ex10-2.htm


    EXHIBIT
10.2

      PERFORMANCE
AWARD AGREEMENT

      


      THIS PERFORMANCE AWARD
AGREEMENT (this “Agreement”) is made as of the ___th day of March, 2010,
between DYNEGY INC., a Delaware corporation (“Dynegy”), and all of its
Affiliates (collectively, the “Company”), and _____________________
(“Employee”).  A copy of the Dynegy Inc. ________ Long Term 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 March ___, 2010
(“Effective Date”), a Performance Award of _________ performance units, each of
which has a designated value of $100 and represents the right to receive an
amount payable in the form of cash or shares of Dynegy’s Class A Common Stock (a
“Share” or “Shares”), as determined in the discretion of the
Committee.  Employee acknowledges receipt of a copy of the Plan, and
agrees that this Performance Award 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.  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. Performance
Period and Performance Goals.  Subject to the provisions of
Section 5 of this Agreement, the performance period for purposes of determining
whether the Performance Award will be paid shall be March ___, 2010 through
March ___, 2013 for the two-thirds of the Performance Award that is based on
stock-price performance (with the final payout to be based on average
stock-price performance for February 2013) and shall be January 1, 2010 through
December 31, 2012 for the one-third of the Performance Award that is based on
accumulated Adjusted EBITDA (collectively, the “Performance
Period”).  The performance goals for purposes of determining whether,
and the extent to which, the Performance Award will be paid are set forth in
Exhibit
1 to this Agreement, which Exhibit is made a part of this
Agreement.  Notwithstanding the foregoing, for awards that are not designated as Qualified
Performance-Based Awards, the Committee shall have discretion to adjust the
performance goals to reflect actions undertaken in the best interest of the
Company and its shareholders, including, but not limited to, strategic
transactions affecting the performance goals as well as recapitalizations,
reorganizations, mergers, consolidations, split-ups, split-offs, spin-offs,
exchanges or other relevant changes in capitalization or structure of the
Company, and for awards that are designated as Qualified
Performance-Based Awards, the Committee may disregard or offset the effect of
any “Extraordinary Items” in determining the attainment of performance
goals.  For this purpose, “Extraordinary Items” means extraordinary,
unusual and/or non-recurring items, including but not limited to, (a)
restructuring or restructuring-related charges, (b) gains or losses on the
disposition of a business or major asset, (c) changes in business conditions,
regulatory, tax or accounting regulations or laws, (d) resolution and/or
settlement of litigation and other legal proceedings or (e) the effect of a
merger or acquisition.

      


      3. Payment.  Subject
to the provisions of Sections 4 and 5 of this Agreement, after the Performance
Period, the Performance Award shall be paid as soon as practicable after the
Committee determines whether and to what extent the performance goals have been
achieved for the Performance Period in accordance with the terms set forth in
Exhibit
1 to this Agreement; provided, however, that any such payment shall be
made no
later than March 15, 2013.

      


      4. Termination.  The
Performance Award and the Employee’s right to receive any cash or Shares
hereunder will automatically and without notice terminate and become null and
void upon Employee’s termination of employment with the Company prior to the
Performance Award payment date, except that:

       

                   (a) if
Employee’s termination of employment is by reason of:

         

      

      (1) death,

      


      (2) retirement
by Employee following (A) the date on which such Employee has reached sixty (60)
years of age and (B) at least ten (10) years of service as an employee of the
Company, or

      


      (3) Involuntary
Termination (as defined in the Dynegy Inc. Executive Severance Pay Plan, as
amended and restated effective January 1, 2008), or

      


      (4) a Change
in Control Termination occurring in connection with, but in no event earlier
than sixty (60) days prior to, a Change in Control, or

      


      (b) if
Employee is determined to be disabled (as defined in the Company’s long term
disability program or the 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),

      


      Employee
shall be treated as if he or she had been continuously employed by the Company
through the Performance Award payment date.  In such case, Employee or
Employee’s legal representative, or the person, if any, who acquired the
Performance Award by bequest or inheritance or by reason of the death of
Employee, shall be entitled to receive any payment with respect to the
Performance Award in accordance with this Agreement; provided, however, that if
Employee’s termination of employment is for the reason described in Sections
4(a)(3), any such payment shall be prorated by multiplying the payment by a
fraction, the numerator of which shall be the number of calendar days that
elapsed between the date of Employee’s termination and the Effective Date and
the denominator of which shall be 1,080 but in no case shall such fraction be
greater than one (1).

