SEVERANCE AND EARLY RETIREMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
Exhibit
10(a)
SEVERANCE
AND EARLY RETIREMENT AGREEMENT
AND
GENERAL RELEASE OF ALL CLAIMS
THIS
SEVERANCE AND EARLY RETIREMENT AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS
(“Agreement”) is made and entered into this 23rd day of October 2006, between
Xxxxxx X. Xxxxxxx (“Executive”) and Coachmen Industries, Inc.
(“Company”).
WHEREAS,
Executive was employed by Company as its Chief Executive Officer and held
the
position of Chairman of the Board of Directors; and
WHEREAS,
Executive has elected to take early retirement and resign from the Board
of
Directors.
NOW,
THEREFORE, in consideration of the mutual promises contained in this Agreement,
it is agreed as follows:
1. Termination
of Employment and Resignation.
The
termination of Executive’s service with Company shall be effective as of August
31, 2006 (“Termination Date”). Executive shall
resign as an officer and employee of Company (and any of its parent companies,
subsidiaries, affiliates and divisions) and as a member of the Company’s Board
of Directors, including without limitation her position as Chairman of the
Board
of Directors, effective on the Termination Date. Company
will pay Executive her salary and any directors’ fees or other amounts earned by
and due to Executive for the period through the Termination Date in accordance
with past practices.
2. Severance
Benefits and Consideration. In
consideration of Executive’s execution and agreement to the terms and conditions
of this Agreement, Company shall provide Executive with the following severance
benefits (“Severance Benefits”) to
which
she would otherwise not be entitled but for entry into this
Agreement:
a.
Health Insurance. Executive has elected to continue her group
health insurance coverage pursuant to the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”) and paid COBRA premiums for the period from the
Termination Date through December 31, 2006. The Company shall reimburse
Executive for such premium payments not later than three business days after
the
date on which this Agreement becomes enforceable as set out in Paragraph
17.
Company shall reimburse Executive for COBRA premiums attributable to maintaining
such insurance coverage for herself and her eligible dependents for the period
beginning January 1, 2007, and lasting until 18 months following the Termination
Date or until the earlier to occur of (1) Executive becoming enrolled in
other
health insurance or (2) such COBRA coverage terminating. The Company shall
reimburse Executive for such premium payments not later than five business
days
after Executive delivers proof of payment to Company. Executive’s health care
expenses incurred after the Termination Date and before Executive has elected
and paid for COBRA coverage (including the reimbursement of any covered expenses
paid by Executive) shall be paid by the Coachmen Medical Plan in accordance
with
the terms of the Plan.
x. Xxxxxxxxx
Payments.
Company
shall pay (via wire transfer) and provide the following severance payments
to
Executive (provided Executive is not at any time in material breach of this
Agreement or any other agreement with Company), subject
to applicable federal and state tax withholding:
(1) Company
shall pay Executive $672,750 (representing 23 months of Executive’s current
regular base salary, excluding incentive pay, bonuses and other compensation
or
benefits) as follows:
A. On
the
Company’s first regular pay date following the later of the date on which this
Agreement becomes enforceable as set forth in paragraph 17 or March 1, 2007,
the
Company shall pay Executive $175,500 (representing six months of salary).
For
purposes of this Agreement, the Company’s regular pay dates are the 15th day and
the last day of each calendar month (“Regular Pay Dates”).
B. The
balance of $497,250 shall be paid in installments of $14,625 on each of the
Company’s Regular Pay Dates which are on and after the later of the date on
which this Agreement becomes enforceable as set forth in paragraph 17 or
March
15, 2007.
(2) Executive
shall receive payment of her Deferred Benefit Account (“Account”) in the
Executive Benefit and Estate Accumulation Plan (“EBP Plan”) as
a Termination Benefit, pursuant to Section 3.4 of the EBP Plan and
Paragraph 8 of her EBP Plan Agreement. Her Account shall be paid to her in
a
lump sum within three business days following the date on which this Agreement
becomes enforceable as set forth in paragraph 17 in the amount of $965,929.00.
