Exhibit 4.4
CENVEO, INC.
2001 LONG-TERM EQUITY INCENTIVE PLAN
FORM OF
RESTRICTED STOCK AWARD AGREEMENT
THIS RESTRICTED STOCK AWARD AGREEMENT dated as of this day
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of 2004 (the "Agreement") is between Cenveo, Inc., a Colorado
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corporation (the "Company," and together with its direct and indirect
subsidiaries, a "Related Entity") and ("Grantee").
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RECITALS
WHEREAS, the Company has awarded Grantee shares (the "Shares") of
the authorized but unissued common stock, $.01 par value, of the Company
(the "Common Stock") pursuant to the terms of the Cenveo, Inc. 2001
Long-Term Equity Incentive Plan, as amended (the "Plan"); and
WHEREAS, the Plan contemplates a written document evidencing the
award;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound, the parties agree as follows:
ARTICLE I
AWARD OF SHARES
1.1 Award. Pursuant to the terms of the Plan, Grantee is hereby
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awarded shares of the Common Stock, effective , 2004.
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1.2 Delivery of Certificates. Any certificates representing the
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Shares hereunder shall be held in escrow by the Secretary of the Company as
provided in Article IV hereof.
1.3 Stockholder Right. Until such time as any or all of the Shares
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are forfeited pursuant to the terms of this Agreement, if ever, Grantee (or
any successor in interest) shall have all the rights of a stockholder
(including voting rights) with respect to the Shares, including Shares held
in escrow under Article IV, subject, however, to the transfer restrictions
of Article II.
ARTICLE II
TRANSFER RESTRICTIONS
2.1 Restriction on Transfer. Grantee shall not transfer, assign,
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encumber or otherwise dispose of any Unvested Shares (as defined below) at
any time.
2.2 Disposition Of Shares. Grantee hereby agrees that Grantee shall
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make no disposition of the Vested Shares (as defined below) unless and until
Grantee:
a. shall have notified the Company of the proposed disposition
and provided a written summary of the terms and conditions of the
proposed disposition; and
b. shall have complied with all requirements of this Agreement
applicable to the disposition of the Shares.
The Company shall not be required (i) to transfer on its books any
Shares which have been sold or transferred in violation of the provisions of
this Article II, nor (ii) to treat as the owner of the Shares, or otherwise
to accord voting or dividend rights to, any transferee to whom the Shares
have been transferred in contravention of this Agreement. Grantee agrees to
pay the Company's reasonable expenses incurred in connection with any
disposition of the Shares.
2.3 Restrictive Legends. In order to reflect the restrictions on
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disposition of the Shares, the stock certificates for the Shares will be
endorsed with the following restrictive legend:
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO, AND MAY BE
TRANSFERRED ONLY IN COMPLIANCE WITH, THAT CERTAIN RESTRICTED
STOCK AWARD AGREEMENT, DATED AS OF , 2004, BETWEEN
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THE COMPANY AND THE HOLDER OF THESE SECURITIES.
ARTICLE III
FORFEITURE OF UNVESTED SHARES
3.1 Forfeiture. Upon termination of Grantees's directorship or
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employment with a Related Entity, for any reason, all or any portion of
Grantee's Shares in which Grantee has not acquired a vested interest in
accordance with the vesting provisions set forth in Schedule I hereto (such
shares to be hereinafter called the "Unvested Shares") will be forfeited and
Grantee shall have no further rights with respect to such Unvested Shares.
3.2 Vesting. Unvested Shares shall cease to be Unvested Shares and
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shall cease to be subject to forfeiture, and Grantee shall thereupon acquire
a vested interest therein (such shares to be hereinafter called the "Vested
Shares") provided that Grantee remains [on the Board of Directors of the
Company] OR [employed by the Company] up to and including , 200 .