      


      For
purposes of this Agreement, the term “Cause” shall mean, and hence arise where,
as determined by the Committee in its sole discretion, Employee (i) has been
convicted of a misdemeanor involving moral turpitude or a felony; (ii) has
failed to substantially perform the duties of such Employee to the Company
(other than such failure resulting from Employee’s incapacity due to physical or
mental condition) which results in a materially adverse effect upon the Company,
financial or otherwise; (iii) has refused without proper legal reason to perform
Employee’s duties and responsibilities to the Company; or (iv) has breached any
material corporate policy maintained and established by the Company that is
applicable to Employee, provided such breach results in a materially adverse
effect upon the Company, financial or otherwise.  In addition, the
term “Change in Control Termination” shall mean Employee’s employment is
terminated by the Company (or a successor thereto) without Cause, or by Employee
following: (A) a significant diminution in Employee’s responsibilities,
authority or duties; (B) a material reduction in Employee’s base salary; or (C)
relocation of Employee’s principal place of employment by 50 miles or more, all
as determined by the Committee in its sole discretion.

      


      5. Change In
Control. In the event a “Change in Control” (as defined below) occurs
during the Performance Period, provided the ending Share price, as determined in
accordance with this Section 5, would entitle Employee to receive a Performance
Award based upon the performance goals set forth in Exhibit
1 to this Agreement, Employee shall receive a payment with respect to the
Performance Award, which shall be determined by using either, as applicable (a)
the agreed price per Share received by the shareholders of Dynegy as a result of
the Change in Control transaction, or if there is no agreed price per Share,
then (b) the average closing Share price for the twenty (20) consecutive trading
days immediately preceding the effective date of the Change in Control, as the
ending Share price for the Performance Period.  Such payment, if any,
shall be made regardless of whether Employee’s employment with the Company is
terminated (other than For Cause) on or after the effective date of such Change
in Control, and shall be made in the form of cash to Employee as soon as
administratively feasible but no later than the later of December 31 of the
calendar year in which the Change in Control occurs or the 15th day
of the third month following the effective date of the Change in
Control.  The Performance Period shall end as of the effective date of
a Change in Control, and any Performance Award payments hereunder shall only be
made in accordance with this Section 5.

      


      If the amount paid in settlement of the
Performance Award pursuant to the preceding paragraph is zero, then,
notwithstanding any other provision of the Performance Award, Employee shall
receive a payment equal to 100% of the amount that would have been paid had the
Performance Period ended on the date of the Change in Control and the Target set
out on Exhibit I of the Performance Award had been achieved.  Such
payment shall be made in the form of cash to Employee as soon as
administratively feasible but no later than the later of December 31 of the
calendar year in which the Change in Control occurs or the 15th day of the third
month following the effective date of the Change in Control. Notwithstanding
anything in this Agreement to the contrary, in the event of a Change
in Control during the Performance Period, Employee shall receive a minimum
payment equal to 100% of each $100 performance unit covered by this
Performance Award.

      


      For
purposes of this Agreement, “Change in Control” shall mean the occurrence of any
of the following events: (1) 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; (2) 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; or (3) 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.  For purposes of the “Change in Control”
definition, (A) “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 (B) 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.

      


      6. Status of
Stock.  Employee agrees that any Shares distributed pursuant to
this Agreement will not be sold or otherwise disposed of in any manner which
would constitute a violation of any applicable federal or state securities
laws.  Employee also agrees that (a) the certificates representing the
Shares may bear such legend or legends as the Committee in its sole discretion
deems appropriate in order to assure compliance with applicable securities laws
and (b) the Company may refuse to register the transfer of the Shares on the
stock transfer records of the Company, and may give related instructions to its
transfer agent, if any, to stop registration of such transfer, if such proposed
transfer would in the opinion of counsel satisfactory to the Company constitute
a violation of any applicable securities law.

      


      7. Employment
Relationship.  For purposes of this Agreement, Employee shall
be considered to be in the employment of the Company as long as Employee remains
an employee of the Company or an Affiliate (as such term is defined in the
Plan).  Nothing in the adoption of the Plan or the grant of the
Performance Award thereunder pursuant to this Agreement shall confer upon
Employee the right to continued employment by the Company or affect in any way
the right of the Company to terminate such employment at any
time.  Unless otherwise provided in a written employment agreement or
by applicable law, Employee’s employment by the Company shall be on an at-will
basis, and the employment relationship may be terminated at any time by either
Employee or the Company for any reason whatsoever, with or without
cause.  Any question as to whether and when there has been a
termination of such employment, and the cause of such termination, shall be
determined by the Committee in its sole discretion, and its determination shall
be final and binding on all parties.

      


      8. Withholding
of Tax.  To the extent that payment of the Performance Award
results in compensation income to Employee for federal or state income tax
purposes, the Company is authorized to withhold from any cash or Shares
distributable to the Employee under this Agreement) then or thereafter payable
to Employee any tax required to be withheld by reason of such resulting
compensation income.

      


      9. Miscellaneous.

      


      (a) This
grant is subject to all the terms, conditions, limitations and restrictions
contained in the Plan.  In the event of any conflict or inconsistency
between the terms hereof and the terms of the Plan, the terms of the Plan shall
be controlling.  In the event of any conflict or inconsistency between
the terms hereof and the terms of the Dynegy Inc. Executive Severance Pay Plan,
including any amendments or supplements thereto, or the Dynegy Inc. Severance
Pay Plan, including any amendments or supplements thereto, the terms hereof
shall be controlling.

