INTERMEC, INC. AMENDED AND RESTATED RESTRICTED STOCK UNIT AGREEMENT
AMENDED
AND RESTATED RESTRICTED STOCK UNIT AGREEMENT
This
agreement (the “Agreement”) is effective as of the 30th day of
March, 2007, and amends and restates in its entirety that certain Restricted
Stock Unit Agreement originally made as of the 8th day of September, 2004,
between UNOVA, Inc., a Delaware corporation whose name has subsequently been
changed to Intermec, Inc. (the “Company”) and Xxxxx X.
Xxxxxxx (the “Grantee”).
WHEREAS,
the Company’s 2004 Omnibus Incentive Compensation Plan (the
“Plan”) was adopted by the Board of Directors of the Company on
March 11, 2004, was approved by the shareholders of the Company on May 6, 2004,
and was amended by the Compensation Committee of the Board of Directors on
May
16, 2006;
WHEREAS,
as an inducement to the Grantee to remain in the employ of the Company or one
of
its Subsidiaries or Affiliates (collectively, the “Company”), the Company
awarded the Grantee Restricted Stock Units (as that term is defined in the
Plan)
in accordance with the terms and conditions of the Plan and this Agreement;
and
WHEREAS,
as a further inducement to the Grantee to remain in the employ of
the
Company or one of its Subsidiaries or Affiliates during a period of transition
including the appointment of a new Chief Executive Officer of the Company,
the
Company has approved additional terms of the Agreement, providing for the
earlier vesting of the award upon certain conditions;
NOW,
THEREFORE, in consideration of the premises, the mutual covenants
hereinafter set forth, and other good and valuable consideration, the Company
and the Grantee hereby agree as follows:
1.
The Company granted to the Grantee, effective September 8, 2004, as a matter
of
separate inducement and agreement, and not in lieu of salary or other
compensation for services, an Award of 20,000 Restricted Stock
Units (“RSUs”) comprising the right to receive shares of the
common stock, par value $.01 per share, of the Company (the “Common
Stock”) on the terms and conditions hereinafter set forth (the
“Awarded Shares”), such number of Awarded Shares to be subject
to adjustment as provided in Section 3 of the Plan. The Grantee shall have
no
obligation to pay the Company additional consideration for the Awarded
Shares.
In
order for this Award to become effective, the Grantee must sign and return
to
the Company’s Secretary one copy of this Agreement within 30 days following the
date at the end of this Agreement. In the event the Grantee fails to
do so, this Agreement shall be deemed cancelled, null and
void.
2.
The Plan, a copy of which has been made available to the Grantee, is
incorporated herein by reference and is made part of this Agreement as if fully
set forth herein. Capitalized terms used in this Agreement which are not defined
herein shall have the meanings assigned to such terms in the Plan, it being
understood that the terms “Restricted Stock Units” and
“RSUs” shall mean and refer to the right to receive
only the
Awarded Shares. This Agreement is subject to, and the Company and the Grantee
agree to be bound by, all of the terms and conditions of the Plan as the same
exist at the time this Agreement became effective. The Plan shall control in
the
event there is any express conflict between the Plan and the terms hereof and
with respect to such matters as are not expressly covered in this Agreement.
The
Company hereby reserves the right to alter, amend, modify, restate, suspend
or
terminate the Plan and this Agreement in accordance with Section 12 of the
Plan,
but no such subsequent amendment, modification, restatement, or termination
of
the Plan or this Agreement shall adversely affect in any material way the
Grantee’s rights under this Agreement without the Grantee’s written
consent. This Agreement shall be subject, without further action by
the Company or the Grantee, to such amendment, modification, or
restatement.
3. Subject
to the provisions of Paragraph 5 of this Agreement, there shall be a Period
of
Restriction (the “Restriction Period”) beginning on the Award
Date and ending on the fifth anniversary of the Award Date (the “Vesting
Date”). Except as otherwise provided in Paragraph 5 hereof,
all RSUs still subject to restriction on the date of Grantee’s Termination of
Employment shall be forfeited by the Grantee.