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3.3 Additional Shares or Substituted Securities. In the event of
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any stock dividend, stock split, recapitalization or other change affecting
the Company's outstanding Common Stock as a class effected without receipt
of consideration, then any new, substituted, or additional securities or
other property (including money paid other than as a regular cash dividend)
which is by reason of any such transaction distributed with respect to the
Shares (the "Distributed Property") shall be immediately subject to
forfeiture as provided in this Article III, but only to
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the extent the Shares are at the time subject to forfeiture. Appropriate
adjustments to reflect the distribution of such Distributed Property shall
be made to the number of Shares hereunder.
ARTICLE IV
ESCROW FOR UNVESTED SHARES
4.1 Deposit. Upon issuance, the certificates for the Unvested
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Shares shall be deposited in escrow with the Company to be held in
accordance with the provisions of this Article IV. The deposited
certificates, together with any other assets or securities from time to time
deposited with the Company pursuant to the requirements of this Agreement,
shall remain in escrow until such time or times as the certificates (or
other assets and securities) are to be released or otherwise surrendered for
cancellation in accordance with Section 4.3.
4.2 Recapitalization. Any cash dividends on the Shares (or other
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securities at the time held in escrow) shall be paid directly to Grantee and
shall not be held in escrow. However, any Distributed Property shall be
immediately delivered to the Company to be held in escrow under this Article
IV, but only to the extent the Shares are at the time subject to the escrow
requirements of Section 4.1.
4.3 Release/Surrender. The Shares, together with the Distributed
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Property and any other assets or securities held in escrow hereunder, shall
be subject to the following terms and conditions relating to their release
from escrow or their surrender to the Company for repurchase and
cancellation:
(i) Should Grantee's Unvested Shares be forfeited as provided
in Section 3.1 hereof, then the escrowed certificates for such
Unvested Shares (together with any other assets or securities
issued with respect thereto) shall be delivered to the Company for
cancellation, and Grantee shall cease to have any further rights or
claims with respect to such Unvested Shares (or other assets or
securities).
(ii) As the interest of Grantee in Shares (or any other assets
or securities issued with respect thereto) vests in accordance with
the provisions of Schedule I, the certificates for such Vested
Shares (as well as all other vested assets and securities) shall be
released promptly from escrow and delivered to Grantee.
ARTICLE V
SPECIAL TAX ELECTION
5.1 Section 83(b) Election. Grantee understands that under Section
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83 of the Internal Revenue Code of 1986, as amended (the "Code"), the fair
market value of the Shares on the date any forfeiture restrictions
applicable to such Shares lapse will be reportable as ordinary income to
Grantee in the tax year in which such restrictions lapse. For this purpose,
the term "forfeiture restrictions" includes the automatic forfeiture of
Unvested Shares as provided in Section 3.1
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hereof. Grantee understands, however, that he may elect to be taxed at the
time the Shares are acquired hereunder, rather than when and as such Shares
cease to be subject to such forfeiture restrictions, by filing an
irrevocable election under Section 83(b) of the Code with the Internal
Revenue Service within thirty (30) days after the date of this Agreement. If
this irrevocable election is made, Grantee will be taxed on the fair market
value of the Shares as of the date of this Agreement (determined without
taking into account any forfeiture restrictions). The form for making this
irrevocable election is attached as Exhibit A hereto. In the event that
Grantee makes this irrevocable election, and Grantee's Unvested Shares are
forfeited pursuant to Section 3.1 hereof, Grantee will not be entitled to
deduct the income, if any, previously recognized as income with respect to
those shares as a result of the election. Grantee understands that failure
to make this filing within the thirty (30) day period will result in the
recognition of ordinary income by Grantee as the forfeiture restrictions
lapse. GRANTEE ACKNOWLEDGES THAT IT IS GRANTEE'S SOLE RESPONSIBILITY, AND
NOT THE COMPANY'S, TO FILE A TIMELY ELECTION UNDER SECTION 83(b), EVEN IF
GRANTEE REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO MAKE THIS FILING ON
SUCH GRANTEE'S BEHALF.
This summary is necessarily incomplete, and the tax laws and
regulations are subject to change. Grantee should consult a tax advisor
before making an election under Section 83(b).
