Imation Corp. 2000 Stock Incentive Plan, as Amended February 6, 2003 Amendment to Stock Option Agreement
EXHIBIT 10.3
Imation Corp. 2000 Stock Incentive Plan,
as Amended February 6, 2003
as Amended February 6, 2003
Amendment to Stock Option Agreement
This STOCK OPTION AGREEMENT AMENDMENT effective as of , 2006, is entered into
between Imation Corp., a Delaware corporation (the “Company”) and Xxxxx X. Xxxxxxxxx, an employee
of the Company (the “Participant”), pursuant and subject to the terms and conditions of the Imation
Corp. 2000 Stock Incentive Plan, as Amended February 6, 2003 (the “Plan”).
WHEREAS, pursuant to a certain Stock Option Agreement effective as of May 13, 2004 (as amended
by an Amendment effective as of February 1, 2005, the “Agreement”), the Company granted the
Participant under the Plan the right and option (the “Option”) to purchase from the Company shares
of the Company’s common stock, par value $.01 per share, on the terms and conditions set forth in
the Agreement.
WHEREAS, the Agreement provides that the Option will become exercisable upon the achievement
of certain performance objectives.
WHEREAS, pursuant to Section 3 of the Plan, the Compensation Committee has authority to amend
the terms and conditions of the Agreement and the Committee has determined to amend the Agreement
in the manner set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Participant hereby agree to amend the Agreement as
follows:
1. Subsection (a) of Section 5 of the Agreement is hereby amended in its entirety to
read as follows:
(a) In the event (i) the Company or a subsidiary of the Company terminates the Participant’s
employment with the Company and all its subsidiaries without Cause (defined below) during the
Option Period, (ii) the Company or a subsidiary of the Company terminates the Participant’s
employment with the Company and all its subsidiaries during the Option Period and within
two years after a Change of Control (defined below) for any reason other than for Cause, the
Participant’s death or disability (as described in the Participant’s employment agreement with the
Company dated May 13, 2004 (the “Employment Agreement”)), or (iii) the Participant
terminates his employment with the Company and all its subsidiaries during the Option Period for
Company Breach (defined below) (any of the termination events described in these Sections 5(a)(i),
(ii) and (iii) and any declaration pursuant to Section 8(b)(ii) hereof being referred to herein as
an “Acceleration Termination Event”), then a portion of the Option
described in Section 4(a) or Section 4(b) (as applicable, determined based on the date of such
Acceleration Termination Event) shall immediately vest and become exercisable (subject to the time
periods for exercise set forth in other provisions of this Agreement), if (and only if) the
Company had achieved the required level of growth in operating income for the applicable
period ending on
the December 31 immediately prior to the date of such Acceleration Termination Event, in accordance
with Section 4(a) or Section 4(b), as applicable. Such Option shall accelerate (if at all) only in
an amount equal to the number of shares of Common Stock determined by multiplying the maximum
number of shares subject to such Option (either 100,000 shares or 75,000 shares, as applicable,
determined based on the date of such Acceleration Termination Event) by the ratio of (i) the
portion of the applicable measurement period set forth in Section 4(a) or 4(b) (expressed in full
fiscal years) through the December 31 immediately prior to the date of such Acceleration
Termination Event, divided by (ii) the total number of full fiscal years in the applicable
measurement period set forth in Section 4(a) or 4(b).
2. Subsection (d) of Section 5 of this Agreement is hereby amended in its entirety to
read as follows:
(d) Except as specifically provided in Section 5(a) or Section 8(b)(ii) hereof, there shall
not be any acceleration of vesting of the Option or any portion thereof. Without limiting the
foregoing, a voluntary resignation or retirement by the Participant shall not be an Acceleration
Termination Event.
3. Subsection (a) of Section 7 of the Agreement is hereby amended in its entirety to
read as follows:
(a) In the event the Participant shall cease to be employed by the Company or a Subsidiary for
any reason other than termination for Cause or death, or elects to accept Pre-Retirement Leave
(“PRL”) in conjunction with a Company sponsored severance plan, the Participant may
exercise the Option to the extent of (but only to the extent of) the number of vested shares the
Participant was entitled to purchase under the Option on the date of such termination or
commencement of PRL, and such exercise may be effected at any time within 90 days after such
termination of employment or commencement of PRL (or within six months after such termination of
employment or commencement of PRL if such termination or PRL is for any reason following a Change
of Control that would also have constituted a Change of Control prior to the amendment dated
, 2006 to this Agreement (the “2006 Amendment”), which definition prior to the 2006
Amendment is set forth in Exhibit A to the 2006 Amendment) but not thereafter; provided,
however, that the Option may not be exercised after the Option Period.
4. Section 8 of the Agreement is hereby amended in its entirety to read as follows:
8. Adjustments for Stock Dividends, Stock Splits, Recapitalization, Merger or
Consolidation or other Fundamental Changes.
(a) If all or any portion of the Option shall be exercised subsequent to any stock dividend,
stock split, recapitalization, merger or consolidation involving the Company or
its Common Stock, the Committee shall make appropriate adjustment to the Option to give effect
thereto on an equitable basis.
