CENVEO, INC. RESTRICTED SHARE UNIT AWARD AGREEMENT FOR EMPLOYEES
 |
Exhibit
10.18
|
2007
LONG-TERM EQUITY INCENTIVE PLAN
RESTRICTED
SHARE UNIT AWARD AGREEMENT FOR EMPLOYEES
THIS RESTRICTED SHARE UNIT AWARD
AGREEMENT (“Agreement”), dated as of this _____________________ (“Grant Date”),
is between Cenveo, Inc., a Colorado corporation (the “Company”), and
___________________ (“Grantee”). Capitalized terms used but not
defined herein have the meanings assigned to them in the Cenveo, Inc. 2007
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. Subject
to the terms and conditions herein and in the Plan, Grantee is hereby awarded
_____________ Share
Units. Each Share Unit represents Grantee’s right to receive
one share of the Company’s common stock, $0.01 par value (“Common Stock”) on the
applicable delivery date set forth herein.
1.2 Vesting of Share
Units. Subject to Section 3.2 below, Grantee’s Share Units
shall vest in
annual installments of 25% per year over four years beginning on the first
anniversary of the Grant Date (each such anniversary, a “Vesting Date”),
provided that Grantee has not ceased to serve as an employee of the Company and
its Affiliates prior to such date. Share Units that do not become
vested pursuant to this Section 1.2 or Section 3.2 shall be forfeited and
Grantee shall have no further rights with respect to such Share
Units.
1.3 Delivery of
Shares. Subject to Sections 3.2 and 4.10 of this Agreement,
the shares of Common Stock represented by Grantee’s vested Share Units shall be
delivered to Grantee, or to Grantee’s estate, on the Vesting
Date.
1.4 No Rights as
Stockholder. Until such time as shares of Common 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 Common
Stock.
1.5 Dividend Equivalent
Payments. Dividend equivalents shall be credited on any vested
Share Units at the time of any payment of dividends to stockholders of Common
Stock. The amount of any such dividend equivalents shall equal the
amount that would have been payable to Grantee as a stockholder in respect of a
number of shares of Common Stock equal to the number of Grantee’s then vested
Share Units. Any such dividend equivalents shall be credited to
Grantee as of the date on which such dividend would have been payable to
stockholders and shall be converted into additional Share Units (which shall be
immediately vested), based upon the Fair Market Value of a share of Common Stock
on the date of such crediting. Payment of such dividend equivalents
in the form of shares of Common Stock represented by such additional Share Units
shall be made on the delivery date for the Share Units with respect to which the
dividend equivalents were credited.
ARTICLE
II
TRANSFER
RESTRICTIONS
2.1 Restriction on
Transfer. Grantee shall not transfer, assign, encumber or
otherwise dispose of any Share Units at any time, other than by will or by the
laws of descent and distribution. Any heir or legatee of Grantee
shall take rights herein granted subject to the terms and conditions
hereof.
ARTICLE
III
FORFEITURE
AND ADJUSTMENT OF SHARE UNITS
3.1 Forfeiture. Subject
to Section 3.2 below, if Grantee ceases to serve as an employee of the Company
and its Affiliates for any reason, Grantee’s Share Units that 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 Accelerated
Vesting. In the event of Grantee’s termination of employment
by the Company without “Cause” or by Grantee with “Good Reason,” as such terms
are defined in Annex A hereto, any of Grantee’s Share Units that have not yet
vested shall become immediately vested and, subject to Section 4.10 of this
Agreement, the shares of Common Stock represented by such vested Share Units
shall be delivered to Grantee upon such termination of employment with the
Company. In addition, in the event that there is a Change in Control
while Grantee is still employed by the Company or an Affiliate, any of Grantee’s
Share Units that have not yet vested shall become immediately vested and the
shares of Common Stock represented by such vested Share Units shall be delivered
to Grantee upon such Change in Control; provided, however, that if such
Change in Control is not a permitted distribution event under Section 409A of
the Internal Revenue Code of 1986, as amended (the “Code”), then the shares of
Common Stock represented by Grantee’s vested Share Units shall be delivered on
the earliest of (i) the applicable Vesting Date, (ii) Grantee’s “separation from
service” with the Company (determined
-2-
in
accordance with Section 409A of the Code) (or, if Grantee is a “specified
employee” as described in Section 4.10 of this Agreement, such later date as
provided in Section 4.10), or (iii) Grantee’s death.
3.3 Adjustments Upon Certain
Events. Upon the occurrence of any unusual or nonrecurring
event (including, without limitation, any of the events described in Section 4.2
of the Plan) affecting the Company, any Subsidiary or Affiliate, or the
financial statements of the Company or any Subsidiary or Affiliate, or of
changes in applicable laws, regulations, or accounting principles, the Committee
may, in its sole discretion, make such adjustments to the Share Units as it
deems appropriate in order to prevent dilution or enlargement of benefits,
including: (i) adjusting any or all of the number of shares of Common Stock or
other securities of the Company (or number and kind of other securities or
property) subject to the Share Units; (ii) providing for an equivalent award in
respect of securities of the surviving entity of any merger, consolidation or
other transaction or event having a similar effect; or (iii) making provision
for a cash payment to Grantee; provided, however, that no
adjustment shall be made to the timing of delivery of shares of Common Stock or
other payment unless such adjustment complies with Section 409A of the
Code.
