EXHIBIT 10.4
CAVCO INDUSTRIES, INC.
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT ("Award Agreement") is
made as of the 7th day of July, 2003, by and between Cavco Industries, Inc., a
Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxxxxx (the "Grantee").
The Company and the Grantee therefore agree as follows:
1. GRANT OF RESTRICTED STOCK. Effective as of July 7, 2003
(the "Grant Date"), the Company has awarded to the Grantee a total of 55,096
shares of the common stock, par value $.01 per share ("Common Stock"), subject
to the conditions and restrictions set forth below (the "Restricted Stock").
2. DEFINITIONS. For purposes of this Award Agreement:
(a) "Board" means the Board of Directors of the Company.
(b) "Breach" has the meaning set forth in the Employment
Agreement.
(c) "Committee" means (i) the Board, during any period in
which there shall be no Compensation Committee of the Board comprised
of two or more nonemployee directors or during any other period during
which the Board elects to exercise the authority of the Committee, or
(ii) the Compensation Committee of the Board, during all other periods.
(d) "Disability" has the meaning set forth in the Employment
Agreement.
(e) "Employment Agreement" means the Employment Agreement,
dated as of June 30, 2003, between the Company and the Grantee.
(f) "Service" means employment with the Company or any of its
subsidiaries.
(g) "Restricted Period" means the period commencing on the
Grant Date and ending on the date that the Grantee obtains a vested
right to all of the Total Restricted Shares (and the restrictions
thereon terminate) in accordance with Paragraph 3.
(h) "Termination for Cause" has the meaning set forth in the
Employment Agreement.
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(i) "Total Restricted Shares" means the total number of shares
of Restricted Stock that are the subject of this Award on the Grant
Date.
3. VESTING.
(a) The Grantee shall become vested with respect to 25% of the
Total Restricted Shares on the Grant Date and an additional 25% of the
Total Restricted Shares on each of the first, second and third
anniversaries of the Grant Date; provided, however, that the Grantee
must be in continuous Service from the Grant Date through the date of
the applicable anniversary in order to vest in shares of Restricted
Stock as to which the Grantee would otherwise vest on such anniversary.
In the event that any day on which the Grantee would otherwise obtain a
vested right to additional shares of Restricted Stock is a Saturday,
Sunday or holiday, the Grantee shall instead obtain that vested right
on the first business day immediately following such date. The
foregoing provisions of this Paragraph 3(a) are subject to the
provisions below, addressing events that may result in early
termination of the Restricted Period or forfeiture of the Grantee's
interest in all or part of the Restricted Stock.
(b) All of the Total Restricted Shares shall fully vest,
regardless of the limitations set forth in subparagraph (a) above, in
the event of the Grantee's termination of Service, other than as a
result of a Termination for Cause, a voluntary resignation of the
Grantee when there is no uncured Breach by the Company of the
Employment Agreement, Disability or Death; provided, however, that the
Grantee has been in continuous Service since the Grant Date.
(c) In the event of a termination of Service as a result of a
Termination for Cause, a voluntary resignation of the Grantee when
there is an uncured Breach by the Company of the Employment Agreement,
Disability or death, this Award Agreement shall immediately terminate,
to the extent not theretofore vested, and be of no force and effect and
all Restricted Stock awarded to the Grantee that has not previously
vested shall be forfeited.
4. RESTRICTIONS. Restricted Stock shall constitute issued and
outstanding shares of common stock for all corporate purposes. The Grantee will
have the right (a) to vote such Restricted Stock, (b) to receive and retain such
dividends and distributions, as the Committee may in its sole discretion
designate, paid or distributed on such Restricted Stock and (c) to exercise all
other rights, powers and privileges of a holder of Common Stock with respect to
such Restricted Stock; except, that (i) the Grantee will not be entitled to
delivery of the stock certificate or certificates representing such Restricted
Stock until the Restricted Period shall have expired and unless all other
vesting requirements with respect thereto shall have been fulfilled or waived,
(ii) the Company will retain custody of the stock certificate or certificates
representing the Restricted Stock during the Restricted Period as provided in
Xxxxxxxxx 0, (xxx) other than such dividends and distributions as the Committee
may in its sole discretion designate, the Company will retain custody of all
distributions ("Retained Distributions") made or declared with respect to the
Restricted Stock (and such
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Retained Distributions will be subject to the same restrictions, terms and
vesting and other conditions as are applicable to the Restricted Stock) until
such time, if ever, as the Restricted Stock with respect to which such Retained
Distributions shall have been made, paid or declared shall have become vested,
and such Retained Distributions shall not bear interest or be segregated in a
separate account, (iv) the Grantee may not sell, assign, transfer, pledge,
exchange, encumber or dispose of the Restricted Stock or any Retained
Distributions or the Grantee's interest in any of them during the Restricted
Period, and (v) a breach of any restrictions, terms or conditions provided in
this Award Agreement or established by the Committee with respect to any
Restricted Stock or Retained Distributions will cause a forfeiture of such
Restricted Stock and any Retained Distributions with respect thereto.
