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EXHIBIT 10.1
MCN CORPORATION
STOCK INCENTIVE PLAN
(as amended effective April 27, 1995)
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TABLE OF CONTENTS
SECTION PAGE
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ARTICLE I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Purpose
ARTICLE II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Definitions
ARTICLE III . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Administration
ARTICLE IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Shares Subject to the Plan
ARTICLE V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Eligibility
ARTICLE VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Stock Options
ARTICLE VII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Restricted Stock Awards
ARTICLE VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Performance Unit Awards
ARTICLE IX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
General Provisions
ARTICLE X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Amendment and Termination
ARTICLE XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Miscellaneous
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MCN CORPORATION
STOCK INCENTIVE PLAN
(as amended effective April 27, 1995)
ARTICLE I
PURPOSE
The purpose of the MCN Corporation Stock Incentive Plan (the "Plan") is to
promote the success of MCN Corporation (the "Corporation" or "MCN") by
providing a method whereby eligible employees of the Corporation and its
affiliated companies may be awarded additional remuneration for services
rendered and encouraged to invest in the Common Stock of the Corporation,
thereby increasing their proprietary interest in the Corporation's business,
encouraging them to remain in the employ of the Corporation or its affiliated
companies, and increasing their personal interest in the continued success and
progress of the Corporation.
ARTICLE II
DEFINITIONS
2.1 The following terms have the meaning described below when used in the
Plan:
(a) "Award" shall refer to the Restricted Stock Award granted under
Article VII and except for purposes of Article VII, a Performance
Unit Award granted under Article VIII.
(b) "Board of Directors" shall mean the Board of Directors of the
Corporation.
(c) "Code" shall mean the Internal Revenue Code of 1986, as it may be
amended from time to time.
(d) "Committee" shall mean the committee appointed by the Board of
Directors to administer the Plan pursuant to Article III.
(e) "Common Stock" shall mean common stock, par value $.01 of the
Corporation.
(f) "Corporation" shall mean MCN Corporation or any successor to it
in ownership of all or substantially all of its assets.
(g) "Earlier Plan" shall mean the MCN Stock Option Plan.
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(h) "Incentive Stock Option" shall mean a stock option granted under
Article VI which is intended to meet the requirements of Section
422A of the Code.
(i) "Nonqualified Stock Option" shall mean a stock option granted
under Article VI which is not intended to be an Incentive Stock
Option.
(j) "Option" shall mean an Incentive or Non-qualified Stock Option.
(k) "Participant" shall mean an eligible employee who has been
granted an option or Award.
(l) "Participating Company" shall mean the Corporation or any
subsidiary or other affiliated entity (whether or not
incorporated) designated by the Board of Directors.
(m) "Restricted Stock Award" shall mean an award of common stock
under Article VII hereof.
(n) "Stock Appreciation Right" shall mean a right granted under
Section 6.5.
(o) "Performance Unit Award" shall mean an award granted under
Article VIII.
(p) "Vesting Date" shall mean the date upon which restrictions or
limitations on Options or Awards lapse.
ARTICLE III
ADMINISTRATION
3.1 (a) The Board of Directors of the Corporation shall appoint not less
than three Directors or disinterested persons to the Committee
which shall administer the Plan. No individual shall become a
member of a Committee if he or she shall have been eligible to
receive an Option or Award under the Plan (or a predecessor of
any part of the Plan) at any time during the twelve month period
prior to his or her becoming a member and no member of the
Committee shall be eligible to receive an option, Stock
Appreciation Right or Award granted by such Committee under the
Plan while a member of that Committee. The Committee shall have
full power and authority subject to such orders or resolutions
not inconsistent with the provisions of the Plan as may from time
to time be issued or adopted by the Board of Directors to grant
to eligible persons options and Stock Appreciation Rights
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under Article VI of the Plan, to grant Restricted Stock Awards
under Article VII of the Plan, to grant Performance Unit Awards
under Article VIII of the Plan, to interpret the provisions of
the Plan and any agreements relating to Options, Stock
Appreciation Rights and Awards granted under the Plan and to
supervise the administration of the Plan, all subject to
ratification or modification by the Board of Directors, a
majority of which directors acting in any such matter shall be
disinterested persons.
