SEMCO ENERGY, INC. RESTRICTED STOCK UNIT AWARD AGREEMENT
Exhibit
10.10 - Form of Restricted Stock Unit Award Agreement
SEMCO
ENERGY, INC.
2004
Stock Award and Incentive Plan
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Grantee:
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[Insert
Name]
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Xxxxx:
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[Insert
# Units]
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Grant
Date:
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[Insert
Date]
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THIS
RESTRICTED STOCK UNIT AWARD AGREEMENT is effective as of the Grant Date stated
above, by and between SEMCO Energy, Inc. and the Grantee.
WHEREAS,
the Restricted Stock Units described in this Agreement have been granted
pursuant to, and are governed by, the Plan;
NOW,
THEREFORE, the Company and the Grantee hereby agree as follows:
1. Restricted
Stock Unit Grant.
Subject
to the terms and conditions of this Agreement, the Company hereby grants to
Grantee the Restricted Stock Units as specified above.
2. Vesting.
Except
as stated in Section 3 of this Agreement, the Grantee shall become vested in
the
Restricted Stock Units in accordance with the following schedule:
(a) [Insert
#] Units shall become vested on [Insert 1st
Anniversary Date], provided that Xxxxxxx remains actively employed by the
Company on such date;
(b) [Insert
#] Units shall become vested on [March 31, 2006], provided that the performance
objectives established by the Committee for the performance period beginning
on
[March 31, 2005] and ending on [March 31, 2006] (as set forth in Schedule A
to
the Agreement) have been satisfied as of such date; and
(c) [Insert
#] Units shall become vested on [March 31, 2007], provided that the performance
objectives established by the Committee for the performance period beginning
on
[March 31, 2006] and ending on [March 31, 2007] (as set forth in Schedule A
to
the Agreement) have been satisfied as of such date.
3. Accelerated
Vesting.
Notwithstanding the vesting requirements specified in Section 2 of this
Agreement, all Restricted Stock Units shall become 100% vested upon the earliest
to occur of the following vesting dates:
| (i) | the Grantee’s Retirement Date; |
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(ii)
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the
Grantee’s Disability Retirement
Date;
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(iii)
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the
date of the Grantee’s death prior to his termination of employment from
the Company;
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(iv)
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the
date the Company terminates the Grantee’s employment without Cause;
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(v)
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the
date the Grantee terminates his employment with Good Reason;
or
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(vi)
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the
date of a Change in Control.
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4. Delivery of Shares.
On
[June 1, 2007], the Company shall pay to Grantee a number of shares of Stock
equal to the number of Restricted Stock Units that have vested pursuant to
Sections 2(a), 2(b) and 2(c). Certificates representing such shares of Stock
shall be delivered to the Grantee as soon as practicable thereafter.
5. Ownership
Rights.
Upon
payment of the Shares in accordance with Section 4 above, the Grantee shall
exercise all ownership rights (including, without limitation, the right to
vote
and the right to receive dividends) with respect to such shares, provided that
voting and dividend rights with respect to the shares will be exercisable only
if the record date for determining shareholders entitled to vote, or to receive
dividends, falls on or after the date of such payment.
6. Deferral
of Exercise or Delivery of Shares.
Notwithstanding any provision in this Agreement to the contrary, if any law
or
regulation of any governmental authority having jurisdiction in the matter
requires the Company, the Committee or the Grantee to take any action or refrain
from action in connection with the award of or delivery of Restricted Stock
Units or Stock under this Agreement, or to delay such award or delivery, then
the award or delivery of such shares shall be deferred until such action has
been taken or such restriction on action has been removed.
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7. General
Provisions.
The
Grantee acknowledges that he has read, understands and agrees with all of the
provisions in this Agreement and the Plan, including (but not limited to) the
following:
(a) Authority
of Committee.
