of settlement the Company will withhold from any Shares deliverable in settlement of
the RSUs, in accordance with Section 11(d) of the Plan, the number of Shares having a value
approximately equal to the amount of income taxes, employment taxes or other withholding
amounts required to be withheld under applicable local laws and regulations, and pay the
amount of such withholding taxes in cash to the appropriate taxing authorities. The number
of Shares withheld will be subject to rounding up or down to the nearest whole Share, with a
view to ensuring that such Share withholding does not result in recognition of any
additional accounting expense by the Company. Employee will be responsible for any taxes
relating to the RSUs not satisfied by means of such mandatory withholding.




     (c) Statements. An individual statement of each Employee’s Account will be issued to
each Employee at such times as may be determined by the Company. Such a statement shall
reflect the number of RSUs credited to Employee’s Account, transactions therein during the
period covered by the statement, and other information deemed relevant by the Committee.
Such a statement may be combined with or include information regarding other plans and
compensatory arrangements for employees. Any statement containing an error shall not,
however, represent a binding obligation to the extent of such error.



     9. Miscellaneous.




     (a) Binding Agreement; Written Amendments. This Agreement shall be binding upon the
heirs, executors, administrators and successors of the parties. This Agreement constitutes
the entire agreement between the parties with respect to the RSUs, and supersedes any prior
agreements or documents with respect thereto. No amendment or alteration of this Agreement
which may impose any additional obligation upon the Company shall be valid unless expressed
in



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a written instrument duly executed in the name of the Company, and no amendment,
alteration, suspension or termination of this Agreement which may materially impair the
rights of Employee with respect to the RSUs shall be valid unless expressed in a written
instrument executed by Employee.




     (b) No Promise of Employment. The RSUs and the granting thereof shall not constitute
or be evidence of any agreement or understanding, express or implied, that Employee has a
right to continue as an officer or employee of the Company for any period of time, or at any
particular rate of compensation. Employee acknowledges and agrees that the Plan is
discretionary in nature and limited in duration, and may be amended, cancelled, or
terminated by the Company, in its sole discretion, at any time, provided, however that any
outstanding RSUs shall not be materially and adversely affected. The grant of RSUs under
the Plan is a one-time benefit and does not create any contractual or other right to receive
a grant of RSUs or benefits in lieu of RSUs in the future. Future grants, if any, will be
at the sole discretion of the Company, including, but not limited to, the timing of any
grant, the number of RSUs and vesting provisions.




     (c) Unfunded Plan. Any provision for distribution in settlement of Employee’s Account
hereunder shall be by means of bookkeeping entries on the books of the Company and shall not
create in Employee any right to, or claim against any, specific assets of the Company, nor
result in the creation of any trust or escrow account for Employee. With respect to
Employee’s entitlement to any distribution hereunder, Employee shall be a general creditor
of the Company.




     (d) Notices. Any notice to be given the Company under this Agreement shall be
addressed to the Company at its main offices, attention: General Counsel, and any notice to
the Employee shall be addressed to the Employee at Employee’s address as then appearing in
the records of the Company.




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