VIA FEDERAL EXPRESS October 9, 2007 Steven J. Winter Arlington, WA 98223 Re: Separation Agreement Dear Steve:
XXX
XXXXXXX XXXXXXX
Xxxxxxx
0, 0000
Xxxxxx
X.
Xxxxxx
000
-
000xx Xxxxxx XX
Xxxxxxxxx,
XX 00000
Re:
Separation
Agreement
Dear
Xxxxx:
This
letter agreement (the “Agreement”) sets forth the terms and conditions for your
separation from Intermec, Inc. and its subsidiaries (the “Company”) and it
replaces and supercedes Xxx Xxxxx’x September 25, 2007 letter on the same
subject. If you accept this Agreement within the time specified in
paragraph 23 and do not revoke the Agreement within the time specified in
paragraph 23, the following terms and conditions will apply.
1. Definitions
Capitalized
terms not otherwise defined in this Agreement are defined in paragraph
24.
2. Remaining
Employment Period
You
will
remain an employee of the Company from the Effective Date until November 30,
2007, at which time you will resign all of your remaining offices and positions
with the Company (the “Separation Date”).
3. Compensation
and Benefits During Remaining Employment Period
During
the period from the Effective Date through the Separation Date, you will receive
your current base salary, less income tax withholding and other payroll
deductions required by law or elected by you. During the same period,
you will continue to participate in and receive benefits under the Company’s
standard employee benefit plans and programs for which you are currently
eligible in accordance with their respective terms, including without
limitation, the Company’s health, dental, vision, life, AD&D and disability
insurance plans and the employee stock purchase plan.
4. Payments
Due Following Separation
The
Company will make the following payments to you on the dates set forth
below:
(a) The
payment required by the Cash Retention Agreement between you and the Company
dated as of March 30, 2007;
(b) a
severance payment of $375,000 pursuant to the Severance Plan applicable to
Senior Vice Presidents of Intermec, Inc.; and
(c) Subject
to paragraphs 14 and 23, a payment of $48,947 for your use in paying COBRA
premiums, paying for outplacement services and related taxes.
The
payments described in paragraphs 4(a) and 4(b) will be made on the Separation
Date. The payment described in paragraph 4(c) will be made as soon as
practicable after the General Release described in paragraph 14 becomes
irrevocable pursuant to paragraph 23.
5. COBRA
Coverage
Following
the Separation Date, you will be notified of your right to elect the
continuation of certain group health plan coverage in compliance with the
federal law known as COBRA. If you timely elect COBRA coverage for
you and/or your eligible family members, you will be solely responsible for
payment of the related premiums.
6. Stock
Options, Restricted Stock Units and Performance Share
Units
Your
outstanding vested and unvested Intermec stock options (“SOs”), restricted
Intermec stock units (“RSUs”) and performance share units (“PSUs”) are
summarized in Exhibit A to this Agreement. Your rights with respect
to these vested and unvested SOs, RSUs and PSUs are set forth in the agreements
in which the Company granted them to you, and this summary is qualified in
all
respects by reference to the agreements and the relevant plan
documents.
7. Pension
and Restoration Plan Benefits
We
estimate that, on November 30, 2007, your vested benefit under the Intermec
Pension Plan (the “Pension Plan”) will be $65,374 SLA per year if you
retire at age 65 and your vested benefit under the Intermec Restoration Plan
(“Restoration Plan”) benefits will be $59,216 SLA per year assuming if you
retire at age 65. Your rights with respect to these vested retirement
benefits are set forth in the Pension Plan and Restoration Plan documents,
and
this summary is qualified in all respects by reference to the relevant plan
documents.
8. Securities
Trading
During
the period from the Effective Date through the Separation Date, you will
continue to be subject to the Company policy that precludes an executive officer
from directly or indirectly selling Intermec securities if the executive’s
holdings of Intermec securities are below the threshold established by the
Company or if the sale of the securities would reduce the executive’s holdings
of Intermec below that threshold.