The
Committee shall have all the authority set forth in the Plan including, but
not
limited to, the authority to administer the Agreement and the Plan; to make
all
determinations with respect to the construction and application of the
Agreement, the Plan, and the resolutions of the Board of Directors establishing
the Plan; to adopt and revise rules relating to the Agreement and the Plan;
and
to make other determinations which it believes are necessary or advisable for
the administration of the Agreement and the Plan. Any dispute or disagreement
which arises under this Agreement or the Plan shall be resolved by the Committee
in its absolute discretion. Any such determination, interpretation, resolution,
or other action by the Committee shall be final, binding and conclusive with
respect to the Grantee and all other persons affected thereby.
(b) Notices.
Any
notice which is required or permitted under this Agreement shall be in writing
(unless otherwise specified in the Agreement or in a writing from the Company
to
the Grantee), and delivered personally or by mail, postage prepaid, addressed
as
follows: (i) if to the Company, at 0000 Xxxxx Xxxxxx, Xxx. A, Port Huron,
Michigan 48060, Attention: Corporate Secretary, or at such other address as
the
Company by notice to the Grantee may have designated from time to time; (ii)
if
to the Grantee, at the address indicated in the Grantee's then-current personnel
records, or at such other address as the Grantee by notice to the Company may
have designated from time to time. Such notice shall be deemed given upon
receipt.
(c) Taxation.
The
Grantee shall be responsible for all applicable income and withholding taxes
and
the employee share of FICA taxes with respect to any compensation income
generated with respect to his vested Restricted Stock Units under this
Agreement. The Company may reduce the number of Restricted Stock Units (and
shares of Stock) to pay the applicable FICA withholding taxes on the vested
Restricted Stock Units and any federal and state income tax withholdings related
to such FICA amount.
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(d) Nontransferability.
This
Agreement and the Restricted Stock Units granted to the Grantee shall be
nontransferable and shall not be sold, hypothecated or otherwise assigned or
conveyed by the Grantee to any other person, except as specifically permitted
in
this Agreement. No assignment or transfer of this Agreement or the rights
represented thereby, whether voluntary or involuntary, or by operation of law
or
otherwise, shall vest in the assignee or transferee any interest or right
whatsoever, except as specifically permitted in this Agreement. The Agreement
shall terminate, and be of no force or effect, immediately upon any attempt
to
assign or transfer the Agreement or any of the Restricted Stock Units to which
the Agreement applies.
(e) Designation
of Beneficiary. Notwithstanding
anything in Section 7(d) to the contrary, the Grantee may designate a person
or
persons to receive, in the event of his death, any rights to which he would
be
entitled under this Agreement. Such a designation shall be filed with the
Company in accordance with uniform procedures specified by the Committee. The
Grantee may change or revoke a Beneficiary designation at any time by filing
a
written statement of such change or revocation with the Company in accordance
with uniform procedures specified by the Committee. No Beneficiary designation
or change of Beneficiary designation will be effective until notice thereof
is
received. If Xxxxxxx fails to designate a Beneficiary or if the Beneficiary
predeceases the Grantee, the legal representative of Xxxxxxx's estate shall
be
deemed to be his Beneficiary for purposes of this Agreement. The Grantee is
not
required to obtain spousal consent to designate someone other than the spouse
as
beneficiary.
(f) No
Shareholder Rights.
Except
as otherwise specifically provided in Section 5 of this Agreement, the Grantee
shall have no rights as a shareholder of the Company and shall not be deemed
to
be a shareholder of the Company for any purpose.
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(g) Not
an Employment Contract.
This
Agreement shall not be deemed to limit or restrict the right of the Company
to
terminate the Grantee's employment at any time, for any reason, with or without
cause, or to limit or restrict the right of the Grantee to terminate his
employment with the Company at any time.
(h) Amendment
or Termination.
This
Agreement may be amended or terminated at any time by the mutual agreement
and
written consent of the Grantee and the Committee, but only to the extent
permitted under the Plan.
(i) Governing
Instrument.