(b) All decisions made by the Committee pursuant to the provisions of
the Plan and related orders or resolutions of the Board of
Directors shall be final, conclusive and binding on all persons,
including the Corporation, stockholders, employees and
beneficiaries of employees.
ARTICLE IV
SHARES SUBJECT TO THE PLAN
4.1(a) Subject to adjustment pursuant to Section 4.1(b), the aggregate
number of shares of Common Stock with respect to which Options,
Stock Appreciation Rights, Awards and Performance Units may be
granted under the Plan in any calendar year shall not exceed one
percent of the shares of Common Stock outstanding in any year.
The one-percent limitation shall be calculated by dividing the
aggregate number of shares of Common Stock with respect to which
Options, Stock Appreciation Rights, Awards and Performance Units
are granted under the Plan in any calendar year by the total
number of shares outstanding on the first day during the calendar
year on which Options, Stock Appreciation Rights, Awards, and
Performance Units are granted. If the number of shares granted
with respect to Options, Stock Appreciation Rights, Awards, or
Performance Units is not determinable, then the limitation shall
be calculated using the largest number of shares expected to be
issued. Provided, however, that the number of Shares, Options,
Stock Appreciation Rights, Awards, or Performance Units that may
issued under this Plan subsequent to February 27, 1995 may not
exceed 5% of the number of shares issued and outstanding on that
date.
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Shares of Common Stock may be made available from the authorized
but unissued shares of the Corporation or from shares reacquired
by the Corporation including shares purchased in the open market.
If an Option, Restricted Stock Award, or Performance Unit Award
granted under the Plan shall expire or terminate for any reason
during a calendar year, the shares subject to, but not delivered,
under such option or Award shall be available for other options
and Awards to the same employee or other employees.
(b) In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, stock split or other change in
corporate structure affecting the Common Stock, the Committee
shall make the appropriate adjustment in the aggregate number of
shares which may be delivered under the Plan and the number of
shares subject to outstanding options, Stock Appreciation Rights
and Awards to reflect such action. If any such adjustment shall
result in a fractional share, such fraction shall be disregarded.
ARTICLE V
ELIGIBILITY
5.1 Key employees of the Corporation and other Participating Companies, as
shall be determined by the Committee, are eligible to participate in the
Plan.
ARTICLE VI
STOCK OPTIONS
6.1 Subject to the limitations of the Plan, the Committee shall, after such
consultation with and consideration of the recommendations of management
as the Committee considers desirable, select from eligible employees
those to be granted options and determine the time when each option
shall be granted and the number of shares subject to each option, and
shall select the optionees to receive Stock Appreciation Rights and the
Options on which such rights shall relate. options may be either
Incentive Stock Options or
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Nonqualified Stock Options, and more than one option and Stock
Appreciation Right may be granted to the same person. Stock
Appreciation Rights may be granted to holders of any unexpired options
granted under the Plan or the Earlier Plan.
6.2 Option Agreements. Each Option under the Plan shall be evidenced by an
option agreement which shall be signed by an officer of the Corporation
and the optionee and shall contain such provisions as may be approved by
the Committee. Any such option agreement may be supplemented and
amended from time to time as approved by the Committee, provided that
the terms of such option agreement after being amended or supplemented
conform to the terms of the Plan. Any option agreement for Nonqualified
Stock options shall state that the Nonqualified Stock Options granted
thereunder shall not be treated as Incentive Stock Options. Each Stock
Appreciation Right shall be evidenced by the option agreement for the
option to which it relates. In the case of any such right relating to a
previously granted option, the option agreement shall be supplemented to
evidence such right.
6.3 Option Price. The price at which shares may be purchased upon exercise
of a particular Incentive Stock option shall be not less than one
hundred percent (100%) of the fair market value of such shares on the
date such Option is granted as determined in accordance with procedures
to be established by the Committee.
6.4 Exercise of Options.
(a) Subject to the provisions of the Plan with respect to death,
disability, retirement and termination of employment, the period
during which each Option may be exercised shall be fixed by the
Committee at the time such Option is granted but such period in
no event shall expire later than ten years from the date the
Option is granted.
