FORM OF PERFORMANCE SHARE AND RESTRICTED STOCK AWARD AGREEMENT UNDER THE 2007 EXECUTIVE INCENTIVE PLAN
Exhibit 10.97
FORM OF
UNDER THE 2007
EXECUTIVE INCENTIVE PLAN
THIS PERFORMANCE SHARE AND RESTRICTED STOCK AWARD AGREEMENT (the “Agreement”) is made and
entered into as of the
_____
day of _____ by and between CHROMCRAFT REVINGTON, INC. (the
“Company”), a Delaware corporation, and (the “Employee”),
WITNESSETH:
WHEREAS, the Compensation Committee of the Board of Directors of the Company (the
“Compensation Committee”) has determined that the Employee should be granted an award opportunity
of performance shares under the Company’s 2007 Executive Incentive Plan, as currently or hereafter
in effect (the “Plan”), which shares, if earned would be converted into restricted stock of the
Company; and
WHEREAS, such performance shares and, if converted into restricted stock, such shares of
restricted common stock shall be subject to certain restrictions in accordance with the Plan and
this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, the award of performance shares to
the Employee, the respective covenants, agreements and obligations contained herein, and other good
and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
Company and the Employee hereby agree as follows:
Section 1. Award of Performance Shares. Subject to the terms and conditions
of the Plan and this Agreement, the Company hereby grants to the Employee an Award of performance
shares, the number of which shall be determined as set forth in Exhibit A hereto and which
shares shall be issued under the Plan and be subject to and restricted in accordance with the Plan
and this Agreement (the “Performance Shares”). If earned, the Performance Shares shall be
converted into shares of restricted common stock of the Company (the “Restricted Stock”), which
Restricted Stock shall be issued under the Plan and be subject to and restricted in accordance with
the Plan and this Agreement.
Section 2. Award Date. The Award Date for the Award of Performance Shares is
________ .
Section 3. Earning of Performance Shares and Vesting of Restricted Stock. The
Performance Period, Performance Measure, performance targets, Award Rates, manner of converting the
Performance Shares into Restricted Stock and vesting schedule relating to the shares of Restricted
Stock are set forth in Exhibit A to this Agreement. The Award of Performance Shares must
be earned, as determined by the Compensation Committee, in order for the Performance Shares to be
eligible to be converted into shares of Restricted Stock. The Compensation Committee shall
determine whether a performance target has been achieved and the extent to which the Award of
Performance Shares has been earned, and the Committee’s determination shall be based on the
Company’s audited financial statements for the fiscal year ending December 31, ____ . If a
performance target is not achieved, then all of the Performance Shares shall be forfeited and the
Employee shall have no right or claim to such shares.
If a performance target is achieved, the Award of Performance Shares shall be earned by the
Employee in accordance with the applicable Award Rate and converted into Restricted Stock, subject
to a vesting requirement for the Restricted Stock based on the Employee’s continued employment with
the Company as set forth in Exhibit A. As shares of Restricted Stock become vested, they
shall be free of restriction, except as provided otherwise in the Plan or this Agreement. If
shares of Restricted Stock do not become vested, they shall be forfeited and the Employee shall
have no right or claim to such shares.
Notwithstanding the foregoing, with respect to shares of Restricted Stock being treated as
earned and vested, Section 10 of this Agreement shall control in the event of a Change in Control
or a termination of the Executive’s employment with the Company upon his death, Disability or
Retirement.
Section 4. Dividend, Voting and Other Rights. Prior to the time that any
Performance Shares shall have been earned and converted into Restricted Stock, the Performance
Shares shall not be issued or outstanding for any corporate purposes and the Employee shall not
have any rights as a stockholder of the Company, including, but not limited to, not being entitled
to (a) receive any dividends or distributions, if any, with respect to the Performance Shares, (b)
exercise any voting rights with respect to the Performance Shares, or (c) exercise or possess any
other rights and attributes of ownership of common stock of the Company by virtue of the Award of
Performance Shares. If the Performance Shares are earned and converted into shares of Restricted
Stock, such shares of Restricted Stock (unless and until such shares are forfeited) shall be issued
and outstanding for all corporate purposes and the Employee shall be entitled during the vesting
period of the Restricted Stock to (x) receive all dividends and distributions, if any, paid with
respect to the unvested shares of Restricted Stock, (y) exercise all voting rights with respect to
the unvested shares of Restricted Stock, and (z) exercise and possess all other rights and
attributes of ownership with respect to the unvested shares of Restricted Stock, except as provided
otherwise in the Plan and this Agreement.
