SUN COMMUNITIES, INC. AMENDED AND RESTATED 1993 STOCK OPTION PLAN RESTRICTED STOCK AWARD AGREEMENT
Exhibit 10.4
SUN COMMUNITIES, INC.
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
Sun Communities, Inc., a Maryland corporation (the “Company”), upon the recommendation
of the Company’s Board of Directors (the “Board”) and pursuant to that certain Amended and
Restated 1993 Stock Option Plan adopted by the Company’s Board of Directors (the “Plan”)
and approved by its shareholders, and in consideration of the services to be rendered to the
Company or its subsidiaries by Xxxxx X. Xxxxxxx (“Employee”), hereby grants and issues, as
of February 5, 2008 (the “Date of Grant”), to Employee ten thousand (10,000) shares of the
Company’s Common Stock, par value $0.01 per share (the “Shares”), subject to the terms and
conditions contained in this Restricted Stock Award Agreement (the “Agreement”) and subject
to all the terms and conditions of the Plan, which are incorporated by reference herein. Employee
agrees to the provisions set forth herein and in the Plan and acknowledges that each such provision
is a material condition of the Company’s agreement to issue the Shares to him. All capitalized
terms used but not otherwise defined in this Agreement shall have the meanings ascribed to such
terms in the Plan.
I. RECEIPT AND DELIVERY OF SHARES
Until such time as the Shares vest in accordance with Section II below, the stock certificate
or certificates evidencing the Shares shall be registered in the name of Employee but held in
escrow by the Company. As soon as practicable after the date upon which any Shares vest, the
Company shall deliver to Employee a certificate or certificates representing such vested Shares,
registered in the name of Employee.
II. VESTING SCHEDULE
(a) Subject to the restrictions and conditions set forth in the Plan, the Shares shall vest
as follows: (i) thirty-five percent (35%) of the Shares (rounded down to the nearest whole number)
shall vest on the fourth anniversary of the Date of Grant; (ii) thirty-five percent (35%) of the
Shares (rounded down to the nearest whole number) shall vest on the fifth anniversary of the Date
of Grant; (iii) twenty percent (20%) of the Shares (rounded down to the nearest whole number)
shall vest on the sixth anniversary of the Date of Grant; (iv) five percent (5%) of the Shares
(rounded down to the nearest whole number) shall vest on the seventh anniversary of the Date of
Grant; and (v) the remainder of the Shares shall vest on the tenth anniversary of the Date of
Grant.
(b) In the event of Employee’s Termination of Employment for “cause” (as defined in that
certain Employment Agreement, dated February 5, 2008, by and among the Company, Sun Communities
Operating Limited Partnership, a Michigan limited partnership. and Employee, referred to herein as
the “Employment Agreement”), all Shares shall lapse and be of no further force or effect
whatsoever.
(c) In the event of Employee’s Termination of Employment without “cause” (as defined in the
Employment Agreement) or upon the death or permanent disability of the Employee, all Shares shall
become fully vested and immediately exercisable, subject to the restrictions of Section 9.02 of the
Plan.
(d) Upon a “Change in Control Event” (as defined in the Employment Agreement), all
Shares shall become fully vested and immediately exercisable and may be exercised by the Employee
at any time within one (1) year after the Change in Control.
III. RESTRICTIONS ON SHARES
Until a Share vests pursuant to Section II above, it shall not be liable for the debts,
contracts or obligations of Employee nor be subject to disposition by assignment, transfer, sale,
alienation, pledge, encumbrance or any other means, whether such disposition is voluntary or
involuntary or by operation of law by judgment, levy, attachment, garnishment or other legal or
equitable proceeding (including bankruptcy), and any attempted disposition thereof shall be null
and void and of no force or effect; provided, however, that this Section III does not prevent
transfers by will or by the applicable laws of descent and distribution, or pursuant to the terms
of a Qualified Domestic Relations Order.
