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EXHIBIT 10.30
CMS NOMECO OIL & GAS CO. LONG TERM PERFORMANCE INCENTIVE PLAN
ARTICLE I, PURPOSE
The CMS Nomeco Oil & Gas Co. Long Term Performance Incentive Plan (hereinafter
called the "Plan") is a Plan to provide incentive compensation to key employees
of the Corporation, based upon such key employees' individual contributions to
the long-term growth of and profitability of the Corporation, and in order to
encourage such key employees to identify with shareholder concerns and their
current and continuing interest in the development and financial success of the
Corporation. Because it is expected that the efforts of the key employees
selected for participation in the Plan will have a significant impact on the
results of the Corporation's operations in future years, the Plan is intended
to assist the Corporation in attracting and retaining as key employees
individuals of superior ability and in motivating their activities on behalf of
the Corporation.
ARTICLE II, DEFINITIONS
2.1 Definitions: When used in the Plan, the following words and phrases
shall have the following meanings:
a. "Beneficiary" means the beneficiary or beneficiaries designated in
accordance with Article VII to receive the amount, if any, payable
under the Plan upon the death of a Participant.
b. "Board" means the Board of Directors of the Corporation.
c. "Committee" means those members of the Executive and Remuneration
Committee of the Board who, at the time of any award or determination
by the Committee hereunder, are not, and at all times within one year
prior thereto shall not have been, eligible for selection as persons to
whom incentive compensation may be awarded pursuant to the Plan, or to
whom incentive or nonqualified Stock Options may be granted pursuant to
any other plan of the Corporation.
d. "Common Stock" means Common Stock of the Corporation as that term is
defined in its Articles of Incorporation at the time of an award or
grant under this Plan.
e. "Common Stock Outstanding" means the number of shares of Common Stock
issued and outstanding on the date of grant or award. In case of a
reorganization, recapitalization, stock split, stock dividend,
combination of shares, merger, consolidation, rights offering, or any
other change in the capital structure of the Corporation, the Committee
shall make such adjustment, if any, as it may deem appropriate in the
determination of Common Stock Outstanding.
f. "Corporation" means CMS NOMECO Oil & Gas Co., its successors and
assigns, and each of its Subsidiaries, or any of them individually.
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g. "Eligible Employee" means an officer or other key employee who at the
end of the fiscal year is a regular full-time salaried employee of the
Corporation or, to the extent the Committee may determine, a person
whose services to the Corporation terminated before the end of the
fiscal year, who, in the opinion of the Committee, made a significant
contribution to the successful management of the Corporation. A
director of the Corporation is not an Eligible Employee unless he is
also a regular full-time salaried employee of the Corporation
h. "Incentive Option" means an option to purchase Common Stock which meets
the requirements set forth in the Plan and also meets the definition of
an Incentive Stock Option set forth in Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
i. "Nonqualified Option" means an option to purchase Common Stock which
meets the requirements set forth in the Plan but does not meet the
definition of an Incentive Stock Option set forth in Section 422 of the
Code.
j. "Optionee" means any person to whom an option or right has been granted
or who becomes a holder of an option or right under Article VI of the
Plan.
k. "Participant" means a person to whom an award of Restricted Common
Stock has been made which has not been paid, forfeited, or otherwise
terminated or satisfied under the Plan.
l. "Profit Sharing Grant" means the amount granted by the Committee to
those Eligible Employees who are selected for participation in the
Profit Sharing provisions of the Plan as outlined in Article VIII.
m. "Restricted Common Stock" means Common Stock delivered subject to the
restrictions described in Article VII.
n. "Shareholders" means the shareholders of the Corporation.
o. "Stock Appreciation Right" shall mean a right, that may or may not be
granted in conjunction with a Stock Option, to receive the appreciation
in value of the current share price over the option price, and any
underlying Stock Options must then be surrendered.
p. "Stock Option" means an option to purchase shares of Common Stock,
granted pursuant to this Plan.
q. "Subsidiary" means a corporation, domestic or foreign, 80 percent or
more of the voting stock of which is owned directly or indirectly by
the Corporation.