4. Until
the earlier of (a) the end of the Restriction Period with respect to any of
the
RSUs granted hereunder or (b) the vesting of such RSUs in accordance with the
provisions of this Agreement or the Plan, the Grantee shall not be permitted
to
sell, assign, transfer, pledge, or otherwise encumber the RSUs or the Awarded
Shares.
5. Notwithstanding
any other provision of this Agreement, all RSUs granted hereunder still subject
to restriction shall become fully vested and free of all restrictions and
deferral limitations to the full extent of the original grant upon the
occurrence of any of the following events: (a) the Termination of Employment
of
the Grantee by reason of the Grantee’s death; (b) the Termination of Employment
of the Grantee by reason of the Grantee’s Disability; (c) the occurrence of a
Change of Control as defined in Section 13(b) of the Plan; or (d) the
Termination of Employment of the Grantee on or before February 28, 2009, if
the
Grantee is employed by the Company throughout the period from March 30, 2007,
to
the date of such termination, and if such termination is not voluntary
and is not for Cause, and if such termination is not in connection with a
Change of Control as the terms “Cause” and “Change of Control” are defined in
the Company’s 2007 Executive Severance Plan (as it may from time to time be
amended).
6. If
and when the Restriction Period ends with respect to RSUs awarded hereunder
without a prior forfeiture of such RSUs, or if and when RSUs vest pursuant
to
the provisions of Paragraph 5 hereof, and subject to the payment of withholding
taxes as provided in Paragraph 8 hereof, the Company will direct its transfer
agent to issue to the Grantee within thirty (30) days after such event, in
uncertificated form, the number of unrestricted shares of Common Stock equal
to
the number of RSUs as to which the Restriction Period has ended or that have
vested pursuant to Paragraph 5. Notwithstanding the preceding
sentence, payment due hereunder will be deferred to the
extent the Company’s deduction for such payment would be prohibited
due to the application of Section 162(m) of the Internal Revenue Code (the
“Code”). Payment of any deferred amount will be
made in the first taxable year in which the Company reasonably anticipates
that if the payment is made during such year, the deduction of such payment
will
not be prohibited due to the application of Section 162(m) of the Code.
If, pursuant to the preceding sentence, payment is delayed to a date on or
after
the Grantee’s separation from service (as defined in Section 409A(a)(2)(A)(i) of
the Code and the Treasury Regulations promulgated thereunder), payment will
be
delayed to the date that is six months after the Grantee’s separation from
service.
7. Except
as otherwise provided in this Agreement or the Plan, the Grantee shall not
have
any rights of a shareholder with respect to the RSUs or, prior to vesting,
the
Awarded Shares.
8. No
later than the date as of which an amount first becomes includable in the gross
income of the Grantee for federal income tax purposes with respect to any
Awarded Shares, the Grantee shall pay to the Company, or make arrangements
satisfactory to the Company regarding the payment of, any federal, state, local,
or foreign taxes of any kind required by law to be withheld by the Company
with
respect to such amount. Unless otherwise determined by the Committee,
withholding obligations (up to the minimum statutory amount required to be
withheld by the Company) may be settled with shares of Common Stock, including
the Awarded Shares that give rise to the withholding requirement or shares
of
Common Stock already owned by the Grantee for a period of at least six months.
The obligations of the Company under the Plan shall be conditional on such
payment or arrangements, and the Company, and its Subsidiaries and its
Affiliates shall, to the extent permitted by law, have the right to deduct
any
such taxes from any payment otherwise due to the Grantee. Grantee, therefore,
hereby unconditionally and irrevocably elects, notwithstanding anything to
the
contrary in this Paragraph 8 or elsewhere in this Agreement, to satisfy any
and
all federal, state, local, and foreign taxes of any kind that may be withheld
by
the Company in connection with Grantee’s Awarded Shares (the
“Withholding Taxes”) by electing one of the following options;
provided that in all cases, the Company shall have the
right to receive
not less than the minimum amount of the Withholding Taxes that the Company
is
required by law to withhold (the “Mandatory Withholding
Taxes”); and further provided that an amount equal to the
Mandatory Withholding Taxes in respect of any cash payment to Grantee shall
be
withheld from any such cash payment:
OPTION
1:
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x
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Authorizing
and directing the Company to deduct from the total number of shares
of
Company common stock issued and deliverable to Grantee pursuant to
this
Agreement the number of shares having a value equal to the Mandatory
Withholding Taxes.