Section 5. Certain Agreements of the Employee. The Employee hereby understands and
agrees as follows:
(a) the Employee is a member of senior management of the Company;
(b) none of the Performance Shares and none of the shares of Restricted Stock, if issued, will
be registered or qualified by the Company under any federal or state securities laws in reliance
upon certain exemptions from registration or qualification under such laws;
(c) because the shares of Restricted Stock, if issued, will not be registered or qualified
under any federal or state securities laws and because the Employee may be deemed to be an
affiliate of the Company under the federal securities laws, such shares upon vesting will be
subject to restrictions on resale and transfer imposed by applicable federal and state law in
addition to the restrictions set forth in the Plan and this Agreement;
(d) he is (and his heirs, executors, administrators and representatives are) bound by, and the
Performance Shares are and the shares of Restricted Stock, if issued, will be subject to, the
terms, conditions and restrictions set forth in the Plan, this Agreement, the Company’s
Certificate of Incorporation and By-Laws and applicable law (all as currently or hereafter in
effect);
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(e) there is no obligation of the Company to have any shares of Restricted Stock, if issued,
to be listed, traded or quoted on any securities exchange or on any quotation system or other
established trading market;
(f) no representations, promises or commitments have been made to the Employee relating to (i)
the repurchase by the Company of any Performance Shares or any shares of Restricted Stock, if
issued, upon such Restricted Stock becoming vested, or (ii) the amount of dividends or
distributions, the percentage of profit or the return on investment, if any, that he might expect
to receive as a result of the Award of the Performance Shares or the shares of Restricted Stock, if
issued (whether before or after any of such shares shall have become earned or vested); and
(g) the Performance Shares and the shares of Restricted Stock, if issued, shall be held by the
Employee for his own account and not for another person and not with a view to resale,
distribution, subdivision or fractionalization of such shares.
Section 6. Non-transferability. Except in the event of the Employee’s death
and then only in the manner set forth in the Plan, the Performance Shares (a) cannot be sold,
transferred, assigned, margined, encumbered, bequeathed, gifted, alienated, hypothecated, pledged
or otherwise disposed of, nor can a lien, security interest or option be placed thereon, whether by
operation of law, whether voluntarily or involuntarily, or otherwise, and (b) are not subject to
execution, attachment or similar process or otherwise available to the creditors of the Employee.
Except in the event of the Employee’s death and then only in the manner set forth in the Plan, if
the Performance Shares are earned and converted into shares of Restricted Stock, such shares of
Restricted Stock (unless and until such shares become vested or are forfeited) (y) cannot be sold,
transferred, assigned, margined, encumbered, bequeathed, gifted, alienated, hypothecated, pledged
or otherwise disposed of, nor can a lien, security interest or option be placed thereon, whether by
operation of law, whether voluntarily or involuntarily, or otherwise, and (z) are not subject to
execution, attachment or similar process or otherwise available to the creditors of the Employee.
At such time as shares of Restricted Stock become vested, such vested shares may be sold,
transferred, bequeathed, gifted or otherwise disposed of in accordance with applicable law and the
requirements then in effect of the principal securities exchange or market (or of any quotation
system or other established trading market) on which the Company’s shares of common stock are then
listed or traded, if any. Any attempted or purported sale, transfer, disposition or other act in
breach of or contrary to this Section shall be null and void and of no force or effect whatsoever.
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Section 7. Issuance of Shares. Promptly following the execution of this
Agreement, the Company shall maintain the Performance Shares only in book-entry form in the name of
the Employee. If the Performance Shares are earned and converted into shares of Restricted Stock,
the Company shall promptly issue the required number of shares of common stock of the Company,
which shall be restricted in accordance with the Plan and this Agreement. Until the time that such
shares of Restricted Stock become vested or are forfeited, (a) the Company shall maintain the
unvested shares only in book-entry form in the name of the Employee, (b) the Company shall not
issue any certificate representing any unvested shares of Restricted Stock in
the name or for the benefit of the Employee, (c) the Employee shall not be entitled to hold
any unvested shares in “street name,” and (d) such unvested shares shall be outstanding for all
corporate purposes. Upon request by the Employee following the date on which shares of Restricted
Stock become vested, the Company shall release such vested shares to the Employee and shall, in
accordance with the instructions of the Employee, either cause such shares to be placed in “street
name” with a broker designated by the Employee or issue a stock certificate representing such
shares in the name of the Employee with a legend in substantially the following form imprinted
thereon:
RESTRICTIONS ON TRANSFER
The securities represented by this Certificate have not been registered or qualified
under the Securities Act of 1933, as amended (the “Act”), the laws of the State of
Delaware or any other state securities laws and may not be sold, transferred,
gifted, pledged or otherwise disposed of in the absence of such registration or
qualification or an exemption therefrom under the Act and any applicable state
securities laws.
