EXHIBIT 10.6
INTERCOAST ENERGY COMPANY
NON-EMPLOYEE DIRECTOR RESTRICTED STOCK PLAN
1. PURPOSE. The purpose of the InterCoast Energy Company Non-Employee
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Director Restricted Stock Plan (the "Plan") is to attract and retain outstanding
individuals to serve as members of the Board of Directors of InterCoast Energy
Company (the "Company") and to furnish incentives to such persons by providing
such persons opportunities to acquire shares of common stock of the Company
("Common Stock") on terms as herein provided.
2. SHARES RESERVED UNDER THIS PLAN. There is hereby reserved for
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issuance under this Plan an aggregate of Fifty Thousand (50,000) shares of
Common Stock, which may be newly-issued or treasury shares. If there is a
forfeiture or cancellation of any shares of Common Stock awarded under this
Plan, all of such forfeited or canceled shares may again be used for new awards
of Common Stock under this Plan; provided, however, that in no event may the
number of shares of Common Stock issued under this Plan exceed the total number
of shares reserved for issuance hereunder.
3. ELIGIBILITY. Each member of the Board of Directors of the Company
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(the "Board") who is not an employee of the Company or of an Affiliate (an
"Eligible Director" or "Participant") shall be eligible to participate under
this Plan; provided, however, any Eligible Director may decline any award of
Common Stock which would otherwise be granted hereunder. An "Affiliate" of any
Person shall mean any other Person: (a) which directly or indirectly controls,
or is controlled by, or is under common control with, such Person; (b) which
directly or indirectly beneficially owns or holds 10% or more of the Voting
Stock of such Person; or (c) 10% or more of the Voting Stock of which is
directly or indirectly beneficially owned or held by such Person. The term
"control" shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract, or otherwise;
the term "Person" shall mean any natural person, corporation, firm, joint
venture, partnership, association, enterprise, trust or other entity or
organization, or any government or political subdivision or any agency,
department or instrumentality thereof; and the term "Voting Stock" of any Person
shall mean shares (however designated) of such Person having ordinary voting
power for the election of a majority of the directors (or other governing body)
of such Person, other than shares having such power only by reason of the
happening of a contingency.
4. COMMON STOCK AWARDS. Participants under this Plan shall be awarded
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shares of Common Stock as follows:
(a) "Restricted Stock" shall mean shares of Common Stock which are
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subject to a "Restriction Period" as such term is defined at Section 9,
during which such Stock is subject to a restriction of some kind including
one that creates a substantial risk of forfeiture.
(b) "Restricted Stock Award" shall mean an award of Restricted Stock
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under this Plan.
(c) Initial Awards. On the date each Eligible Director is first
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elected or appointed to the Board, each such Eligible Director shall
receive a Restricted Stock Award (an "Initial Award") of 1,000 shares of
Common Stock.
(d) Annual Awards. On the day of each annual stockholders' meeting of
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the Company, each Eligible Director who will continue to serve as a
director of the Company after such meeting shall receive a Restricted Stock
Award (an "Annual Award") consisting of 800 shares of Common Stock.
5. DELIVERY OF CERTIFICATES. During the Restriction Period, a
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certificate or certificates representing a Restricted Stock Award may be
registered in the holder's name and may bear a legend, in addition to any legend
which may be required pursuant to Section 6, indicating that the ownership of
the shares of Common Stock represented by such certificate is subject to the
restrictions, terms and conditions of this Plan. All such certificates shall be
deposited with the Company, together with stock powers or other instruments of
assignment (including power of attorney), each endorsed in blank with a
guarantee of signature if deemed necessary or appropriate, which would permit
transfer to the Company of all or a portion of the shares of Common Stock
subject to the Restricted Stock Award in the event such award is forfeited in
whole or in part. All forfeited shares of Common Stock shall become authorized
but unissued shares. Upon termination of any applicable Restriction Period and
subject to the Company's right to require payment of any taxes in accordance
with Section 13(b), a certificate or certificates evidencing ownership of the
requisite number of shares of Common Stock shall be delivered to the holder of
such award.