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OPTION
2:
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¨
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Tendering
to the Company the number of unrestricted shares of Company common
stock
owned by the Grantee for a period of at least six months prior to
the date
on which Withholding Taxes are due and having a value equal to the
Mandatory Withholding Taxes.
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OPTION
3:
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¨
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Paying
to the Company in cash an amount up to the Withholding Taxes but
not less
than the Mandatory Withholding
Taxes.
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In
the event that none of the payment
options set forth above is specified, the Grantee’s election shall be deemed to
be Option 1, and the Company shall proceed accordingly.
9. Grantee understands and acknowledges that Grantee is one of a
limited number of employees of the Company and its Subsidiaries and Affiliates
who have been selected to receive grants of RSUs and that Grantee’s Award is
considered Company confidential information. Grantee hereby covenants and agrees
not to disclose the Award of RSUs pursuant to this Agreement to any other person
except (a) Grantee’s immediate family and legal or financial advisors who agree
to maintain the confidentiality of this Agreement, (b) as required in connection
with the administration of this Agreement and the Plan as it relates to this
Award or under applicable law, and (c) to the extent the terms of this Award
have been publicly disclosed.
10. The
grant of RSUs to the Grantee in any year shall give the Grantee neither any
right to similar grants in future years nor any right to be retained in the
employ of the Company or its Subsidiaries or Affiliates, such employment being
terminable to the same extent as if the Plan and this Agreement were not in
effect. The right and power of the Company and its Subsidiaries and Affiliates
to dismiss or discharge the Grantee is specifically and unqualifiedly unimpaired
by this Agreement.
11. Each
notice relating to this Agreement shall be in writing and delivered in person
or
by mail to the Company at its office, 0000 00xx Xxxxxx Xxxx, Xxxxxxx, XX
00000-0000, to the attention of the Company’s Secretary or at such other address
as the Company may specify in writing to the Grantee by a notice delivered
in
accordance with this paragraph. All notices to the Grantee shall be delivered
to
the Grantee at the Grantee’s address specified below or at such other address as
the Grantee may specify in writing to the Secretary of the Company by a notice
delivered in accordance with this paragraph.
12. This
Agreement, including the provisions of the Plan incorporated by reference
herein, comprises the whole Agreement between the parties hereto with respect
to
the subject matter hereof, and shall be governed by and construed in accordance
with the laws of the State of Delaware, without reference to principles of
conflicts of law. This Agreement shall become effective when it has
been executed or accepted electronically by the Company and the
Grantee.
13. This
Agreement shall inure to the benefit of and be binding upon each successor
of
the Company and, to the extent specifically provided herein and in the Plan,
shall inure to the benefit of and shall be binding upon the Grantee’s heirs,
legal representatives, and successors.
14. If
any provision of this Agreement shall be invalid or unenforceable, such
invalidity or unenforceability shall not affect the validity and enforceability
of the remaining provisions of this Agreement.
15. This Agreement may be executed in separate counterparts, each of
which when so executed and delivered will be an original, but all of which
together will constitute one and the same instrument. In pleading or proving
this Agreement, it will not be necessary to produce or account for more than
one
such counterpart.
IN
WITNESS WHEREOF, this Agreement is executed by the Grantee and by the
Company through its duly authorized officer or officers as of the day and year
first above written.
| DATE: September 13, 2007 |
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Chief Executive Officer and President
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GRANTEE:
(One of the boxes under Paragraph 8 must
be
checked)
/s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
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