The
Board
has passed a resolution removing you from the list of named executive officers
for purposes of Section 16 reporting, effective August 27,
2007. However, during the six month period after you cease to be a
Section 16 officer, your trades in Intermec securities may be “matched” against
your trades in Intermec securities in the preceding six months (e.g.,
sale-and-purchase, or purchase-and-sale). If this analysis shows that
you had short swing profits, you are required by law to deliver those profits
to
the Company.
If
you
wish to conduct any trade of any kind in Intermec securities or any derivatives
thereof prior to the Separation Date or during the 6-month period following
the
Separation Date, you will give the Company advance notice of such transactions
and cooperate with Company to ensure that such transactions occur at a time
and
in a manner that is not detrimental to the Company; provided, however, that
this
notice and cooperation requirement does not apply to any acquisitions of
Intermec securities you make pursuant to the Company’s employee stock purchase
program.
9. Reporting
You
acknowledge and agree that information concerning the actual or anticipated
compensation and other payments and benefits due to you under this Agreement
must be properly reported by you and the Company to the appropriate governmental
authorities. You agree to cooperate with the Company in reporting
that information to the appropriate authorities.
10. Cooperation
After
the
Separation Date, you will cooperate and assist the Company in its prosecution
or
defense of litigation, claims, and Company or governmental investigations or
audits if you have relevant information or may be a witness. The
Company will reimburse you for the reasonable expenses you incur due to such
cooperation and assistance.
11. Non-Competition
During
the period from the Effective Date through the Separation Date, you will not
(except with the prior written consent of the Company) directly or indirectly:
(a) engage in, be employed by, perform services for, participate in the
ownership, management, control or operation of a Tier I Company or a Tier II
Company or (b) engage in any other activity with a Tier I Company or a Tier
II
Company if that activity conflicts or interferes with the economic or business
interests or contractual relationships of the Company or any subsidiary or
affiliate thereof.
12. Non-Solicitation
During
the one (1) year period following the Separation Date, you will not directly
or
indirectly: (a) solicit or entice any employee of the Company, its subsidiaries
or affiliates to terminate or reduce his or her employment with the Company,
its
subsidiaries or affiliates or (b) hire (as an employee, independent contractor
or otherwise) on your own behalf or on behalf of another Person any employee
of
the Company, its subsidiaries or affiliates.
13. Non-Disparagement
You
and
the Company agree that (i) the Company, its directors, officers and employees
will not make any disparaging or derogatory remarks (whether oral or written)
about you and (ii) you will not make any disparaging or derogatory remarks
(whether oral or written) about the Company, its subsidiaries or affiliates
or
their officers, directors, employees or agents, make any other remark or
statement (whether oral or written) or engage in any conduct that is detrimental
to the businesses or reputations of those Persons.
This
paragraph 13 is not intended to and does not prevent you or the Company
from making truthful statements when required by law or order of a court or
government agency of competent jurisdiction. If you receive legal
process requiring such statements, you will promptly notify the Company and
cooperate with the Company in seeking a protective order or in taking other
appropriate action with respect to such legal process.
14. General
Release of Existing Claims
You
(on
your own behalf and on behalf of your successors, heirs, beneficiaries and
permitted assigns) fully, finally and forever expressly waive, release and
discharge the Company, its subsidiaries and affiliates and their officers,
directors, employees and agents of and from any and all claims, causes of
action, claims for damages and claims for relief of any kind or nature, whether
known or unknown, asserted or unasserted, that you may have on or prior to
the
Effective Date which are connected in any way whatsoever with your employment
with the Company, its subsidiaries or affiliates (“Existing
Claims”). The foregoing release does not include claims or causes of
action related to enforcement of this Agreement.