This
Agreement is subject to all terms and conditions of the Plan and shall at all
times be interpreted in a manner that is consistent with the intent, purposes,
and specific language of the Plan.
(j) Severability.
If any
provision of this Agreement should be held illegal or invalid for any reason
by
the Committee or court of applicable jurisdiction, such determination shall
not
affect the other provisions of this Agreement, and it shall be construed as
if
such provision had never been included herein.
(k) Headings/Gender.
Headings in this Agreement are for convenience only and shall not be construed
to be part of this Agreement. Any reference to the masculine, feminine or neuter
gender shall be a reference to other genders as appropriate.
(l) Governing
Law.
This
Agreement shall be construed, and its provisions enforced and administered,
in
accordance with the laws of the State of Michigan and, where applicable, federal
law.
8. Definitions.
All
capitalized terms shall have the meaning set forth in the Plan or, if not
defined in the Plan, shall be defined as set forth below.
(a) Cause
has the
meaning specified in Section 4.1.3 of the Severance Agreement.
(b) Change
in Control has
the
meaning specified in Section 4.6 of the Severance Agreement.
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(c) Company
means
SEMCO Energy, Inc., its successors and assigns, and any other company or other
entity, whether foreign or domestic, in which the Company has or obtains,
directly or indirectly, a proprietary interest of more than eighty percent
(80%)
by reason of stock ownership or otherwise.
(d) Disability
Retirement Date
means
the date of the Optionee’s termination of employment from the Company due to
Disability. For purposes of this Agreement, Disability is defined as, the
Employee (a) is unable to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be
expected to result in death or can be expected to last for a continuous period
of not less than 12 months or (b) is, by reason of any medically determinable
physical or mental impairment which can be expected to result in death or can
be
expected to last for a continuous period of not less than 12 months, receiving
income replacement benefits for a period of not less than 3 months under an
accident and health plan covering employees of the Company.
(e) Severance
Agreement
means
the severance agreement entered into as of [Insert Date] by and between SEMCO
Energy, Inc. and Grantee.
(f) Good
Reason
has the
meaning specified in Section 4.2.1 of the Severance Agreement.
(g) Grant
means
the
number of Restricted Stock Units specified on the first page of this
Agreement.
(h) Grant
Date
means
the date set forth on the first page of this Agreement.
(i) Grantee
means
the Eligible Person named on the first page of this Agreement.
(j) Plan
means
the SEMCO Energy, Inc.2004 Stock Award and Incentive Plan, as adopted by the
Board of Directors on March 12, 2004, and approved by the Company’s shareholders
on May 24, 2004, and as amended from time to time.
(k) Restricted
Stock Units
means
the measurement unit, representing shares of Stock, which is granted under
the
terms and conditions of this Agreement.
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(l) Retirement
Date
means
the Grantee’s date of termination from the Company on which Grantee is eligible
to receive an immediate annuity under the terms of the SEMCO Energy, Inc.
Retirement Plan (or any successor tax-qualified retirement plan maintained
for
salaried employees of the Company).
IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
duly authorized officers under its corporate seal, and the Grantee has executed
this Agreement, as of the day and year first above written.
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SEMCO
ENERGY, INC.
By:____________________________
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ATTEST:
__________________________
Corporate
Secretary
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GRANTEE
_______________________________
Name:__________________________
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SCHEDULE
A
PERFORMANCE
TARGETS
Performance
Requirement for the vesting of units identified in Article 2 (b) [Insert #
Units]
_________________________________________________________________________________________________________________________________________________________________________________________________________
Performance
Requirement for the vesting of units identified in Article 2 (c) [Insert #
Units]
_________________________________________________________________________________________________________________________________________________________________________________________________________
GRANTEE
ACKNOWLEDGMENT
I,
the
undersigned, hereby affirm that I have read the Restricted Stock Unit Award
Agreement and this Schedule A and understand the terms and conditions of this
award.
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Printed Name |
Date |
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Signature |
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