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EXHIBIT 4.1
SUN COMMUNITIES, INC.
AMENDED AND RESTATED
1993 STOCK OPTION PLAN
ARTICLE I.
PURPOSE AND ADOPTION OF THE PLAN
1.01 PURPOSE. The purpose of the Sun Communities, Inc. Stock
Option Plan (the "Plan") is to provide certain key employees of Sun
Communities, Inc. (the "Company") with an additional incentive to promote the
Company's financial success and to provide an incentive which the Company may
use to induce able persons to enter into or remain in the employment of the
Company or a Subsidiary.
1.02 ADOPTION AND TERM. The Plan was initially approved by the
Board and the Company's shareholders and was effective as of November 19, 1993.
The Amended and Restated Plan was approved by the Board on, and is effective as
of, May 20, 1996, subject to approval of the Company's stockholders on or
before May 20, 1997, and will remain in effect until all shares authorized
under the terms of the Plan have been issued, unless earlier terminated or
abandoned by action of the Board; provided, however, that no Incentive Stock
Option may be granted after November 19, 2003.
ARTICLE II.
DEFINITIONS
2.01 ADMINISTRATOR means the group of persons having authority
to administer the Plan pursuant to Section 3.01.
2.02 AVERAGE PRICE means, on any given date, the average of the
closing sales prices of the Company Common Stock as quoted on the New York
Stock Exchange for the ten (10) business day period immediately preceding and
including the Date of Grant.
2.03 AWARD means any one or combination of Non-Qualified Stock
Options, Performance Based Options, Incentive Stock Options, Stock Appreciation
Rights, Restricted Share Rights or any other award made under the terms of the
Plan.
2.04 AWARD AGREEMENT means a written agreement between the
Company and Participant or a written acknowledgment from the Company
specifically setting forth the terms and conditions of an Award granted under
the Plan.
2.05 AWARD PERIOD means, with respect to an Award, the period of
time set forth in the Award Agreement during which specified conditions set
forth in the Award Agreement must be satisfied.
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2.06 BENEFICIARY means (a) an individual, trust or estate who or
which, by will or by operation of the laws of descent and distribution,
succeeds to the rights and obligations of the Participant under the Plan and
Award Agreement upon the Participant's death; or (b) an individual, who by
designation of the Participant, succeeds to the rights and obligations of the
Participant under the Plan and Award Agreement upon the Participant's death.
2.07 BOARD means the Board of Directors of the Company.
2.08 CHANGE OF CONTROL EVENT means (a) an event or series of
events by which any Person or other entity or group (as such term is used in
Section 13(d) and 14(d) of the Exchange Act) of Persons or other entities
acting in concert as a partnership or other group (a "Group of Persons") (other
than Persons who are, or Groups of Persons entirely made up of, (i) management
personnel of the Company or (ii) any affiliates of any such management
personnel) shall, as a result of a tender or exchange offer or offers, an open
market purchase or purchases, a privately negotiated purchase or purchases or
otherwise, become the beneficial owner (within the meaning of Rule 13d-3 under
the Exchange Act, except that a Person shall be deemed to have "beneficial
ownership" of all securities that such Person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of 20% or more of the combined voting power of the then
outstanding voting stock of the Company; (b) the Company consolidates with, or
merges with or into, another Person (other than a Subsidiary in a transaction
which is not otherwise a Change of Control Event), or sells, assigns, conveys,
transfers, leases or otherwise disposes of all or substantially all of its
assets to any Person, or any Person consolidates with, or merges with or into
the Company, in any such event pursuant to a transaction in which the
outstanding voting stock of the Company is converted into or exchanged for
cash, securities or other property; (c) during any consecutive two-year period,
individuals who at the beginning of such period constituted the Board (together
with any new directors whose election by such Board or whose nomination for
election by the stockholders of the Company, was approved by a vote of 66-2/3%
of the directors then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
Board then in office; or (d) any liquidation or dissolution of the Company
(other than a liquidation into a Subsidiary that is not otherwise a Change of
Control Event).
2.09 CODE means the Internal Revenue Code of 1986, as amended.
References to a section of the Code shall include that section and any
comparable section or sections of any future legislation that amends,
supplements or supersedes that section.
2.10 COMPANY means Sun Communities, Inc., a Maryland
corporation.
2.11 COMPANY COMMON STOCK means the Common Stock of the Company,
par value $0.01.
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2.12 DATE OF GRANT means the date designated by the
Administrator as the date as of which it grants an Award, which shall not be
earlier than the date on which the Administrator approves the granting of such
Award.
2.13 DIRECTOR means a member of the Board of Directors of the
Company.
2.14 EXCHANGE ACT means the Securities Exchange Act of 1934, as
amended.
2.15 EXERCISE PRICE means, with respect to a Stock Appreciation
Right, the amount established by the Administrator, in accordance with Section
7.03 hereunder, and set forth in the Award Agreement, which is to be subtracted
from the Fair Market Value on the date of exercise in order to determine the
amount of the Incremental Value to be paid to the Participant.
2.16 EXPIRATION DATE means the date specified in an Award
Agreement as the expiration date of such Award.
