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Exhibit 10.4
THE MANITOWOC COMPANY, INC.
2004 NON-EMPLOYEE DIRECTOR STOCK AND AWARDS
PLAN
Amended December 17, 2008, Effective
January 1, 2005
Section 1.
Purpose and Construction.
(a)
Purpose . The Manitowoc Company, Inc. 2004
Non-employee Director Stock and Awards Plan (the "Plan") has three
complementary purposes: (a) to promote the long-term growth
and financial success of The Manitowoc Company, Inc. (the
"Company"); (b) to induce, attract and retain highly
experienced and qualified individuals to serve on the
Company’s Board of Directors (the "Board"); and (c) to
assist the Company in promoting a greater identity of interest
between the Company’s non-employee directors ("Non-employee
Directors") and its shareholders. The Plan is designed to
accomplish these goals by providing Non-employee Directors with
incentives to increase shareholder value by offering the
opportunity to acquire shares of the Company’s common stock,
receive incentives based on the value of such common stock, or
receive other incentives on the potentially favorable terms that
this Plan provides.
(b)
Construction . Capitalized terms used in this Plan
shall have the meanings set forth in Section 12, unless the
context otherwise requires.
(c)
Effective Date and Shareholder Approval . This Plan
shall become effective only following its approval by the
shareholders of the Company.
Section 2.
Shares Reserved Under this Plan.
(a)
Plan Reserve . An aggregate of two-hundred and
twenty-five thousand (225,000) Shares are reserved for issuance
under this Plan. The number of Shares covered by an Award under the
Plan shall be counted on the date of grant of such Award against
the number of Shares available for granting Awards under the
Plan. Any Shares delivered pursuant to the exercise of an
Award may consist, in whole or in part, of authorized and unissued
Shares or of treasury shares.
(b)
Stock Split, Stock Dividend or Reverse Stock Split .
In the event of a stock split, stock dividend or reverse stock
split, of Shares, the number of Shares subject to this Plan
(including the number and type of Shares that may be granted as
Restricted Stock, Restricted Stock Units or issued pursuant to
Options, to a Participant in any fiscal year, and that may after
the event be made the subject of Awards under this Plan) and the
number Shares subject to outstanding Awards, and the grant,
purchase and exercise price with respect to any outstanding Awards,
shall thereupon automatically be adjusted proportionately in a
manner consistent with such stock split, stock dividend or reverse
stock split to prevent dilution or enlargement of the benefits or
potential benefits intended to be made under this Plan; provided,
however, that the number of Shares subject to any Award payable or
denominated in Shares must always be a whole number. In the
event that any such stock split, stock dividend or reverse stock
split would result in an outstanding Award consisting of any
fractional Share(s), the Committee may cancel such fractional
amount or grant an Award of an additional fractional amount so that
there is no
fraction amount or may make provision for a cash payment, in an
amount determined by the Committee to the holder of the Award that
would include a fractional Share, in exchange for the cancellation
of such factional Share(s) (without any consent of the holder
of any such fractional Share), effective as of the time the
Committee specifies (which may be the time such stock split, stock
dividend or reverse stock split, is effective).
(c)
Other Adjustment of Shares . In addition to the
non-discretionary adjustment provisions of Section 2(b), if
the Committee determines that any dividend or other distribution
(whether in the form of cash, other securities, or other property,
but not including a dividend of Shares which is governed by
Section 2(b)), recapitalization, stock split, reverse stock
split, reorganization, merger, consolidation, split-up, spin-off,
combination, repurchase or exchange of Shares or other securities
of the Company, issuance of warrants or other rights to purchase
Shares or other securities of the Company, or other similar
corporate transaction or event (collectively referred to as
"Events") affects the Shares such that an adjustment is determined
by the Committee to be appropriate in order to prevent dilution or
enlargement of the benefits or potential benefits intended to be
made available under the Plan, then the Committee may, in such
manner as it may deem equitable, adjust any or all of:
(i) the number and type of Shares subject to the Plan and
which thereafter may be made the subject of Awards under the Plan;
(ii) the number and type of Shares subject to outstanding
Awards; and (iii) the exercise price with respect to any
Option (collectively referred to as "Adjustments"); provided,
however, that Awards subject to grant or previously granted to
Non-employee Directors under the Plan at the time of any such Event
shall be subject only to such Adjustments as shall be necessary to
maintain the proportionate interest of the Non-employee Directors
and preserve, without exceeding, the value of such Awards; and
provided further that the number of Shares subject to any Award
shall always be a whole number.