You
understand and agree that the foregoing release includes, but is not limited
to,
any and all Existing Claims with respect to wages, bonuses, equity compensation,
or any other form of incentive compensation, or employment benefits arising
out
of any oral or written contract or agreement (whether express or implied by
operation of law or otherwise), any covenant of good faith and fair dealing
(whether express or implied by operation of law or otherwise), any theory of
wrongful discharge, any common law or statutory legal restriction on the
Company’s or its subsidiaries’ or affiliates’ right to change or terminate
employment, any federal, state or other governmental statute or ordinance or
other legal limitation on the employment relationship, including without
limitation, Title VII of the Civil Rights Act of 1964, the federal Age
Discrimination in Employment Act, the federal American with Disabilities Act,
the federal Family and Medical Leave Act, the federal Employee Retirement Income
Security Act of 1974, the Washington State Law Against Discrimination,
equivalent laws or regulations of any state within the United States and
equivalent laws or regulations of any national or regional government or agency
outside of the United States.
You
also
understand and agree that the foregoing release shall operate as a complete
and
total bar and defense to any Existing Claim that has or in the future may,
directly or indirectly, be brought by you or your successors, heirs, or
beneficiaries against the Company, its subsidiaries or its
affiliates.
You
represent and warrant that, as of the Effective Date, you have not directly
or
indirectly filed any complaints, charges or lawsuits against the Company, its
subsidiaries or affiliates with any governmental agency or any court within
or
outside of the United States, and you have not encouraged any such
actions. You also represent and warrant that you have not assigned
any Existing Claim to any third party, and that no third party has any ownership
interest or any lien of any kind or nature with respect to any Existing
Claim.
15. General
Release of Additional Claims
Following
the Separation Date, you will have twenty-one (21) calendar days to review
(with
your legal counsel if you wish), sign and return to Xxxxx Xxxxxxx the General
Release of Additional Claims attached as Exhibit B to this
Agreement. If you sign that General Release and return it to Xxxxx
Xxxxxxx within such 21-day period, you will have an additional seven (7)
calendar days from the date you executed that General Release to revoke
it. If you do not revoke that General Release within such 7-day
period, it will become binding, enforceable and irrevocable on the day after
that revocation period expires.
16. Company
Disclosures Relating To This Agreement
As
you
know, the Company is a publicly-traded company and may be required by law to
publicly disclose the signing of this Agreement and some or all of its
terms. You agree that the Company may make such disclosures to the
extent that the Company, in its sole discretion, deems necessary or appropriate
to comply with the laws and regulations within or outside of the United States
that apply to publicly-traded companies.
17. Other
Disclosures Relating To This Agreement
Following
the Effective Date, you will not make any statements, whether oral or written,
to any person or entity (other than your personal legal and financial advisers)
concerning this Agreement without the Company’s prior written
consent. The preceding sentence is not intended to and does not
prevent you from making truthful statements when required by law or order of
a
court or government agency of competent jurisdiction. If you receive
legal process requiring such statements, you will promptly notify the Company
and cooperate with the Company in seeking a protective order or taking other
appropriate action with respect to such legal process.
18. Confidentiality
and Non-Use
You
acknowledge and agree that information not generally known to the public that
relates to the business, technology, customers, prospects, employees, finances,
legal activities, plans, proposals, policies or practices of the Company, its
subsidiaries or affiliates or of any third Parties doing business with the
Company is confidential information (“Confidential Information”) and the sole
property of the Company, its subsidiaries and affiliates. You further
acknowledge and agree that Confidential Information includes, but is not limited
to, the trade secrets, strategic plans, business plans, legal strategies, legal
plans, software programs, financial data, customer lists, identities of
customers and prospects, marketing plans, nonpublic financial information,
any
other information about the Company, its subsidiaries or affiliates which they
designate as “confidential” and all other information about the Company, its
subsidiaries and affiliates that is not generally known to the AIDC
industry. Confidential Information does not include
(a) information that is or becomes generally known to the AIDC industry
through no fault of your own or (b) information received by you from a
third party without a duty of confidentiality.