2.17 FAIR MARKET VALUE means, with respect to Awards granted
coincident with the date of the closing of the Company's initial public
offering of Company Common Stock, the public offering price. Thereafter, Fair
Market Value means, on any given date, the average of the highest and lowest
selling price for the Company Common Stock as reported on the Composite Tape
for New York Stock Exchange Listed Companies, or, if there were no sales on
such date, the average of the highest and lowest selling price for the most
recent date upon which a sale was reported.
2.18 INCENTIVE STOCK OPTION means a stock option described in
Section 422 of the Code.
2.19 INCREMENTAL VALUE has the meaning given such term in
Section 7.01 of the Plan.
2.20 NON-QUALIFIED STOCK OPTION means a stock option which is
not an Incentive Stock Option.
2.21 OFFICER means a president, vice president, treasurer,
secretary, controller, and any other person who performs functions
corresponding to the foregoing officers for the Company, any member of the
Board of the Company or any person performing similar functions with respect to
the Company, and any other participant who is deemed to be an officer or
director of the Company for purposes of Section 16 of the Exchange Act and the
rules thereunder, as currently in effect or as amended from time to time.
2.22 OPTIONS means all Non-Qualified Stock Options, Incentive
Stock Options and Performance Based Options granted at any time under the Plan.
2.23 PARTICIPANT shall have the meaning set forth in Article V.
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2.24 PERFORMANCE BASED OPTION means a stock option which, upon
exercise or at any other time, would not result in or give rise to "applicable
employee remuneration" within the meaning of Section 162(m) of the Code.
2.25 PLAN means the Sun Communities, Inc. Stock Option Plan, as
described herein and as it may be amended from time to time.
2.26 PURCHASE PRICE, with respect to options, shall have the
meaning set forth in Section 6.02.
2.27 RESTRICTED SHARE RIGHT means a right to receive Company
Common Stock subject to restrictions imposed under the terms of an Award
granted pursuant to Article IX.
2.28 RULE 16B-3 means Rule 16b-3 promulgated by the Securities
and Exchange Commission under Section 16 of the Exchange Act, as currently in
effect and as it may be amended from time to time, and any successor rule.
2.29 STOCK APPRECIATION RIGHT means an Award granted in
accordance with Article VII.
2.30 SUBSIDIARY shall have the meaning set forth in Section
424(f) of the Code.
2.31 TERMINATION OF EMPLOYMENT means the voluntary or
involuntary termination of a Participant's employment with the Company for any
reason, including death, disability, retirement or as the result of the
divestiture of the Participant's employer or any other similar transaction in
which the Participant's employer ceases to be the Company or a Subsidiary of
the Company. Whether an authorized leave of absence or absence on military or
government service, absence due to disability, or absence for any other reason
shall constitute Termination of Employment shall be determined in each case by
the Administrator in its sole discretion.
ARTICLE III.
ADMINISTRATION
3.01 ADMINISTRATION. The Administrator of the Plan shall be a
committee of two or more Directors with authority to act as provided in Rule
16b-3 and shall be elected or appointed by the Board. The members of the
committee shall meet the "disinterested person" requirements of Rule
16b-3(c)(2)(i) and, with respect to Awards designated as Performance Based
Options, shall also be "outside directors" within the meaning of Section 162(m)
of the Code. The Administrator shall administer the Plan in accordance with
this provision and shall have the sole discretionary authority to interpret the
Plan, to establish and modify administrative rules for the Plan, to impose such
conditions and restrictions on Awards as it determines appropriate, to cancel
Awards (including those made pursuant to other plans of the Company) and to
substitute new options (including options granted under other plans of the
Company) with the consent of the recipient, and to take such steps in
connection with the Plan and Awards granted thereunder as it may
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deem necessary or advisable. The Administrator may, with respect to
Participants who are not Officers, delegate such of its powers and authority
under the Plan as it deems appropriate to designated officers or employees of
the Company.
3.02 INDEMNIFICATION. Members of the Administrator shall be
entitled to indemnification and reimbursement from the Company for any action
or any failure to act in connection with service as Administrator to the full
extent provided for or permitted by the Company's certificate of incorporation
or bylaws or by any insurance policy or other agreement intended for the
benefit of the Company's officers, directors or employees or by any applicable
law.
ARTICLE IV.
COMPANY COMMON STOCK ISSUABLE PURSUANT TO THE PLAN
4.01 SHARES ISSUABLE. Shares to be issued under the Plan may be
authorized and unissued shares or issued shares which have been reacquired by
the Company. Except as provided in Section 4.03, the Awards granted to any
Participant and to all Participants in the aggregate under the Plan shall be
limited so that the sum of the following shall never exceed nine percent (9%)
of the total number of shares of Company Common Stock outstanding: (i) all
shares which shall be issued upon the exercise of outstanding Options or other
Awards granted under the Plan, (ii) all shares for which payment of Incremental
Value shall be made by reason of the exercise of Stock Appreciation Rights at
any time granted under the Plan, and (iii) the number of shares otherwise
issuable under an Award which are applied by the Company to payment of the
withholding or tax liability discussed in Section 11.04.