ARTICLE III, EFFECTIVE DATE, DURATION, SCOPE AND ADMINISTRATION OF THE PLAN
3.1 This Plan shall be effective November 1, 1995 and shall continue until
terminated by the Board as provided in Article IX.
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3.2 The Committee shall have full power and authority to construe,
interpret and administer the Plan. All decisions, actions or
interpretations of the Committee shall be final, conclusive and binding
upon all parties. If any person objects to any such interpretation or
action formally or informally, the expenses of the Committee and its
agents and counsel shall be chargeable against any amounts otherwise
payable under the Plan to or on account of the Participant or Optionee.
3.3 No member of the Committee shall be personally liable by reason of any
contract or other instrument executed by him or on his behalf in his
capacity as a member of the Committee nor for any mistake of judgment
made in good faith, and the Corporation shall indemnify and hold
harmless each member of the Committee and each other officer, employee
or director of the Corporation to whom any duty or power relating to
the administration or interpretation of the Plan may be allocated or
delegated, against any cost or expense (including counsel fees) or
liability (including any sum paid in settlement of a claim with the
approval of the Board) arising out of any act or omission to act in
connection with the Plan unless arising out of such person's own fraud
or bad faith.
ARTICLE IV, PARTICIPATION, STOCK AWARDS AND OPTION GRANTS
4.1 Each year the Committee shall designate as Participants and/or
Optionees in the Plan those Eligible Employees who, in the opinion of
the Committee, have significantly contributed to the successful
management of the Corporation.
4.2 Each year, the Committee may award shares of Common Stock, and/or may
grant Stock Options which qualify as "Incentive Stock Options" within
the meaning of Section 422 of the Code or Stock Options which do not
qualify as Incentive Stock Options and/or Stock Appreciation Rights
and/or Profit Sharing Grants to each Eligible Employee whom it has
designated as an Optionee or Participant for such year. The
determination of the Committee as to each such award and grant shall be
final.
ARTICLE V, SHARES RESERVED UNDER THE PLAN
5.1 There is hereby reserved for award under this Plan an aggregate number
of whole shares of Common Stock equal as nearly as possible to, but not
more than, 1% of the aggregate shares of Common Stock Outstanding on
the date of grant or award, less any shares previously awarded or
granted under the Plan. Any shares or options which are forfeited may
thereafter again be awarded or made subject to grant under the Plan.
The number of shares made available for option and sale under Article
VI of this Plan, plus the number of shares awarded under Article VII of
this Plan will not exceed, at any time, the number of shares of Common
Stock reserved pursuant to this Article V.
5.2 If a dividend shall be declared upon the Common Stock payable in shares
of Common Stock, the number of shares of Common Stock then subject to
any option and the number of shares reserved for issuance pursuant to
the Plan but not yet covered by an option shall be adjusted by adding
to each such option or share the number of shares which would be
distributable thereon if such share had been outstanding on the date
fixed for determining the
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shareholders entitled to receive such stock dividend. In the event
that the outstanding shares of the Common Stock shall be changed into
or exchanged for a different number or kind of shares of stock or other
securities of the Corporation or of another corporation, whether
through reorganization, recapitalization, stock split-up, combination
of shares, merger or consolidation or otherwise, then there shall be
substituted for each share of Common Stock subject to any such option
and for each share of Common Stock reserved for issuance pursuant to
the Plan but not yet covered by an option, the number and kind of
shares of stock or other securities into which each outstanding share
of Common Stock shall be so changed or for which each such share shall
be exchanged. In the event there shall be any change, other than as
specified above in this Section 5.2, in the number or kind of
outstanding shares of Common Stock of the Corporation or of any stock
or other securities into which such Common Stock shall have been
changed or for which it shall have been exchanged, then if the
Committee shall in its sole discretion determine that such change
equitably requires an adjustment in the number or kind of shares
theretofore reserved for issuance pursuant to the Plan but not yet
covered by an option and of the shares then subject to an option or
options, such adjustment shall be made by the Committee and shall be
effective and binding for all purposes of the Plan and each Stock
Option agreement. In the case of any such substitution or adjustment
as provided for in this paragraph, the option price in each Stock
Option agreement for each share covered thereby prior to such
substitution or adjustment will be the option price for all shares of
stock or other securities which shall have been substituted for such
share or to which such share shall have been adjusted pursuant to this
section. No adjustment or substitution provided for in this Section
5.2 shall require the Corporation in any Stock Option agreement to sell
a fractional share, and the total substitution or adjustment with
respect to each Stock Option agreement shall be limited accordingly.