(3) Both
parties stipulate that payment for any accrued but unused vacation days as
of
the Termination Date is included in the foregoing amounts, and that under
the
Company’s policies there are no payments due for payment of “sick pay”;
and
(4) Effective
on the Termination Date, Executive shall cease making Salary Reduction
Contributions to her SERP Account in the Supplemental Deferred Compensation
Plan
(“ESP Plan”), and accordingly the Company shall discontinue making Employer
Matching Contributions to Executive’s SERP Account. Executive shall also cease
making contributions to the Coachmen Industries, Inc. Retirement Plan and
Trust
(“401(k) Plan”) as of the Termination Date, and the Company shall discontinue
making Employer Matching Contributions to the Executive’s Account in the 401(k)
Plan as of said date. No contributions shall be made to Executive’s SERP Account
or the 401(k) Plan from the severance payments described in Paragraph 2(b)(1)
above. Under the terms of the Supplemental Deferred Compensation Plan and
the
401(k) Plan, all Employer Matching Contributions in the Executive’s SERP Account
and 401(k) Account are fully vested, except that Executive’s SERP Account
remains subject to the claims of creditors of the Company. Executive’s 401(k)
Plan Account shall be distributed in accordance with the terms of the 401(k)
Plan. Company shall distribute to Executive all of the Executive’s pre-2005
Salary Reduction and Bonus Reduction sub-Accounts of her SERP Account within
60
to one hundred 100 days following the Termination Date. The Company shall
distribute to Executive the balance of her Accounts in the SERP (i.e., all
post-December 31, 2004 Salary Reduction and Bonus Reduction sub-Accounts
and all
Employer Contribution sub-Accounts) no sooner than six months after the
Termination Date and no later than seven months after the Termination Date.
c. Vesting
in Benefit Programs and Exercise of Stock Options.
(1) Except
as
specifically otherwise provided herein, all participation in and all vesting
in
Company benefit programs will end as of the Termination Date. To the extent
Executive is vested in options to purchase common stock of the Company,
Executive shall exercise all such options within 90 days after the Termination
Date. All unvested options shall be forfeited as of the Termination Date,
and
Executive shall have no further rights under such award agreements as of
the
Termination Date.
(2) To
the
extent Executive has participated in other equity-based compensation plans
of
the Company, and has received restricted stock or other equity-based
compensation or awards under Company plans or programs, all further vesting
in
such compensation and awards shall end as of the Termination Date. Any
outstanding equity-based award, including restricted stock granted under
the
long term incentive program, which has not vested as of the Termination Date
shall terminate and be forfeited, and Executive shall have no further rights
under such award agreements as of the Termination Date.
(3) In
connection with exercises of the Executive’s options pursuant to Section 2(c)(1)
of this Agreement, the Company agrees with the Executive, and represents
and
warrants to the Executive, that (A) under the outstanding grants of
non-qualified stock options to the Executive under the Plan dated October
9,
2000, February 19, 2002, and March 31, 2003, the Executive had, as of the
Termination Date, the fully vested right to purchase an aggregate of 59,500
shares of Common Stock of Coachmen (the option rights with respect
to 500 shares not having satisfied the vesting requirements as of the
Termination Date), at the prices specified in such grants,
and such
options are therefore exercisable pursuant to and subject to Section
2(c)(1); (B) the Committee, acting pursuant to Section 6(b) of the Plan
and SEC Rule 16b-3(e), has authorized the Executive to deliver to the
Company, in connection with any or all exercises of her options pursuant to
Section 2(c)(1), certificates for shares of Common Stock of the Company owned
by
the Executive on the date of each exercise of such options, in payment of
some
or all of the exercise price(s) applicable to such exercise(s), with the
per
share value of such already-owned shares for each such exercise being deemed
to
be equal to the Fair Market Value of the Company’s shares (as
determined in accordance with Section 15 of the Plan) on the applicable
exercise date; (C) the Committee, acting pursuant to Section 16 of the
Plan and SEC Rule 16b-3(e), has authorized the Executive to require that
the
Company satisfy all of its withholdings of federal, state and local taxes
arising in connection with each exercise of her stock options pursuant to
Section 2(c)(1) by withholding shares of Common Stock from the delivery of
the
shares otherwise deliverable to the Executive that have a Fair Market Value
(as
determined in accordance with Section 15 of the Plan) equal to the amount
to be
withheld; and (D) the shares of Company Common Stock that will be issued
and
delivered to the Executive upon any and all of her exercises of options pursuant
to Section 2(c)(1), (i) will be issued pursuant to the prospectus covering
such
option exercises that is part of a then-effective registration statement
under
the Securities Act of 1933, as amended (the “Securities Act”) covering the offer
and sale of such shares to the Executive, (ii) will not be “restricted
securities” upon issuance by the Company to the Executive, as that term is
defined by Rule 144 under the Securities Act, and (iii) will be evidenced
by
certificates that will not bear any restrictive legends, and will be
freely transferable, immediately and fully, by the Executive without
being subjected to any “stop transfer” instructions of the
Company.
3. Transition
Assistance.
