Exhibit 10.1
PULTE HOMES, INC.
2004 STOCK INCENTIVE
PLAN
(As Amended and Restated as of
March 19, 2009)
I. INTRODUCTION
1.1. Purposes . The purposes of the
Pulte Homes, Inc. 2004 Stock Incentive Plan (this “
Plan ”) are (i) to align the interests of the
Company’s stockholders and the recipients of awards under
this Plan by increasing the proprietary interest of such recipients
in the Company’s growth and success, (ii) to advance the
interests of the Company by attracting and retaining officers,
other employees, nonemployee directors, consultants, independent
contractors and agents and (iii) to motivate such persons to
act in the long-term best interests of the Company and its
stockholders.
1.2. Certain Definitions
.
“ Agreement
” shall mean the
written agreement evidencing an award hereunder between the Company
and the recipient of such award.
“ Board
” shall mean the
Board of Directors of the Company.
“ Change in Control
” shall have the
meaning set forth in Section 5.8(b).
“ Code
” shall mean the
Internal Revenue Code of 1986, as amended.
“ Committee
” shall mean the
committee designated by the Board, consisting of two or more
members of the Board, each of whom may be (i) a
“Non-Employee Director” within the meaning of Rule
16b-3 under the Exchange Act, (ii) an “outside
director” within the meaning of Section 162(m) of the
Code and (iii) “independent” within the meaning of
the rules of the New York Stock Exchange or, if the Common Stock is
not listed on the New York Stock Exchange, within the meaning of
the rules of the principal national stock exchange on which the
Common Stock is then traded.
“ Common Stock
” shall mean the
common stock, $.01 par value, of the Company.
“ Company
” shall mean Pulte
Homes, Inc., a Michigan corporation, or any successor
thereto.
“ Exchange Act
” shall mean the
Securities Exchange Act of 1934, as amended.
“ Exempt Persons
” shall mean
William J. Pulte, his spouse, any trust or other entity established
for the benefit of either or both of such persons, or any
charitable organization established by either or both of such
persons.
“ Fair Market Value
” shall mean the
average of the high and low transaction prices of a share of Common
Stock on the New York Stock Exchange on the date as of which such
value is being determined or, if the Common Stock is not listed on
the New York Stock Exchange, the average of the high and low
transaction prices of a share of Common Stock on the principal
national stock exchange on which the Common Stock is traded on the
date as of which such value is being determined, or if there shall
be no reported transaction for such date, on the next preceding
date for which a transaction was reported; provided ,
however , that if Fair Market Value for any date cannot be
so determined, Fair Market Value shall be determined by the
Committee by whatever means or method as the Committee, in the good
faith exercise of its discretion, shall at such time deem
appropriate.
“ Free-Standing SAR
” shall mean an SAR
which is not granted in tandem with, or by reference to, an option,
which entitles the holder thereof to receive, upon exercise, shares
of Common Stock (which may be Restricted Stock), cash or a
combination thereof with an aggregate value equal to the excess of
the Fair Market Value of one share of Common Stock on the date of
exercise over the base price of such SAR, multiplied by the number
of such SARs which are exercised.
“ Incentive Stock
Option ” shall
mean an option to purchase shares of Common Stock that meets the
requirements of Section 422 of the Code, or any successor
provision, which is intended by the Committee to constitute an
Incentive Stock Option.
“ Incumbent Board
” shall have the
meaning set forth in Section 5.8(b)(2).
“ Mature Shares
” shall mean
previously-acquired shares of Common Stock for which the holder
thereof has good title, free and clear of all liens and
encumbrances, and which such holder either (i) has held for at
least six months or (ii) has purchased on the open
market.
“ Non-Qualified Stock
Option ” shall
mean an option to purchase shares of Common Stock which is not an
Incentive Stock Option.
“ Outstanding Common
Stock ” shall
have the meaning set forth in Section 5.8(b)(1).
“ Outstanding Voting
Securities ” shall have the meaning set forth in
Section 5.8(b)(1).