4.02 SHARES SUBJECT TO TERMINATED AWARDS. In the event that any
Award at any time granted under the Plan shall be surrendered to the Company,
be terminated or expire before it shall have been fully exercised, or an award
of Stock Appreciation Rights is exercised for cash, then all shares formerly
subject to such Award as to which such Award shall not have been exercised
shall be available for any Award subsequently granted in accordance with the
Plan. Shares of Company Common Stock subject to Options, or portions thereof,
which have been surrendered in connection with the exercise of tandem Stock
Appreciation Rights shall not be available for subsequent Awards under the
Plan, and shares of Company Common Stock issued in payment of such Stock
Appreciation Rights shall be charged against the number of shares of Company
Common Stock available for the grant of Awards. Shares which are reacquired by
the Company or shares issuable subject to Restricted Share Rights which are
forfeited pursuant to forfeiture provisions in the Award Agreement shall be
available for subsequently granted Awards only if the forfeiting Participant
received no benefits of ownership (such as dividends actually paid to the
Participant) other than voting rights of the forfeited shares. Any shares of
Company Common Stock issued by the Company pursuant to its assumption or
substitution of outstanding grants from acquired companies shall not reduce the
number of shares available for Awards under this Plan unless issued under this
Plan.
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4.03 ADJUSTMENTS TO REFLECT CAPITAL CHANGES.
(a) RECAPITALIZATION. The number and kind of shares
subject to outstanding Awards, the Purchase Price or Exercise Price
for such shares, and the number and kind of shares available for
Awards subsequently granted under the Plan shall be appropriately
adjusted to reflect any stock dividend, stock split, combination or
exchange of shares, merger, consolidation or other change in
capitalization with a similar substantive effect upon the Plan or the
Awards granted under the Plan. The Administrator shall have the power
to determine the amount of the adjustment to be made in each case.
(b) SALE OR REORGANIZATION. After any reorganization,
merger or consolidation in which the Company is a surviving
corporation, each Participant shall, at no additional cost, be
entitled upon exercise of an Award to receive (subject to any required
action by stockholders), in lieu of the number of shares of Company
Common Stock receivable or exercisable pursuant to such Award, a
number and class of shares of stock or other securities to which such
Participant would have been entitled pursuant to the terms of the
reorganization, merger or consolidation if, at the time of such
reorganization, merger or consolidation, such Participant had been the
holder of record of a number of shares of stock equal to the number of
shares receivable or exercisable pursuant to such Award. Comparable
rights shall accrue to each Participant in the event of successive
reorganizations, mergers or consolidations of the character described
above.
(c) OPTIONS TO PURCHASE STOCK OF ACQUIRED COMPANIES.
After any reorganization, merger or consolidation in which the Company
or a Subsidiary of the Company shall be a surviving corporation, the
Administrator may grant substituted Options under the provisions of
the Plan, pursuant to Section 424 of the Code, replacing old options
granted under a plan of another party to the reorganization, merger or
consolidation, where such party's stock may no longer be issued
following such merger or consolidation. The foregoing adjustments and
manner of application of the foregoing provisions shall be determined
by the Administrator in its sole discretion. Any adjustments may
provide for the elimination of any fractional shares which might
otherwise have become subject to any Awards.
ARTICLE V.
PARTICIPATION
5.01 ELIGIBLE EMPLOYEES. Participants in the Plan shall be the
Officers who are employees of the Company or a Subsidiary of the Company and
other employees of the Company or a Subsidiary having managerial, supervisory
or similar responsibilities or who are key administrative employees or sales
managers, and who are not covered by any collective bargaining agreement
binding on such persons' employer, as the Administrator, in its sole
discretion, may designate from time to time. The Administrator's designation
of a Participant in any year shall not require the Administrator to designate
such person to receive Awards in any other year. The Administrator shall
consider such
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factors as it deems pertinent in selecting Participants and in determining the
type and amount of their respective Awards.
5.02 SPECIAL PROVISIONS FOR CERTAIN NON-EMPLOYEES.
Notwithstanding any provision contained in this Plan to the contrary, the
Administrator may grant Awards under the Plan to non-employees who, in the
judgment of the Administrator, render significant services to the Company or a
Subsidiary, on such terms and conditions as the Administrator deems appropriate
and consistent with the intent of the Plan.
ARTICLE VI.
OPTION AWARDS
6.01 POWER TO GRANT OPTIONS. The Administrator may grant, to
such Participants as the Administrator may select, Options entitling the
Participant to purchase Company Common Stock from the Company at the Average
Price in such quantity and on such terms and subject to such conditions, not
inconsistent with the terms of this Plan, as may be established by the
Administrator; provided, however, that the Options may be granted at exercise
prices of no less than 85% of the Average Price if such discount is expressly
granted in lieu of a reasonable amount of salary or bonus. The terms of any
Option granted under this Plan shall be set forth in an Award Agreement.
Notwithstanding the foregoing, Options granted to Officers shall not be
exercisable for a period of at least six months from the Date of Grant.
6.02 PURCHASE PRICE OF OPTIONS. The Purchase Price of each
share of Company Common Stock which may be purchased upon exercise of any
Option granted under the Plan shall be determined in accordance with Section
6.01, provided that the Purchase Price for shares of Company Common Stock
purchased pursuant to Stock Options designated by the Administrator as
Incentive Stock Options shall be equal to or greater than the Fair Market Value
on the Date of Grant as required under Section 422 of the Code and provided
further that the Purchase Price for shares of Company Common Stock purchased
pursuant to Stock Options designated by the Administrator as Performance Based
Options shall be equal to or greater than the Fair Market Value on the Date of
Grant.