During
the three-month period following the Termination Date, Company may require
Executive to provide reasonable transition assistance to Company, at no
additional compensation, other than reimbursement of reasonable expenses
documented by Executive, if any, on a part-time basis (with the obligation
on
the part of Executive to make herself reasonably available to satisfy the
reasonable transition needs of Company). It is understood and agreed that
Executive’s obligation to provide ongoing assistance to Company is not, in and
of itself, an obligation to receive material non-public information by
Executive. However, it is also understood and acknowledged that it may be
necessary for Company to disclose such information solely for the limited
purpose of facilitating Executive’s duty of cooperation.
4. Trade
Secrets/Mutual
Non-Disparagement/Cooperation/Indemnification.
In
further consideration of the payments and benefits set forth above, Executive
agrees and commits to protect Company from intrusion into its business by
not
disclosing to any third-party any confidential information or trade secrets
of
Company, and will abide by all post-employment obligations. Executive further
agrees to refrain from any disparaging remarks concerning the Company, its
executives, employees, agents, operations, or plans. Likewise, the Company
will
take reasonable efforts to prevent its Officers and Directors from making
any
disparaging remarks concerning the Executive, and agrees that employment
inquiries will be responded to consistent with the letter of recommendation,
attached hereto, and incorporated herein, as Exhibit 1 (a signed copy of
which,
on Company letterhead, will be forwarded to Executive upon her signing of
this
Agreement). In further protection of the interests of the Company, Executive
agrees that, as to any matters currently pending, or which arise relating
to the
Executive’s employment at Company, she will provide reasonable cooperation to
the Company and its attorneys in connection with any proceeding involving
the
Company before a court, an administrative agency, governmental organization,
or
an arbitrator. It is understood that Executive’s reasonable cooperation
includes, but is not limited to, responding to reasonable requests involving:
assisting in the preparation and compiling of exhibits; assisting in the
preparation of witnesses; appearing at deposition and/or trial; giving truthful
testimony; and assisting in any respect in the preparation of Company’s case.
Executive’s failure to provide such reasonable cooperation will be deemed a
material breach of this Agreement. Any such reasonable cooperation Executive
provides during the first 23 months after the Termination Date will be without
any remuneration, except that Executive will be reimbursed for her reasonable
and documented expenses relating to such cooperation, including, but not
limited
to, travel and meal expenses. After 23 months from the Termination Date,
in
addition to reimbursement for reasonable and documented expenses, the Company
shall pay Executive for such cooperation at a rate of $275 per hour, except
for
any actual time Executive spends on the witness stand as a witness. It is
also
understood and agreed that Executive shall be provided with full coverage
under
the Company’s Directors and Officers liability insurance policies, including
full tail coverage in the event of policy termination, equal to and on the
same
basis as that provided to retired Officers and Directors of the Company.
In
addition, the Company agrees to indemnify and hold Executive harmless for
any
taxes, interest, related reasonable professional fees and costs, and/or
penalties payable by Executive under Code Section 409A on account of the
failure
of the Company to timely amend the EBP Plan or the ESP Plan to comply with
Code
Section 409A.
5. General
Release.
In
consideration of the promises set forth in this Agreement and other good
and
valuable consideration, Executive hereby irrevocably and unconditionally
releases, acquits, and forever discharges Company, Company’s parent companies,
subsidiaries, affiliates, and divisions, as well as each of their respective
officers, directors, executives, employees, consultants, and agents (being
collectively referred to herein as the “Releasees”), or any of them, from any
and all charges, complaints, claims (including but not limited to wages,
commissions, and bonuses), liabilities, obligations, promises, agreements,
controversies, damages, actions, causes of action, suits, rights, demands,
costs, losses, debts, and expenses (including attorney fees and costs actually
incurred), of any nature whatsoever, known or unknown, in law or equity,
arising
out of or related in any way to Executive’s employment with Company, the
termination of that employment, or Executive’s resignation as an officer or as a
member of the Board of Directors, including, without limitation of the foregoing
general terms, any and all claims arising from any alleged violation by the
Releasees of any federal, state, or local statutes, ordinances, or common
law,
including but not limited to, the Age Discrimination in Employment Act, as
amended by the Older Workers Benefit Protection Act; the Americans with
Disabilities Act; Title VII of the Civil Rights Act of 1964, as amended;
42
U.S.C. § 1981, as amended; the Fair Labor Standards Act; the Equal Pay Act; the
Employee Retirement Income Security Act; COBRA; the Rehabilitation Act of
1973;
the Civil Rights Act of 1991; the Family and Medical Leave Act; the Civil
Rights
Act of 1866; the Indiana Civil Rights Act; and any other employment
discrimination laws, as well as any other claims based on constitutional,
statutory, common law, or regulatory grounds, as well as any claims based
on
theories of breach of contract or implied covenant or fiduciary duty,
deprivation of equity interest, conversion, defamation (libel or slander),
retaliation, wrongful or constructive discharge, fraud, misrepresentation,
or
intentional and/or negligent infliction of emotional distress (“Claim” or
“Claims”), which Executive now has, owns, or holds, or claims to have, own, or
hold, or which Executive had owned, or held, or claimed to own at any time
before execution of this Agreement, against any or all of the Releasees.
