CASH RETENTION AGREEMENT with Steven J. Winter
with
Xxxxxx X. Xxxxxx
This
Cash
Retention Agreement (the “Agreement”) is made as of the 30th day of
March, 2007
(the “Effective Date”), between Intermec, Inc., a Delaware
corporation (together with its subsidiaries, the “Company”) and
Xxxxxx X. Xxxxxx (the “Mr.
Winter”).
WHEREAS,
on March 22, 2007, the Company announced that Xxxxx X. Xxxxx plans to retire
from his position as the Company’s Chief Executive Officer following the Board’s
identification of his successor;
WHEREAS,
the Compensation Committee of the Board of Directors has determined that it
is
in the best interests of the Company and its shareholders to assure that the
Company will have the continued dedication of Mr. Winter in the role of Senior
Vice President of Intermec, Inc. and President and Chief Operating Officer
of
Intermec Technologies Corporation (his “Current Position”) for
the period ending on March 1, 2008, to support the Company’s operations during
the search for Xx. Xxxxx’x successor and to facilitate the transition of the
Company’s leadership to a new Chief Executive Officer;
WHEREAS,
the Committee believes it is imperative to encourage Mr. Winter to remain in
his
present positions with the Company during the period ending March 1, 2008,
to
diminish the inevitable distraction of Mr. Winter by virtue of the personal
uncertainties and risks created by the impending transition of the Company’s
leadership and to encourage Mr. Winter’s full attention and dedication to the
Company during that transition;
WHEREAS,
the Committee determined that the appropriate method is to approve a contingent,
one-time, lump-sum cash retention payment to Mr. Winter; and
WHEREAS,
except as expressly set forth herein, the Committee intends for the
benefits of this Agreement to be in addition to, and not in substitution for,
those of the Company’s 2007 Executive Severance Plan (as it may from time to
time be amended) (the “Severance Plan”) or the Amended and
Restated Change of Control Employment Agreement between the Company and Mr.
Winter (as it may from time to time be amended) (the “COC
Agreement”);
Now,
therefore, in consideration of the foregoing, the mutual covenants set
forth in this Agreement, and other good and valuable consideration, the Company
and Mr. Winter hereby agree as follows.
1. Certain
Definitions. For purposes of this Agreement, the following terms
are defined in the same way as in the Severance Plan: (a)“Cause,” (b) “Change of
Control,” (c) “Date of Termination.”
2. The
Retention Payment. Subject to Mr. Winter’s compliance with the
conditions and provisions of this Agreement, the Company will pay Mr.
Winter Five Hundred Thousand U.S. Dollars (U.S. $500,000) (the
“Retention Payment”) within the time set forth in Section
4.
3. Right to Retention Payment. Mr. Winter will be entitled
to the Retention Payment:
(a) If he is employed by the Company throughout the period from the
Effective Date of this Resolution through February 29, 2008; or
(b) If the Company terminates his employment prior to March 1, 2008 and such
termination is not for Cause and is not in connection with a Change of
Control.
4.
Timing of Payment; Taxes.
(a) Subject
to subsection (c), below, the Retention Payment will be issued on the earliest
to occur of the following, provided, however, that if Mr. Winter’s employment
has terminated when the payment is due, payment shall be subject to Mr. Winter’s
execution of a general waiver and release of claims satisfactory to the Company,
and subject to the expiration of any legally required period of time related
to
such release:
(i) If
Mr. Winter is employed by the Company on February 29, 2008, the Company will
issue the Retention Payment within thirty (30) days following March 1,
2008.
(ii) If
Mr. Winter is involuntarily terminated from his employment with the Company
before February 29, 2008 (i) other than for Cause and (ii) other than in
connection with a Change of Control, the Company will make the Retention Payment
within thirty (30) days following the Date of Termination.
(iii) If
Mr. Winter’s employment is terminated for Cause or in connection with a Change
of Control, or if Mr. Winter voluntarily terminates his employment with the
Company before February 29, 2008, the Company will have no obligation to Mr.
Winter pursuant to this Agreement.
(b) The Company may withhold from any amounts payable under this
Agreement such federal, state, local or foreign taxes as are required to be
withheld pursuant to applicable laws and regulations.
(c) Any
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
Mr. Winter'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 Mr. Winter's separation from
service.
5. No
Offset of Severance
Plan or Other Benefits.
(a) Notwithstanding
any
contrary provision of the Severance Plan or the COC Agreement, the Retention
Payment (if any) made to Mr. Winter pursuant to this Agreement shall not reduce
or offset the benefits due to Mr. Winter pursuant to the Severance Plan or
the
COC Agreement. For the avoidance of doubt, Mr. Winter shall not be
required to waive all rights to the benefit of this Agreement as a condition
to
receiving the benefits of the Severance Plan or COC Agreement, or vice
versa.
(b) In no event will Mr. Winter be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to him under any of the provisions of this Agreement and such amounts will not be reduced whether or not Mr. Winter obtains other employment.
6. Employment at Will. Neither this Agreement nor the payment
of any Retention Payment shall give Mr. Winter any right to similar payments
in
future years or any right to be retained in the employ of the Company, such
employment being terminable to the same extent as if this Agreement were not
in
effect. The right and power of the Company and its Subsidiaries and Affiliates
to dismiss or discharge Mr. Winter is specifically and unqualifiedly unimpaired
by this Agreement.
7.
Notices. 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
Mr.
Winter by a notice delivered in accordance with this paragraph. All notices
to
the Grantee shall be delivered to Mr. Winter’s address specified below or at
such other address as he may specify in writing to the Secretary of the Company
by a notice delivered in accordance with this paragraph.
8.
Entire Agreement; Severability. This Agreement, including the
provisions of the Severance 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 Mr. Winter. 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.
9.
Successors. This Agreement shall inure to the benefit of and
be binding upon each successor of the Company and shall inure to the benefit
of
and shall be binding upon Mr. Winter’s heirs, legal representatives, and
successors.
10.
Counterparts. 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 Mr. Winter and by the
Company through its duly authorized officer with effect from the day and year
first above written.
|
By /s/
Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx
Its
President and Chief Executive Officer
|
/s/
Xxxxxx X. Xxxxxx
Xxxxxx
X. Xxxxxx
|
|
Date:
8/30/07
|
Date:
8/29/07
|
|
Mr.
Winter’s address:
229
– 000xx
Xxxxxx
Xxxxxxxxx,
XX 00000
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