ARTICLE
IV
GENERAL
PROVISIONS
4.1 Employment
Relationship. Nothing in this Agreement shall be construed as conferring
upon Grantee the right to continue in the employ of the Company or its
Affiliates, nor shall anything contained herein be construed or interpreted to
limit the “employment at will” relationship between Grantee and the Company or
its Affiliates.
4.2 Compliance With Securities
Laws. Upon the delivery of any shares of Common Stock under
this Agreement, Grantee (or any person lawfully claiming under Grantee) will
enter into such written representations, warranties and agreements as the
Company may reasonably request in order to comply with applicable securities
laws or with this Agreement.
4.3 Compliance With
Laws. Notwithstanding any of the other provisions hereof,
Grantee agrees that the Company will not be obligated to issue any shares
pursuant to this Agreement if the issuance of such shares of Common Stock would
constitute a violation by Grantee or by the Company of any provision of any law
or regulation of any governmental authority, or to register the shares of Common
Stock under the Securities Act of 1933, as amended.
4.4 Withholding of
Tax. To the extent that the grant or vesting of the Share
Units or dividend equivalents granted hereunder, or the delivery of the shares
of Common Stock or other payment with respect thereto, is subject to applicable
withholding or other taxes, the Company or any Affiliate shall have the right
and is hereby authorized to withhold from the delivery of the shares of Common
Stock or other payment, or from any compensation or other amount owing to
Grantee, the amount (in cash, shares of Common Stock, other securities, other
awards or other property) of any such withholding or other taxes in respect of
the Share Units and dividend equivalents and to take such other action as may be
necessary in the opinion of the Company to
-3-
satisfy
all obligations for the payment of such taxes, including requiring Grantee to pay to the
Company such amount of money as the Company may require to meet its obligation
under applicable tax laws.
4.5 Resolution of
Disputes. As a condition of the granting of the Share Units
hereby, Grantee and his heirs and successors agree that any dispute or
disagreement which may arise hereunder shall be determined by the Committee in
its sole discretion and judgment, and that any such determination and any
interpretation by the Committee of the terms of this Agreement and the Plan
shall be final and shall be binding and conclusive, for all purposes, upon the
Company, Grantee, his or her heirs and personal representatives.
4.6 Legends on
Certificate. The certificates, if any, representing the shares
of Common Stock delivered hereunder will be stamped or otherwise imprinted with
legends in such form as the Company or its counsel may require with respect to
any applicable restrictions on sale or transfer and the stock transfer records
of the Company will reflect stop-transfer instructions with respect to such
shares.
4.7 Notices. All notices
or other communications under this Agreement shall be in writing and shall be
given by registered or certified mail, via overnight courier providing a
receipt, or via telecopy (with a confirming copy being delivered within 24 hours
thereafter). Notices to the Company shall be addressed to Cenveo,
Inc., at its principal executive offices, currently One Canterbury Green, 000
Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000,
Attention: Secretary. Notices to Grantee shall be sent to
the latest address of Grantee shown on the records of the Company.
4.8 Agreement Subject to
Plan. This Agreement is subject to the Plan. The
terms and provisions of the Plan are hereby incorporated herein by reference
thereto. In the event of a conflict between any term or provision
contained herein and a term or provision of the Plan, the applicable terms and
provisions of the Plan will govern and prevail. All definitions of
words and terms contained in the Plan shall be applicable to this
Agreement. The Company shall be under no obligation whatsoever to
advise Grantee of the existence, maturity or termination of any of Grantee’s
rights hereunder and Grantee shall be deemed to have familiarized him or herself
with all matters contained herein and in the Plan, which may affect any of
Grantee’s rights or privileges hereunder.
4.9 Binding
Effect. This Agreement shall be binding upon and inure to the
benefit of any successors to the Company and all persons lawfully claiming under
Grantee.
4.10 Section
409A. Anything in this Agreement to the contrary
notwithstanding, if on the date of Grantee’s termination of employment Grantee
is a “specified employee” (as determined by the Board or the Committee in
accordance with Section 409A of the Code) then Grantee shall not be entitled to
delivery of Common Stock with respect to the Share Units or other payment of
amounts which constitute deferred compensation within the meaning of Section
409A of the Code upon a termination of his or her employment until the earlier
of (1) six months after Grantee’s termination of employment for any reason other
than death, or (2) Grantee’s death. It is the intention of the
parties that amounts payable under this Agreement not be subject to the
additional tax imposed pursuant to Section 409A of the Code. To the
extent such potential
-4-
amounts
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.