Executive does not waive any future claims. Executive acknowledges that she
has
not suffered any physical or mental injuries arising out of her employment
with
Company or the termination of that employment. The Company hereby warrants
and
represents that it knows of no claims it or any Releasee currently possesses
against Executive.
6. Future
Employment.
a. With
Company.
Executive agrees not to apply for future employment with Company, or any
of its
affiliates or successors. Executive will not apply for or otherwise seek
reemployment with Company or its affiliates and successors at any time, and
neither Company nor its successors have any obligation, contractual or
otherwise, to rehire, reemploy, recall, or hire her in the future.
b. With
Competitors.
For 23
months after the Termination Date, Executive shall obtain the written approval
of the Chairman of the Company before engaging or participating (whether
as an
employee, contractor, consultant, partner, shareholder, investor, or any
other
type of participant) in any business that directly or indirectly competed
with
Company prior to the Termination Date, and if Executive does so without such
approval, then at Company’s option: Company may declare all payments made and to
be made under this Agreement forfeited (except for those required by law
and
those returning salary deferrals made by Executive) and seek to recover same;
and/or Company may seek injunctive relief and damages to protect its rights
under any or all agreements Executive has with the Company. This shall not
prevent Executive’s ownership (directly or indirectly) of not more than one
percent of the total shares of all classes of stock outstanding of any publicly
held company, or five percent of the total outstanding securities of any
privately held company. Executive acknowledges and agrees that her departure
from the Company shall be treated as a resignation for purposes of the
interpretation and application of Section 1 of the Business Protection
Agreement, Senior Officers, dated December 1, 1998).
7. Confidentiality.
Executive covenants and agrees that she will keep confidential and will not
repeat or disclose any of the terms or conditions of this Agreement, or any
of
the negotiations which resulted in this Agreement, except to her legal counsel,
financial advisors, and her immediate family. Nothing in this Agreement,
nor the
fact of settlement, shall constitute, or be construed as, an admission of
wrongdoing by either party, nor shall this Agreement be construed as a
limitation on the ability to respond to a lawful subpoena or court order.
8. Construction.
The
fact that one party drafted this Agreement or any specific provision hereof
shall not be construed against either party. The parties hereby confirm and
agree that this Agreement is the result of negotiation and compromise, and
that
in interpreting this Agreement neither party shall be considered to be the
drafter of the document, and that the language should not be strictly construed
against either party. Instead, the language of the Agreement should be
interpreted consistently with the ordinary and reasonable meaning of the
words
used.
9. Non-reliance
on Other Statements or Promises.
Executive represents and acknowledges that in executing this Agreement, she
does
not and has not relied on any representation or statement by Company or its
agents, except the statements which are contained within this Agreement.
Executive agrees and understands that she is receiving additional severance
benefits beyond that to which she would otherwise be entitled, in return
for the
release of claims set forth herein. Executive and Company further agree and
acknowledge that, except as set forth in this Agreement, any agreements or
arrangements entered into between Executive and Company are terminated as
of the
Termination Date and shall have no further force or effect.
10. Enforcement
Costs.
If any
legal action or other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default, or
misrepresentation in connection with any provisions of this Agreement, the
non-breaching party or parties shall be entitled to recover from the breaching
party any reasonable attorney fees, court costs and all expenses, even if
not
taxable as court costs (including, without limitation, all such fees, costs
and
expenses incident to appeals) incurred in that action or proceeding, in addition
to any other relief to which such party or parties may be entitled.
11. Limitation
of Remedies.
Executive acknowledges and agrees that the release, discharge and covenants
granted by her in this Agreement shall survive the execution of this Agreement
and shall also remain binding upon Executive except in the event of a breach
of
any part of this Agreement by Company. In the event of any such breach by
Company, Executive shall be entitled to revoke or cancel this Agreement
including the binding nature of the release and discharge as contained in
this
Agreement, in addition to all other rights in law or equity. Any failure
by the
Company to make timely payments under this Agreement shall accelerate the
timing
of any remaining payments to Executive under this Agreement upon demand by
Executive to the extent permissible under Code Section 409A. Any claimed
breach
must be brought to the attention of the other party by written notice within
90
days of the date the party making the claim knew or reasonably should have
known
of the breach, and any breach not so reported shall be untimely and
waived.