(d)
Predecessor Plan . After the Effective Date of this
Plan, the 1999 Non-employee Director Stock Option Plan will be
frozen such that (i) no future awards will be granted under
the 1999 Non-employee Director Stock Option Plan, (ii) the
1999 Non-employee Director Stock Option Plan will exist solely to
govern grants of awards made prior to the Effective Date of this
Plan, and (iii) any Shares that would have otherwise been
available for new grants under the 1999 Non-employee Director Stock
Option Plan will not roll over into this Plan and thus will not be
available for the purpose of granting Awards under this Plan.
(e)
Replenishment of Shares Under this Plan . The number
of Shares reserved for issuance under this Plan shall be reduced
only by the number of Shares actually delivered in payment or
settlement of Awards, including Restricted Stock and Restricted
Stock Units. If an Award lapses, expires, terminates or is
cancelled without the issuance of Shares under the Award, then the
Shares subject to, reserved for or delivered in payment in respect
of such Award may again be used for new Awards under this
Plan. If Shares are issued under any Award and the Company
subsequently reacquires them pursuant to rights reserved upon the
issuance of the Shares, if Shares are used in connection with the
satisfaction of tax obligations relating to an Award, or if
previously owned Shares are delivered to the Company in payment of
the exercise price of an Award, then the Shares subject to,
reserved for or delivered in payment in respect of such Award may
again be used for new Awards under this Plan.
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Section 3.
Plan Administration and Operation.
(a)
Administrative Authority . The Committee has full
authority to administer this Plan, including the authority to
(i) interpret the provisions of this Plan,
(ii) prescribe, amend and rescind rules and regulations
relating to this Plan, (iii) correct any defect, supply any
omission, or reconcile any inconsistency in any Award or agreement
covering an Award in the manner and to the extent it deems
desirable to carry this Plan into effect, and (iv) make all
other determinations necessary or advisable for the administration
of this Plan.
(b)
Awards . The Committee has full authority to designate
from time to time which Non-employee Directors shall receive Awards
under this Plan. The Committee may consider such factors as
it deems pertinent in selecting whether a Non-employee Director
will receive any Award(s) and in determining the types and
amounts of Awards and in setting any Performance Goals or other
limitations. In making such selection and determination,
factors the Committee may consider include, but will not be limited
to: (a) the Company’s financial condition;
(b) anticipated profits for the current or future years;
(c) the Non-employee Director’s length of service on the
Board; and (d) other fees that the Company provides or has
agreed to provide to the Non-employee Director. The
Committee’s decision to provide a Non-employee Director with
an Award in any year will not require the Committee to designate
such person to receive an Award in any other year.
(c)
Committee Action and Delegation . A majority of the members
of the Committee will constitute a quorum, and a majority of the
Committee’s members present at a meeting at which a quorum is
present must make all determinations of the Committee. The
Committee may make any determination under this Plan without notice
or meeting of the Committee by a writing that a majority of the
Committee members have signed. To the extent applicable law
permits, the Board may delegate to another committee of the Board
any or all of the authority and responsibility of the
Committee. If the Board has made such a delegation, then all
references to the Committee in this Plan include such other
committee or one or more officers to the extent of such
delegation. Except to the extent prohibited by applicable
law, the Committee may also authorize any one or more of their
number or the Secretary or any other officer of the Company to
execute and deliver documents on behalf of the Committee.
(d)
Review of Committee Decisions . All Committee determinations
are final and binding upon all interested parties and no reviewing
court, agency or other tribunal shall overturn a decision of the
Committee unless it first determines that the Committee acted in an
arbitrary and capricious manner with respect to such decision.
(e)
Committee Indemnification . No member of the Committee will
be liable for any act done, or determination made, by the
individual in good faith with respect to the Plan or any Award.
The Company will indemnify and hold harmless all Committee
members to the maximum extent that the law and the Company’s
bylaws permit.
Section 4.
Discretionary Grants of Awards.