“ Performance
Measures ” shall mean the criteria and objectives,
established by the Committee, which shall be satisfied or met
(i) as a condition to the grant or exercisability of all or a
portion of an option or SAR, (ii) as a condition to the grant
of a Stock Award or (iii) during the applicable Restriction
Period or Performance Period as a condition to the holder’s
receipt, in the case of a Restricted Stock Award, of the shares of
Common Stock subject to such award, or, in the case of a Restricted
Stock Unit Award or a Performance Share Award, of the shares of
Common Stock subject to such award and/or of payment with respect
to such award. To the extent necessary for an award to be qualified
performance-based compensation under Section 162(m) of the
Code and the regulations thereunder, such criteria and objectives
shall include one or more of the following objective corporate-wide
or subsidiary, division, operating unit or individual measures:
earnings; earnings per share; earnings before interest and taxes
(“EBIT”); earnings before interest, taxes, depreciation
and amortization (“EBITDA”); financial return ratios;
return on equity; return on assets; total shareholder return; net
income; pre-tax income;
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operating income; revenues; profit margin; cash
flow(s); expense management; economic profit; customer
satisfaction; mortgage capture rates; productivity; efficiency;
employee retention; succession management; management of service
and warranty costs; management of the cost of insurance claims;
achievement of energy performance goals; measurable marketing
effectiveness; or achievement of diversity goals. Each such goal
may be expressed on an absolute or relative basis, may include
comparisons based on current internal targets, the past performance
of the Company (including the performance of or one or more
subsidiaries, divisions or operating units) or the past or current
performance of other companies (or a combination of such past and
current performance) and may include or exclude objectively
determinable components of any performance goal, including, without
limitation, special charges such as restructuring or impairment
charges, gains on land sales below original basis, non-cash
amortization, or tax refunds or payments. In the case of
earnings-based measures, in addition to the ratios specifically
enumerated above, performance goals may include comparisons
relating to capital (including, but not limited to, the cost of
capital), shareholders’ equity, shares outstanding, assets or
net assets, or any combination thereof. The measures utilized in
establishing performance goals under this Plan for any given
Performance Period shall be determined in accordance with generally
accepted accounting principles (“GAAP”) and in a manner
consistent with the methods used in the Company’s audited
consolidated financial statements, to the extent applicable,
without regarding to (a) extraordinary or other nonrecurring
or unusual items, as determined by the Company’s independent
public accountants in accordance with GAAP, (b) changes in
accounting, as determined by the Company’s independent public
accountants in accordance with GAAP, or (c) pre-acquisition
costs, unless, in each case, the Committee decides otherwise or as
otherwise required under Section 162(m) of the
Code.
“ Performance Period
” shall mean any
period designated by the Committee during which the Performance
Measures applicable to a Performance Share Award shall be
measured.
“ Performance Share
” shall mean a
right, contingent upon the attainment of specified Performance
Measures within a specified Performance Period, to receive one
share of Common Stock, which may be Restricted Stock, or in lieu of
all or a portion thereof, the Fair Market Value of such share of
Common Stock in cash.
“ Performance Share
Award ” shall
mean an award of Performance Shares under this Plan.
“ Person
” shall have the
meaning set forth in Section 5.8(b)(1).
“ Restricted Stock
” shall mean shares
of Common Stock which are subject to a Restriction
Period.
“ Restricted Stock
Award ” shall
mean an award of Restricted Stock under this Plan.
“ Restricted Stock
Unit ” shall
mean a right which entitles the holder thereof to receive, upon
vesting, shares of Common Stock, cash or a combination thereof with
an aggregate value equal to the Fair Market Value of one share of
Common Stock on the date of vesting.
“ Restricted Stock Unit
Award ” shall
mean an award of Restricted Stock Units under this Plan.