12. Severability.
If any
one or more of the provisions contained in this Agreement as to any of the
parties to this Agreement 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 or any other party
to
this Agreement, and this Agreement shall be construed as if such invalid,
illegal or unenforceable provision(s) had never been contained
therein.
13. Integration.
This
Agreement sets forth the entire Agreement and understanding between Company
and
Executive and fully supersedes any and all prior oral or written and express
or
implied agreements or understandings between Executive and Company or its
agents, relating to the subject matter hereof; provided¸
however,
this
Agreement does not supersede or replace the following agreements, which are
independent and remain in full force and effect: Business Protection Agreement,
Senior Officers, dated December 1, 1998; Confidentiality, Conflict of Interest
and Invention Agreement for Senior Executives, Division Presidents & Senior
Managers dated December 1, 1998. The Change in Control agreement with Executive,
by its terms, terminated as of the Termination Date.
14. Binding
Agreements.
The
terms and provisions of this Agreement shall be binding upon, and inure to
the
benefit of, the parties hereto and their respective heirs, legal
representatives, agents, successors and assigns; provided,
however,
that in
no event shall Executive be entitled to assign any rights or delegate any
duties
or obligations under this Agreement without the written approval of
Company.
15. Governing
Law.
This
Agreement shall be subject to and governed by the laws of the State of
Indiana.
16. Counterparts.
This
Agreement may be executed in identical counterparts, each of which shall
constitute an original of this Agreement. It is herein agreed and acknowledged
that each party to this Agreement shall bear its or her own costs and attorney
fees incurred as of the date of this Agreement.
17. Time
for Consideration and Revocation.
Company
and Executive acknowledge and agree that Executive has had at least 21 days
to
consider this Agreement, and that she was encouraged by Company to consult
with
counsel concerning this Agreement. Upon executing this Agreement, Executive
shall have seven days following her execution of this Agreement in which
she may
revoke this Agreement. This Agreement shall not be enforceable until this
revocation period has expired. Notice of the revocation of this Agreement
must
be in writing and delivered via hand-delivery or overnight express mail
to:
Xxxxxxx
Xxxxxx, Esq.
Coachmen
Industries, Inc.
0000
Xxxxxx Xxxxx
X.X.
Xxx
0000
Xxxxxxx,
XX 00000
no
later
than 10:00 o’clock a.m. on the next business day following the expiration of the
seven-day period.
18. Notice.
All
notices, requests, demands and other communications required or permitted
under
this Agreement shall be in writing and shall be deemed to have been duly
given
on (a) the date of service if served personally, or (b) on the third day
after
mailing to the party to whom notice is to be given by certified or registered
mail, return receipt requested, and properly addressed as follows:
If
to
Company at:
Xxxxxxx
Xxxxxx, Esq.
Coachmen
Industries, Inc.
0000
Xxxxxx Xxxxx
X.X.
Xxx
0000
Xxxxxxx,
XX 00000
If
to
Executive at:
Xxxxxx
X.
Xxxxxxx
Any
party
may change its or her address for purposes of this paragraph by giving the
other
party written notice of the new address in the manner set forth
above.
19. Advice
Concerning Attorney, Understanding and Voluntariness.
Executive and company both represent and agree that executive has been advised
by company to seek legal counsel prior to executing this agreement, that
she has
sought and received the advice of counsel, that she has carefully read and
fully
understands all of the provisions of this agreement, and that she is voluntarily
entering into this agreement.
Please
read this agreement carefully. This agreement and general release of all
claims
includes a release of all known and unknown claims.
In
witness whereof, this Severance and Early Retirement Agreement and General
Release of All Claims has been executed the day and year first above
written.
| Xxxxxx X. Xxxxxxx | Coachmen Industries, Inc. | |
| /s/ Xxxxxx X. Xxxxxxx | /s/ Xxxxxxx X. Xxxxxx | |
| Signature | Signature | |
| Xxxxxx X. Xxxxxxx | Xxxxxxx X. Xxxxxx, Chief Executive Officer | |
| Printed name | Printed name and title | |
| Dated: October 17, 2006 | Dated: October 23, 2006 |
WAIVER
OF TWENTY-ONE DAY PERIOD
FOR
EVALUATION OF
SEVERANCE
AND EARLY RETIREMENT AGREEMENT AND
GENERAL
RELEASE OF ALL CLAIMS
THIS
WAIVER OF TWENTY-ONE DAY PERIOD FOR EVALUATION OF SEVERANCE AND EARLY RETIREMENT
AGREEMENT AND GENERAL RELEASE OF ALL CLAIMS (“Waiver”) is made and entered into
this 17th day of October, 2006, by Xxxxxx X. Xxxxxxx (“Executive”) as to
her legal rights regarding Coachmen Industries, Inc. Coachmen Industries,
Inc.,
its affiliates and subsidiaries are all hereinafter referred to as
“Coachmen.”
