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 he