2
(b) In the event of a proposed Fundamental Change, the Committee may, but shall not be
obligated to:
(i) with respect to a Fundamental Change that involves a merger or
consolidation, make appropriate provision for the protection of the Option by the
substitution of options and appropriate voting common stock of the corporation
surviving any such merger or consolidation or, if appropriate, the “parent
corporation” (as defined in Section 424(e) of the Code, or any successor provision)
of the Company or such surviving corporation, in lieu of the Option and shares of
Common Stock of the Company, provided that nothing stated herein shall limit the
obligations of the Committee under Section 8(a), or
(ii) with respect to any Fundamental Change, including, without limitation, a
merger or consolidation, declare, prior to the occurrence of the Fundamental Change,
and provide written notice to the holder of the Option of the declaration, that the
Option, whether or not then exercisable, shall be canceled at the time of, or
immediately prior to the occurrence of, the Fundamental Change in exchange for
payment to the holder of the Option, within 20 days after the Fundamental Change, of
cash (or, if the Committee so elects in lieu of solely cash, of such form(s) of
consideration, including cash and/or property, singly or in such combination as the
Committee shall determine, that the holder of the Option would have received as a
result of the Fundamental Change if the holder of the Option had exercised the
Option immediately prior to the Fundamental Change) equal to, for each share of
Common Stock covered by the canceled Option with respect to which the Option is
exercisable at the time of such cancellation (including shares with respect to which
the Option becomes exercisable pursuant to the following provisions of this Section
8(b)(ii)), the amount, if any, by which the Fair Market Value (as defined in this
Section 8(b)(ii)) per share of Common Stock with respect to which the Option is then
exercisable exceeds the exercise price per share of Common Stock covered by the
Option with respect to which the Option is then exercisable. At the time of the
declaration provided for in the immediately preceding sentence, an Acceleration
Termination Event shall be deemed to have occurred and the Option, to the extent it
has not previously become exercisable in full or expired, shall immediately become
exercisable, to the extent set forth in the next sentence, if (and only if) the
Company had achieved the required level of growth in operating income for the
applicable period ending on the December 31 immediately prior to the date of such
declaration. In such event, the Option shall accelerate only to the extent provided
in the last sentence of Section 5(a), for which purpose the Acceleration Termination
Event shall be deemed to have occurred on the date of the declaration. Following the
declaration, the holder of the Option shall have the right, during the period
preceding the time of cancellation of the Option, to exercise the Option as to all
or any part of the shares of Common Stock covered
thereby for which the Option is exercisable (including as a result of the
Acceleration Termination Event resulting from the declaration pursuant to this
Section 8(a)(ii) but not with respect to the Common Shares for which the Option has
not become exercisable). In the event of a declaration pursuant to this Section
8(b), the
3
Option, to the extent that it shall not have been exercised prior to the
Fundamental Change, shall be canceled at the time of, or immediately prior to, the
Fundamental Change, as provided in the declaration, notwithstanding anything to the
contrary provided in this Agreement. Notwithstanding the foregoing, the holder of
the Option shall not be entitled to the payment provided for in this Section 8(b) if
such Option shall have expired or been forfeited. For purposes of this Section 8(b)
only, “Fair Market Value” per share of Common Stock means the fair market value, as
determined in good faith by the Committee, of the consideration to be received per
share of Common Stock by the shareholders of the Company upon the occurrence of the
Fundamental Change, notwithstanding anything to the contrary provided in this
Agreement.
5. Section 11 of the Agreement is hereby amended in its entirety to read as follows:
11. Definitions. Terms not defined in this Agreement shall have the meanings given to
them in the Plan, and the following terms shall have the following meanings when used in this
Agreement:
(a) “Change of Control” means any one of the following events:
(i) the consummation of a transaction or series of related transactions in
which a person, entity or group (within the meaning of Section 13(d)(3) or 14(d)(2)
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), other than
the Company or a subsidiary of the Company, or any employee benefit plan of the
Company or a subsidiary of the Company, acquires beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 35% or more of the
Company’s then outstanding shares of Common Stock or the combined voting power of
the Company’s then outstanding voting securities (other than in connection with a
Business Combination in which clauses (1), (2) and (3) of paragraph (a)(iii) apply);
or
(ii) individuals who, as of the Effective Date hereof, constitute the Board of
Directors of the Company (the “Incumbent Board”) cease for any reason to constitute
at least a majority of the Board of Directors of the Company; provided, however,
that any individual becoming a director subsequent to the Effective Date hereof
whose election, or nomination for election by the Company’s stockholders, was
approved by a vote of at least a majority of the directors then comprising the
Incumbent Board (other than a nomination of an individual whose initial assumption
of office is in connection with a solicitation with respect to the election or
removal of directors of the Company in opposition to the solicitation by the Board
of Directors of the Company) shall be deemed to be a member of the Incumbent Board;
or
(iii) the consummation of a reorganization, merger, statutory share exchange,
consolidation or similar transaction involving the Company, a sale or other
disposition in a transaction or series of related transactions of all or
substantially all of the Company’s
4
assets or the issuance by the Company of its
