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FIRST AMENDMENT TO THE
THE TAUBMAN COMPANY LONG-TERM PERFORMANCE
COMPENSATION PLAN
(As Amended and Restated Effective
January 1, 2000)
WHEREAS , THE TAUBMAN
COMPANY LLC (formerly The Taubman Company Limited Partnership)
(the “Company”) has adopted and maintains The Taubman
Company Long-Term Performance Compensation Plan, as most recently
amended and restated effective January 1, 2000 (the
“Plan”); and
WHEREAS , pursuant to
Section 7.1 of the Plan, the Compensation Committee of the
Board of Directors of Taubman Centers, Inc. (the
“Compensation Committee”) has the authority to amend
the Plan; and
WHEREAS , the
Compensation Committee desires to amend the Plan, effective as of
January 1, 2005, to comply with new provisions in the law
enacted as Section 409A of the Internal Revenue Code
of 1986, as amended, with respect to awards granted under the
Plan that were not vested as of December 31, 2004, and to
make certain other miscellaneous changes.
NOW, THEREFORE , the
Plan is hereby amended as follows:
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1.
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A new Section 2.8A is hereby added to the Plan,
reading as follows:
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“ 2.8A
Notwithstanding the above, for any 409A Award ‘
Change of Control Event ’ means either:
(a) a majority of the Board of Directors is replaced
during a 12-month period by directors whose appointment or election
was not approved by a vote of at least 50% of the directors
comprising the Board of Directors on the date immediately preceding
the removal or election; or
(b) the acquisition by any person or more than one
person acting as a group other than A. Alfred Taubman or
any of his immediate family members or lineal descendants, any heir
of the foregoing, any trust for the benefit of any of the
foregoing, any private charitable foundation, or any partnership,
limited liability company, or corporation owned or controlled by
some or all of the foregoing, of ownership of 50% or more of the
total fair market value or total voting power of the outstanding
voting capital stock of TCO.”
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2.
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Section 2.11 of the Plan is hereby amended to
read as follows:
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“ 2.11
‘
Company ’ means
The Taubman Company LLC, a Delaware limited liability company,
and any successor interest to the business of The Taubman
Company LLC that has, by agreement, adopted the
Plan.”
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3.
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A new Section 2.17A is hereby added to the
Plan, reading as follows:
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“ 2.17A
Notwithstanding
the above, for any 409A Award ‘ Disability ’ or ‘
Disabled ’ means
an Employee’s physical or mental condition resulting from any
medically determinable physical or mental impairment that renders
such Employee incapable of engaging in
any substantial gainful employment and that can be
expected to result in death or that has lasted or can be expected
to last for a continuous period of not less than three-hundred
sixty-five (365) Days.
The Disability of an Employee and the date on which
an Employee ceases to be employed by reason of Disability shall be
determined by the Company, in accordance with uniform principles
consistently applied, upon the basis of such evidence as the
Compensation Committee and the Company deem necessary and
desirable, and its good faith determination shall be conclusive for
all purposes of this Plan. The Compensation Committee or the
Company shall have the right to require an Employee to submit to an
examination by a physician or physicians and to submit to such
reexaminations as the Compensation Committee or the Company shall
require in order to make a determination concerning the
Employee’s physical or mental condition; provided, however,
that: (a) an Employee may not be required to
undergo a medical examination more often than once each one-hundred
eighty (180) Days, nor at any time after the normal date of the
Employee’s Retirement; and (b) the fees and expenses of
any such medical examination(s) shall be considered expenses of
administering the Plan. If any Employee engages in any occupation
or employment (except for rehabilitation as determined by the
Compensation Committee, on the recommendation of the Company) for
remuneration or profit, which activity would be inconsistent with
the finding of Disability, or if the Compensation Committee, on the
recommendation of the Company, determines on the basis of a medical
examination that an Employee no longer has a Disability, or if an
Employee refuses to submit to any medical examination properly
requested by the Compensation Committee or the Company, then in any
such event, the Employee shall be deemed to have recovered from
such Disability.”
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4.
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A new Section 2.32A is hereby added to the
Plan, reading as follows:
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“ 2.32A
Notwithstanding the above, for any 409A Award
‘ Retirement ’ means the termination of employment by an Employee
after the attainment of age sixty-two (62) or upon such earlier
date as required by local law.”
5. A
new Section 2.35 is hereby added to the Plan, reading as
follows, and the subsequent sections of Article 2 are hereby
renumbered accordingly:
“ 2.35
‘
Termination ’ or
‘ Terminates ,’ for 409A Awards only, means the termination of an
Employee’s employment with the Company and with all members
of the Company’s controlled group, as described under the
aggregation rules of Code Section 409A and any associated
Internal Revenue Service guidance, and shall include a termination
for any reason or no reason.”
6. All
instances of the word “termination” in the Plan, with
respect to 409A Awards only, as the word refers to the termination
of an Employee’s employment as defined in Section 2.35
of the Plan, are hereby capitalized.
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7.
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A new Section 2.41 is hereby added to the Plan,
reading as follows:
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“ 2.41
‘
409A Award ’
means any Award that was not vested on December 31, 2004,
and is therefore subject to the nonqualified deferred compensation
requirements of Section 409A of the Code, as enacted on
October 3, 2004, as part of the American Jobs Creation
Act of 2004.”
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8.
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Section 5.6 of the Plan is hereby amended to
read as follows:
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2
“ 5.6
Acceleration of Vesting. Notwithstanding anything to the contrary in the Plan, including
Section 5.4 hereof, the Compensation Committee, in its
discretion, upon the
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