The securities represented by this Certificate are subject to the terms of a
Performance Share and Restricted Stock Award Agreement and the 2007 Executive
Incentive Plan of the Company, which contain restrictions on the sale, transfer,
gift, pledge and other disposition of, and other matters relating to, these
securities, copies of which agreement and plan are on file with the Secretary of the
Company.
Section 8. Income and Employment Tax Withholding. All applicable federal,
state and local income and employment taxes (and all interest and penalties thereon) that arise or
are imposed by virtue of the Performance Shares having been earned and the shares of Restricted
Stock having become vested shall be the responsibility of and paid by the Employee. The Company
shall have the right to require payment to it of the taxes and other charges required by law to be
withheld as a result of the Performance Shares having been earned and the shares of Restricted
Stock having become vested. The Company also is hereby entitled, and the Employee hereby
authorizes the Company, to withhold shares of Restricted Stock that have vested to satisfy any
withholding tax liability of the Company. For purposes of calculating applicable taxes, the value
of the shares of Restricted Stock shall be based upon the closing price of the Company’s common
stock, as quoted by the principal securities exchange or market on which the Company’s common stock
is then traded, on the date that the shares become vested (or, if the Employee makes an election
under Section 83(b) of the Internal Revenue Code, on the date that shares of Restricted Stock are
issued). If the Company’s common stock is not listed, traded or quoted on any securities exchange
or on any quotation system or other established trading market on the date that shares of
Restricted Stock become vested, then the value of the shares shall be the fair market value of such
shares as determined by either the Board of Directors or the Compensation Committee of the Company.
The Company understands and agrees that the Employee is entitled to make an election under Section
83(b) of the Internal Revenue Code with respect to the Restricted Stock.
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Section 9. Employment; Certain Conflicts. In accordance with Section 14.1 of
the Plan, neither this Agreement nor the Award of Performance Shares or the shares of Restricted
Stock into which the Performance Shares may be converted (a) constitutes an agreement,
understanding or commitment relating to the continued employment of the Employee by the Company, or
(b) affects the employment of the Employee by the Company, whether pursuant to an employment
agreement or as an employee-at-will. In the event of any conflict between the Plan and this
Agreement, then this Agreement shall control; provided, however, that in the event that this
Agreement is silent with respect to a particular matter relating to the Performance Shares or the
Restricted Stock, then the Plan shall control with respect to such matter. In the event of any
conflict between this Agreement and an employment agreement, if any, between the Company and the
Employee, then this Agreement shall control.
Section 10. Effect of Change in Control or Termination of Employment. In the
event of a Change in Control (as defined in the Plan) or a Termination of Service (as defined in
the Plan), whether by the Company or the Employee, whether with or without cause or good reason,
whether upon disability, retirement or death, or otherwise, all Performance Shares that have not
yet been earned and all shares of Restricted Stock that have not yet become vested or that have
become vested as of the time of such event shall be treated in accordance with Section 3.6 of the
Plan, except as expressly set forth below in this Section 10.
(a) In the event of a Change in Control during the Performance Period, all Performance Shares
shall, immediately prior to the effectiveness of the Change in Control, be treated as earned at the
“target” Award Rate and be converted into shares of Restricted Stock which shall, immediately upon
conversion, become fully vested. The Performance Shares so converted shall be converted into
Restricted Stock using the following conversion ratio: the number Performance Shares earned divided
by the closing price of the Company’s common stock (as quoted by the principal securities exchange
or market on which the Company’s common stock is then traded) on the day which is twenty (20)
trading days prior to the effectiveness of a Change in Control; provided, however, that if the
Company’s common stock is not listed, traded or quoted on any securities exchange or on any
quotation system or other established trading market on such day, then the denominator for the
conversion ratio shall instead be the fair market value of a share of common stock of the Company
on the day immediately preceding the effectiveness of the Change in Control, as determined by
either the Board of Directors or the Compensation Committee of the Company.
(b) In the event of a Termination of Service due to the death, Disability or Retirement of the
Employee during the Performance Period, the Performance Shares shall be treated as earned only to
the extent that a performance target is ultimately achieved and then only on a prorated basis based
upon the length of time that the Employee was employed by the Company or an Affiliate of the
Company during the Performance Period. If any Performance Shares are so earned, then they will be
immediately converted into shares of common stock of the Company, which shall not be Restricted
Stock, using the following conversion ratio: the number Performance Shares earned divided by the
closing price of the Company’s common stock (as quoted by the principal securities exchange or
market on which the Company’s common stock is then traded) on the last day of the Performance
Period; provided, however, that if the Company’s common stock is not listed, traded or quoted on
any securities exchange or on any quotation system or other established trading market on such day,
then the denominator for the conversion ratio shall instead be the fair market value of a share of
common stock of the Company on the last day of the Performance Period, as determined by either the
Board of Directors or the Compensation Committee of the Company.