5.3 Individual Grant Limit: The maximum shares of Restricted Common Stock
awarded under this Plan and Common Stock subject to Stock Options,
including Stock Appreciation Rights granted in conjunction with Stock
Options, granted under this Plan for any one Eligible Employee for any
one year will not exceed 50,000 shares of Common Stock.
ARTICLE VI, STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
6.1 The Committee may from time to time provide for the option and sale of
shares of Common Stock, which may consist in whole or in part of the
authorized and unissued or reacquired Common Stock.
6.2 Optionees: The Committee shall determine and designate from time to
time, in its discretion, those Eligible Employees to whom Stock Options
and Stock Appreciation Rights are to be granted and who thereby become
Optionees under the Plan.
6.3 Allotment of Shares: The Committee shall determine and fix the number
of shares of Common Stock subject to options to be offered to each
Optionee.
6.4 Option Price: The Committee shall establish the option price at the
time any option is granted at not less than 100% of the fair market
value of
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the Common Stock on the date on which such option is granted; provided,
however, that with respect to an Incentive Option granted to an
employee who at the time of the grant owns (after applying the
attribution rules of Section 425(d) of the Code) more than 10% of the
total combined voting stock of the Corporation or of any parent or
Subsidiary, the option price shall not be less than 110% of the fair
market value of the Common Stock subject to the Incentive Option on the
date such option is granted.
6.5 Stock Appreciation Rights: At the discretion of the Committee, any
Stock Option granted under this Plan may, at the time of such grant,
include a Stock Appreciation Right. A Stock Appreciation Right shall
pertain to, and be granted only in conjunction with, a related
underlying Stock Option, and shall be exercisable only at the time and
to the extent the related underlying Stock Option is exercisable and
only if the fair market value of the Common Stock exceeds the Stock
Option price in the related underlying Stock Option. An Optionee who
is granted a Stock Appreciation Right may elect to surrender the
related underlying Stock Option with respect to all or part of the
number of shares subject to the related underlying Stock Option and
exercise in lieu thereof the Stock Appreciation Right with respect to
the number of shares as to which the Stock Option is surrendered.
The exercise of the underlying Stock Option shall terminate the related
Stock Appreciation Right to the extent of the number of shares
purchased upon exercise of the underlying Stock Option. The exercise
of a Stock Appreciation Right shall terminate the related
underlying Stock Option to the extent of the number of shares with
respect to which the Stock Appreciation Right is exercised. Upon
exercise of a Stock Appreciation Right, an Optionee shall be entitled
to receive, without payment to the Corporation (except for applicable
withholding taxes), an amount equal to the excess of (i) the then
aggregate fair market value of the number of shares with respect to
which the Optionee exercises the Stock Appreciation Right, over (ii)
the aggregate Stock Option price per share for such number of shares.
Such amount may be paid by the Corporation, at the election of the
Optionee, in cash, Common Stock or any combination thereof; provided,
however, that the Committee shall have sole discretion to approve or
disapprove an election of an Optionee to receive cash upon exercise of
a Stock Appreciation Right.
The Committee may also in its discretion grant to any Eligible Employee
a Stock Appreciation Right that is not granted in conjunction with an
underlying Stock Option. Any such Stock Appreciation Right that is not
granted in conjunction with a Stock Option will not result in a
decrease in the number of shares available under the Plan. Such
Stock Appreciation Right shall operate and be available to the Optionee
to the same extent and under the same circumstances as if the Stock
Appreciation Right had been granted in conjunction with an underlying
Stock Option as described elsewhere in this Plan. Notwithstanding
anything to the contrary in the Plan, upon exercise of a Stock
Appreciation Right for which there is no underlying Stock Option,
payment to the Optionee shall be made only in cash.