WHEREAS,
Executive was employed by Coachmen (or by a Coachmen affiliate);
and,
WHEREAS,
Executive and Coachmen have reached mutual agreement on the termination of
Executive’s employment, and on the terms of a Severance and Early Retirement
Agreement and General Release of All Claims (“Agreement”) which includes a
release of claims by Executive, and provides for 21 days to consider and
evaluate the Agreement; and
WHEREAS,
Executive acknowledges the right to take the 21 days to consider the Agreement,
but chooses to voluntarily waive this right, as allowed by 29 CFR 1625.22(e)(6),
to take the full amount of time permitted to evaluate the
Agreement.
NOW,
THEREFORE, Executive issues the following waiver of rights:
1. Waiver
of 21-Day Time Period.
Executive hereby waives the right to take 21 days to consider the Agreement.
By
signing this Waiver, Executive acknowledges that sufficient time has been
provided to Executive for Executive to seek legal counsel, fully consider
the
situation, and provide this knowing and voluntary waiver of Executive’s legal
right to take 21 days before signing the Agreement.
2. Non-reliance
on Other Statements or Promises.
Executive represents and acknowledges that in executing this Waiver, Executive
does not and has not relied on any representation or statement by Coachmen
or
its agents, except the statements which are contained within the Agreement
between Coachmen and Executive. Executive acknowledges that there has been
no
fraud, threat, or misrepresentation as to this Waiver, or otherwise, and
that
this is a knowing and voluntary waiver by Executive of the right to take
21 days
before signing the Agreement.
Executive
agrees that executive has been advised by coachmen that executive should
seek
legal counsel prior to executing this waiver, that to the extent executive
desired such counsel, executive has received same, that executive has carefully
read and fully understands all of the provisions of this waiver, and that
executive is voluntarily entering into this waiver.
In
witness whereof, this Waiver has been executed the day and year first above
written.
| Xxxxxx X. Xxxxxxx | ||
| /s/ Xxxxxx X. Xxxxxxx | ||
| Signature | ||
| Xxxxxx X. Xxxxxxx | ||
| Printed name | ||
| Dated: October 17, 2006 |
ATTORNEY’S
CERTIFICATE OF APPROVAL
I, Xxxxx
Xxxx, attorney
for
Executive, hereby acknowledge this Waiver.
Dated
this 17th day
of October,
2006.
|
By:
|
/s/ Xxxxx Xxxx | |
| Attorney for Executive | ||
| Xxxxx Xxxx | ||
| Printed Name |
Exhibit
10(b)
2006
RESTRICTED STOCK AWARD AGREEMENT
THIS
RESTRICTED STOCK AWARD AGREEMENT (“Agreement”) is made and entered into
as of this ______ day of _______, 2006
(“Grant Date”), by and between COACHMEN INDUSTRIES,
INC., an Indiana corporation (the “Company”), and
____________, an individual, employee of the Company (the
“Participant”).
WHEREAS,
the Company has heretofore adopted the 2000 Omnibus Stock Plan of Coachmen
Industries, Inc. (the “Plan”);
WHEREAS,
the Company desires to grant an award of restricted stock to the Participant
pursuant to the Plan.
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth,
and
for other good and valuable consideration, the parties do hereby agree as
follows:
1. Certain
Definitions.
When
used herein, the following terms shall have the meanings set forth
below:
A. “Change
in Control”
of the
Company shall mean the occurrence of any of the following:
(i) any
“person” (as that term is used in Sections 13(d) and 14(d) of the Securities
Exchange Act of 1934, but excluding the Company, its affiliates, any qualified
or non-qualified plan maintained by the Company or its affiliates, and any
Passive Investor) becomes the “beneficial owner” (as defined in Rule 13d-3
promulgated under such Act), directly or indirectly, of securities of the
Company representing more than 20% of the combined voting power of the Company’s
then outstanding securities;
(ii) during
a
period of 24 months, a majority of the Board of Directors of the Company
ceases
to consist of the existing membership or successors nominated by the existing
membership or their similar successors;
(iii) shareholder
approval of a merger or consolidation of the Company with any other corporation,
other than a merger or consolidation which would result in the voting securities
of the company outstanding immediately prior thereto continuing to represent
(either by remaining outstanding or by being converted into voting securities
of
the surviving entity) more than 60% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately
after
such merger or consolidation; or
(iv) shareholder
approval of either (i) a complete liquidation or dissolution of the Company
or
(ii) a sale or other disposition of all or substantially all of the assets
of
the Company, or a transaction having a similar effect.