At
all
times during your employment by the Company and continuing through the
Separation Date, you will not copy or in any way use any Confidential
Information for any purpose other than the discharge of your duties as an
employee of the Company and you will not disclose any Confidential Information
to any Person other than the officers, directors, employees and agents of the
Company, its subsidiaries or affiliates without the Company’s prior
consent. The preceding sentence is not intended to and does not
prevent you from making truthful statements when required by law or order of
a
court or government agency of competent jurisdiction. If you receive
legal process requiring such statements, you will promptly notify the Company
and cooperate with the Company in seeking a protective order or taking other
appropriate action with respect to such legal process.
Following
the Separation Date, you will not disclose to any third party, or use any
Confidential Information without the Company’s prior written
consent. The preceding sentence is not intended to and does not
prevent you from making truthful statements when required by law or order of
a
court or government agency of competent jurisdiction. If you receive
legal process requiring such statements, you will promptly notify the Company
and cooperate with the Company in seeking a protective order or taking other
appropriate action with respect to such legal process.
On
or
before the Separation Date, you will deliver to the Company, and not keep or
deliver to anyone else, any and all notes, files, memoranda, papers, electronic
files and, in general, any and all physical material containing Confidential
Information, including without limitation, any and all physical materials
relating to the conduct of business of the Company or any subsidiary or
affiliate of the Company which are in your possession, except for (a) any
documents for which the Company or any subsidiary or affiliate of the Company
has given written consent to removal at the time of the termination of your
employment with the Company; and (b) your personal rolodex, phone book and
similar items. Following the Separation Date, you will not use any
computer access code or password belonging to the Company and you will not
access any computer or database in the possession, custody or control of the
Company.
19. Early
Termination
(a)
Notwithstanding any other provision of this Agreement, the Company has the
right
(but not the obligation) to immediately terminate your employment with the
Company and withhold any payments due to you in the future under any of the
following circumstances:
(i)
The
Company determines, in its sole discretion, that you have directly or indirectly
materially breached paragraphs 8 through13 or paragraph 18 of this Agreement
or
that you are going to materially breach one or more of those
paragraphs.
(ii)
The
Company determines, in its sole discretion, that the representations made by
you
in paragraph 14 of this Agreement were false as of the Effective
Date.
(iii)
The
Company determines, in its sole discretion, that, during your employment with
the Company, its subsidiaries or affiliates (whether such employment occurred
before or after the Effective Date), you have directly or indirectly engaged
in
or that you are directly or indirectly engaging in conduct that constitutes
a
breach of fiduciary duty, actual or constructive fraud, gross negligence or
willful misconduct which has or could cause economic harm to or damage the
reputation of the Company, its subsidiaries or affiliates.
(iv)
You
are convicted (including without limitation a plea of guilty or nolo contendere)
of a felony involving actual or constructive fraud, theft, or moral turpitude
while you were employed by the Company, its subsidiaries or affiliates (whether
such misconduct occurred before or after the Effective Date).
(b)
Notwithstanding any other provision of this Agreement, the Company has the
right
(but not the obligation) to withhold the payment described in paragraph 4(c)
if
you choose not to sign and return to the Company the General Release of
Additional Claims described in paragraph 14 of this Agreement and paragraph
2 of
Exhibit C within the 21-day period specified in those paragraphs or if you
exercise your right to revoke that General Release within the 7-day revocation
period specified in paragraph 15 of this Agreement and paragraph 2 of Exhibit
B.
(c)
If
the Company chooses to exercise its rights under paragraphs 19(a) or 19(b)
of
this Agreement, the other provisions of this Agreement will remain in full
force
and effect during your lifetime.
(d)
The
rights and remedies set forth in paragraphs 19(a), 19(b) and 19(c) are in
addition to, and not in lieu of, any other right or remedy afforded the Company
under any other provision of this Agreement or at law, in equity or
otherwise.