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“ Restriction Period
” shall mean any
period designated by the Committee during which (i) the Common
Stock subject to a Restricted Stock Award may not be sold,
transferred, assigned, pledged, hypothecated or otherwise
encumbered or disposed of, except as provided in this Plan or the
Agreement relating to such award, or (ii) the restrictions
applicable to a Restricted Stock Unit Award shall remain in
effect.
“ SAR
” shall mean a
stock appreciation right, which may be a Free-Standing SAR or a
Tandem SAR.
“ Stock Award
” shall mean a
Restricted Stock Award, an Unrestricted Stock Award or a Restricted
Stock Unit Award.
“ Subsidiary
” shall mean any
corporation, limited liability company, partnership, joint venture
or similar entity in which the Company owns, directly or
indirectly, an equity interest possessing more than 25% of the
combined voting power of the total outstanding equity interests of
such entity.
“ Tandem SAR
” shall mean an SAR
which is granted in tandem with, or by reference to, an option
(including a Non-Qualified Stock Option granted prior to the date
of grant of the SAR), which entitles the holder thereof to receive,
upon exercise of such SAR and surrender for cancellation of all or
a portion of such option, shares of Common Stock (which may be
Restricted Stock), cash or a combination thereof with an aggregate
value equal to the excess of the Fair Market Value of one share of
Common Stock on the date of exercise over the base price of such
SAR, multiplied by the number of shares of Common Stock subject to
such option, or portion thereof, which is surrendered.
“ Tax Date
” shall have the
meaning set forth in Section 5.5.
“ Ten Percent Holder
” shall have the
meaning set forth in Section 2.1(a).
“ Unrestricted Stock
” shall mean shares
of Common Stock which are not subject to a Restriction Period or
Performance Measures.
“ Unrestricted Stock
Award ” shall
mean an award of Unrestricted Stock under this Plan.
1.3. Administration . This Plan shall
be administered by the Committee. Any one or a combination of the
following awards may be made under this Plan to eligible persons:
(i) options to purchase shares of Common Stock in the form of
Incentive Stock Options or Non-Qualified Stock Options,
(ii) SARs in the form of Tandem SARs or Free-Standing SARs,
(iii) Stock Awards in the form of Restricted Stock,
Unrestricted Stock or Restricted Stock Units and
(iv) Performance Shares. The Committee shall, subject to the
terms of this Plan, select eligible persons for participation in
this Plan and determine the form, amount and timing of each award
to such persons and, if applicable, the number of shares of Common
Stock, the number of SARs, the number of Restricted Stock Units and
the number of Performance Shares subject to such an award, the
exercise price or base price associated with the award, the time
and conditions of exercise or settlement of the award and all other
terms and conditions of the award, including, without limitation,
the form of the Agreement evidencing the award. The Committee may,
in its sole discretion and for any reason at any time, subject to
the requirements of Section 162(m) of
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the Code and regulations thereunder in the case
of an award intended to be qualified performance-based
compensation, take action such that (i) any or all outstanding
options and SARs shall become exercisable in part or in full,
(ii) all or a portion of the Restriction Period applicable to
any outstanding Restricted Stock Award or Restricted Stock Unit
Award shall lapse, (iii) all or a portion of the Performance
Period applicable to any outstanding Performance Share Award shall
lapse and (iv) the Performance Measures (if any) applicable to
any outstanding award shall be deemed to be satisfied at the
maximum or any other level. The Committee shall, subject to the
terms of this Plan, interpret this Plan and the application
thereof, establish rules and regulations it deems necessary or
desirable for the administration of this Plan and may impose,
incidental to the grant of an award, conditions with respect to the
award, such as limiting competitive employment or other activities.
All such interpretations, rules, regulations and conditions shall
be final, binding and conclusive.