ARTICLE VI
GENERAL PROVISIONS
6.1 No Employment or Service Contract. Nothing in this Agreement
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shall confer upon Grantee any right to employment with the Company or a
Related Entity.
6.2 Notices. All notices, requests, demands, and other
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communications under this Agreement shall be in writing and shall be deemed
to have been duly given on the date of service if served personally on the
party to whom notice is to be given, on the date of transmittal of service
via telecopy to the party to whom notice is to be given (with a confirming
copy being delivered within 24 hours thereafter), or on the third day after
mailing if mailed to the party to whom notice is to be given, by first class
mail, registered or certified, postage prepaid, or via overnight courier
providing a receipt and properly addressed. Notices to the Company shall be
addressed to Cenveo, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, #▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇. Attention: Secretary. Notices to Grantee shall be sent to the latest
address of Grantee shown on the records of the Company. Any party may change
its address for purposes of this Section by giving notice of the new address
to each of the other parties in the manner set forth above.
6.3 No Waiver. No waiver of any breach or condition of this
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Agreement shall be deemed to be a waiver of any other or subsequent breach
or condition, whether of like or different nature.
6.4 Governing Law. This Agreement shall be governed by and
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construed in accordance with the laws of the State of Colorado for all
purposes and in all respects, without giving effect to the conflict of law
provisions thereof.
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6.5 Counterparts. This Agreement may be executed in any number of
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counterparts, each of which shall be deemed to be an original and
enforceable against the parties actually executing such counterparts, but
all of which together shall constitute one and the same instrument.
6.6 Successors and Assigns. The provisions of this Agreement shall
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inure to the benefit of, and be binding upon, the Company and its successors
and assigns and Grantee and Grantee's legal representatives, heirs,
legatees, distributees, assigns and transferees by operation of law, whether
or not any such person shall have become a party to this Agreement and have
agreed in writing to join herein and be bound by the terms and conditions
hereof.
6.7 Integration; Amendment. This Agreement, the Plan and the other
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documents delivered pursuant hereto constitute the full and entire
understanding and agreement among the parties with regard to the subjects
hereof and thereof, and supersede any previous agreement or understanding
between or among the parties with respect to such subjects. No party shall
be liable or bound to any other party in any manner by any warranties,
representations or covenants except as specifically set forth herein or
therein. Except as expressly provided herein neither this Agreement nor any
term hereof may be amended, waived, discharged or terminated other than by a
written instrument signed by the party against whom enforcement of any such
amendment, waiver, discharge or termination is sought.
6.8 Severability. In the event that any provision of this Agreement
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becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided that no such severability shall be
effective if it materially changes the economic benefit of this Agreement to
any party.
6.9 Titles and Subtitles. The titles and subtitles used in this
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Agreement are used for convenience only and are not considered in construing
or interpreting this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
day and year first indicated above.
CENVEO, INC.
By:
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
GRANTEE:
Signature:
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Name:
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EXHIBIT A
SECTION 83(B) TAX ELECTION
This statement is being made under Section 83(b) of the Internal
Revenue Code, pursuant to Treas. Reg. Section 1.83-2.
(1) The taxpayer who performed the services is:
Name:
Address:
Taxpayer Social Security No.:
Taxable Year: Calendar Year
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(2) The property with respect to which the election is being made
is shares of the common stock, par value $.0l per share, of Cenveo,
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Inc. (the "Unvested Shares").
(3) The Unvested Shares were granted on , 2004.
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(4) The Unvested Shares are subject to forfeiture if for any reason
taxpayer's services with the issuer are terminated. The forfeiture
restriction lapses in a series of installments.
(5) The fair market value at the time of transfer (determined
without regard to any restriction other than a restriction which by its
terms will never lapse) is $ per share.
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(6) The amount paid for such Unvested Shares is $0.00 per share.
(7) A copy of this statement was furnished to Cenveo, Inc. for whom
taxpayer rendered the services underlying the transfer of the Unvested
Shares.
(8) This statement is executed as of , 2004.
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Spouse (if any):
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Taxpayer:
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SCHEDULE I
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