6.03 DESIGNATION OF INCENTIVE STOCK OPTIONS. Except as
otherwise expressly provided in the Plan, the Administrator may designate, at
the Date of Grant of each Option, that the Option is an Incentive Stock Option
under Section 422 of the Code.
(a) INCENTIVE STOCK OPTION SHARE LIMITATION. No
Participant may be granted Incentive Stock Options under the Plan (or
any other plans of the Company) which would result in stock with an
aggregate Fair Market Value (measured on the Date of Grant) of more
than $100,000 first becoming exercisable in any one calendar year, or
which would entitle such Participant to purchase a number of shares
greater than the maximum number permitted by Section 422 of the Code
as in effect on the Date of Grant.
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(b) OTHER INCENTIVE STOCK OPTION TERMS. Whenever
possible, each provision in the Plan and in every Option granted under
this Plan which is designated by the Administrator as an Incentive
Stock Option shall be interpreted in such a manner as to entitle the
Option to the tax treatment afforded by Section 422 of the Code. If
any provision of this Plan or any Option designated by the
Administrator as an Incentive Stock Option shall be held not to comply
with requirements necessary to entitle such Option to such tax
treatment, then (i) such provision shall be deemed to have contained
from the outset such language as shall be necessary to entitle the
Option to the tax treatment afforded under Section 422 of the Code,
and (ii) all other provisions of this Plan and the Award Agreement
shall remain in full force and effect. If any agreement covering an
Option designated by the Administrator to be an Incentive Stock Option
under this Plan shall not explicitly include any terms required to
entitle such Incentive Stock Option to the tax treatment afforded by
Section 422 of the Code, all such terms shall be deemed implicit in
the designation of such Option and the Option shall be deemed to have
been granted subject to all such terms.
6.04 DESIGNATION OF PERFORMANCE BASED OPTIONS. Except as
otherwise expressly provided in the Plan, the Administrator may designate, at
the Date of Grant of each Option, that the Option is a Performance Based
Option. A Performance Based Option shall have a Purchase Price not less than
the Fair Market Value on the Date of Grant and shall contain such other terms
and conditions as the Administrator may deem necessary so that, upon exercise
or at any other time, the Performance Based Option does not result in or give
rise to "applicable employee remuneration" within the meaning of Section 162(m)
of the Code.
6.05 RIGHTS AS A STOCKHOLDER. The Participant or any transferee
of an Option pursuant to Section 8.02 or Section 11.05 shall have no rights as
a stockholder with respect to any shares of Company Common Stock covered by an
Option until the Participant or transferee shall have become the holder of
record of any such shares, and no adjustment shall be made for dividends and
cash or other property or distributions or other rights with respect to any
such shares of Company Common Stock for which the record date is prior to the
date on which the Participant or a transferee of the Option shall have become
the holder of record of any such shares covered by the Option.
ARTICLE VII.
STOCK APPRECIATION RIGHTS
7.01 POWER TO GRANT STOCK APPRECIATION RIGHTS. The
Administrator is authorized to grant to any Participant, on such terms
established by the Administrator on or prior to the Date of Grant and subject
to and not inconsistent with the provisions of this Plan, the right to receive
the payment from the Company, payable as provided in Section 7.04, of an amount
equal to the Incremental Value of the Stock Appreciation Rights, which shall be
an amount equal to the remainder derived from subtracting (i) the Exercise
Price for the right established in the Award Agreement from (ii) the Fair
Market Value of a share of Company Common Stock on the date of exercise. The
terms of any
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Stock Appreciation Right granted under the Plan shall be set forth in an Award
Agreement.
7.02 TANDEM STOCK APPRECIATION RIGHTS. The Administrator may
grant to any Participant a Stock Appreciation Right consistent with the
provisions of this Plan covering any share of Company Common Stock which is, at
the Date of Grant of the Stock Appreciation Right, also covered by an Option
granted to the same Participant, either prior to or simultaneously with the
grant to such Participant of the Stock Appreciation Right, provided: (i) any
Option covering any share of Company Common Stock shall expire and not be
exercisable upon the exercise of any Stock Appreciation Right with respect to
the same share; (ii) any Stock Appreciation Right covering any share of Company
Common Stock shall not be exercisable upon the exercise of any related Option
with respect to the same share; and (iii) an Option and Stock Appreciation
Right covering the same share of Company Common Stock may not be exercised
simultaneously.
7.03 EXERCISE PRICE. The Exercise Price established under any
Stock Appreciation Right granted under this Plan shall be determined by the
Administrator and, in the case of a tandem Stock Appreciation Right, shall not
be less than the Purchase Price of the related Option. Upon exercise of the
Stock Appreciation Rights, the number of shares subject to exercise under a
related Option shall automatically be reduced by the number of shares of
Company Common Stock represented by the Option or portion thereof which is
surrendered as a result of the exercise of such Stock Appreciation Rights.