The Committee may delegate some or
all of its power and authority hereunder to the Board or, subject
to the applicable law, to the Chief Executive Officer or other
executive officer of the Company as the Committee deems
appropriate; provided , however , that (i) the
Committee may not delegate its power and authority to the Board or
the Chief Executive Officer or other executive officer of the
Company with regard to the grant of an award to any person who is a
“covered employee” within the meaning of
Section 162(m) of the Code or who, in the Committee’s
judgment, is likely to be a covered employee at any time during the
period an award hereunder to such employee would be outstanding and
(ii) the Committee may not delegate its power and authority to
the Chief Executive Officer or other executive officer of the
Company with regard to the selection for participation in this Plan
of an officer or other person subject to Section 16 of the
Exchange Act or decisions concerning the timing, pricing or amount
of an award to such an officer or other person.
No member of the Board or Committee,
and neither the Chief Executive Officer nor any other executive
officer to whom the Committee delegates any of its power and
authority hereunder, shall be liable for any act, omission,
interpretation, construction or determination made in connection
with this Plan in good faith, and the members of the Board and the
Committee and the Chief Executive Officer or other executive
officer shall be entitled to indemnification and reimbursement by
the Company in respect of any claim, loss, damage or expense
(including attorneys’ fees) arising therefrom to the full
extent permitted by law, except as otherwise may be provided in the
Company’s Articles of Incorporation and/or By-laws, and under
any directors’ and officers’ liability insurance that
may be in effect from time to time.
A majority of the Committee shall
constitute a quorum. The acts of the Committee shall be either
(i) acts of a majority of the members of the Committee present
at any meeting at which a quorum is present or (ii) acts
approved in writing by all of the members of the Committee without
a meeting.
1.4. Eligibility . Participants in this
Plan shall consist of such officers, other employees, nonemployee
directors, consultants, independent contractors and agents, and
persons expected to become officers, other employees, nonemployee
directors, consultants, independent contractors and agents, of the
Company or a Subsidiary as the Committee in its sole discretion may
select from time to time. For purposes of this Plan, references to
employment shall also mean an agency or independent contractor
relationship and references to employment by the Company
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shall also mean employment by a Subsidiary. The
Committee’s selection of a person to participate in this Plan
at any time shall not require the Committee to select such person
to participate in this Plan at any other time.
1.5. Shares Available
.
(a) Subject to adjustment as
provided in Section 5.7, the number of shares of Common Stock
which shall be available for awards under this Plan shall be
13,637,301 as of March 19, 2009, reduced by the sum of the
aggregate number of shares of Common Stock which become subject to
outstanding options, outstanding Free-Standing SARs, outstanding
Stock Awards and outstanding Performance Share Awards after such
date, and increased by the number of shares of Common Stock that
may again become available under this Plan pursuant to
Section 1.5(b), whether such shares are subject to awards
granted before or after such date. Subject to adjustment as
provided in Section 5.7, of the total number of shares of
Common Stock available under this Plan, 10,000,000 shares of Common
Stock shall be available for awards of any type permitted by this
Plan, 1,842,751 additional shares of Common Stock shall be
available for Stock Awards and Performance Share Awards and
1,794,550 additional shares of Common Stock shall be available for
awards other than Stock Awards and Performance Share
Awards.
(b) The Committee may adopt
reasonable counting procedures to ensure appropriate counting,
avoid double counting (as, for example, in the case of tandem or
substitute awards) and make adjustments if the number of shares of
Common Stock actually delivered differs from the number of shares
previously counted in connection with an award. To the extent that
shares of Common Stock subject to an outstanding award granted
under this Plan are not issued or delivered to the holder of the
award or are returned to the Company by the holder of the award by
reason of (i) the expiration, termination, cancellation or
forfeiture of such award, (ii) the settlement of such award in
cash, or (iii) the delivery or withholding of shares of Common
Stock to pay all or a portion of the exercise price of an award, if
any, or to satisfy all or a portion of the tax withholding
obligations relating to an award, then such shares of Common Stock
shall again be available under this Plan. This Section 1.5(b)
shall apply to the share limit imposed to conform to the Treasury
regulations governing Incentive Stock Options only to the extent
consistent with applicable regulations relating to Incentive Stock
Options under the Code.