IN
WITNESS WHEREOF, this Restricted Share Unit Award Agreement has been executed as
of the date first written above.
|
COMPANY
|
|||
|
By:
|
|||
|
Xxxxxx
X. Xxxxxx, Xx.
|
|||
|
Chairman
|
|||
|
GRANTEE
|
|||
|
Name:
|
|||
-5-
ANNEX
A
DEFINITIONS
a. "Cause" means “cause”
or any similar defined term as defined in any employment agreement between
Grantee and the Company in existence at the time of grantee’s termination of
employment or, if there is no such employment agreement then in existence (or if
there is no such defined term in the employment agreement), “Cause”
means:
(i) the
willful and continued failure of Grantee to perform substantially his duties
with the Company (other than any such failure resulting from Grantee's
incapacity due to physical or mental illness or any such failure subsequent to
Grantee being delivered a notice of termination without Cause by the Company or
delivering a notice of termination for Good Reason to the Company) after a
written demand for substantial performance is delivered to Grantee by the
Company which specifically identifies the manner in which the Company believes
that Grantee has not substantially performed Grantee's duties;
(ii) the
willful engaging by Grantee in illegal conduct or misconduct which is
demonstrably and materially injurious (monetarily or otherwise) to the Company
or its subsidiaries;
(iii)
conviction of, or the pleading of nolo contendere with regard to, a crime
constituting a felony; or
(iv)
dishonesty or misappropriation by Grantee relating to the Company or any of its
funds, properties or other assets.
A
termination for Cause after a Change in Control (as defined in the Plan) shall
be based only on events occurring after such Change in Control; provided,
however, the foregoing limitation shall not apply to an event constituting Cause
that was not discovered by the Company prior to a Change in
Control. For purpose of this definition, no act or failure to act by
Grantee shall be considered "willful" unless done or omitted to be done by
Grantee in bad faith and without reasonable belief that Grantee's action or
omission was in the best interests of the Company. Any act, or failure to act,
based upon authority given pursuant to a resolution duly adopted by the Board
based upon the advice of counsel for the Company shall be conclusively presumed
to be done, or omitted to be done, by Grantee in good faith and in the best
interests of the Company. In order
for a cessation of Grantee's employment to be deemed to be a termination of
Grantee's employment for Cause for the conduct described above, (A) the Company
shall have provided written notice to Grantee that identifies such conduct, and
(B) in the event that the event or condition is curable, Grantee shall have
failed to remedy such event or condition within thirty (30) days after Grantee
has received such written notice, and (C) the final determination that Grantee's
employment shall be terminated for Cause shall have been made (specifying the
particular details thereof) by the Company. The Company must initially notify
Grantee of any event constituting Cause within ninety (90) days following the
Company's knowledge of its existence or such event shall not constitute Cause
under this Agreement.
b. "Good Reason" means
“good reason” or any similar defined term as defined in any employment agreement
between Grantee and the Company in existence at the time of Grantee’s
termination of employment or, if there is no such employment agreement then in
existence (or if
-1-
there is
no such defined term in the employment agreement), “good reason” means, without
Grantee's express written consent, the occurrence of any of the following
events:
(i) the
assignment to Grantee of any duties or responsibilities (including reporting
responsibilities) that are inconsistent with Grantee's position(s), duties,
responsibilities or status with the Company, or any diminution of such duties or
responsibilities (other than temporarily while incapacitated because of physical
or mental illness), or an adverse change in Grantee's titles or offices
(including Grantee's membership on the Board) with the Company;
(ii) a
reduction by the Company in Grantee's rate of annual base salary or annual
target bonus opportunity (including any adverse change in the formula for such
annual bonus target) or other incentive opportunities as the same may be
increased from time to time thereafter;
(iii) any
requirement of the Company that Grantee be based anywhere more than thirty-five
(35) miles from his current location or such other place of employment as
mutually agreed upon by the Company and Grantee;
(iv) any
material breach of this Agreement by the Company, or the Company notifies
Grantee of the Company's intention not to observe or perform one or more of the
material obligations of the Company under this Agreement; or
(v) the
failure of the Company to continue in effect Grantee's participation in the
Company's employee benefit plans, programs, arrangements and policies, at a
level substantially equivalent in value to and on a basis consistent with the
relative levels of participation of other similarly positioned senior executive
officers.
Notwithstanding
the foregoing, a Good Reason event shall not be deemed to have occurred if the
Company cures such action, failure or breach within ten (10) days after receipt
of notice thereof given by Grantee. Grantee's right to terminate employment for
Good Reason shall not be affected by Grantee's incapacities due to mental or
physical illness and Grantee's continued employment shall not constitute consent
to, or a waiver of rights with respect to, any event or condition constituting
Good Reason; provided, however, that Grantee must provide notice of termination
of employment within six (6) days following Grantee's knowledge of an event
constituting Good Reason or such event shall not constitute Good Reason under
this Agreement.
-2-