6.6 Granting and Exercise of Stock Options and Stock Appreciation Rights:
The granting of Stock Options and Stock Appreciation Rights hereunder
shall be
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effected in accordance with determinations made by the Committee
pursuant to the provisions of the Plan, by execution of instruments
in writing in form approved by the Committee.
Each Stock Option and Stock Appreciation Right granted hereunder shall
be exercisable at any such time or times or in any such installments as
may be determined by the Committee at the time of the grant, subject to
the limitation that for each Incentive Stock Option and related Stock
Appreciation Right granted, a maximum of $100,000 (based on the price
at the date of exercise) may be exercised per year, plus any unused
carry-over from a previous year(s). Except as provided in Section
6.10, Stock Options and Stock Appreciation Rights may be exercised only
while the Optionee is an employee of the Corporation.
Successive Stock Options and Stock Appreciation Rights may be granted
to the same Optionee, whether or not the Stock Option(s) and Stock
Appreciation Right(s) previously granted to such Optionee remain
unexercised. An Optionee may exercise a Nonqualified Option or related
Stock Appreciation Right, if then exercisable, notwithstanding that
Stock Options and Stock Appreciation Rights previously granted to such
Optionee remain unexercised.
6.7 Payment of Stock Option Price: At the time of the exercise in whole or
in part of any Stock Option granted hereunder, payment of the option
price in full in cash or, with the consent of the Committee, in Common
Stock shall be made by the Optionee for all shares so purchased. No
Optionee shall have any of the rights of a Shareholder under any such
Stock Option until the actual issuance of shares to said Optionee, and
prior to such issuance no adjustment shall be made for dividends,
distributions or other rights in respect of such shares, except as
provided in Section 5.2.
6.8 Nontransferability of Stock Options and Stock Appreciation Rights: No
Stock Option or Stock Appreciation Right granted under the Plan to an
Optionee shall be transferable by such Optionee otherwise than by will,
or by the laws of descent and distribution, and such Stock Option and
Stock Appreciation Right shall be exercisable, during the lifetime of
the Optionee, only by the Optionee.
6.9 Term of Stock Options and Stock Appreciation Rights: If not sooner
terminated, each Stock Option and Stock Appreciation Right granted
hereunder shall expire not more than ten years (ten years and one month
in the case of a Nonqualified Option and any related Stock Appreciation
Right) from the date of the granting thereof; provided, that with
respect to an Incentive Option and a related Stock Appreciation Right
granted to an Optionee who, at the time of the grant, owns (after
applying the attribution rules of Section 425(d) of the Code) more than
10% of the total combined voting stock of all classes of stock of the
Corporation or of any parent or Subsidiary, such Stock Option and Stock
Appreciation Right shall expire not more than five years after the date
of granting thereof.
6.10 Termination of Employment: If the employment of an Optionee by the
Corporation shall be terminated due to a reason other than the
Optionee's death, the Committee may, in its discretion, permit the
exercise of Stock
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Options and Stock Appreciation Rights granted to such Optionee for a
period not to exceed one year following such termination of employment
or three years following termination of employment upon retirement in
accordance with a pension plan of the Corporation; provided, however,
that no Incentive Option or related Stock Appreciation Right may be
exercised after three months following an Optionee's termination of
employment, unless such termination of employment is due to the
Optionee's death or disability. If the termination is due to the
Optionee's disability, the Committee may permit the Incentive Option
and related Stock Appreciation Right to be exercised for one year
following the Optionee's termination of employment. If the employment
of an Optionee by the Corporation shall be terminated due to the
Optionee's death, any Stock Option, or related Stock Appreciation
Right, transferred by will or the laws of descent and distribution, may
be exercised for one year following the Optionee's death. In no event,
however, shall a Stock Option or Stock Appreciation Right be
exercisable subsequent to its expiration date and, furthermore, a Stock
Option or Stock Appreciation Right may only be exercised after
termination of an Optionee's employment to the extent exercisable on
the date of termination of employment. Upon the termination of
employment of an Optionee by the Corporation, every Stock Option and
related Stock Appreciation Right shall terminate, except as otherwise
specifically provided in this Plan. Further, no Stock Option or
related Stock Appreciation Right may be exercised after such
termination of employment, except within a time period provided in this
Section 6.10.