Subject to the terms of this Plan, including Section 7
below, the Committee has full power and authority to determine:
(a) the type or types of Awards to be
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granted to each Non-employee Director (i.e., Options,
Restricted Stock and/or Restricted Stock Units); (b) the
number of Shares with respect to which an Award is granted to a
Non-employee Director, if applicable; and (c) any other terms
and conditions of any Award granted to a Non-employee
Director. Awards under this Plan may be granted either alone
or in addition to, in tandem with, or in substitution for any other
Award (or any other award granted under another plan of the Company
or any Affiliate). The Committee may grant multiple Awards
and different types of Awards (e.g., Options, Restricted Stock
and/or Restricted Stock Units) to individual Non-employee Directors
at the same time.
Section 5.
Options.
(a)
Exercise Price of Options . For each Option, the
Committee will establish the exercise price, which may not be less
than the Fair Market Value of the Shares subject to the Option as
determined on the date of grant. The Committee shall also
determine the method or methods by which, and the form or forms,
including, without limitation, cash, Shares, other securities,
other Awards, or other property, or any combination thereof, having
a Fair Market Value on the exercise date equal to the relevant
exercise price, in which payment of the exercise price with respect
to any Option may be made or deemed to have been made.
(b)
Terms and Conditions of Options . Subject to the terms
of the Plan, an Option will be exercisable at such times and
subject to such conditions as the Committee specifies, including,
but not limited to, any Performance Goals. Notwithstanding
the preceding, each Option must terminate no later than ten
(10) years after the date of grant.
Section 6.
Restricted Stock and Restricted Stock Units.
Subject to the terms of the Plan, each award of Restricted
Stock and/or Restricted Stock Units may be subject to such terms
and conditions as the Committee determines appropriate, including,
without limitation, a condition that one or more Performance Goals
be achieved for the Non-employee Director to realize all or a
portion of the benefit provided under the Award. However, any
award of Restricted Stock and/or Restricted Stock Units (regardless
of whether such Award is conditioned upon any Performance Goals)
must have a restriction period of at least three
(3) years. Notwithstanding anything to the contrary
herein, all Restricted Stock and Restricted Stock Units awarded
under this Plan shall be payable only in Shares. Any Award of
Restricted Stock Units must be paid before March 15 of the
calendar year after the calendar year in which the recipient has a
fully vested right to such Restricted Stock Units.
Section 7.
Effect of Termination of Membership on the Board.
(a)
Award Limitations . Subject to the limitations set
forth in Section 7(b) below, the Committee shall, in its
discretion, determine whether to impose any Award Agreement
provisions or limitation concerning what will happen to any
outstanding Award(s) when the Non-employee Director ceases to
be a member of the Board for any reason. The restrictions
under Section 7(b) and any other limitations imposed by
the Committee under this Section 7(a) must be included in
the Award Agreement. Unless otherwise stated under the
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Award Agreement, if a Non-employee Director ceases to be a
member of the Board for any reason other than the Non-employee
Director’s retirement due to reaching the mandatory
retirement age established by the Board, or other than death or
disability (as determined by the Committee), as to Awards held by
that Non-employee Director on the effective date of such
termination of Board membership, unless the Committee, in its sole
discretion, shall otherwise determine, all nonvested options and
all Restricted Stock as to which all restrictions have not lapsed,
and all Restricted Stock Units for which the Performance Goals have
not been fully satisfied shall be immediately forfeited. Upon
the retirement (due to reaching the mandatory retirement age
established by the Board), death or disability of a Non-employee
Director, all Options held by the Non-employee Director shall fully
and immediately vest, all restrictions with respect to Restricted
Stock held by the Non-employee Director shall immediately lapse,
and all Performance Goals with respect to Restricted Stock Units
held by the Non-employee Director shall be deemed immediately
satisfied. In such event or if the Committee otherwise
determines not to require immediate forfeiture upon the occurrence
of some other event where the Non-employee director ceases to be a
member of the Board, then the maximum exercise period which may be
permitted for Options following such termination of Board
membership shall be the shorter of one year or the scheduled
expiration date of the Award.
(b)
Fraud and Misconduct . Notwithstanding any provision
in this Plan or in any Award Agreement, if a Non-employee Director
ceases being a director of the Company due to any of the following
act(s), then all Awards previously granted to such
Non-employee Director shall immediately be forfeited as of the date
of the first such act: (i) fraud or intentional
misrepresentati
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