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Section 11. Miscellaneous.
(a) Binding Effect; Assignment. This Agreement shall be binding upon and inure to the
benefit of the Company and the Employee and their respective heirs, executors, representatives,
successors and assigns; provided, however that neither party may assign this Agreement without the
prior written consent of the other party hereto except that the Company may, without the consent of
the Employee, assign this Agreement in connection with any merger, consolidation, share exchange,
combination, sale of stock, sale of assets or other similar transaction involving the Company or
any transaction or series of transactions constituting a Change in Control. In the event of any
such permitted assignment by the Company of this Agreement, all references to the “Company” shall
thereafter mean and refer to the successor or assignee of the Company.
(b) Waiver. Either party hereto may, by a writing signed by the waiving party, waive
the performance by the other party of any of the covenants or agreements to be performed by such
other party under this Agreement or any breach of or noncompliance with any provision of this
Agreement. The waiver by either party hereto shall not operate or be construed as a continuing or
subsequent waiver or a waiver of any other or subsequent failure of performance, breach or
noncompliance hereunder. The failure or delay of either party at any time to insist upon the
strict performance of any provision of this Agreement or to enforce its rights or remedies under
this Agreement shall not be construed as a waiver or relinquishment of the right to insist upon
strict performance of such provision, or to pursue any of its rights or remedies for any breach
hereof, at a future time.
(c) Amendment. This Agreement may be amended, modified or supplemented only by a
written agreement executed by both of the parties hereto.
(d) Headings. The headings in this Agreement have been inserted solely for ease of
reference and shall not be considered in the interpretation or construction of this Agreement.
(e) Severability. In case any one or more of the provisions (or any portion thereof)
contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provision of
this Agreement, but this Agreement shall be construed as if such invalid, illegal or unenforceable
provision or provisions (or portion thereof) had never been contained herein.
(f) Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be an original, but such counterparts shall together constitute one and the same
agreement.
(g) Construction. This Agreement shall be deemed to have been drafted by both parties
hereto. This Agreement shall be construed in accordance with the fair meaning of its provisions
and its language shall not be strictly construed against, nor shall ambiguities be resolved
against, either party.
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(h) Entire Agreement. This Agreement and the Plan constitute the entire understanding
and agreement (and supersede all other prior understandings, commitments,
representations and communications), whether oral or written, between the parties hereto
relating to the shares of Restricted Stock.
(i) Governing Law. Because the Company’s headquarters are in Indiana, this Agreement
shall be governed by and construed in accordance with the laws of the State of Indiana, without
reference to any choice of law provisions, principles or rules thereof (whether of the State of
Indiana or any other jurisdiction) that would cause the application of any laws of any jurisdiction
other than the State of Indiana.
(j) Recitals; Exhibit. The recitals, premises and “Whereas” clauses contained on page
1 of this Agreement, and Exhibit A attached to this Agreement, are expressly incorporated
into and made a part of this Agreement.
(k) Capitalized Terms. All capitalized terms used but not otherwise defined in this
Agreement or in Exhibit A shall have the same meaning ascribed to such terms in the Plan.
(l) Review and Consultation. The Employee hereby understands and agrees that he (i)
has read and is familiar with this Agreement and the Plan, (ii) understands the provisions and
effects of this Agreement and the Plan, and (iii) has consulted with such of his attorneys,
accountants and other advisors as he has deemed advisable prior to executing this Agreement. THE
EMPLOYEE HEREBY FURTHER UNDERSTANDS, ACKNOWLEDGES AND AGREES THAT HE HAS NOT RECEIVED ANY ADVICE,
COUNSEL OR RECOMMENDATION WITH RESPECT TO THIS AGREEMENT OR THE PLAN FROM ANY DIRECTOR, OFFICER OR
OTHER EMPLOYEE OF, OR ANY ATTORNEY OR REPRESENTATIVE FOR, THE COMPANY.
(m) Certain Approvals Required. Any amendment, modification or supplement of or any
waiver under this Agreement on behalf of the Company may be made and will be effectual only upon
the approval thereof by the Compensation Committee.
* * *
[Signature Page Follows this Page]
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IN WITNESS WHEREOF, the Company and the Employee have entered into, executed and delivered
this Restricted Stock Award Agreement as of the day and year first above written.
| Signature of Employee |
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| CHROMCRAFT REVINGTON, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
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