6.11 Investment Purpose: Any shares of Common Stock subject to option under
the Plan may be made subject to such other restrictions as the
Committee deems advisable, including without limitation provisions to
comply with federal and state securities laws. In making
determinations of legal requirements the Committee shall rely on an
opinion of counsel for the Corporation.
6.12 Withholding Payments: If upon the exercise of a Nonqualified Option
and/or a Stock Appreciation Right or as a result of a disqualifying
disposition (within the meaning of Section 422 of the Code) of shares
acquired upon exercise of an Incentive Option, there shall be payable
by the Corporation any amount for income tax withholding, either the
Corporation shall appropriately reduce the amount of Common Stock or
cash to be paid to the Optionee or the Optionee shall pay such amount
to the Corporation to reimburse it for such income tax withholding.
6.13 Restrictions on Sale of Shares: If, at the time of exercise of any
Stock Option or Stock Appreciation Right granted hereunder, the
Corporation is precluded by any legal, regulatory or contractual
restriction from selling and/or delivering shares pursuant to the terms
of such Stock Option or Stock Appreciation Right, the sale and delivery
of the shares may be delayed until the restrictions are resolved and
only cash may be paid upon exercise of the Stock Appreciation Right.
Further, at no time will any shares be sold or delivered to a
participant if such sale or delivery will result in a deconsolidation
of the stock. At any time during such delay, the Committee, in its
discretion, may permit the Optionee to revoke a Stock Option exercise,
in which event any corresponding Stock Appreciation Right shall be
reinstated.
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6.14 Compliance With Rule 16b-3: Notwithstanding any other provision of the
Plan to the contrary, the administration of the Plan and the grant,
exercise and terms of Stock Appreciation Rights hereunder shall comply
with Rule 16b-3, or any successor rule, under the Securities Exchange
Act of 1934, as amended (the "Exchange Act").
ARTICLE VII, RESTRICTED COMMON STOCK
7.1 Awards: The Committee may from time to time award restricted shares of
Common Stock to any Eligible Employee it has designated as a
Participant for such year. Awards shall be made to Eligible Employees
on the basis of their contributions to the successful management of the
Corporation in accordance with such rules as the Committee may
prescribe. The Committee may also award restricted shares of Common
Stock conditioned on the attainment of a performance goal that relates
to Shareholder return, measured by factors determined by the Committee
as set forth in the award.
7.2 Restrictions:
a. Any shares of Common Stock awarded or issued under the Plan may
be made subject to such other restrictions as the Committee deems
advisable, including without limitation provisions to comply with
federal and state securities laws. In making determinations of
legal requirements the Committee shall rely on an opinion of
counsel for the Corporation. The restrictions with respect to the
Common Stock awarded will extend for such period, or periods, of
at least twelve months from and after the date of the award, as
may be determined for each award by the Committee (the award
period). Notwithstanding the foregoing, the restrictions shall
terminate upon the death of the Participant or, within the
discretion of the Committee, upon Participant's retirement
pursuant to a pension plan of the Corporation on or after
Participant's 62nd birthday, except as may otherwise be determined
to be necessary or desirable in the opinion of the Committee, to
comply with the law or to prevent Restricted Common Stock from
being subject to federal income tax prior to the termination of
restrictions.
b. Whenever shares of Common Stock are awarded to a Participant, such
shares shall be outstanding, and stock certificates shall be
issued in the name of the Participant, which certificates may
bear a legend stating that the shares are issued subject to the
restrictions set forth in the Plan. All certificates issued for
shares of Common Stock awarded under the Plan shall be deposited
for the benefit of the Participant with the Secretary of the
Corporation as custodian until such time as the shares are vested
and transferable.
c. A Participant who is awarded shares of Common Stock under the
Plan shall have full voting rights on such shares, whether
or not the shares are vested or transferable.
d. Shares of Common Stock awarded to a Participant under the Plan,
whether or not vested or transferable, shall have full dividend
rights with respect to dividends declared after the award, with
such
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dividends being paid directly to the Participant, regardless of
whether such dividends are paid in cash or in Common Stock.
