EXHIBIT 10.40
SUN COMMUNITIES, INC.
AMENDED AND RESTATED 1993 STOCK OPTION PLAN
RESTRICTED STOCK AWARD AGREEMENT
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 Xxxxxxxx X. Xxxxxx ("Employee"), hereby grants, as of March 30,
2001 (the "Date of Grant"), to Employee Ten Thousand Three Hundred Forty
(10,340) 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. 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 vest on March 30,
2005;
(ii) thirty-five percent (35%) of the Shares vest on March 30,
2006;
(iii) twenty percent (20%) of the Shares vest on March 30, 2007;
(iv) five percent (5%) of the Shares vest on March 30, 2008; and
(v) five percent (5%) of the Shares vest on March 30, 2011.
(b) In the event of Employee's Termination of Employment at any time for
any reason other than the death or Disability (as defined below) of Employee,
all unvested Shares shall be automatically forfeited to the Company and,
accordingly, Employee shall forfeit all right, title and interest in and to such
forfeited Shares. For purposes hereof, "Disability" shall mean physical or
mental incapacity for an aggregate period of at least 90 days within any period
of 365 consecutive days.
(c) Notwithstanding anything to the contrary herein, upon the death or
Disability of Employee or the occurrence of a Change of Control Event, all
unvested Shares shall immediately become fully vested.
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. 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
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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) Any notice required to be given hereunder to the Company shall be
addressed to the Chief Financial Officer, Sun Communities, Inc., 00000
Xxxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx Xxxxx, 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.
(d) This instrument contains the entire Agreement of the parties and may
only be amended by written agreement executed by the parties hereto.
(e) This Agreement is made and entered into in, and shall be construed and
enforced in accordance with the laws of, the State of Michigan.
IN WITNESS WHEREOF, this Restricted Stock Award Agreement is hereby
executed as of March 30, 2001.
"COMPANY"
SUN COMMUNITIES, INC., a Maryland corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx, Chief Financial Officer
"EMPLOYEE"
/s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
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