20. Enforcement
of This Agreement
You
agree
that if you materially breach paragraphs 8 through 13 or paragraph 18 of this
Agreement, the Company, its subsidiaries and its affiliates will sustain
immediate and irreparable injury. In the event of such a breach, the
Company may file any claim for breach of or to enforce this Agreement in any
court of law or tribunal of competent jurisdiction whether within or outside
of
the United States.
Upon
receiving actual notice of the Company’s action by the method for notice set
forth in paragraph 20 of this Agreement, you will waive and you will direct
your
attorneys to waive any and all challenges to jurisdiction, venue, service of
process and, if the court or tribunal finds likelihood of success on the merits,
you will agree and you will direct your attorneys to agree to the entry of
a
temporary restraining order, a preliminary injunction and a permanent injunction
requiring full performance of paragraphs 8 through 13 or paragraph
18.
In
addition, if the court or tribunal finds likelihood of success on the merits,
the Company shall have the right, but not the obligation, to terminate this
Agreement and shall be entitled to actual damages according to proof and
reimbursement of the full reasonable attorneys’ fees and costs it incurred in
bringing such action.
21. Notices
Any
and
all notices, demands, or other communications required or desired to be given
hereunder by any Party shall be in writing and shall be validly given or made
to
another Party if personally served or if deposited in the United States mail,
certified or registered, postage prepaid, return receipt requested or deposited
with an established overnight delivery service for delivery the next business
day. If such notice or demand is served personally, notice shall be
deemed constructively made at the time of such personal service. If
such notice, demand or other communication is given by mail, such notice shall
be conclusively deemed given five days after deposit thereof in the United
States mail, certified or registered mail, postage prepaid, return receipt
requested, addressed to the Party to whom such notice, demand or other
communication is to be given as follows:
If
to
Company:
Xxxxxxx
X. Xxxxx
Chief
Executive Officer
0000
00xx Xxxxxx
Xxxx
Xxxxxxx,
XX 00000
With
a
copy to:
Xxxxx
X.
Xxxxxxx
Senior
Vice President,
General
Counsel and
Corporate
Secretary
0000
00xx Xxxxxx
Xxxx,
Xxxxxxx,
XX 00000-0000
If
to
Xxxxxx X. Xxxxxx:
Xxxxxx
X.
Xxxxxx
000
-
000xx Xxxxxx XX
Xxxxxxxxx,
XX 00000
Any
Party
hereto may change its address for purposes of this paragraph 21 by written
notice given in the manner provided above.
22. Miscellaneous
(a) Entire
Agreement. The Parties agree that this
Agreement contains the entire agreement and understanding of the Parties with
respect to your separation from the Company and that there are no promises
or
terms of the agreement between the Parties other than those expressly written
in
this Agreement. Unless this Agreement expressly provides otherwise,
this Agreement does not amend or modify any other agreements you entered into
with the Company prior to the Effective Date.
(b) Binding
Effect. This Agreement shall be binding
Parties and their respective successors, heirs, beneficiaries, permitted
assigns, subsidiaries and affiliates.
(c)
Assignment. No
party may assign or otherwise transfer (by operation of law or otherwise) this
Agreement without the prior written consent of the other party.
(d) Third
Party Beneficiaries. This Agreement is only
for the benefit of, and is only enforceable, by you and the Company, its
subsidiaries and affiliates and their officers, directors, employees, agents,
successors and assigns. The Agreement is not intended to and shall
not be construed to confer any right or benefit on any third party other than
those identified in the preceding sentence.
(e) Severability. If
any provision or term of this Agreement is determined by a court of law or
government tribunal to be unenforceable, then such unenforceable provision
or
term will be modified so as to make it enforceable, or if that is not possible,
then it will be deleted from this Agreement, and the remaining part of the
Agreement shall remain in full, force and effect.