(b) Except as permitted by Sections 6.7 and 9.1, each option may be
exercised only after one year of continued employment by the
Corporation or any of its affiliated companies and only during
the continuance of the optionee's employment with the Company or
any of its affiliated companies. Subject to the foregoing
limitations and the terms and conditions of the option agreement
and unless canceled prior to exercise, each Option shall be
exercisable in whole or in part in installments at
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such time or times as the Committee may prescribe and specify in
the applicable option agreement.
(c) No shares shall be delivered pursuant to any exercise of an
Option until payment in full of the option price therefor is
received by the Corporation. Such payment shall be made in cash
or, in the discretion of the Committee, through the delivery of
shares of Common Stock of the corporation with a value equal to
the total option price, or a combination of cash and shares, or
by other means which the Committee determines are consistent with
the Plan's purpose and applicable law, provided that for
Incentive Stock Options such other means are established on or
before the date such Option was granted. Any shares so delivered
shall be valued at their fair market value on the trading day
preceding the exercise date determined as provided in Section
6.3. Payment of the option price may be made by borrowing from
the Corporation pursuant to the terms and conditions provided for
in the MCN Stock Option Plan previously approved by shareholders.
No optionee or legal representative, legatee of distributee of
any optionee shall be deemed to be a holder of any shares subject
to any Option prior to the issuance of such shares upon exercise
of such Option or any related Stock Appreciation Right.
6.5 Stock Appreciation Rights.
(a) Stock Appreciation Rights may be granted to such optionees
holding Options granted under the Plan or the Earlier Plan as the
Committee may select and upon such terms and conditions as the
Committee may prescribe. Each Stock Appreciation Right shall
relate to a specific option granted and may be granted
concurrently with the Option to which it relates or at any time
prior to the exercise, expiration or termination of such Option.
A Stock Appreciation Right shall entitle the optionee, subject to
the provisions of the Plan and the related option agreement, to
receive from the Corporation an amount not more than the excess
of the fair market value on the exercise date of the number of
shares for which the Stock Appreciation Right is exercised over
the option price for shares under the related Option. For this
purpose such fair market value shall be determined as provided in
Section 6.3.
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(b) A Stock Appreciation Right shall be exercisable on such dates or
during such periods as may be determined by the Committee from
time to time, provided that the Committee may for administrative
convenience, determine that for any Stock Appreciation Right
relating to a Nonqualified Stock Option which right can only be
exercised during a limited period of time in order to satisfy
rules imposed by the Securities and Exchange Commission, the
exercise of any such right for cash during such limited period
shall be deemed to occur for all purposes hereunder on the day
during such limited period on which the fair market value of the
Common Stock determined as provided in Section 6.3, is the
highest and provided, further, that no Stock Appreciation Right
shall be exercisable at a time when the related Option could not
be exercised nor may it be exercised with respect to a number of
shares in excess of the number for which such Option could then
be exercised. Any such determination by the Committee may be
changed by the Committee from time to time and may govern the
exercise of Stock Appreciation Rights granted prior to such
determination as well as Stock Appreciation Rights thereafter
granted.
(c) A stock Appreciation Right may be exercised only upon surrender
of the related Option by the optionee which shall be terminated
to the extent of the number of shares for which the Stock
Appreciation Right is exercised. Shares covered by such a
terminated Option or portion thereof granted under the Plan shall
be available for other Options or Awards under the Plan.
(d) The amount payable by the Corporation upon exercise of a Stock
Appreciation Right may be paid in cash, in shares (valued at
their fair market value on the exercise date determined as
provided in Section 6.3) or in any combination thereof as the
Committee shall determine from time to time. No fractional
shares shall be issued and the optionee shall receive cash in
lieu thereof.
(e) The Committee may impose any other conditions upon the exercise
of a Stock Appreciation Right, which may include a condition that
the Stock Appreciation Right may be exercised only in accordance
with rules and regulations adopted by the Committee from time to
time. Such rules and regulations may govern the right
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to exercise Stock Appreciation Rights granted prior to the
adoption or amendment of such rules and regulations as well as
Stock Appreciation Rights granted thereafter.
(f) The Committee may at any time amend or suspend any Stock
Appreciation Right theretofore granted under the Plan, provided
that the terms of any Stock Appreciation Right after any
amendment shall conform to the provisions of the Plan. A Stock
Appreciation Right shall terminate upon the termination or
expiration of the related Option.