However, if shares or securities are issued as a result of a
merger, consolidation or similar event, such shares shall be
issued in the same manner, and subject to the same deposit
requirements, vesting provisions and transferability restrictions
as the shares of Common Stock which have been awarded.
e. Deliveries of Restricted Common Stock by the Corporation may
consist in whole or in part of the authorized and unissued or
reacquired Common Stock of the Corporation (at such time or times
and in such manner as it may determine). The Restricted Common
Stock shall be paid and delivered as soon as practicable after the
award period in accordance with Section 7.3.
f. The shares may not be sold, exchanged, transferred, pledged,
hypothecated, or otherwise disposed of by the Participant until
their release. However, nothing herein shall preclude a
Participant from making a gift of any shares of Restricted
Common Stock to a spouse, child, step-child, grandchild, parent or
sibling, or legal dependent of the Participant or to a trust of
which the beneficiary or beneficiaries of the corpus and the
income shall be either such a person or the Participant; provided
that, the Restricted Common Stock so given shall remain subject to
the restrictions, obligations and conditions described in this
Article VII.
g. If a Participant has received an award pursuant to the provisions
of the Plan, is employed by the Corporation at the end of the
award period and the performance goals have been met, then
the Participant shall be fully vested, at the end of the award
period, in the shares of Common Stock awarded to the Participant
for that award period.
h. In the event of termination of employment of a Participant with
the Corporation prior to the last day of an award period for any
reason other than Participant's death, all rights to any shares of
Restricted Common Stock held in a deposit account with respect to
such award, including any additional shares delivered with respect
to such shares as described in subsection 7.2d above shall be
forfeited to the Corporation. However, the Committee may, if the
Committee determines that the circumstances warrant such action,
approve the distribution of all or any part of the Restricted
Common Stock which would otherwise be forfeited. By way of
illustration, but not limitation, circumstances which might
warrant such action on the part of the Committee include
retirement pursuant to a pension plan of the Corporation, or
retirement pursuant to a pension plan of the Corporation by reason
of disability.
7.3 Distribution of Restricted Common Stock
a. Distribution After Award Period: Except as otherwise provided,
distribution of vested awards of Common Stock shall be made as
soon as practicable after the last day of the applicable award
period in the form of full shares of Common Stock, with fractional
shares, if any, being awarded in cash.
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b. Distribution After Death of Participant: Upon the death of
the Participant, either before or after retirement, any shares of
Restricted Common Stock then held shall, subject to this Article
VII, be delivered within a reasonable time under the
circumstances to Participant's Beneficiary or, in the absence of
an appropriate Beneficiary designation to the Participant's
estate, in such one or more installments as the Committee may then
determine.
7.4 Designation of Beneficiaries
If a Participant dies prior to the receipt in full of any award under
the Plan to which the Participant is entitled, the award shall be
distributed to the Participant's Beneficiary or, in the absence of a
Beneficiary designation, to the Participant's estate. The
designation of a Beneficiary shall be made in writing on a form
prescribed by and filed with the Committee prior to the Participant's
death. If the Committee is in doubt as to the right of any person to
receive such amount, the Committee may retain such amount, without
liability for any interest thereon, until the rights thereto are
determined, or the Committee may pay such amount into any court of
appropriate jurisdiction and such payment shall be a complete discharge
of the liability of the Plan and the Corporation therefor.
7.5 Transferability: Subject to the provision of this Article VII, shares
of Common Stock awarded to a Participant will become freely
transferable by the Participant only at the end of the award period
established with respect to such shares.
7.6 Distribution to Person Other Than Employee: If the Committee shall
find that any person to whom any award is payable under this Article
VII of the Plan is unable to care for such person's affairs because of
illness or accident, or is a minor, or has died, then any payment due
Participant or Participant's estate (unless a prior claim therefor has
been made by a duly appointed legal representative), may, if the
Committee so directs the Corporation, be paid to Participant's spouse,
a child, a relative, an institution maintaining or having custody of
such person, or any other person deemed by the Committee to be a proper
recipient on behalf of such person otherwise entitled to payment. Any
such payment shall be a complete discharge of the liability of the
Committee and the Corporation therefor.