6. OTHER PROVISIONS; SECURITIES REGISTRATION. An award of shares of
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Common Stock under this Plan may be subject to such other provisions as counsel
to the Company deems appropriate, including, without limitation, provisions
imposing restrictions on resale or other disposition of such shares and such
provisions as may be appropriate to comply with federal or state securities laws
and stock exchange requirements. The Company shall not be required to issue or
deliver any certificate for Common Stock awarded under this Plan prior to the
admission of such shares to listing on any stock exchange on which Common Stock
at that time may be listed. If, at any time during the period after an award of
shares under this Plan and the issuance of the certificate(s) for such shares,
the Company shall be advised by its counsel that the shares deliverable upon
vesting are required to be registered under the Securities Act of 1933, as
amended (the "Securities Act"), or any state securities law, or that delivery of
such shares must be accompanied or preceded by a prospectus meeting the
requirements of the Securities Act, the Company will use its best efforts to
effect such registration or provide such prospectus not later than a reasonable
time following an award of shares under this Plan, but delivery of a certificate
for such shares by the Company may be deferred until such registration is
effected or such prospectus is available.
All certificates for Common Stock delivered under the terms of this Plan
shall be subject to such stop-transfer orders and other restrictions as counsel
to the Company may deem advisable under federal or state securities laws, rules
and regulations thereunder, and the rules of any stock
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exchange on which Common Stock may be listed. The Company may cause a legend or
legends to be placed on any such certificates to make appropriate reference to
such restrictions or any other restrictions or limitations that may be
applicable to such shares.
7. EFFECTIVE DATE AND TERM OF PLAN. This Plan shall become effective
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upon, and only in the event of, consummation of the "Initial Public Offering."
For purposes of this Plan, the term "Initial Public Offering" shall mean that
offering and sale of shares of Common Stock to the public pursuant to a
registration statement to be filed with the SEC in accordance with the
Securities Act expected to be consummated on or before September 1, 1996 and
after which such shares are registered under Section 12(b) or (g) of the
Exchange Act and listed for trading on a national stock exchange or approved for
trading on Nasdaq. No shares of Common Stock shall be awarded under this Plan
more than ten (10) years after the date of its approval by the stockholders of
the Company.
8. AMENDMENT OF THE PLAN. The Board may amend this Plan from time to
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time or terminate this Plan at any time, but no such action shall reduce the
number of shares of Common Stock awarded to any Eligible Director or adversely
change the vesting provisions thereof without the Eligible Director's consent.
However, notwithstanding the foregoing, no amendment may (I) materially increase
the benefits accruing to Eligible Directors; (ii) materially increase the total
number of shares which may be issued under this Plan; or (iii) materially modify
the requirements as to eligibility for participation in this Plan, and this Plan
may not be amended more frequently than once every six months, other than to
comport with changes in the Internal Revenue Code of 1986, as amended (the
"Code"), or the rules thereunder, and no amendment shall be adopted which would
result in any Eligible Director losing his status as a "disinterested"
administrator under Securities and Exchange Commission Rule 16b-3 ("Rule 16b-3")
with respect to any employee benefit plan of the Company or result in this Plan
losing its status as a protected plan under Rule 16b-3.
9. RESTRICTION PERIODS. All of the shares of Common Stock issued
pursuant to the Restricted Stock Awards hereunder may not be sold, transferred,
assigned, pledged, hypothecated or otherwise encumbered or disposed of, from the
time an Eligible Director becomes a member of the Board of Directors of the
Company until the earliest to occur of the following:
(a) the Eligible Director's death or Disability while serving as a member
of the Board;
(b) failure of the Eligible Director to be reelected to the Board after
being duly nominated;
(c) removal from the Board or failure to be duly nominated for reelection
to the Board, in either event, following a Change in Control of the
Company;
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(d) retirement from the Board; and
(e) removal from the Board other than for Cause.
For purposes of this Section 9, the term "Disability" shall mean the
inability of an Eligible Director to perform substantially such person's duties
and responsibilities for a continuous period of at least six months, as
determined solely by the Board of Directors; and the term "Cause" shall mean any
act of dishonesty, commission of a felony, significant activities harmful to the
reputation of the Company, refusal to perform or substantial disregard of duties
properly assigned or significant violation of any statutory or common law duty
of loyalty to the Company.