IV. RIGHTS AS A STOCKHOLDER
Notwithstanding Section 9.06 of the Plan to the contrary, Employee shall be entitled to all of
the rights of a stockholder with respect to the Shares, including the right to vote such Shares and
to receive dividends and other distributions payable with respect to such Shares from and after the
Date of Grant; provided that any securities or other property (but not cash) received in any such
distribution with respect to any Shares that are still subject to the restrictions of Section II
and III of this Agreement shall be subject to all of the restrictions in this Agreement with
respect to such Shares.
V. REGISTRATION
Subject to the other terms and conditions of this Agreement, the Shares may be offered and
sold by Employee only if such stock is registered for resale under the Securities Act of 1933, as
amended (the “Securities Act”), or if an exemption from registration under the Securities
Act is available. Employee acknowledges and agrees: (a) that the Company has no obligation to
effect such registration; (b) not to offer or sell the Shares unless and until such stock is
registered for resale under the Securities Act or an exemption from registration is available; and
(c) that the Shares were acquired for his own account for investment and not with a view to, or for
sale in connection with, the distribution of any part thereof.
VI. NO RIGHT TO EMPLOYMENT CONFERRED
Nothing in this Agreement or the Plan shall confer upon Employee any right to continue in
employment with the Company or a subsidiary or interfere in any way with the right of the Company
or any subsidiary to terminate such person’s employment at any time.
VII. MISCELLANEOUS
(a) In accordance with the terms of the Plan, the Company is entitled to withhold (or secure
payment from Employee 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 the award or issuance of the Shares.
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Employee understands that the taxable income recognized by Employee as a result of the
award of the Shares would be affected by a decision by Employee to make an election under Section
83(b) of the Internal Revenue Code of 1986, as amended (the “83(b) Election”), with respect
to the Shares within thirty (30) days after the Date of Grant. Employee acknowledges and agrees
that he will have the sole responsibility for determining whether to make an 83(b) Election with
respect to the Shares and for properly making such election and filing such election with the
relevant taxing authorities on a timely basis.
(b) If any provision of this Agreement is held invalid or unenforceable, the remaining
provisions shall continue to be in full force and effect to the maximum extent permitted by law.
If the implementation or presence of any provision of this Agreement would or will cause the Plan
and thereby the Shares purchased thereunder to not be in compliance with Rule 16b-3 under the
Securities Exchange Act of 1934, as amended, or any other statutory provision, such Agreement
provision shall not be implemented or, at the Company’s option following notice, such provision
shall be severed from the Agreement as is appropriate or necessary to achieve statutory compliance;
provided, however, that the parties hereby agree to negotiate in good faith as may be necessary to
modify this Agreement to achieve statutory compliance or otherwise effectuate the intent of the
parties following a severance permitted by this Section VII(b).
(c) The number of Shares shall be appropriately adjusted to reflect any stock dividend, stock
split, combination or exchange of shares, or other change in capitalization with a similar
substantive effect upon such Shares. The Administrator shall have the power to determine the
amount of the adjustment to be made in each case.
(d) Any notice required to be given hereunder to the Company shall be addressed to the Chief
Financial Officer, Sun Communities, Inc., 00000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx
00000, and any notice required to be given to Employee shall be sent to Employee’s address as shown
on the records of the Company.
(e) This instrument contains the entire Agreement of the parties and may only be amended by
written agreement executed by the parties hereto.
(f) This Agreement is made and entered into in, and shall be construed and enforced in
accordance with the laws of, the State of Michigan.
[Signatures on following page]
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IN WITNESS WHEREOF, this Restricted Stock Award Agreement is hereby executed as of February 5,
2008.
| “COMPANY” SUN COMMUNITIES, INC., a Maryland corporation |
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| By: | /s/ Xxxx X. Xxxxxxxx | |||
| Xxxx X. Xxxxxxxx, Chief Executive Officer | ||||
| “EMPLOYEE” |
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| /s/ Xxxxx X. Xxxxxxx | ||||
| XXXXX X. XXXXXXX | ||||
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