6.6 Transferability of Options and Stock Appreciation Rights. An Option
granted under the Plan may not be transferred except by will or the laws
of descent and distribution and, during the lifetime of the person to
whom granted, may be exercised only by such person. A Stock
Appreciation Right may not be transferred to anyone and my be exercised
only by the optionee to whom it was granted.
6.7 Death, Disability, Retirement and Termination of Employment. Subject to
the condition that no Option may be exercised in whole or in part after
the expiration of the option period specified in the applicable option
agreement and subject to the Committee's right to cancel any Option:
(a) Upon the death of any optionee while employed or within the
three-year period referred to in clause (b) below, the person or
persons to whom such optionee's rights under the Option are
transferred by will or the laws of descent and distribution may,
prior to three (3) years after (i) the date of such optionee's
death while employed or (ii) the termination of such optionee's
employment for a reason referred to in clause (b) below, as the
case may be, purchase any or all of the shares with respect to
which such optionee was entitled to exercise such Option
immediately prior to his or her death.
(b) Upon termination of employment as a result of disability as
defined in section 22(e)(3) of the Code or retirement pursuant to
a retirement Plan of the Corporation or any of its direct or
indirect subsidiaries, an optionee may, within three years after
the date of such termination, purchase any or all of the shares
with respect to which such optionee was entitled to exercise such
Option immediately prior to
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such termination, and
(c) Upon termination of employment for cause, an optionee's Options
shall be canceled to the extent not theretofore exercised.
(d) Upon termination of employment for any reason other than death,
disability, retirement or cause, an optionee may exercise any
Option or Stock Appreciation Right which was exercisable on the
date of termination of employment or such additional period as
the Committee may determine, but in no event later than the
original expiration date of the Option.
(e) For purpose of the Plan, the term "cause" shall mean repeated
material breaches of an optionee's duties of employment which are
not cured after receipt by the optionee of written notice
specifying such breaches or the optionee's conviction of a felony
involving moral turpitude.
ARTICLE VII
RESTRICTED STOCK AWARDS
7.1 Subject to the limitations of the Plan, the Committee shall, after such
consultation with and consideration of the recommendations of management
as the Committee considers desirable, select from eligible employees
those Participants to be granted Restricted Stock Awards, determine the
time when each Award shall be granted, the number of shares subject to
each Award, and the date upon which the shares will vest (the Vesting
Date).
7.2 Vesting of Restricted Stock Awards.
(a) Subject to the rules of Sections 7.2(b) and 9.1 each Award shall
fully vest and be one hundred percent (100%) nonforfeitable on
the Vesting Date.
(b) Subject to the rules of Section 9.1, upon termination of a
Participant's employment prior to Vesting Date for any reason
except for disability or retirement, as described below, or
death, his or her Awards shall be forfeited and the Participant
shall have no right with respect to such Awards. Upon
termination of employment prior to the Vesting Date by reason of
the Participant's disability as defined in Section 22(e)(3) of
the Code or retirement at age 62 or older under a retirement Plan
maintained by the Company or a subsidiary or by reason of death,
any Award
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granted to such Participant shall be vested and nonforfeitable to
the extent of one hundred percent. Vesting for participants who
retire prior to age 62 shall be as determined by the Committee.
7.3 Payment of Awards.
(a) As soon as practicable after an Award has become vested in
accordance with Section 7.2, such vested Award shall be paid to
the Participant or, in the case of the death of the Participant,
his or her designated beneficiary or beneficiaries or, in the
absence of a designated beneficiary, to the estate of the
Participant.
(b) In addition to the payment provided for in Section 7.3(a), prior
to Vesting Date, each Participant shall receive a cash payment
equal to the amount of dividends which would have been paid on
the number of shares awarded had such shares been issued as
shares of Common Stock on the date of grant of such Award. This
payment shall be made on or about the date such dividends would
have been paid.
(c) Payments pursuant to Section 7.3(a) shall be made in either
shares of Common Stock or cash as determined by the Committee
provided, however, that the Participant or his or her beneficiary
may request that the Committee approve a payment composed of a
different ratio of cash and shares of Common Stock. Payment in
cash pursuant to this paragraph shall be made in the amount which
is equal to the closing price of a share of Common Stock on the
New York Stock Exchange Composite Tape for the trading day
preceding the day on which payment is to be made, multiplied by
the number of shares of the Award which are to be paid in cash.