(c) Shares of Common Stock shall be
made available from authorized and unissued shares of Common Stock,
or authorized and issued shares of Common Stock reacquired and held
as treasury shares or otherwise or a combination
thereof.
(d) To the extent necessary for an
award to be qualified performance-based compensation under
Section 162(m) of the Code and the regulations thereunder,
(i) the maximum number of shares of Common Stock with respect
to which options or SARs or a combination thereof may be granted
during any calendar year to any person shall be 1,000,000, subject
to adjustment as provided in Section 5.7, (ii) the
maximum number of shares of Common Stock with respect to which
Stock Awards subject to Performance Measures may be granted during
any calendar year to any person shall be 500,000, subject to
adjustment as provided in Section 5.7 and (iii) the
maximum number of shares of Common Stock with respect to which
Performance Share Awards may be granted during any calendar year to
any person shall be 500,000, subject to adjustment as provided in
Section 5.7.
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II. STOCK OPTIONS AND STOCK
APPRECIATION RIGHTS
2.1. Stock Options . The Committee may,
in its discretion, grant options to purchase shares of Common Stock
to such eligible persons as may be selected by the Committee. Each
option, or portion thereof, that is not an Incentive Stock Option
shall be a Non-Qualified Stock Option. An Incentive Stock Option
may not be granted to any person who is not an employee of the
Company or any parent or subsidiary (as defined in Section 424
of the Code). Each Incentive Stock Option shall be granted within
ten years of the date this Plan is adopted by the Board. To the
extent that the aggregate Fair Market Value (determined as of the
date of grant) of shares of Common Stock with respect to which
options designated as Incentive Stock Options are exercisable for
the first time by a participant during any calendar year (under
this Plan or any other plan of the Company, or any parent or
subsidiary as defined in Section 424 of the Code) exceeds the
amount (currently $100,000) established by the Code, such options
shall constitute Non-Qualified Stock Options.
Options shall be subject to the
following terms and conditions and shall be subject to such
additional terms and conditions, not inconsistent with the terms of
this Plan, as the Committee shall deem advisable:
(a) Number of Shares and Purchase
Price . The number of shares of Common Stock subject to an
option and the purchase price per share of Common Stock purchasable
upon exercise of the option shall be determined by the Committee;
provided , however , that the purchase price per
share of Common Stock purchasable upon exercise of an option shall
not be less than 100% of the Fair Market Value of a share of Common
Stock on the date of grant of such option; provided
further , that if an Incentive Stock Option shall be granted
to any person who, at the time such option is granted, owns capital
stock possessing more than ten percent of the total combined voting
power of all classes of capital stock of the Company (or of any
parent or subsidiary as defined in Section 424 of the Code) (a
“ Ten Percent Holder ”), the purchase price per
share of Common Stock shall not be less than the price (currently
110% of Fair Market Value) required by the Code in order for the
option to constitute an Incentive Stock Option.
(b) Exercise Period and
Exercisability . The period during which an option may be
exercised shall be determined by the Committee; provided ,
however , that no option shall be exercised later than ten
years after its date of grant; provided further ,
that if an Incentive Stock Option shall be granted to a Ten Percent
Holder, such option shall not be exercised later than five years
after its date of grant. The Committee may, in its discretion,
establish Performance Measures which shall be satisfied or met as a
condition to the grant of an option or to the exercisability of all
or a portion of an option. The Committee shall determine whether an
option shall become exercisable in cumulative or non-cumulative
installments and in part or in full at any time. An exercisable
option, or portion thereof, may be exercised only with respect to
whole shares of Common Stock.
(c) Method of Exercise . An
option may be exercised (i) by giving written notice to the
Company specifying the number of whole shares of Common Stock to be
purchased and by accompanying such notice with payment therefor in
full (or by arranging for such payment to the Company’s
satisfaction) either (A) in cash, (B) by delivery (either
actual delivery or by attestation procedures established by the
Company) of Mature Shares having an aggregate Fair
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