Imation Corp. 2005 Stock Incentive Plan Amendment to Restricted Stock Award Agreement
EXHIBIT 10.6
Imation Corp. 2005 Stock Incentive Plan
Amendment to Restricted Stock Award Agreement
This Amendment to Restricted Stock Award Agreement (the “Amendment”), effective as of
, 2006, between Imation Corp., a Delaware corporation (the “Company”) and
, an employee of the Company or one of its Affiliates (the “Participant”).
WHEREAS, pursuant to a Restricted Stock Award Agreement effective as of (the
“Agreement”), the Company granted to Participant a restricted stock award of shares of
the Company’s common stock, par value $.01 per share, subject to the terms and conditions set forth
in the Agreement and in accordance with the terms and conditions of the Imation Corp. 2005 Stock
Incentive Plan (the “Plan”).
WHEREAS, Section 3 of the Plan provides that the Committee administering the Plan (the
“Committee”) has full power and authority, subject to the express provisions of the Plan and
applicable law, to amend the terms and conditions of any award granted under the Plan.
WHEREAS, pursuant to Section 3 of the Plan, the Committee has determined to amend the
Agreement in the manner set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the Company and the Participant hereby agree to amend the Agreement as
follows:
1. Section 3 of the Agreement is hereby amended in its entirety to read as follows:
Section 3. Vesting; Forfeiture.
(a) Vesting. Subject to the terms and conditions of this Agreement, and except as
otherwise provided in Section 3(c) hereof, twenty five percent (25%) of the Shares shall vest, and
the restrictions with respect to the Shares shall lapse, on each of the first, second, third and
fourth anniversaries of the Effective Date if the Participant remains continuously employed by the
Company or a subsidiary of the Company until such respective vesting dates.
(b) Forfeiture. Except as otherwise provided in Section 3(c) hereof, if the
Participant ceases to be employed by the Company and all subsidiaries of the Company for any reason
prior to the vesting of the Shares pursuant to Section 3(a) hereof, Participant’s rights to all of
the unvested Shares shall be immediately and irrevocably forfeited, including the right to vote
such Shares and the right to receive dividends on such Shares.
(c) Change of Control. Notwithstanding the vesting and forfeiture provisions contained
in Sections 3(a) and 3(b) hereof, but subject to the other terms and conditions set forth
in this Agreement, in the event the Company or a subsidiary terminates the Participant’s employment
with the Company and all subsidiaries of the Company for any reason
other than
death, Disability or
Termination for Cause within two (2) years following a Change of Control, the Participant shall
become immediately vested in all of the Shares, and the restrictions with respect to the Shares
shall lapse, as of the date of such termination of employment. In the event that the provisions of
this Section 3(c) result in “payments” that are finally and conclusively determined by a court or
Internal Revenue Service proceeding to be subject to the excise tax imposed by Section 4999 of the
Code, and the Participant has not received any additional cash payment from the Company relating
thereto under the provisions of Section 6 of the Severance Agreement between the Company and the
Participant (the “Severance Agreement”), the Company shall pay to the Participant an additional
amount such that the net amount retained by the Participant following realization of all
compensation under the Plan that resulted in such “payments,” after allowing for the amount of such
excise tax and any additional federal, state and local income and employment taxes paid on the
additional amount, shall be equal to the net amount that would otherwise have been retained by the
Participant if there were no excise tax imposed by Section 4999 of the Code. If the Participant
receives any additional cash payment from the Company under Section 6 of the Severance Agreement,
the foregoing sentence shall be of no force or effect and the provisions of the Severance Agreement
shall be deemed to supersede the foregoing sentence in its entirety.
(d) Early Vesting. Except as provided in Section 3(c) hereof or unless otherwise
determined by the Committee in its sole discretion, and notwithstanding any provisions contained in
the Severance Agreement, in no event will any of the Shares vest prior to their respective vesting
dates set forth in Section 3(a) hereof. Without limiting the generality of the foregoing, the
Company and the Participant hereby expressly acknowledge and agree that the provisions of Section
5(i)(d) of the Severance Agreement shall not apply to the Shares or to this Restricted Stock Award.
2. Section 7(a) of the Agreement is hereby amended in its entirety to read as follows:
(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,
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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 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.
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. The terms, provisions and
agreements that are contained in this Amendment shall apply to, be binding upon and inure to the
benefit of the parties and their respective heirs, executors, administrators, legal representatives
and permitted successors and assigns,. subject to the limitation on assignment expressly set forth
in the Agreement. This Amendment shall have no force or effect unless it is duly executed and
delivered by the Company and the Participant.
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The Company and the Participant have caused this Amendment to be signed and delivered on the
date set forth above.
| IMATION CORP. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| PARTICIPANT | ||||
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