Exhibit
10.9.8
SEMCO ENERGY, INC.
2004 Stock Award and Incentive Plan
EMPLOYEE PERFORMANCE SHARE UNIT AWARD
AGREEMENT
THIS PERFORMANCE SHARE UNIT AGREEMENT
(“Agreement”) is effective as of the Grant Date stated
above, by and between SEMCO Energy, Inc. and the Grantee.
WHEREAS, the Performance Share 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.
Performance Share Unit Grant . Subject to the
terms and conditions of this Agreement, the Company hereby grants
to Grantee a Target Grant of Performance Share Units as specified
above.
2.
Award of Performance Share Units .
(a)
The
Grantee will receive an award of a percentage of his Target Grant
of Performance Share Units as of the last day of the Performance
Period if he remains actively employed with the Company on such
date and if the threshold level of performance is met or exceeded
with respect to at least one of the performance goals established
by the Committee for such Performance Period.
(b)
Schedule A to this Agreement sets forth Grantee’s performance
goals, the portion of the Target Grant that will be available for
an award with respect to each performance goal (the
“Performance Target”) and the percentage of that
Performance Target that will be awarded based upon the actual
performance level achieved with respect to such performance goal
during the Performance Period. The total Performance Share Units
awarded pursuant to this Agreement shall equal the sum of the
Performance Share Units awarded with respect to each performance
goal.
3.
Awards on Certain Events . Notwithstanding the
requirement in Section 2 of this Agreement that a Grantee be
actively employed on the last day of the Performance Period:
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a)
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Performance Share Units shall be awarded at
the end of the Performance Period pursuant to Section 2 to any
Grantee who terminates employment during the Performance
Period:
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(i)
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on the Grantee’s Retirement Date;
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(ii)
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on the Grantee’s Disability Retirement
Date;
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(iii)
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on the date of the Grantee’s death prior
to his termination of employment from the Corporation; or
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(iv)
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as a result of a Change in Control.
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The number of Performance Share Units awarded
pursuant to this Section 3(a) shall equal the product of the
Performance Share Units that would otherwise be awarded had the
Grantee remained employed until the last day of the Performance
Period multiplied by (1) the number of days the Grantee was
employed during the Performance Period over (2) the number of days
in the Performance Period.
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b)
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In the event that a transaction constituting a
Change in Control is consummated, as of the date on which such a
transaction is effective, as provided in the agreement therefore,
Section 3(a)(iv) of this Agreement is superseded and the following
shall occur:
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The performance goals established in Section
2(b) of this Agreement shall be deemed to have been met at target,
and all Performance Shares Units under this Agreement may be
adjusted by the Committee in accordance with the terms of the Plan
including, but not limited to, its authority to do so under Section
11(c) thereof.
4.
Delivery of Shares . Upon certification
by the Committee of the achieved performance under the established
performance goals for the Performance Period, the Performance Share
Units awarded pursuant to Section 2 shall be paid to the Grantee in
shares of Stock. Payment of such Shares shall in no event be made
later than the date which is 2 ½ months after the end of the
taxable year in which the Performance Period ends. Certificates
representing such shares of Stock shall be delivered to the Grantee
as soon as practicable after such payment.
5.
Ownership Rights . Upon certification by the
Committee 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 certification.
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 Performance Share 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.
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:
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(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 i
