EXHIBIT 10.13
[Cenveo logo]
CENVEO, INC.
2001 LONG-TERM EQUITY INCENTIVE PLAN
RESTRICTED SHARE UNIT AWARD AGREEMENT
THIS RESTRICTED SHARE UNIT AWARD AGREEMENT dated as of this __th
day of _________, 200__ ("Agreement") is between Cenveo, Inc., a Colorado
corporation (the "Company"), and ____________ (the "Grantee"). Capitalized
terms used but not defined herein have the meanings assigned to them in the
Cenveo, Inc. 2001 Long-Term Equity Incentive Plan, as amended (the "Plan").
RECITALS
WHEREAS, the Company has awarded Grantee restricted share units
(the "Share Units") pursuant to the terms of the Plan; and
WHEREAS, the Plan contemplates a written document evidencing the award;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound, the parties agree as follows:
ARTICLE I
AWARD OF SHARES
1.1 Award. Pursuant to the terms of the Plan, Grantee is hereby
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awarded ____ Share Units, effective___________.
1.2 Vesting of Share Units. Subject to Section 3.2, Grantee's Share
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Units shall vest on [such date (the "Vesting Date") not earlier than
__________ as the Committee may, in its sole discretion, determine that the
Company has achieved a cumulative total cost savings, commencing on
_____________, of more than $__________][ on _____________ (the "Vesting
Date"), provided that Grantee has not ceased to serve as a director of the
Company and its Affiliates prior to such date]. Share Units which do not
become vested pursuant to this Section 1.2 or Section 3.2 [by ____________]
shall be forfeited and Grantee shall have no further rights with respect to
such Share Units.
1.3 Delivery of Certificates. Subject to Section 3.2, a certificate
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for the shares of Stock represented by Grantee's vested Share Units (the
"Vested Share Units") shall be delivered
to Grantee, or to Grantee's eligible beneficiary or Grantee's estate[,
promptly following the Vesting Date but no later than ___________][on the
Vesting Date].
o Notwithstanding the preceding paragraph, if the shares
relating to the Vested Share Units would otherwise be
delivered during a period in which Grantee is (i) subject
to a lock-up agreement restricting Grantee's ability to
sell shares of Stock in the open market or (ii) restricted
from selling shares of Stock in the open market because
Grantee is not then eligible to sell under the Company's
xxxxxxx xxxxxxx or similar plan as then in effect (whether
because a trading window is not open or Grantee is
otherwise restricted from trading), delivery of the shares
related to the Vested Share Units will be delayed until no
earlier than the first date on which Grantee is no longer
prohibited from selling shares of Stock due to a lock-up
agreement or xxxxxxx xxxxxxx plan restriction but in no
event later than two and one-half months after the end of
the calendar year in which the Share Units would otherwise
have been delivered.
1.4 Stockholder Right. Until such time as stock certificates for
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the shares of Stock represented by the Share Units have been delivered to
Grantee, Grantee shall have none of the rights of a stockholder with respect
to the Shares.
ARTICLE II
TRANSFER RESTRICTIONS
2.1 Restriction on Transfer. Grantee shall not transfer, assign,
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encumber or otherwise dispose of any Share Units at any time.
2.2 Disposition Of Shares. Grantee hereby agrees that Grantee shall
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make no disposition of the Share Units.
ARTICLE III
FORFEITURE OF UNVESTED SHARE UNITS
3.1 Forfeiture. Subject to Section 3.2, [upon termination of
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Grantee's employment with the Company or its Affiliates for any reason,][ if
Grantee ceases to serve as a director of the Company and its Affiliates for
any reason,] Grantee's Share Units which have not become vested pursuant to
Section 1.2 shall be forfeited and Grantee shall have no further rights with
respect to such Share Units.
3.2 Change in Control. In the event that there is a Change in
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Control [on or prior to _____________], the Share Units shall become
immediately Vested Share Units and a certificate for the shares of Stock
represented by Grantee's Vested Share Units shall be delivered to Grantee
upon such Change in Control; provided, however, that if such Change in
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Control is not a permitted distribution event under Section 409A of the
Internal Revenue Code of 1986, as amended (the "Code"), then the certificate
for the shares of Stock represented by Grantee's Vested Share Units shall be
delivered on the earliest of (i) ___________, (ii) [Grantee's termination of
employment with the Company or its Affiliates or, if required by Section
409A of
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the Code, six months after such termination,][Grantee's ceasing to serve as
a director of the Company and its Affiliates,] or (iii) Grantee's death.