      


      (b) Any
notices or other communications provided for in this Agreement shall be
sufficient if in writing. In the case of Employee, such notices or
communications shall be effectively delivered when hand delivered to Employee at
his or her principal place of employment or when sent by registered or certified
mail to Employee at the last address Employee has filed with the Company. In the
case of the Company, such notices or communications shall be effectively
delivered when sent by registered or certified mail to the Company at its
principal executive offices.

      


      (c) Employee
shall be presumed to have agreed to and accepted the terms of this Agreement
unless he or she submits a written objection to the Committee or the undersigned
officer within 30 days after the Effective Date.

      


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      IN WITNESS WHEREOF, the
Company has caused this Agreement to be duly executed by an officer thereunto
duly authorized as of the date first above written.

      


      DYNEGY
INC.

       

      


      By:          /s/ J. Kevin
Blodgett______________

      


      Name:     J.
Kevin Blodgett

      


      
        	
                 
      

              	
                Title:

              	
                General
      Counsel & EVP, Administration

              


      

      


      


      



      
        
           


        

        
           


           


        

        
           


        

      


      Exhibit
1

      


      Performance Unit Award
Summary

      


      For 2010
Long Term Incentive grants made to those at the Managing Director and above
level, the Compensation and Human Resources Committee decided to base two-thirds
of the performance unit awards on long-term stock price performance and
one-third of the performance units awards on accumulated Adjusted EBITDA, each
over a three year period.  The Committee believes these metrics
provide a simple, transparent and meaningful measure of Dynegy’s performance
relative to its long-term goal of creating value for
stockholders.  The material terms of the performance units are
summarized below:

      


      
        	
                ·  

              	
                Denominated
      in $100 units, which are payable in the form of cash or stock, at the
      Compensation and Human Resources Committee’s
  discretion;

              


      

      


      
        	
                ·  

              	
                With
      respect to two-thirds of the award, payment (if any) will be made in
      accordance with Section 3 of the Agreement based on Dynegy’s three-year
      stock price performance;

              


      

      


      
        	
                ·  

              	
                Starting share price is
      the average closing price of Dynegy’s Class A common stock for the month
      February 2010 ($______);

              


      

      


      
        	
                ·  

              	
                Ending
      share price will be the average closing price of Dynegy’s Class A common
      stock during the month of February
2013;

              


      

      


      
        	
                ·  

              	
                Awards
      are payable at threshold, target, and maximum levels as illustrated in the
      table below; and

              


      

      


      Stock
Price Performance Goals for Performance Period

      (March
3, 2010 — March 3, 2013)

      


      
        	 
      	 
      	
                Threshold

              	
                Target

              	
                Maximum

              
	
                Performance
      Goals

              	
                Dynegy
      Inc.

                Achieved
      Share Price*

              	
                $2.50

              	
                $4.00

              	
                $6.00

              
	
                Payment
      Levels**

              	
                %
      of each $100 Performance Unit

              	
                0%

              	
                100%

              	
                200%

              


      

      


      *Achieved
Share Price shall be the ending Share price equal to the average closing Share
price for the month of February 2013 or, if applicable, the ending Share price
determined in accordance with Section 5 of the Agreement in the event of a
Change in Control.

      


      **Payment
levels will be based upon the actual Achieved Share Price and will be
interpolated between Achieved Share Price goals.

      


      
        	
                ·  

              	
                With
      respect to one-third of the award, payment (if any) will be made in
      accordance with Section 3 of the Agreement based on Dynegy’s Adjusted
      EBITDA over the three year award period.  The starting date for
      this period shall be January 1, 2010 and the end date shall be December
      31, 2012.

              


      

      


      
        	
                ·  

              	
                For
      purposes of this Agreement, the term Adjusted EBITDA shall be determined
      based on the “Adjusted EBITDA” public guidance construction disclosed to
      the investing community;

              


      

      


      
        	
                ·  

              	
                Awards
      are payable at threshold, target, and maximum levels as illustrated in the
      table below; and

              


      

      


      Adjusted
Performance Goals for Performance Period

      (January
1, 2010 — December 31, 2012)

      


      
        	 
      	
                Threshold

              	
                Target

              	
                Maximum

              
	
                Adjusted
      EBITDA+

              	
                $1.4
      billion

              	
                $1.6
      billion

              	
                $2.0
      billion

              
	
                Payment
      Levels++

              	
                0%

              	
                100%

              	
                200%

              


      

      


      +
Calculated based on Adjusted EBITDA as determined for the fiscal years ending
December 31, 2010, December 31, 2011 and December 31, 2012.

      


      ++Payment
levels will be based upon the Adjusted EBITDA and will be interpolated between
Adjusted EBITDA goals.