(f) Amendments,
Waivers and Modification. No amendment,
waiver or modification of this Agreement will be enforceable unless it is in
writing, signed by authorized representatives of each of the
Parties.
(g) Controlling
Law. This Agreement will be
interpreted, construed and enforced in all respects in accordance with the
laws
of the State of Washington, without reference to its choice of law or conflict
of laws principles.
(h) Choice
of Forum. Unless paragraph 20 permits a
party to select a different forum, no suit, action, proceeding or claim arising
under or by reason of this Agreement will be brought by any party in any place
other than courts located in Seattle, Washington and the parties hereby
irrevocably consent to the jurisdiction and venue of those courts with respect
to such suits, actions, proceedings and claims.
(i) Attorneys’
Fees and Costs. In the event that any
action or proceeding is brought by either party in connection with this
Agreement, the prevailing party in such action or proceeding will be entitled
to
receive its costs and reasonable attorneys’ fees.
(j) No
Admission. Nothing in this Agreement shall be construed
as an admission by the Company or any of its subsidiaries or affiliates with
respect to any Existing Claim or any other claim, cause of action, claim for
damages or other relief or otherwise that you may have as of or prior to the
Effective Date.
(k) Headings. The
headings to the various sections of this Agreement have been inserted for the
convenience of the Parties only. They shall not be used to interpret
or construe the meaning of the terms and provisions of those
sections.
(l) Counterparts. This
Agreement may be signed in counterparts and, subject to paragraph 23, when
each
party has signed a counterpart, the Agreement shall be final and binding upon
the Parties.
23. Review
and Revocation Periods
You
have
until October 16, 2007 to review (with your legal counsel if you wish), sign
and
return this Agreement to me. If you sign the Agreement and return it
to me within that period, you will have an additional seven (7) calendar days
from the date you executed the Agreement to revoke it. If you do not
revoke the Agreement within such 7-day period, it will become binding,
enforceable and irrevocable on the day after that revocation period
expires.
24. Additional
Definitions
For
purposes of this Agreement, the following definitions apply:
(a)
“AIDC Industry” means companies that sell, offer to sell, lease
or offer to lease in any geographic market (i) products that print, capture
or
collect data via automatic means (including but not limited to barcode,
printing, scanning or imaging, radio frequency identification (“RFID”), smart
cards, optical character recognition (“OCR”) or magnetic strips) and
subsequently store such data on a microprocessor-controlled device (including
but not limited to a computer) or (ii) RFID chips, RFID inserts or inlays,
RFID
tags, RFID printers or RFID readers or terminals.
(b)
"Control" means beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Securities Exchange Act of 1934), directly
or
indirectly of fifty percent (50%) or more of the direct or indirect combined
voting power of a Person’s then outstanding voting equity generally entitled to
vote in the election of directors (or other participants of the managing
authority), or (ii) acquiring actual control of the operations of a Person,
whether by means of contract or otherwise; (ii) acquiring control through a
merger or consolidation involving Person if the equity holders of
that Person immediately before such merger or consolidation, as a result of
and
after such merger or consolidation, own, directly or indirectly, less than
fifty
percent (50%) of the combined voting power of the then outstanding voting
securities generally entitled to vote in the election of directors (or other
participants in the managing authority) of the entity surviving or resulting
from such merger or consolidation; or (iii) acquiring control of a Person
through the purchase or other acquisition of all or substantially all of the
assets of that Person.
(c)
“Effective Date” means September 25, 2007, the effective date
of this Agreement.
(d)
“Person” means an individual, a corporation, a limited
liability company, a partnership, an association, a trust or any other entity
or
organization, including a government or political subdivision or any agency
or
instrumentality thereof, whether for profit or not-for-profit.
(e)
“SLA” means single life annuity.