B. “Code”
means
the
Internal Revenue Code of 1986, as amended, or any successor revenue code
which
may hereafter be adopted in lieu thereof.
C. “Committee”
means
the
Management Development/Compensation Committee of the Board of Directors of
the
Company.
D. “Company
Stock” means
shares of the Company’s common stock.
E. “Retirement”
means
the date a Participant terminates Service with the Company upon attaining
age
65, or such earlier retirement age as determined by the Committee, in its
discretion.
F. “Passive
Investor” means
any
person who becomes a beneficial owner of 20% or more of the combined voting
power of the Company’s then outstanding securities solely because (i) of a
change in the aggregate number of voting shares outstanding since the last
date
on which the person acquired beneficial ownership of any voting shares or
(ii)
(A) the person acquired beneficial ownership of the shares based on calculations
correctly performed and using the Company’s most current reports publicly on
file with the Securities and Exchange Commission which indicated that
acquisition of the shares would not cause the person to become the beneficial
owner of 20% or more of the voting shares then outstanding, and (B) the person
had no notice or reason to believe that acquisition of the shares would result
in the person becoming the beneficial owner of 20% or more of the voting
shares
then outstanding, and (iii) the person sells a number of shares that reduces
the
person’s beneficial ownership of the voting shares to less than 20% of the
voting shares outstanding within 10 business days after receiving notice
from
the Company that the 20% threshold had been exceeded.
G. “Restricted
Stock Award” means
the
grant of restricted Company Stock to Participant subject to the terms of
this
Agreement.
H. “Restricted
Share(s)” means
a
Share(s) underlying a Restricted Stock Award before the vesting of such Share.
I. “Service”
shall
mean the performance of services as an employee for the Company (or any parent
or subsidiary) on a consistent basis for the Company (or any parent or
subsidiary).
J. “Share(s)”
means
a
share(s) of common stock of the Company.
2. Grant
of Award.
The
Company hereby grants to the Participant ___________
(______)
Restricted Shares, subject to the terms and conditions set forth herein.
The
Restricted Stock Award will vest as set forth in Section 6.
3. Issuance
of Shares.
The
Shares shall be issued in the Participant’s name as soon as reasonably
practicable after the Lapse Date as provided in Section 6 of this Agreement.
4. Rights
of Participant.
The
Participant shall not be entitled to any rights of a shareholder of the Company
with respect to the Restricted Shares, including the right to vote the Shares
or
the right to receive dividends and/or other distributions, if any, declared
on
such Shares until the Lapse Date.
5. Transfer
Restrictions.
Until
the Lapse Date, the Restricted Shares shall not be sold, exchanged, assigned,
pledged, bequeathed, devised, or otherwise transferred, directly or indirectly,
voluntarily or involuntarily, by the Participant, or any person or entity
claiming through or on behalf of the Participant, and no Restricted Shares
may
be subject in any manner to attachment, lien, execution, transfer by bankruptcy,
judicial order or by operation of law, garnishment or other alienation or
encumbrance of any kind, either direct or indirect, voluntarily or involuntarily
before the Lapse Date; provided,
however,
that,
subject to the terms of this Agreement, such Shares may be transferred upon
the
death of the Participant to the legal representative of the estate of the
Participant or the person or persons who shall acquire the right to receive
the
vested Shares by bequest or inheritance or by reason of the death of the
Participant. Any transfer or purported transfer of Restricted Shares in
violation of the restrictions set forth in this Section 5 shall be null and
void
and shall result in the forfeiture to the Company, without notice and without
consideration to the Participant, of the Restricted Shares transferred or
purportedly transferred.
6. Release
of Restrictions.
The
restrictions set forth in Section 5 shall lapse upon the earliest of the
following (the “Lapse Date”): (i) the second anniversary of the Grant Date,
provided the Participant has remained in continuous Service with the Company
from the Grant Date through such second anniversary (the “Vesting Period”); (ii)
the death of the Participant; (iii) the disability of the Participant; (iv)
the
Retirement of the Participant; or (v) the occurrence of a Change in
Control.
7. Forfeitures.
The
Shares shall be forfeited without notice and without consideration immediately
in accordance with the following:
A. if
the
Participant’s Service with the Company is terminated during the Vesting Period
for any reason other than death, disability or Retirement, unless the Committee,
in its discretion, determines otherwise; or
B. if
the
Participant attempts to transfer or transfers the Shares in any manner in
violation of Section 5; or
C. if,
at
any time during the Vesting Period, the Participant is not in compliance
with
the Company’s Code of Conduct and/or Participant’s Business Protection
Agreement, as determined by the Committee in its discretion; or
D. with
respect to any Shares that are not vested pursuant to Section 6 of this
Agreement.