7.7 Restricted Common Stock is intended to constitute an unfunded deferred
compensation arrangement for a select group of management or highly
compensated personnel.
7.8 A forfeiture of shares of Common Stock pursuant to subsection 7.2h of
the Plan shall effect a complete forfeiture of voting rights, dividend
rights and all other rights relating to the award or grant as of the
date of forfeiture.
7.9 Each distribution of Common Stock under this Article VII of the Plan
shall be made subject to such federal, state and local tax withholding
requirements as apply on the distribution date. For this purpose, the
Committee may provide for the withholding of shares of Common Stock or
allow a
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Participant to pay to the Corporation funds sufficient to satisfy such
withholding requirements.
7.10 Notwithstanding any other provisions in the Plan, in the event of a
Change in Control (as hereinafter defined) each Participant shall be
fully vested in the number of shares of Common Stock awarded to such
Participant for all award periods that, upon such event, have not yet
ended. Distribution of all shares of Common Stock shall be made as
soon as practicable within 7 days after the date of the Change in
Control, as if the applicable award period or periods had ended on such
date. In addition, the Corporation shall reimburse a participant for
legal fees and expenses incurred by such Participant in successfully
seeking to obtain or enforce any right to distribution under this
Section 7.10. For purposes of this Plan, a Change in Control shall
occur upon the occurrence of one or more of the following events:
(i) a change in control of the Corporation would be required to be
reported in response to Item 1(a) of the Current Report on Form
8-K, as in effect on the date hereof, pursuant to Sections 13 or
15(d) of the Exchange Act, whether or not the Corporation is then
subject to such reporting requirement (unless such change in
control was arranged or consummated with the prior approval of the
Board);
(ii) any "person" or "group" within the meaning of Sections 13(d) and
14(d)(2) of the Exchange Act becomes the "beneficial owner" as
defined in Rule 13d-3 under the Exchange Act of more than 30% of
the then outstanding voting securities of the Corporation
otherwise than through a transaction or transactions arranged by
or consummated with the prior approval of the Board;
(iii) during any period of twenty-four consecutive months (not including
any period prior to the adoption of this Plan) Present Directors
and/or New Directors cease for any reason to constitute a majority
of the Board. For purposes of this subsection (iii) "Present
Directors" shall mean individuals who at the beginning of such
consecutive twenty-four month period were members of the Board and
"New Directors" shall mean any director of the Corporation whose
election by the Board or whose nomination for election by the
Shareholders was approved by a vote of at least two-thirds of the
Corporation's Directors then still in office who were Present
Directors or New Directors;
(iv) there is a sale by the Corporation within a three-year period of
assets of the Corporation with either a book value or market value
of 50% or more of the assets of the Corporation;
(v) a bidder as defined in Rule 14d-1(b) under the Exchange Act files
a tender offer statement with the Securities & Exchange Commission
and the Corporation.
Notwithstanding any other provisions of the Plan, the provisions of
this Section 7.10 may not be amended after the date a Change
in Control occurs without the written consent of a majority in number
of Participants.
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ARTICLE VIII, PROFIT SHARING GRANTS
8.1 Grants: The Committee may from time to time grant an annual profit
sharing amount totaling no more than 2% of the net profits of the
Corporation. For purposes of this Plan the annual profit sharing amount
will be based on the net profit of the Corporation as averaged over a
three year period ending on December 31 prior to the date of grant.
Grants shall be made to Eligible Employees, on the basis of their
contributions to the successful management of the Corporation in
accordance with such rules as the Committee may prescribe. Eligible
Employees who have received awards or grants under Article VI or
Article VII of this Plan will not be eligible for a Profit Sharing
Grant in the same year.
8.2 Individual Grant Amount: The Committee shall determine and fix the
amount of any grant under the Plan to be provided for any Eligible
Employee.
8.3 Restrictions: The Committee may at its sole discretion provide for
restrictions that may delay or prevent the ultimate payout of any
Profit Sharing Grants under this Plan. Such restrictions may include a
provision for equal annual payments over such time as the Committee
deems proper.
