Exhibit 10.4
TECO ENERGY, INC.
1996 EQUITY INCENTIVE PLAN
Restricted Stock Agreement
TECO Energy, Inc. (the "Company") and Robert D. Fagan (the
"Grantee") have entered into this Restricted Stock Agreement (the
"Agreement") dated May 24, 1999 under the Company's 1996 Equity
Incentive Plan (the "Plan"). Capitalized terms not otherwise defined
herein have the meanings given to them in the Plan.
1. Grant of Restricted Stock. Pursuant to the Plan and subject
to the terms and conditions set forth in this Agreement, the Company
hereby grants, issues and delivers to the Grantee 14,015 shares of its
Common Stock (the "Restricted Stock").
2. Restrictions on Stock. Until the restrictions terminate
under Section 3, unless otherwise determined by the Committee:
(a) the Restricted Stock may not be sold, assigned, pledged
or transferred by the Grantee; and
(b) all shares of Restricted Stock will be forfeited and
returned to the Company if the Grantee ceases to be an employee of the
Company or any business entity in which the Company owns directly or
indirectly 50% or more of the total voting power or has a significant
financial interest as determined by the Committee (an "Affiliate").
3. Termination of Restrictions. The restrictions on all shares
of Restricted Stock will terminate on the earliest to occur of the
following events:
(a) the Grantee's death;
(b) the termination of Grantee's employment with the
Company or any Affiliate because of a disability that would entitle
the Grantee to benefits under the long-term disability benefits
program of the Company for which the Grantee is eligible, as
determined by the Committee;
(c) the termination by the Company or any Affiliate of
Grantee's employment other than for Cause as determined by the
Committee. "Cause" means (i) willful and continued failure of the
Grantee to substantially perform his duties with the Company or such
Affiliate (other than by reason of physical or mental illness) after
written demand specifically identifying such failure is given to the
Grantee by the Company, or (ii) willful conduct by the Grantee that is
demonstrably and materially injurious to the Company. For purposes of
this subsection, "willful" conduct requires an act, or failure to act,
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that is not in good faith and that is without reasonable belief that
the action or omission was in the best interest of the Company or the
Affiliate. Notwithstanding the foregoing, the Grantee shall not be
deemed to have been terminated for Cause unless and until there shall
have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than three quarters (3/4) of the entire
membership of the Board of Directors at a meeting of the Board of
Directors called and held for such purpose (after reasonable notice to
the Grantee and an opportunity for him, together with his counsel, to
be heard before the Board of Directors), finding that in the the good
faith opinion of the Board of Directors the Grantee was guilty of
conduct set forth above in this subsection and specifying the
particulars thereof in detail;
(d) the Grantee's attainment of the age at which benefits
are payable under the TECO Energy Group Retirement Plan or any
successor thereto without reduction for commencement of benefits
before normal retirement age, or any earlier date that the Committee
determines will constitute a normal retirement for purposes of this
Agreement;
(e) upon a Change in Control. For purposes of this
Agreement, a "Change in Control" means a change in control of the
Company of a nature that would be required to be reported in response
to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
whether or not the Company is in fact required to comply therewith;
provided, that, without limitation, such a Change in Control shall be
deemed to have occurred if:
(1) any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act), other than the Company, any
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or a corporation owned, directly or
indirectly, by the shareholders of the Company in substantially the
same proportions as their ownership of stock of the Company is or
becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of securities of the Company
representing 30% or more of the combined voting power of the Company's
then outstanding securities;
(2) during any period of twenty-four (24) consecutive
months (not including any period prior to the date of this Agreement),
individuals who at the beginning of such period constitute the Board
of Directors of the Company and any new director (other than a
director designated by a person who has entered into an agreement with
the Company to effect a transaction described in subsections (1), (3)
or (4) of this Section 3(e)) whose election by the Board of Directors
of the Company or nomination for election by the shareholders of the
Company was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the
beginning of such period or whose election or nomination for election
was previously so approved, cease for any reason to constitute a
majority thereof;
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(3) t h e re is consummated a merger or
consolidation of the Company or any direct or indirect subsidiary of
the Company with any other corporation, other than (i) a merger or
consolidation resulting in the voting securities of the Company
outstanding immediately prior thereto continuing to represent (either
by remaining outstanding or by being converted into voting securities
of the surviving entity) at least 65% of the combined voting
securities of the Company or such surviving entity or any parent
thereof outstanding immediately after such merger or consolidation or
(ii) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires 30% or more of the combined
voting power of the Company's then outstanding securities; or
(4) the shareholders of the Company approve a plan of
complete liquidation of the Company or there is consummated the sale
or disposition by the Company of all or substantially all of the
Company's assets;
(f) January 2, 2000, if the Grantee has not become Chairman
of the Board of the Company by that date; or
(g) the fifth anniversary of the date of this Agreement.
4. Rights as Shareholder. Subject to the restrictions and
other limitations and conditions provided in this Agreement, the
Grantee as owner of the Restricted Stock will have all the rights of a
shareholder, including but not limited to the right to receive all
dividends paid on, and the right to vote, such Restricted Stock.
5. Stock Certificates. Each certificate issued for shares of
Restricted Stock will be registered in the name of the Grantee and
deposited by the Grantee, together with a stock power endorsed in
blank, with the Company and will bear a legend in substantially the
following form:
THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES
OF STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS,
CONDITIONS AND RESTRICTIONS (INCLUDING RESTRICTIONS ON
TRANSFER AND FORFEITURE PROVISIONS) CONTAINED IN AN
AGREEMENT BETWEEN THE REGISTERED OWNER AND TECO ENERGY,
INC. A COPY OF SUCH AGREEMENT WILL BE FURNISHED TO THE
HOLDER OF THIS CERTIFICATE UPON WRITTEN REQUEST AND
WITHOUT CHARGE.
Upon the termination of the restrictions imposed under this
Agreement as to any shares of Restricted Stock deposited with the
Company hereunder, the Company will return to the Grantee (or to such
Grantee's legal representative, beneficiary or heir) certificates,
without such legend, for such shares.
6. Notice of Election Under Section 83(b). If the Grantee
makes an election under Section 83(b) of the Internal Revenue Code of
1986, as amended, he will provide a copy thereof to the Company within
thirty days of the filing of such election with the Internal Revenue
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Service.
7. Withholding Taxes. The Grantee will pay to the Company, or
make provision satisfactory to the Committee for payment of, any taxes
required by law to be withheld in respect of the Restricted Stock no
later than the date of the event creating the tax liability. In the
Committee's discretion, such tax obligations may be paid in whole or
in part in shares of Common Stock, including the Restricted Stock,
valued at fair market value on the date of delivery. The Company and
its Affiliates may, to the extent permitted by law, deduct any such
tax obligations from any payment of any kind otherwise due to the
Grantee.
8. The Committee. Any determination by the Committee under, or
interpretation of the terms of, this Agreement or the Plan will be
final and binding on the Grantee.
9. Limitation of Rights. The Grantee will have no right to
continued employment by virtue of this grant of Restricted Stock.
10. Amendment. The Company may amend, modify or terminate this
Agreement, including substituting another Award of the same or a
different type and changing the date of realization, provided that the
Grantee's consent to such action will be required unless the action,
taking into account any related action, would not adversely affect the
Grantee.
11. Governing Law. This Agreement will be governed by and
interpreted in accordance with the laws of Florida.
TECO ENERGY, INC.
By: /s/ G. F. Anderson
G. F. Anderson
Chairman of the Board
/s/ Robert D. Fagan
Robert D. Fagan
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