Any
Shares forfeited under this Section 7 shall be retained by the Company.
8.
Termination
of Service Upon Death, Disability or Retirement.
If the
Participant’s Service is terminated during the Vesting Period by reason of the
Participant’s death, disability or Retirement, the vesting of the outstanding
Restricted Shares shall be accelerated, the restrictions on the Restricted
Shares shall lapse, and certificates for the vested Shares shall be issued
and
delivered to the Participant or the legal representative of the estate of
the
Participant or the person or persons who shall acquire the right to receive
the
vested Shares by bequest or inheritance or by reason of the death of the
Participant, as soon as practicable after such death, disability or Retirement.
9.
Code
Section 162(m) Limitation.
Notwithstanding anything in this Agreement to the contrary, to the extent
that
Code Section 162(m) would operate to limit the Company’s federal income tax
deduction for remuneration with respect to a Participant, resulting in federal
income tax liability to the Company, the Participant’s receipt of Shares shall
be deferred until Section 162(m) no longer operates to result in such federal
income tax liability to the Company. The determination of whether Code Section
162(m) operates to limit the Company’s deduction in a manner resulting in
federal income tax liability to the Company will be determined by the Committee.
Payment of the Shares shall occur in the following calendar year (or, if
necessary, each subsequent calendar year) to the extent such payment, when
added
to other remuneration subject to the Section 162(m) limit for such year,
does
not result in federal income tax liability to the Company. Shares deferred
hereunder shall be fully vested and shall not be forfeited for any reason,
including, without limitation, termination of Service.
10. Change
in Control.
Notwithstanding anything in this Agreement to the contrary, if a Change in
Control occurs during the Vesting Period, the Participant will be presumptively
and conclusively deemed to have satisfied the conditions of this Restricted
Stock Award and the Shares granted by the Restricted Stock Award shall vest
immediately. Certificates for all vested Shares shall be issued and delivered
to
the Participant as soon as reasonably practicable after a Change in Control,
regardless of whether the Participant continues to provide Service to the
Company or any successor to the Company.
11.
Provisions
of the Plan.
All of
the provisions of the Plan pursuant to which this Agreement is made are hereby
incorporated by reference and made a part hereof as if specifically set forth
herein, and to the extent of any conflict between this Agreement and the
terms
in the aforesaid Plan, the Plan shall control. To the extent any capitalized
terms are not otherwise defined herein, they shall have the meaning set forth
in
the Plan.
12.
Adjustments
Upon changes in Capitalization.
In the
event of changes in all of the outstanding Company Stock by reason of stock
dividends, stock splits, reclassifications, recapitalizations, mergers,
consolidations, combinations or exchanges of shares, reorganizations or
liquidations or similar event, the number and class of Shares subject to
a
Restricted Stock Award shall be equitably adjusted by the Committee. Any
such
adjustment may provide for the elimination of any fractional shares which
might
otherwise become subject to a Restricted Stock Award.
13.
Parties
in Interest; Section Headings.
This
Agreement shall inure to the benefit of the Company, its successors and assigns,
and shall be binding on the Participant and the Participant’s heirs, personal
representatives, successors and assigns. The Company may assign its rights
under
this Agreement. The Participant may not assign his/her rights hereunder.
The
section headings contained in this Agreement are inserted as a matter of
convenience and shall not be considered in interpreting or construing this
Agreement.
14.
Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Indiana.
15.
Entire
Agreement; Waiver.
This
Agreement constitutes the entire agreement of the parties with respect to
the
subject matter hereof and supersede all prior agreements, written and oral,
between the parties hereto with respect to the subject matter hereof. The
waiver
of a breach of any term or condition of this Agreement must be in writing
signed
by the party sought to be charged with such waiver, and such waiver shall
not be
deemed to constitute the waiver of any other breach of the same or of any
other
term or condition of this Agreement. The invalidity or unenforceability of
any
provision of this Agreement shall not affect the validity or enforceability
of
the remaining provisions.
16.
Amendment.
This
Agreement may be amended only by a writing signed by each of the parties
hereto.
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first above written.
| Coachmen Industries, Inc. | ||
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By:
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Title:
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"Participant" | |
Exhibit
A to 2006 Restricted Stock Award Agreement
The
following number of restricted shares were awarded on September 8, 2006
to the
following executive officer of the Registrant pursuant to the Restricted
Stock
Award Agreement between the officer and the Registrant:
Number
of Restricted
Executive
Officer’s Name and Title Shares
Awarded
Xxxxxxx
X. Xxxx
Chief
Financial Officer 1,000