7.04 PAYMENT OF INCREMENTAL VALUE. Any payment which may become
due from the Company by reason of Participant's exercise of a Stock
Appreciation Right may be paid to the Participant as determined by the
Administrator (i) all in cash, (ii) all in Company Common Stock, or (iii) in
any combination of cash and Company Common Stock. In the event that all or a
portion of the payment is made in Company Common Stock, the number of shares of
the Company Common Stock delivered in satisfaction of such payment shall be
determined by dividing the amount of the payment by the Fair Market Value on
the date of exercise. The Administrator may determine whether payment upon
exercise of a Stock Appreciation Right will be made in cash or in stock, or a
combination thereof, upon or at any time prior to the exercise of such Stock
Appreciation Right. No fractional share of Company Common Stock shall be
issued to make any payment; if any fractional shares would be issuable, the mix
of cash and Company Common Stock payable to the Participant shall be adjusted
as directed by the Administrator to avoid the issuance of any fractional share.
Payment may be made in cash to Officers only if the Stock Appreciation Right is
exercised during the "window period" required under Rule 16b-3(e)(3) and
otherwise in accordance with Rule 16b-3.
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ARTICLE VIII.
TERMS OF OPTIONS AND STOCK APPRECIATION RIGHTS
8.01 DURATION OF OPTIONS AND STOCK APPRECIATION RIGHTS. Options
and Stock Appreciation Rights shall terminate after the first to occur of the
following events:
(a) Expiration Date of the Award as provided in the
Award Agreement; or
(b) Termination of the Award as provided in Section
8.02; or
(c) In the case of an Incentive Stock Option, ten years
from the Date of Grant; or
(d) Solely in the case of tandem Stock Appreciation
Rights, upon the Expiration Date of the related Option.
8.02 EXERCISE ON DEATH OR TERMINATION OF EMPLOYMENT.
(a) Unless otherwise provided in the Award Agreement,
in the event of the death of a Participant while an employee of the
Company or a Subsidiary of the Company, the right to exercise all
unexpired Awards shall be accelerated and shall accrue as of the date
of death, and the Participant's Awards may be exercised by his
Beneficiary at any time within one year after the date of the
Participant's death.
(b) Unless otherwise provided in the Award Agreement,
in the event of Participant's Termination of Employment at any time
for any reason (including disability or retirement) other than death
or for "cause", as defined in paragraph (d) below, an Award may be
exercised, but only to the extent it was otherwise exercisable, on the
date of Termination of Employment, within ninety days after the date
of Termination of Employment. In the event of the death of the
Participant within the ninety-day period following Termination of
Employment, his Award may be exercised by his Beneficiary within the
one year period provided in subparagraph (a) above.
(c) With respect to an Award which is intended to
constitute an Incentive Stock Option, upon Termination of Employment,
such Award shall be exercisable as provided in Section 422 of the
Code.
(d) In the event that a Participant's Termination of
Employment is for "cause", all Awards shall terminate immediately upon
Termination of Employment. A Participant's employment shall be deemed
to have been terminated for "cause" if such termination is determined,
in the sole discretion of the Administrator, to have resulted from an
act or omission by the Participant constituting active and deliberate
dishonesty, as established by a final judgment or actual receipt of an
improper benefit or profit in money, property or services, or from the
Participant's
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continuous failure to perform his or her duties under any employment
agreement in effect between the Participant and the Company in any
material manner (or, in the absence of such an agreement, the
consistent failure or refusal of the Participant to perform according
to reasonable expectations and standards set by the Board and/or
management consistent with Participant's title and position) after
receipt of notice of such failure from the Company specifying how the
Participant has so failed to perform.
8.03 ACCELERATION OF EXERCISE TIME. The Administrator, in its
sole discretion, shall have the right (but shall not in any case be obligated)
to permit purchase of shares under any Award prior to the time such Award would
otherwise become exercisable under the terms of the Award Agreement.
8.04 EXTENSION OF EXERCISE TIME. The Administrator, in its sole
discretion, shall have the right (but shall not in any case be obligated) to
permit any Award granted under this Plan to be exercised after its Expiration
Date or after the ninety day period following Termination of Employment,
subject, however, to the limitations described in Section 8.01 (c) and (d).
8.05 CONDITIONS FOR EXERCISE. An Award Agreement may contain
such waiting periods, exercise dates and restrictions on exercise (including,
but not limited to, periodic installments which may be cumulative) as may be
determined by the Administrator at the Date of Grant. No Stock Appreciation
Right may be exercised prior to six months from the Date of Grant.
8.06 CHANGE OF CONTROL EVENT. Unless otherwise provided in the
Award Agreement, and subject to such other terms and conditions as the
Administrator may establish in the Award Agreement, upon the occurrence of a
Change of Control Event, irrespective of whether or not an Award is then
exercisable, the Participant shall have the right to exercise in full any
unexpired Award to the extent not theretofore exercised or terminated;
provided, however, that any Stock Appreciation Right so exercised must have a
Date of Grant at least six months prior to the date of exercise.