ARTICLE VIII
PERFORMANCE UNIT AWARDS
8.1 In addition to granting Options, Stock Appreciation Rights and
Restricted Stock Awards, the Committee shall have authority to grant to
eligible employees Performance Unit Awards which can be in the form of
Common Stock or units, the value of which is based on whole or in part,
on the value of Common Stock. Subject to the provisions of the Plan
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including Section 8.2 below, Performance Unit Awards shall be subject to
such terms, restrictions, conditions, vesting requirements and payment
rules (all of which are sometimes hereinafter collectively referred to
as "rules") as the Committee may determine in its sole discretion, all
such rules applicable to a particular Performance Unit Award to be
reflected in writing and furnished to the employee at the time of grant.
The rules need not be identical for each Performance Unit Award.
8.2 Rules. In the sole discretion of the Committee a Performance Unit Award
shall be granted subject to the following rules:
(a) Any shares of Common Stock which are part of a Performance Unit
Award may not be assigned, sold, transferred, pledged or
otherwise encumbered prior to the date on which the shares are
issued or, if later, the date provided by the Committee at the
time of the Award.
(b) Performance Unit Awards may provide for the payment of cash
consideration by the person to whom such Award is granted or
provide that the Award and Common Stock be issued in connection
therewith, if applicable, shall be delivered without the payment
of cash consideration, provided that for any Common Stock to be
purchased in connection with a Performance Unit Award the
purchase price shall be at least fifty percent of the fair market
value of such Common Stock on the date such Award is granted.
(c) Performance Unit Awards may relate in whole or in part to certain
performance criteria established by the Committee at the time of
grant.
(d) Performance Unit Awards may provide for deferred payment
schedules, vesting over a specified period of employment, the
payment (on a current or deferred basis) of dividend equivalent
amounts, with respect to the number of shares of Common Stock
covered by the Award, and elections by the employee to defer
payment of the Award or the lifting of restrictions on the Award,
if any.
(e) In such circumstances as the Committee may deem advisable, the
Committee may waive or otherwise remove, in whole or in part, any
restrictions or limitation to which a Performance Unit Award was
made subject to the time of grant.
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ARTICLE IX
GENERAL PROVISIONS
9.1 Change in Control.
(a) (i) In the case of a Change in Control (as defined below) of
the Corporation, each Option and Stock Appreciation Right
then outstanding shall immediately become exercisable in
full.
(ii) In the case of a Change in Control (as defined below) of
the Corporation, each Award shall immediately be fully
vested and nonforfeitable and shall be paid within 20 days
thereafter at no less than one hundred (100) percent of
the standard or target award amount or, if greater, the
actual award amount as extrapolated in the determination
of the Committee (as so constituted immediately prior to
the Change in Control of the Corporation), utilizing in
each case the Change in Control Price (as defined below)
as the value per share of Common Stock.
(b) A change in Control shall mean (i) the acquisition by any
individual, entity or group (within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") (a "Person") of beneficial ownership
(within the meaning of Rule 13(d)-3 promulgated under the
Exchange Act) of twenty (20) percent or more of either (1) the
then outstanding shares of common stock of the Corporation (the
"Outstanding Corporation Common Stock") or (2) the combined
voting power of the then outstanding voting securities of the
Corporation entitled to vote generally in the election of
directors (the "Outstanding Corporation Voting Securities");
provided, however, that the following acquisitions shall not
constitute a Change of Control: (1) any acquisition directly from
the Corporation (excluding an acquisition by virtue of the
exercise of a conversion privilege), (2) any acquisition by the
Corporation, (3) any acquisition by any employee benefit Plan (or
related trust) sponsored or maintained by the Corporation or any
corporation controlled by the Corporation or (4) any acquisition
by any
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corporation pursuant to a reorganization, merger or
consolidation, if, following such reorganization, merger or
consolidation, the conditions described in clauses (1),(2) and
(3) of subparagraph (iii) of this Section 9.1(b) are satisfied;
or (ii) individuals who, as of the date hereof, constitute the
Board (the "Incumbent Board") cease for any reason to constitute
at least a majority of the Board; provided, however, that any
individual becoming a director subsequent to the date hereof
whose election, or nomination for election by the Corporation's
shareholders, was approved by a vote of at least a majority of
the directors than comprising the Incumbent Board shall be
considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result