Additionally "Change of Control" shall be deemed to have occurred upon the
acquisition by any individual, corporation, firm or other entity, including the
successors, affiliates and associates thereof (within the meanings ascribed to
"affiliates" and "associates" in Rule 12b-2 of the General Rules and Regulations
under the Exchange Act), other than the Company, any Subsidiary of the Company,
and employee benefit plan of the Company or any Subsidiary of the Company, or
any entity holding shares of Common Stock for or pursuant to the terms of any
such plan, of the beneficial ownership (for purposes of Section 13(d) of the
Exchange Act and Rule 13d-3 thereunder), directly or indirectly, of 25% or more
of the shares of Common Stock then outstanding without the consent or approval
of the Board of Directors.
10. GOVERNMENT REGULATIONS. The Company's obligation to deliver shares
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under of Common Stock awarded under this Plan is subject to the requirements of
any governmental authority with jurisdiction over the authorization, issuance or
sale of such shares.
11. NOTICE. Any written notice to the Company shall be addressed to the
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President of the Company at the principal offices of the Company and shall
become effective only when it is received by the office of such President. Any
written notice to a Eligible Director shall be addressed to such Eligible
Director at his address as reflected in the records of the Company and shall
become effective only when it is received by such Eligible Director.
12. UNFUNDED PLAN. Insofar as it provides for the vesting of awards of
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shares of Common Stock in the future, this Plan shall be unfunded. Although
bookkeeping accounts may be established with respect to Eligible Directors who
are entitled to Common Stock under this Plan, any such accounts shall be used
merely as a bookkeeping convenience. The Company shall not be required to
segregate any assets that may at any time be represented by Common Stock the
entitlement to which may vest in an Eligible Director under this Plan, and this
Plan shall not be construed as providing for such segregation. Neither the
Company nor the Board shall be deemed to be a trustee of any Common Stock which
has been awarded or the entitlement to which may vest in an Eligible Director
under this Plan. Any liability of the Company to a Eligible Director
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with respect to an award under this Plan shall be based solely upon any
contractual obligations that may be created by this Plan; no such obligation of
the Company shall be deemed to be secured by any pledge or other encumbrance on
any property of the Company. Neither the Company nor the Board shall be
required to give any security or bond for the performance of any obligation that
may be created by this Plan.
13. GENERAL PROVISIONS.
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(a) Governing Law. The validity, interpretation, construction and
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effect of this Plan and any rules and regulations relating to this Plan, to
the extent not otherwise governed by the Code, the Securities Act or the
Exchange Act, shall be governed by the laws of the State of Delaware
(without regard to the conflicts of law rules thereof).
(b) Tax Withholding. The Company shall have the right to require,
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prior to the issuance or delivery of any shares of Common Stock or the
payment of any cash pursuant to an award made hereunder, payment by the
holder of such award of any Federal, state, local or other taxes which may
be required to be withheld or paid in connection with such award.
(c) Severability. If any provision of this Plan is or becomes or is
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deemed invalid, illegal or unenforceable in any jurisdiction, or would
disqualify this Plan or any option under any law deemed applicable by the
Company, such provision shall be construed or deemed amended to conform to
applicable laws or if it cannot be construed or deemed amended without, in
the determination of the Company, materially altering the intent of this
Plan, it shall be deleted and the remainder of this Plan shall remain in
full force and effect; provided, however, that, unless otherwise determined
by the Company, the provisions shall not be construed or deemed amended or
deleted with respect to any Eligible Director whose rights and obligations
under this Plan are not subject to the law of such jurisdiction or the law
deemed applicable by the Company.
The undersigned, being the duly elected Secretary of InterCoast Energy
Company, does hereby certify that (I) the InterCoast Energy Company Non-Employee
Director Restricted Stock Plan was duly approved and adopted by the Board of
Directors of InterCoast Energy Company on May 22, 1996, and by the stockholders
of InterCoast Energy Company on May 22, 1996.
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Secretary of
InterCoast Energy Company
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