8.07 EXERCISE PROCEDURES. Each Option and Stock Appreciation
Right granted under the Plan shall be exercised by written notice to the
Company which must be received by the officer of the Company designated in the
Award Agreement on or before the Expiration Date of the Award. The Purchase
Price of shares purchased upon exercise of an Option granted under the Plan
shall be paid in full in cash by the Participant pursuant to the Award
Agreement; provided, however, that the Administrator may (but need not) permit
payment to be made by delivery to the Company of either (a) shares of Company
Common Stock (including shares issuable to the Participant pursuant to the
exercise of the Option), or (b) any combination of cash and shares of Company
Common Stock, or (c) such other consideration as the Administrator deems
appropriate and in compliance with applicable law (including payment in
accordance with a cashless exercise program under which, if so instructed by
the Participant, shares of Company Common Stock may be issued directly to the
Participant's broker or dealer upon receipt of the Purchase Price in cash from
the broker or dealer.) In the event that
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any Company Common Stock shall be transferred to the Company to satisfy all or
any part of the Purchase Price, the part of the Purchase Price deemed to have
been satisfied by such transfer of Company Common Stock shall be equal to the
product derived by multiplying the Fair Market Value as of the date of exercise
times the number of shares transferred. The Participant may not transfer to
the Company in satisfaction of the Purchase Price (y) a number of shares which
when multiplied times the Fair Market Value as of the date of exercise would
result in a product greater than the Purchase Price or (z) any fractional share
of Company Common Stock. Any part of the Purchase Price paid in cash upon the
exercise of any Option shall be added to the general funds of the Company and
used for any proper corporate purpose. Unless the Administrator shall
otherwise determine, any Company Common Stock transferred to the Company as
payment of all or part of the Purchase Price upon the exercise of any Option
shall be held as treasury shares.
ARTICLE IX.
RESTRICTED STOCK AWARDS
9.01 RESTRICTED SHARE AWARDS. The Administrator may grant to
any Participant an Award of Restricted Share Rights entitling such person to
receive shares of Company Common Stock in such quantity, and on such terms,
conditions and restrictions (whether based on performance standards, periods of
service or otherwise) as the Administrator shall determine on or prior to the
Date of Grant. The terms of any Award of Restricted Share Rights granted under
the Plan shall be set forth in an Award Agreement.
9.02 DURATION OF RESTRICTED SHARE RIGHTS. In no event shall any
Restricted Share Rights granted entitle the holder to receive shares of Company
Common Stock free of all restrictions on transfer at any time prior to the
expiration of three years from the Date of Grant, and each Award Agreement
shall provide that the Participant shall remain employed by the Company or a
Subsidiary for that three year period (subject to the Company's or Subsidiary's
right to terminate such employment).
9.03 FORFEITURE OF RESTRICTED SHARE RIGHTS. Subject to Section
9.05, all Restricted Share Rights shall be forfeited and all Restricted Share
Awards shall terminate unless the Participant continues in the service of the
Company or a Subsidiary until the expiration of the forfeiture and satisfies
any other conditions set forth in the Award Agreement. If the Award Agreement
shall so provide, in the case of death, disability or retirement (as defined in
the Award Agreement) of the Participant, all of the shares covered by the
Restricted Share Rights shall immediately vest and any restrictions shall lapse
as of the date of such death, disability or retirement.
9.04 DELIVERY OF SHARES UPON VESTING. Upon the lapse of the
restrictions established in the Award Agreement, the Participant shall be
entitled to receive, without payment of any cash or other consideration,
certificates for the number of shares covered by the Award.
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9.05 WAIVER OR MODIFICATION OF FORFEITURE PROVISIONS. The
Administrator has full power and authority to modify or waive any or all terms,
conditions or restrictions (other than the minimum restriction period set forth
in Section 9.02) applicable to any Restricted Share Rights granted to a
Participant under the Plan; provided that no modification shall, without
consent of the Participant, adversely affect the Participant's rights
thereunder and no modification shall reduce the employment requirement to less
than three years, except in the case of death, disability or retirement.
9.06 RIGHTS AS A STOCKHOLDER. No person shall have any rights
as a stockholder with respect to any shares subject to Restricted Share Rights
until such time as the person shall have been issued a certificate for such
shares.
ARTICLE X.
OTHER STOCK BASED AWARDS
10.01 GRANT OF OTHER AWARDS. Other Awards of Company Common
Stock or other securities of the Company and other Awards that are valued in
whole or in part by reference to, or are otherwise based on, Company Common
Stock ("Other Awards") may be granted either alone or in addition to or in
conjunction with Options or Stock Appreciation Rights under the Plan. Subject
to the provisions of the Plan, the Administrator shall have the sole and
complete authority to determine the persons to whom and the time or times at
which Other Awards shall be made, the number of shares of Company Common Stock
or other securities, if any, to be granted pursuant to such Other Awards, and
all other conditions of such Other Awards. Any Other Award shall be confirmed
by an Award Agreement executed by the Administrator and the Participant, which
agreement shall contain such provisions as the Administrator determines to be
necessary or appropriate to carry out the intent of this Plan with respect to
the Other Award.
10.02 TERMS OF OTHER AWARDS. In addition to the terms and
conditions specified in the Award Agreement, Other Awards made pursuant to this
Article X shall be subject to the following:
(a) Any shares of Company Common Stock subject to such
Other Awards may not be sold, assigned, transferred or otherwise
encumbered prior to the date on which the shares are issued, or, if
later, the date on which any applicable restriction, performance or
deferral period lapses; and
(b) If specified by the Administrator and the Award
Agreement, the recipient of an Other Award shall be entitled to
receive, currently or on a deferred basis, interest or dividends or
dividend equivalents with respect to the Company Common Stock or other
securities covered by the Other Award; and
(c) The Award Agreement with respect to any Other Award
shall contain provisions providing for the disposition of such Other
Award in the event of Termination of Employment prior to the exercise,
realization or payment of such
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Other Award, with such provisions to take account of the specific
nature and purpose of the Other Award.
