Exhibit 10.7(e)
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
misrepresentation; (ii) embezzlement, misappropriation or
conversion of assets or opportunities of the Company or any
Affiliate of the Company; or (iii) an
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