of either an actual or threatened election contest (as such terms
are used in Rule 14(a)-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of
proxies or consents by or on behalf of a Person other than the
Board; or (iii) approval by the shareholders of the Corporation
of a reorganization, merger or consolidation, in each case,
unless, following such reorganization, merger or consolidation,
(1) more than sixty (60) percent of, respectively, the then
outstanding shares of common stock of the corporation resulting
from such reorganization, merger or consolidation and the
combined voting power of the then outstanding voting securities
of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by
all or substantially all of the individuals and entitled who were
the beneficial owners, respectively, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting
Securities immediately prior to such reorganization, merger or
consolidation in substantially immediately prior to such
reorganization, merger or consolidation in substantially the same
proportions as their ownership, immediately prior to such
reorganization, merger or consolidation, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting
Securities, as the case may be, (2) no Person (excluding the
Corporation, any employee benefit Plan (or related trust) of the
Corporation or such corporation resulting from such
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reorganization, merger or consolidation and any Person
beneficially owning, immediately prior to such reorganization,
merger or consolidation, directly or indirectly, twenty (20)
percent or more of the Outstanding Corporation Common Stock or
Outstanding Voting Securities, as the case may be) beneficially
owns, directly or indirectly, twenty (20) percent or more of
respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger or
consolidation or the combined voting power of the then
outstanding voting securities of such corporation entitled to
vote generally in the election of directors and (3) at least a
majority of the members of the board of directors of the
corporation resulting from such reorganization, merger or
consolidation were members of the Incumbent Board at the time of
the execution of the initial agreement providing for such
reorganization, merger or consolidation; or (iv) approval by the
shareholders of the Corporation of (1) a complete liquidation or
dissolution of the Corporation or (2) the sale or other
disposition of all or substantially all of the assets of the
Corporation, other than a corporation, with respect to which
following such sale or other disposition, (A) more than sixty
(60) percent of, respectively, the then outstanding shares of
common stock of such corporation and the combined voting power of
the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Corporation
Common Stock and Outstanding Corporation Voting Securities
immediately prior to such sale or other disposition in
substantially the same proportion as their ownership, immediately
prior to such sale or other disposition, of the Outstanding
Corporation Common Stock and Outstanding Corporation Voting
Securities, as the case may be, (B) no Person (excluding the
Corporation and any employee benefit Plan (or related trust) of
the Corporation or such corporation any person beneficially
owning, immediately prior to such sale or other disposition,
directly or indirectly, twenty (20) percent or more of the
Outstanding Corporation Common Stock or Outstanding Corporation
Voting
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Securities,as the case may be) beneficially owns, directly or
indirectly, twenty (20) percent or more of, respectively, the
then outstanding shares of common stock of such corporation and
the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the
election of directors and (C) at least a majority of the members
of the board of directors of such corporation were members of the
Incumbent Board at the time of the execution of the initial
agreement or action of the Board providing for such sale or other
disposition of assets of the Corporation.
9.2 Designation of Beneficiary. Each employee who shall be granted an Award
under the Plan may designate a beneficiary or beneficiaries and may
change such designation from time to time by filing a written
designation of beneficiaries with the Committee on a form to be
prescribed by it, provided that no such designations shall be effective
unless so filled prior to the death of such employee.
9.3 No Right of Continued Employment. Neither the establishment of the
Plan, the granting of Options, Stock Appreciation Rights or Awards, or
the payment of any benefits hereunder or any action of the Corporation
or of the Board of Directors or of the Committee shall be held or
construed to confer upon any person any legal right to be continued in
the employ of the Corporation or its direct or indirect subsidiaries,
each of which expressly reserves the right to discharge any employee
whenever the interest of any such company in its sole discretion may so
require without liability to such company, the Board of Directors or the
Committee except as to any rights which may be expressly conferred upon
such employee under the Plan.