3.3 Additional Shares or Substituted Securities. In the event of
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any stock dividend, stock split, recapitalization or other change affecting
the Company's outstanding Common Stock as a class effected without receipt
of consideration, then any new, substituted, or additional securities or
other property (including money paid other than as a regular cash dividend)
which is by reason of any such transaction distributed with respect to
shares of Stock (the "Distributed Property"), an adjustment shall be made to
the Share Units and the additional Share Units shall be immediately subject
to forfeiture as provided in this Article III, but only to the extent the
Share Units are at the time subject to forfeiture. Appropriate adjustments
to reflect the distribution of such Distributed Property shall be made to
the number of Share Units hereunder.
ARTICLE IV
GENERAL PROVISIONS
4.1 Distribution. An amount equal to any cash dividends paid
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following any Vesting Date on the same number of shares of Stock shall be
paid directly to Grantee.
4.2 No Employment or Service Contract. Nothing in this Agreement
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shall confer upon Grantee any right to [employment with][continued service
as a director or otherwise with] the Company or any of its Affiliates.
4.3 Notices. All notices, requests, demands, and other
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communications under this Agreement shall be in writing and shall be deemed
to have been duly given on the date of service if served personally on the
party to whom notice is to be given, on the date of transmittal of service
via telecopy to the party to whom notice is to be given (with a confirming
copy being delivered within 24 hours thereafter), or on the third day after
mailing if mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid, or via overnight courier
providing a receipt and properly addressed. Notices to the Company shall be
addressed to Cenveo, Inc., at the Company's headquarters address. Attention:
Secretary. Notices to Grantee shall be sent to the latest address of Grantee
shown on the records of the Company. Any party may change its address for
purposes of this Section by giving notice of the new address to each of the
other parties in the manner set forth above.
4.4 No Waiver. No waiver of any breach or condition of this
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Agreement shall be deemed to be a waiver of any other or subsequent breach
or condition, whether of like or different nature.
4.5 Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Colorado for all
purposes and in all respects, without giving effect to the conflict of law
provisions thereof.
4.6 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original and
enforceable against the parties actually
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executing such counterparts, but all of which together shall constitute one
and the same instrument.
4.7 Successors and Assigns. The provisions of this Agreement shall
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inure to the benefit of, and be binding upon, the Company and its successors
and assigns and Grantee and Grantee's legal representatives, heirs,
legatees, distributees, assigns and transferees by operation of law, whether
or not any such person shall have become a party to this Agreement and have
agreed in writing to join herein and be bound by the terms and conditions
hereof.
4.8 Integration; Amendment. This Agreement, the Plan and the other
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documents delivered pursuant hereto constitute the full and entire
understanding and agreement among the parties with regard to the subjects
hereof and thereof, and supersede any previous agreement or understanding
between or among the parties with respect to such subjects. No party shall
be liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or
therein. Except as expressly provided herein neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated other than by a
written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.
4.9 Severability. In the event that any provision of this Agreement
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becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided that no such severability shall be
effective if it materially changes the economic benefit of this Agreement to
any party.
4.10 Titles and Subtitles. The titles and subtitles used in this
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Agreement are used for convenience only and are not considered in construing
or interpreting this Agreement.
4.11 Section 409A of the Internal Revenue Code. Anything in this
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Agreement to the contrary notwithstanding, if (A) on the date of termination
of Grantee's employment or other service with the Company or an Affiliate,
any of the Company's stock is publicly traded on an established securities
market or otherwise (within the meaning of Section 409A(a)(2)(B)(i) of the
Code) and (B) as a result of such termination, Grantee would receive any
payment that, absent the application of this Section 4.11, would be subject
to interest and additional tax imposed pursuant to Section 409A(a) of the
Code as a result of the application of Section 409A(2)(B)(i) of the Code,
then no such payment shall be payable prior to the date that is the earliest
of (1) 6 months after Grantee's termination date, (2) Grantee's death or (3)
such other date as will cause such payment not to be subject to such
interest and additional tax. It is the intention of the parties that
payments or benefits payable under this Agreement not be subject to the
additional tax imposed pursuant to Section 409A of the Code. To the extent
such potential payments or benefits could become subject to such Section,
the parties shall cooperate to amend this Agreement with the goal of giving
Grantee the economic benefits described herein in a manner that does not
result in such tax being imposed.
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IN WITNESS WHEREOF, this Restricted Share Unit Award Agreement has
been executed as of the date first written above.
COMPANY CENVEO, INC.
By:
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Xxxxxx X. Xxxxxx, Xx.
Chairman and Chief Executive Officer
OPTIONEE
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