stock in connection with the acquisition of assets or stock of another entity (each,
a “Business Combination”) in each case unless, following such Business Combination,
(1) all or substantially all of the individuals and entities that were the
beneficial owners of the Company’s outstanding Common Stock and the Company’s
outstanding voting securities immediately prior to such Business Combination
beneficially own immediately after the transaction or transactions, directly or
indirectly, more than 50% of the then outstanding shares of common stock and more
than 50% of the combined voting power of the then outstanding voting securities (or
comparable equity interests) of the entity resulting from such Business Combination
(including an entity that, as a result of such transaction, owns the Company or all
or substantially all of the Company’s assets either directly or through one of more
subsidiaries) in substantially the same proportions as their ownership of the
Company’s Common Stock and voting securities immediately prior to such Business
Combination, (2) no person, entity or group (other than a direct or indirect parent
entity of the Company that, after giving effect to the Business Combination,
beneficially owns 100% of the outstanding voting securities (or comparable equity
interests) of the entity resulting from the Business Combination) beneficially owns,
directly or indirectly, 35% or more of the outstanding shares of common stock or the
combined voting power of the then outstanding voting securities (or comparable
equity interests) of the entity resulting from such Business Combination and (3) at
least a majority of the members of the board of directors (or similar governing
body) of the entity resulting from such Business Combination were members of the
Incumbent Board at the time of the execution of the initial agreement or of the
action of the Board of Directors of the Company providing for such Business
Combination; or
(iv) approval by the stockholders of the dissolution of the Company.
(b) “Committee” means the Compensation Committee of the Board of Directors of the
Company or such other committee of directors designated by the Board of Directors to administer the
Plan.
(c) “Common Stock” means the common stock of the Company, par value $.01 per share.
(d) “Company Breach” means: (i) a change in the Participant’s duties or
responsibilities with the Company (A) that represents a substantial reduction of the duties or
responsibilities as in effect immediately prior thereto and (B) that is reasonably likely to
subject the Participant to professional embarrassment or ridicule; (2) a change by the Board of
Directors of the Company in the duties or responsibilities of other senior executive officers of
the Company that has the effect of precluding the Participant from effectively performing his
duties
and responsibilities; (3) a material reduction in the Participant’s base compensation that is
not substantially proportionate to any reduction in the base compensation of other senior
executives of the Company; or (4) any material breach by the Company of any provision of the
Employment
5
Agreement that is not remedied within 30 days after receipt of written notice from the
Participant specifying such breach in reasonable detail.
(e) “Fundamental Change” means a dissolution or liquidation of the Company, a sale of
substantially all of the assets of the Company, or a merger or consolidation of the Company with or
into any other corporation, regardless of whether the Company is the surviving corporation.
(f) “Subsidiary” means a corporation more than 50% of the voting stock of which shall
at the time be owned directly or indirectly by the Company.
No other terms or conditions of the Agreement are amended hereby, and all such terms and
conditions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Company and the Participant have executed this Stock Option Agreement
Amendment as of the date and year first written above.
| IMATION CORP. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| PARTICIPANT | ||||
| Xxxxx X. Xxxxxxxxx | ||||
6
Exhibit A
Definition of Change of Control in Agreement Prior to the 2006 Amendment
(This definition has been replaced by the 2006 Amendment)
(This definition has been replaced by the 2006 Amendment)
Under the Agreement prior to the 2006 Amendment, “Change of Control” meant any one of the following
events:
(i) The acquisition by any person, entity or “group,” within the meaning of Section
13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), other than the Company or a subsidiary of the Company, or any employee benefit
plan of the Company or a subsidiary of the Company, of beneficial ownership (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) of 30% or more of either the then
outstanding Common Stock or the combined voting power of the Company’s then outstanding
voting securities in a transaction or series of transactions not approved in advance by a
vote of a majority of the Continuing Directors (as hereinafter defined); or
(ii) Individuals who, as of the date of this Agreement, constitute the Board of
Directors of the Company (generally the “Directors” and as of the Effective Date the
“Continuing Directors”) cease for any reason to constitute at least a majority
thereof, provided that any person becoming a director subsequent to the Effective Date whose
nomination for election was approved in advance by a vote of a majority of the Continuing
Directors (other than a nomination of an individual whose initial assumption of office is in
connection with an actual or threatened solicitation with respect to the election or removal
of the Directors of the Company, as such terms are used in Rule 14a-11 of Regulation 14A
under the Exchange Act) shall be deemed to be a Continuing Director; or
(iii) The approval by the shareholders of the Company of a reorganization, merger,
consolidation, liquidation or dissolution of the Company or of the sale (in one transaction
or a series of related transactions) of all or substantially all of the assets of the
Company other than a reorganization, merger, consolidation, liquidation, dissolution or sale
approved in advance by a vote of a majority of the Continuing Directors; or
(iv) The first purchase under any tender offer or exchange offer (other than an offer
by the Company or a subsidiary of the Company) pursuant to which Common Stock is purchased.