9.4 No Segregation of Cash or Shares. The Corporation shall not be required
to segregate any cash or any shares of Common Stock which may at any
time be represented by Options, Awards, or amounts and the Plan shall
constitute an "unfunded" Plan of the Corporation. No employee shall
have voting or other rights with respect to such shares of Common Stock
prior to the delivery of such shares. The Corporation shall not, by any
provisions of the Plan, be deemed to be a trustee of any Common Stock or
any other property and the liabilities of the Corporation to any
employee pursuant to the Plan shall be those of a debtor pursuant to
such contract obligations as are created by or pursuant to the Plan, and
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the rights of any employee, former employee or beneficiary under the
Plan shall be limited to those of a general creditor of the Corporation.
In its sole discretion, the Board of Directors may authorize the
creation of trusts or other arrangements to meet the obligations of the
Corporation and each other Participating Company under the Plan
provided, however, that the existence of such trusts or other
arrangements is consistent with the unfunded status of the Plan.
9.5 Delivery of Shares. No shares shall be delivered pursuant to any
exercise of an Option, Stock Appreciation Right or pursuant to the
payment of any Award unless the requirements of such laws and
regulations as may be deemed by the Committee to be applicable thereto
are satisfied.
9.6 Option Cancellation Payment. Notwithstanding any other provision of
this Plan and the terms of any agreement under which the Committee has
granted an Option or Award under this Plan, during the 60 day period
from and after a Change of Control (as defined in Section 9.1) (the
"Exercise Period"), in the case of all Options, an optionee shall have
the right, in lieu of the payment of the exercise price of the shares of
stock being purchased under the Option and by giving notice to the
Corporation, to elect (within the Exercise Period) in lieu of exercise
thereof to surrender all or part of the Option to the Corporation and to
receive in cash, within 30 days of such notice, an amount in
cancellation of the Option (the "Cancellation Payment") equal to the
amount by which the Change in Control Price (as defined below) per share
of Common Stock on the date of such election shall exceed the exercise
price per share of Common Stock under the Option multiplied by the
number of shares of Common Stock granted under the Option as to which
the right granted under this Section 9.6 shall have been exercised;
provided, however, that if such Option is held by an officer or director
of the Corporation (within the meaning of Section 16 of the Exchange
Act) and not more than six months has elapsed from the grant thereof, or
the receipt of the Cancellation Payment at the time above-specified
would subject the optionee to liability under said Section 16, then the
Cancellation Payment shall be made on the first day when no liability to
the optionee under said Section 16 would result.
9.7 Transfer and Leave of Absence
(a) A transfer of an employee from a Participating Company to an
affiliated company,
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and
(b) A leave of absence duly authorized in writing by the
Participating Company, for military service or sickness, or for
any other purpose approved by the Participating Company shall not
be deemed a termination of employment.
9.8 Michigan Law to Govern. All questions pertaining to the construction,
regulation, validity and effect of the provisions of the Plan shall be
determined in accordance with the laws of the State of Michigan.
9.9 Payments and Tax Withholding. The delivery of any shares of Common
Stock and the payment of any amount in respect of a Stock Appreciation
Right or Award shall be for the account of the applicable Participating
Company and any such delivery or payment shall not be made until the
recipient shall have made satisfactory arrangements for the payment of
any applicable withholding taxes.
9.10 Earlier Plan. The options granted under the Earlier Plan shall continue
to be subject to the terms and conditions of the Earlier Plan and shall
not be subject to this Plan.
9.11 Compliance with Rule 16(b)-3. It is MCN's intent that, with respect to
persons who are subject to Section 16(b) of the Securities Exchange Act
of 1934 (the "Act"), the Plan comply in all material respects with the
provisions of Rule 16(b)-3 promulgated under the Act, as such rule or a
successor rule or rules may be in effect from time to time. If any such
Plan provision is found not to be in compliance with Rule 16(b)-3, such
provision shall be deemed null and void.