8.4 Termination of Employment: In the event of termination of employment
of an Eligible Employee with the Corporation prior to the final payment
of any Profit Sharing Grant for any reason other than the Eligible
Employee's death, all rights to any further payments shall be
forfeited. However, the Committee may, if the Committee determines
that the circumstances warrant such action, approve the payment of all
or any part of the payments which would otherwise be forfeited. By way
of illustration, but not limitation, circumstances which might warrant
such action on the part of the Committee include retirement pursuant to
a pension plan of the Corporation, or retirement pursuant to a pension
plan of the Corporation by reason of disability.
8.5 Payment After Death of Eligible Employee: Upon the death of the
Eligible Employee any grants not yet paid to the Eligible Employee
shall be made to the Eligible Employee's Beneficiary or, in the absence
of an appropriate beneficiary designation, to the Eligible Employee's
estate, in such one or more installments as the Committee may then
determine.
ARTICLE IX, AMENDMENT OR TERMINATION OF THE PLAN
9.1 Right To Amend, Suspend or Terminate Plan: The Board reserves the
right at any time to amend, suspend or terminate the Plan in whole or
in part and for any reason and without the consent of any Optionee,
Participant or Beneficiary; provided, that no such amendment shall:
a. Change the Stock Option price or adversely affect any Stock Option
or Stock Appreciation Right outstanding under the Plan on the
effective date of such amendment or termination, or
b. Adversely affect any award or grant then in effect or rights to
receive any amount to which Participants or Beneficiaries have
become entitled prior to such amendment, or
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c. Unless approved by the Shareholders, increase the aggregate
number of shares of Common Stock reserved for award or grant
under the Plan, change the group of Eligible Employees under the
Plan or materially increase benefits to Eligible Employees under
the Plan.
9.2 Periodic Review of Plan: In order to assure the continued realization
of the purposes of the Plan, the Committee shall periodically review
the Plan, and the Committee may suggest amendments to the Board as it
may deem appropriate.
9.3 Amendments May Be Retroactive: Subject to Section 9.1 above, any
amendment, modification, suspension or termination of any provisions of
the Plan may be made retroactively.
ARTICLE X, GENERAL PROVISIONS
10.1 Rights to Continued Employment, Award or Option: Nothing contained in
the Plan or in any Stock Option, Stock Appreciation Right, Profit
Sharing Grant or Restricted Common Stock award shall give any employee
the right to be retained in the employment of the Corporation or affect
the right of the Corporation to terminate the employee's employment at
any time. The adoption of the Plan shall not constitute a contract
between the Corporation and any employee. No Eligible Employee shall
receive any right to be granted an option, right or award hereunder nor
shall any such option, right or award be considered as compensation
under any employee benefit plan of the Corporation.
10.2 Governing Law: The provisions of this Plan and all rights thereunder
shall be governed by and construed in accordance with the laws of the
State of Michigan.
IN WITNESS WHEREOF, execution is hereby effected.
ATTEST: CMS NOMECO OIL & GAS CO.
_________________________________ BY:____________________________________
Secretary
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ADDENDUM
CMS NOMECO OIL & GAS CO. LONG TERM PERFORMANCE INCENTIVE PLAN
The following provisions shall apply only to the initial grant by the Committee
under the Plan, to or on account of an Optionee, of certain Nonqualified
Options under the Plan, which grant is effective as of March 1, 1996 and covers
87,000 shares (hereinafter referred to as the IPO Grant), and shall supersede
any contrary provisions of the Plan with respect to such IPO Grant:
1. The Committee shall not be entitled to charge against any amounts
otherwise payable under the Plan to or on behalf of the
Optionee, any expenses or fees it incurs arising from or related
to an Optionee's formal or informal action regarding the
enforcement of his rights with respect to the exercise of the IPO
Grant.
2. In the event the Optionee's employment with the Corporation is
terminated for any reason on or after March 1, 1996, the
Optionee shall have a reasonable time, not to exceed the later of
September 10, 1996 or 90 days from the date of termination, to
exercise any outstanding IPO Grant Options.
All provisions of the Plan which are not in conflict with this Addendum shall
remain in full force and effect. Further, any contemporaneous or subsequent
grants under the Plan shall not be subject to the terms of this Addendum.