SEMCO ENERGY, INC. RESTRICTED STOCK GRANT AGREEMENT FOR DIRECTORS
Exhibit
10.9.10
SEMCO
ENERGY, INC.
2004
Stock
Award and Incentive Plan
RESTRICTED
STOCK GRANT AGREEMENT FOR DIRECTORS
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Grantee:
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[Name]
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Restricted
Stock Grant:
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[Number]
Shares
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Grant
Date:
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[Date]
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THIS
RESTRICTED STOCK GRANT AGREEMENT is
effective as of the Grant Date stated above, by and between SEMCO Energy,
Inc.
and the Grantee.
WHEREAS,
the shares of Restricted Stock
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 Grant. Subject to the terms and conditions of this
Agreement, the Company hereby grants to Grantee the number of shares of
Restricted Stock as specified above.
2. Vesting.
(a) Regular
Vesting Date. Except as stated in Section 2(b) of this
Agreement, the Grantee shall become one hundred percent (100%) vested in
the
shares of Restricted Stock granted pursuant to this Agreement on June 28,
2008.
(b) Accelerated
Vesting Dates. Notwithstanding the vesting requirements
specified in Section 2(a) of this Agreement, all shares of Restricted Stock
shall become 100% vested upon the occurrence of a Change in
Control.
3. Restrictions/Forfeitures. All
shares of Restricted Stock shall be subject to the following restrictions
until
their Vesting Date:
(a) Forfeiture
on Termination. Subject to Section 2 of this Agreement, if
the Grantee’s service as a Director terminates for any reason prior to the
Vesting Date for the shares
of
Restricted
Stock, the Grantee shall forfeit all rights with respect to such unvested
shares
of Restricted Stock, and the book entry account shall be null, void and of
no
effect as of the date the Grantee’s service as a Director
terminates.
(b) Nontransferability. Prior
to the Vesting Date with respect to the Restricted Stock, such shares of
Restricted Stock shall be nontransferable and may not be sold, hypothecated
or
otherwise assigned or conveyed by a Grantee to any party, except as otherwise
provided in Section 11(c) of the Plan.
(c) Additional
Shares. Any shares of Common Stock accruing to Restricted
Stock as a result of any adjustment under Section 11(c) of the Plan will
be
subject to the same restrictions (and have the same Vesting Dates) as the
shares
of Restricted Stock to which they accrue.
4. Delivery of Shares.
(a) Granted
Shares. The shares of Restricted Stock awarded under this
Plan shall be held in a book entry account for the Grantee by a broker-dealer
designated by the Company and shall be registered in his name. Such
shares of Restricted Stock shall be subject to the restrictions described
Sections 2 and 3 of this Agreement until the Vesting Date for such shares
of
Restricted Stock, and the book entry account evidencing the shares of Restricted
Stock shall bear a legend noticing those restrictions either specifically
or by
reference to the provisions of this Agreement. Such shares of
Restricted Stock, when issued in accordance with this Agreement, shall be
deemed
to be fully paid and nonassessable. The Grantee shall supply the
Company with an executed stock power or similar authorization with respect
to
any shares of Restricted Stock held in a book entry account.
(b) Vested
Shares. Within ten (10) business days after the date on
which the shares of Restricted Stock have vested pursuant to Section 2 of
this
Agreement, the restrictions on the book entry account holding such shares
shall
be removed and the stock power or similar authorization described in Section
4(a) of this Agreement will be destroyed.
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5. Ownership
Rights. Except as otherwise provided in Sections 3 and 4,
upon the grant of the shares of Restricted Stock under this Agreement, 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 Grant Date and before
the
effective date of a forfeiture of Restricted Stock under Section 4 of this
Agreement. The Grantee shall have the same rights with respect to any
shares of Common Stock accruing to Restricted Stock as a result of any
adjustment under Section 11(c) of the Plan.
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 delivery of shares of Restricted Stock under this Agreement,
or to delay such delivery, then the delivery of such shares of Restricted
Stock
shall be deferred until such action has been taken or such restriction on
action
has been removed.
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.
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(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 Company's then-current
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
ultimate liability for any and all taxes is and remains the Grantee’s
responsibility and liability and the Company makes no representations or
undertakings regarding the treatment of any taxes in connection with any
aspect
of the grant under this Agreement, including the grant, vesting and the
subsequent sale of Restricted Stock acquired under the Plan, and does not
commit
to structure the terms of the grant or any aspect of the Restricted Stock
grant
to reduce or eliminate the Grantee’s liability for any such
taxes. The Company shall have the power and the right to deduct or
withhold, or require the Grantee to remit to the Company, an amount to satisfy
federal, state and local taxes required to be withheld with respect to the
Restricted Stock.
(d) Nontransferability. This
Agreement and the shares of Restricted Stock 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 shares of Restricted
Stock to which the Agreement applies.
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(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 4 of this Agreement (regarding shareholder rights of
the
Grantee with respect to shares of Restricted Stock), until the shares of
Restricted Stock have vested in accordance with the provisions of Section
2 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.
(g) No
Right to Continue as a Director. This Agreement shall not be
deemed to limit or restrict the right of the Company to terminate the Grantee's
service as a Director at any time, for any reason, with or without cause,
or to
limit or restrict the right of the Grantee to terminate his service as a
Director of 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.
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(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) Change
in Control has the meaning specified in Section 9(c) of the
Plan.
(b) 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.
(c) Director
means a member of the Board of Directors of the Company.
(d) Disability
Retirement Date means the date of the Grantee’s termination from
service as a Director due to Disability. For purposes of this
Agreement, Disability means the inability of the Grantee to adequately perform
his regular duties as a Director for the Company as a result of sickness
or an
accident for a period of one hundred eighty (180) days.
(e) Grant
means the number of shares of Restricted Stock specified on the
first
page of this Agreement.
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(f) Grant
Date means the date set forth on the first page of this
Agreement.
(g) Grantee
means the Eligible Person named on the first page of this
Agreement.
(h) 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.
(i) Retirement
Date means the date of the Grantee’s termination of service as a
Director on or after the date the Grantee attains age 60.
(j) Vesting
Date means any one of the dates upon which the restrictions contained
in Section 3 of this Agreement lapse with respect to the shares of Restricted
Stock granted to the Grantee under this Agreement, which date shall be
determined in accordance with Section 2 of this Agreement.
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.
| SEMCO ENERGY, INC. | |||
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By:
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| ATTEST: | |||
| Corporate Secretary | |||
| GRANTEE | |||
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| Name: | |||
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