5. COMPLETION OF THE RESTRICTED PERIOD. On the vesting date
with respect to any shares of Restricted Stock, and the satisfaction of any
other applicable restrictions, terms and conditions (a) all or the applicable
portion of such Restricted Stock shall become vested and (b) any Retained
Distributions with respect to such Restricted Stock shall become vested to the
extent that the Restricted Stock related thereto shall have become vested. Any
such Restricted Stock and Retained Distributions that shall not become vested
shall be forfeited to the Company and the Grantee shall not thereafter have any
rights (including dividend and voting rights) with respect to such Restricted
Stock and Retained Distributions that shall have been so forfeited.
6. NO CODE SECTION 83(B) ELECTION. The Grantee shall not make
an election, under Section 83(b) of the Internal Revenue Code of 1986, as
amended, to include an amount in income in respect of the Restricted Stock.
7. SALE OF RESTRICTED STOCK. The Grantee agrees that the
Grantee shall not sell, transfer or dispose of the Restricted Stock and that the
Company shall not be obligated to deliver any shares of common stock if counsel
to the Company determines that such sale, transfer, disposition or delivery
would violate any applicable law or any rule or regulation of any governmental
authority or any rule or regulation of, or agreement of the Company with, any
securities exchange or association or automated quotation system upon which the
common stock is listed or quoted. The Company shall in no event be obligated to
take any affirmative action in order to cause the delivery of shares of common
stock to comply with any such law, rule, regulation or agreement.
8. ESCROW OF SHARES. Shares of Restricted Stock shall be, at
the election of the Committee, either (a) registered in book entry form, (b)
registered in the name of the Grantee and deposited with the Secretary of the
Company or (c) held in nominee name for the benefit of the Grantee during the
Restricted Period, in any case, if the Company requests, together with a stock
power endorsed by the Grantee in blank. Any certificate shall bear a legend as
provided by the Company, conspicuously referring to the terms, conditions and
restrictions described in this Award Agreement. Upon termination of the
Restricted Period with respect to shares of Restricted Stock, a
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certificate representing such shares shall be delivered upon written request to
the Grantee as promptly as is reasonably practicable following such termination.
9. BENEFICIARY DESIGNATIONS. The Grantee shall file with the
Committee on the form appended to this Award Agreement as Exhibit A or such
other form as may be prescribed by the Company, a designation of one or more
beneficiaries (each, a "Beneficiary") to whom shares otherwise due to the
Grantee shall be distributed in the event of the death of the Grantee while in
the Service of the Company. The Grantee shall have the right to change the
Beneficiary or Beneficiaries from time to time; provided, however, that any
change shall not become effective until received in writing by the Committee. If
any designated Beneficiary survives the Grantee but dies before receiving all of
the Grantee's benefits hereunder, any remaining benefits due the Grantee shall
be distributed to the deceased Beneficiary's estate. If there is no effective
Beneficiary designation on file with the Committee at the time of the Grantee's
death, or if the designated Beneficiary or Beneficiaries have all predeceased
such Grantee, the payment of any remaining benefits shall be made to the
Grantee's estate.
10. NONALIENATION OF BENEFITS. Except as contemplated by
Paragraph 9 above, and other than pursuant to a qualified domestic relations
order, no right or benefit under this Award Agreement shall be subject to
transfer, anticipation, alienation, sale, assignment, pledge, encumbrance or
charge, whether voluntary, involuntary or by operation of law, and any attempt
to transfer, anticipate, alienate, sell, assign, pledge, encumber or charge the
same shall be void. No right or benefit hereunder shall in any manner be liable
for or subject to any debts, contracts, liabilities or torts of the person
entitled to such benefits. If the Grantee or the Grantee's Beneficiary hereunder
shall become bankrupt or attempt to transfer, anticipate, alienate, assign,
sell, pledge, encumber or charge any right or benefit hereunder, other than as
contemplated by Paragraph 9 above or other than pursuant to a qualified domestic
relations order, or if any creditor shall attempt to subject the same to a writ
of garnishment, attachment, execution, sequestration or any other form of
process or involuntary lien or seizure, then such right or benefit shall cease
and terminate.
11. PREREQUISITES TO BENEFITS. Neither the Grantee nor any
person claiming through the Grantee shall have any right or interest in the
Restricted Stock awarded hereunder, unless and until all the terms, conditions
and provisions of this Award Agreement which affect the Grantee or such other
person shall have been complied with as specified herein.
12. RIGHTS AS A STOCKHOLDER. Subject to the limitations and
restrictions contained herein, the Grantee (or Beneficiary) shall have all
rights as a stockholder with respect to the shares of the Restricted Stock once
such shares have been registered in the Grantee's name or issued for the benefit
of the Grantee hereunder.