ARTICLE XI.
TERMS APPLICABLE TO ALL AWARDS
11.01 AWARD AGREEMENT. The grant and the terms and conditions of
the Award shall be set forth in an Award Agreement between the Company and the
Participant. No person shall have any rights under any Award granted under the
Plan unless and until the Administrator and the Participant to whom the Award
is granted shall have executed and delivered an Award Agreement expressly
granting the Award to such person and setting forth the terms of the Award.
11.02 PLAN PROVISIONS CONTROL AWARD TERMS. The terms of the Plan
shall govern all Awards granted under the Plan, and in no event shall the
Administrator have the power to grant any Award under the Plan which is
contrary to any of the provisions of the Plan. In the event any provision of
any Award granted under the Plan shall conflict with any term in the Plan as
constituted on the Date of Grant of such Award, the term in the Plan as
constituted on the Date of Grant of such Award shall control. Except as
provided in Section 4.03, (i) the terms of any Award granted under the Plan may
not be changed after the granting of such Award without the express approval of
the Participant and (ii) no modification may be made to an Award granted to an
Officer except in compliance with Rule 16b-3.
11.03 MODIFICATION OF AWARD AFTER GRANT. Each Award granted
under the Plan to a Participant other than an Officer may be modified after the
date of its grant by express written agreement between the Company and the
Participant, provided that such change (i) shall not be inconsistent with the
terms of the Plan and (ii) shall be approved by the Administrator. No
modifications may be made to any Awards granted to an Officer except in
compliance with Rule 16b-3.
11.04 TAXES. The Company shall be entitled, if the Administrator
deems it necessary or desirable, to withhold (or secure payment from the
Participant in lieu of withholding) the amount of any withholding or other tax
required by law to be withheld or paid by the Company with respect to any
amount payable and/or shares issuable under such Participant's Award, or with
respect to any income recognized upon a disqualifying disposition of shares
received pursuant to the exercise of an Incentive Stock Option, and the Company
may defer payment or issuance of the cash or stock upon exercise or vesting of
an Award unless indemnified to its satisfaction against any liability for such
tax. The amount of such withholding or tax payment shall be determined by the
Administrator and, unless otherwise provided by the Administrator, shall be
payable by the Participant at the time of issuance or payment in accordance
with the following rules:
(a) A Participant, other than an Officer, shall have
the right to elect to meet his or her withholding requirement by: (1)
having the Company withhold from such Award the appropriate number of
shares of Company Common Stock, rounded out to the next whole number,
the Fair Market Value of which is equal to
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such amount, or, in the case of the cash payment, the amount of cash,
as is determined by the Company to be sufficient to satisfy applicable
tax withholding requirements; or (2) direct payment to the Company in
cash of the amount of any taxes required to be withheld with respect
to such Award.
(b) Unless otherwise provided by the Administrator,
with respect to Officers, the Company shall withhold from such Award
the appropriate number of shares of Company Common Stock, rounded up
to the next whole number, the Fair Market Value of which is equal to
the amount, as determined by the Administrator, (or, in the case of a
cash payment, the amount of cash) required to satisfy applicable tax
withholding requirements.
(c) In the event that an Award or property received
upon exercise of an Award has already been transferred to the
Participant on the date upon which withholding requirements apply, the
Participant shall pay directly to the Company the cash amount
determined by the Company to be sufficient to satisfy applicable
federal, state or local withholding requirements. The Participant
shall provide to the Company such information as the Company shall
require to determine the amounts to be withheld and the time such
withholding requirements become applicable.
(d) If permitted under applicable federal income tax
laws, a Participant may elect to be taxed in the year in which an
Award is exercised or received, even if it would not otherwise have
become taxable to the Participant. If the Participant makes such an
election, the Participant shall promptly notify the Company in writing
and shall provide the Company with a copy of the executed election
form as filed with the Internal Revenue Service no later than thirty
days from the date of exercise or receipt. Promptly following such
notification, the Participant shall pay directly to the Company the
cash amount determined by the Company to be sufficient to satisfy
applicable federal, state or local withholding tax requirements.
11.05 LIMITATIONS ON TRANSFER. A Participant's rights and
interest under the Plan may not be assigned or transferred other than by will
or the laws of descent and distribution, or pursuant to the terms of a domestic
relations order, as defined in Section 414(p)(1)(B) of the Code, which
satisfies the requirements of Section 414(p)(1)(A) of the Code (a "Qualified
Domestic Relations Order"). During the lifetime of a Participant, only the
Participant personally (or the Participant's personal representative or
attorney-in-fact) or the alternate payee named in a Qualified Domestic
Relations Order may exercise the Participant's rights under the Plan. The
Participant's Beneficiary may exercise a Participant's rights to the extent
they are exercisable under the Plan following the death of the Participant.