9.12 Change in Control Price. Change in Control Price shall mean the higher
of (i) the highest reported sales price, regular way, of a share of
Common Stock on the Composite Tape for New York Stock Exchange Listed
Stocks or, if such shares of the Corporation are not listed or admitted
to trading on the New York Stock Exchange, the highest reported sales
price as reported on the principal consolidated transaction reporting
system with respect to securities listed on the principal national
securities exchange on which such shares of the Corporation are listed
or admitted to trading, or if such shares of the Corporation are not
listed or admitted to trading on any national securities exchange, the
highest quoted price or, if not so quoted, the highest average of the
high bid and low asked prices in the over-the-counter market, as
reported by the National Association of Securities Dealers,
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Inc. Automated Quotations System ("NASDAQ") or such other system then in
use, or, if on any such date such shares of the Corporation are not
quoted by any such organization, the highest average of the closing bid
and asked prices as furnished by a professional market maker making a
market in such shares of the Corporation as selected by the Board of
Directors of the Corporation, in each case during the 60-day period
prior to and ending on the date of the Change of Control and (ii) if the
Change of Control is the result of a transaction or series of
transactions described in subparagraphs (i) or (iii) of the definition
of Change of Control set forth in Section 9.1, the highest price per
share of the Common Stock paid in such transaction or series of
transactions (which in the case of paragraph (i) shall be the highest
price per share of the Common Stock as reflected in a Schedule 13D by
the person having made the acquisition); provided, however, that with
respect to any Incentive Stock Option, the Change of Control Price shall
not exceed the market price of a share of Common Stock (to the extent
required pursuant to Section 422A of the Code) on the date of surrender
thereof.
ARTICLE X
AMENDMENT AND TERMINATION
10.1 Amendments, Suspension or Discontinuance. The Board of Directors may
amend, suspend or discontinue the Plan provided, however, that except as
permitted by Sections 4.1(b), the Board of Directors may not, without
the prior approval of the stockholders of the Company, make any
amendment which operates:
(a) To abolish the Committee, change the qualification of its
members or withdraw the administration of the Plan from
the Committee unless otherwise required or directed by law
or regulation,
(b) To make any material change in the class of eligible
employees as defined in the Plan,
(c) To increase the total number of shares of Common Stock
available for Options, Stock Appreciation Rights and
Awards granted under the Plan, or
(d) To extend the period during which Options or Awards may
be granted
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under the Plan, and provided further that upon the
occurrence of a Change in Control no amendment may
adversely affect the rights of any person in connection
with any Option or Award previously granted.
10.2 Limitation. No Option or Award shall be granted under the Plan after
March 1, 2005.
ARTICLE XI
MISCELLANEOUS
No director who also serves as an officer of the Corporation shall be
eligible to vote on any matter regarding the MCN Corporation Stock Incentive
Plan.
IN WITNESS WHEREOF, the undersigned officer of the Company has executed
this Plan this 27th day of April, 1995, pursuant to the resolution adopted by
the Board of Directors of the Company.
MCN CORPORATION
BY: /s/ Daniel L. Schiffer
------------------------------------
Daniel L. Schiffer, Vice President,
General Counsel and Secretary
Dated as of April 27, 1995
Restated April 27, 1995
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4.1 (a) is amended to read:
"Subject to adjustment pursuant to Section 4.1(b), the aggregate
number of shares of Common Stock with respect to which Options,
Stock Appreciation Rights, Awards and Performance Units may be
granted under the Plan in any calendar year shall not exceed one
percent of the shares of Common Stock outstanding in any year.
The one-percent limitation shall be calculated by dividing the
aggregate number of shares of Common Stock with respect to which
Options, Stock Appreciation Rights, Awards and Performance Units
are granted under the Plan in any calendar year by the total
number of shares outstanding on the first day during the calendar
year on which Options, Stock Appreciation Rights, Awards, and
Performance Units are granted. If the number of shares granted
with respect to Options, Stock Appreciation Rights, Awards, or
Performance Units is not determinable, then the limitation shall
be calculated using the largest number of shares expected to be
issued. Provided, however, that the number of Shares, Options,
Stock Appreciation Rights, Awards, or Performance Units that may
issued under this Plan subsequent to February 27, 1995 may not
exceed 5% of the number of shares issued and outstanding on that
date."
"Shares of Common Stock may be made available from the authorized
but unissued shares of the Corporation or from shares reacquired
by the Corporation including shares purchased in the open market.
If an Option, Restricted Stock Award, or Performance Unit Award
granted under the Plan shall expire or terminate for any reason
during a calendar year, the shares subject to, but not delivered,
under such option or Award shall be available for other options
and Awards to the same employee or other employees."
Section 10.2 is deleted in its entirety and new section 10.2 is
inserted as follows:
(New 10.2)
10.2 Limitation. No Option or Award shall be granted under the Plan after
March 1, 2005.
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