13. CERTAIN CORPORATE TRANSACTIONS; ADJUSTMENTS. The existence
of this Agreement or the award of the Restricted Stock made hereunder shall not
affect
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in any manner the right and power of the Company or its stockholders to make or
authorize any or all adjustments, recapitalizations, reorganizations or other
changes in the capital stock of the Company or its business or any merger or
consolidation of the Company, or any issue of bonds, debentures, preferred or
prior preference stock (whether or not such issue is prior to, on a parity with
or junior to the Common Stock) or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding of any kind, whether or not of a character
similar to that of the acts or proceedings enumerated above. The Committee, in
its sole discretion, may (but shall not be obligated to) make appropriate
adjustments to the number of shares of Restricted Stock or any other terms
applicable to the award made pursuant to this Agreement upon the occurrence of
(i) a reclassification, subdivision or combination of the Company's common
stock, (ii) a dividend, stock split or any distribution to holders of the
Company's common stock payable in shares of the Company's common stock or other
securities or property or (iii) a recapitalization or capital reorganization of
the Company, a merger, consolidation or the adoption of a plan of exchange
affecting the Common Stock; provided, however, that any such adjustment shall
only be made as necessary to maintain the proportionate interest of the Grantee
and preserve, without increasing, the value of the award made hereunder.
14. NOTICE. Unless the Company notifies the Grantee in writing
of a different procedure, any notice or other communication to the Company with
respect to this Award Agreement shall be in writing and shall be delivered
personally or by first class mail, postage prepaid and addressed, to the
following address:
Cavco Industries, Inc.
Attention: Secretary
0000 Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Any notice or other communication to the Grantee with respect to this Award
Agreement shall be in writing and shall be delivered personally or shall be sent
by first class mail, postage prepaid, to the Grantee's address as listed in the
records of the Company on the Grant Date, unless the Company has received
written notification from the Grantee of a change of address.
15. AMENDMENT. This Award Agreement may be supplemented or
amended from time to time as approved by the Committee, provided, however, that
an amendment shall not adversely affect the rights of the Grantee with respect
to the award of Restricted Stock evidenced hereby without the Grantee's written
consent.
16. GRANTEE SERVICE. Nothing contained in this Award
Agreement, and no action of the Company or the Committee with respect hereto,
shall confer or be construed to confer on the Grantee any right to continue in
the Service of the Company.
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17. SUCCESSORS AND ASSIGNS. This Award Agreement shall bind
and enure to the benefit of and be enforceable by the Grantee, the Company and
their respective permitted successors and assigns (including personal
representatives, heirs and legatees), except that the Grantee may not assign any
rights or obligations under this Award Agreement except to the extent and in a
manner expressly provided herein.
18. GOVERNING LAW. This Award Agreement shall in all respects
be governed by, and construed and enforced in accordance with, the laws of the
State of Arizona to the extent not preempted by federal law.
19. CONSTRUCTION. References in this Award Agreement to "this
Award Agreement" and the words "herein," "hereof," "hereunder" and similar terms
include all Exhibits appended hereto. The headings of the Paragraphs of this
Award Agreement have been included for convenience of reference only and are not
to be considered a part hereof and shall in no way modify or restrict any of the
terms or provisions hereof. All decisions of the Committee regarding this Award
Agreement shall be conclusive.
20. DUPLICATE ORIGINALS. The Company and the Grantee may sign
any number of copies of this Award Agreement. Each signed copy shall be an
original, but all of them together represent the same agreement.
21. ENTIRE AGREEMENT. The Grantee and the Company hereby
declare and represent that no promise or agreement not herein expressed has been
made and that this Award Agreement contains the entire agreement between the
parties hereto with respect to the Restricted Stock granted herein and replaces
and makes null and void any prior agreements, oral or written, between the
Grantee and the Company regarding the Restricted Stock awarded herein.
22. GRANTEE ACCEPTANCE. The Grantee shall signify acceptance
of the terms and conditions of this Award Agreement by signing in the space
provided at the end hereof and returning an executed copy to the Company.
CAVCO INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: Vice President and Chief
Financial Officer
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ACCEPTED:
/s/ Xxxxxx X. Xxxxxxxxx
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Grantee: Xxxxxx X. Xxxxxxxxx
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Exhibit A to Restricted Stock Award Agreement,
dated as of July 7, 2003
CAVCO INDUSTRIES, INC.
DESIGNATION OF BENEFICIARY
I, Xxxxxx X. Xxxxxxxxx (the "Grantee"), hereby declare that
upon my death (the "Beneficiary") who resides at
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Street Address City State Zip Code
and is my , shall be
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entitled to the Restricted Stock and all other rights accorded the Grantee by
the above-referenced Restricted Stock Award Agreement (the "Award Agreement").
It is understood that this Designation of Beneficiary is made
pursuant to the Award Agreement and is subject to the conditions stated therein,
including the Beneficiary's survival of the Grantee's death. If any such
condition is not satisfied, such rights shall devolve according to the Grantee's
will or the laws of descent and distribution.
It is further understood that all prior designations of
beneficiary under the Award Agreement are hereby revoked and that this
Designation of Beneficiary may only be revoked in writing, signed by the Grantee
and filed with the Company prior to the Grantee's death.
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Date Grantee