11.06 SURRENDER OF AWARDS. Any Award granted under the Plan may
be surrendered to the Company for cancellation on such terms as the
Administrator and Participant approve, including, but not limited to, terms
which provide that upon such surrender the Company will pay to the Participant
cash or Company Common Stock, or a combination of cash and Company Common
Stock.
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ARTICLE XII.
GENERAL PROVISIONS
12.01 AMENDMENT AND TERMINATION OF PLAN.
(a) AMENDMENT. The Board shall have complete power and
authority to amend the Plan at any time and to add any other stock
based Award or other incentive compensation programs to the Plan as it
deems necessary or appropriate and no approval by the stockholders of
the Company or by any other person, committee or entity of any kind
shall be required to make any amendment; provided, however, that the
Board shall not, without the requisite affirmative approval of
stockholders of the Company, (i) make any amendment which requires
stockholder approval under any applicable law, including Rule 16b-3 or
the Code; or (ii) which, unless approved by the requisite affirmative
approval of stockholders of the Company, would cause, result in or
give rise to "applicable employee remuneration" within the meaning of
Section 162(m) of the Code with respect to any Performance Based
Option. No termination or amendment of the Plan may, without the
consent of the Participant to whom any Award shall theretofore have
been granted under the Plan, adversely affect the right of such
individual under such Award. For the purposes of this section, an
amendment to the Plan shall be deemed to have the affirmative approval
of the stockholders of the Company if such amendment shall have been
submitted for a vote by the stockholders at a duly called meeting of
such stockholders at which a quorum was present and the majority of
votes cast with respect to such amendment at such meeting shall have
been cast in favor of such amendment, or if the holders of outstanding
stock having not less than a majority of the outstanding shares
consent to such amendment in writing in the manner provided under the
Company's bylaws.
(b) TERMINATION. The Board shall have the right and
the power to terminate the Plan at any time. If the Plan is not
earlier terminated, the Plan shall terminate when all shares
authorized under the Plan have been issued. No Award shall be granted
under the Plan after the termination of the Plan, but the termination
of the Plan shall not have any other effect and any Award outstanding
at the time of the termination of the Plan may be exercised after
termination of the Plan at any time prior to the expiration date of
such Award to the same extent such award would have been exercisable
if the Plan had not been terminated.
12.02 NO RIGHT TO EMPLOYMENT. No employee or other person shall
have any claim or right to be granted an Award under this Plan. Neither the
Plan nor any action taken hereunder shall be construed as giving any employee
any right to be retained in the employ of the Company or a Subsidiary of the
Company.
12.03 COMPLIANCE WITH RULE 16B-3. It is intended that the Plan
be applied and administered in compliance with Rule 16b-3. If any provision of
the Plan would be in violation of Rule 16b-3 if applied as written, such
provision shall not have effect as written and shall be given effect so as to
comply with Rule 16b-3, as determined by the Administrator. The Board is
authorized to amend the Plan and to make any such
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modifications to Award Agreements to comply with Rule 16b-3, as it may be
amended from time to time, and to make any other such amendments or
modifications as it deems necessary or appropriate to better accomplish the
purposes of the Plan in light of any amendments made to Rule 16b-3.
12.04 SECURITIES LAW RESTRICTIONS. The shares of Company Common
Stock issuable pursuant to the terms of any Awards granted under the Plan may
not be issued by the Company without registration or qualification of such
shares under the Securities Act of 1933, as amended, or under various state
securities laws or without an exemption from such registration requirements.
Unless the shares to be issued under the Plan have been registered and/or
qualified as appropriate, the Company shall be under no obligation to issue
shares of Company Common Stock upon exercise of an Award unless and until such
time as there is an appropriate exemption available from the registration or
qualification requirements of federal or state law as determined by the
Administrator in its sole discretion. The Administrator may require any person
who is granted an award hereunder to agree with the Company to represent and
agree in writing that if such shares are issuable under an exemption from
registration requirements, the shares will be "restricted" securities which may
be resold only in compliance with applicable securities laws, and that such
person is acquiring the shares issued upon exercise of the Award for
investment, and not with the view toward distribution.
12.05 CAPTIONS. The captions (i.e., all section headings) used
in the Plan are for convenience only, do not constitute a part of the Plan, and
shall not be deemed to limit, characterize or affect in any way any provisions
of the Plan, and all provisions of the Plan shall be construed as if no
captions have been used in the Plan.
12.06 SEVERABILITY. Whenever possible, each provision in the
Plan and every Award at any time granted under the Plan shall be interpreted in
such a manner as to be effective and valid under applicable law, but if any
provision of the Plan or any Award at any time granted under the Plan shall be
held to be prohibited or invalid under applicable law, then (a) such provision
shall be deemed amended to accomplish the objectives of the provision as
originally written to the fullest extent permitted by law and (b) all other
provisions of the Plan and every other Award at any time granted under the Plan
shall remain in full force and effect.
12.07 NO STRICT CONSTRUCTION. No rule of strict construction
shall be implied against the Company, the Administrator, or any other person in
the interpretation of any of the terms of the Plan, any Award granted under the
Plan or any rule or procedure established by the Administrator.
12.08 CHOICE OF LAW. All determinations made and actions taken
pursuant to the Plan shall be governed by the laws of Michigan and construed in
accordance therewith.
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