(f) “Tier
I Companies” means Symbol Technologies, Inc., Zebra
Technologies Corp., Handheld Products, Inc., Impinj, Inc., Applied Wireless
Identifications, Inc., Alien Technology Corporation, Motorola, Inc., Metrologic
Instruments, Inc., Hand Held Products, Inc. and their subsidiaries, affiliates
and successors thereof (including any Person that obtains Control of any such
Tier I Company).
(g) “Tier
II Companies” means value-added resellers that have been designated as
Honours Partners by Intermec Technologies Corporation (“Intermec”).
(h) “Tier
III Companies” means (i) any Person that competes in the AIDC Industry
(other than the Tier I Companies and Tier II Companies) and (ii) any Person
that
sets standards for hardware, software or protocols made, used, sold, offered
for
sale, leased or offered for lease in the AIDC Industry.
Xxxxx,
if
you agree with the terms and conditions set forth above, please fill in the
contact information required in paragraph 21, sign two copies of the Agreement
in the space provided
below
and
return one signed original to Xxxxx Xxxxxxx for our files. Please
maintain the second copy for your own records.
Sincerely,
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx
X.
Xxxxxxx
Senior
Vice President and
Chief
Financial Officer
I
accept
the terms and conditions of this Agreement, which I have read and
understand.
|
/s/
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
|
10/11/2007
Date |
|
|
EXHIBIT
A
Outstanding
Equity Incentive Grants
|
|
|
|
|
|
|
|
|
|
Stock
Award Status
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Xxxxxx
X. Xxxxxx
|
|
|
|
|
|
|
|
|
Current
Status as of:
|
31-Aug-07
|
|
FMV
as of 22 Aug 07:
|
$ 26.0700
|
|
|
|
|
Separation
Date as of:
|
30-Nov-07
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares
|
Shares
|
Shares
|
|
|
|
|
|
|
Vested
|
To
Vest
|
Unvested
|
Option
|
|
Award
|
Award
|
Shares
|
Option
|
as
of
|
prior
to
|
as
of
|
Expiration
|
|
Type
|
Date
|
Granted
|
Price
|
31-Aug-07
|
30-Nov-07
|
30-Nov-07
|
Date
|
|
|
|
|
|
|
(Note
1)
|
(Note
2)
|
(Note
3)
|
|
|
|
|
|
|
|
|
|
|
Stock
Options
|
11/19/1998
|
15,000
|
$ 16.5938
|
15,000
|
-
|
-
|
11/19/2008
|
|
Stock
Options
|
02/05/1999
|
10,000
|
$ 17.1875
|
10,000
|
-
|
-
|
02/05/2009
|
|
Stock
Options
|
11/17/2000
|
40,000
|
$ 4.1900
|
40,000
|
-
|
-
|
11/17/2010
|
|
Stock
Options
|
05/07/2002
|
25,000
|
$ 7.3750
|
25,000
|
-
|
-
|
05/07/2012
|
|
Stock
Options
|
05/08/2003
|
10,000
|
$ 7.7200
|
8,000
|
-
|
2,000
|
05/08/2013
|
|
Stock
Options
|
05/06/2004
|
25,000
|
$ 17.2250
|
15,000
|
-
|
10,000
|
05/06/2014
|
|
Stock
Options
|
05/17/2005
|
35,000
|
$ 19.9850
|
14,000
|
-
|
21,000
|
05/17/2015
|
|
Stock
Options
|
05/16/2006
|
45,000
|
$ 27.2500
|
9,000
|
-
|
36,000
|
05/16/2016
|
|
Stock
Options
|
05/15/2007
|
45,000
|
$ 22.5900
|
-
|
-
|
45,000
|
05/15/2017
|
|
Subtotal
|
|
272,500
|
|
136,000
|
-
|
114,000
|
|
|
|
|
|
|
|
|
|
|
|
Restricted
Stocks
|
10/08/2001
|
5,001
|
n/a
|
5,001
|
-
|
-
|
n/a
|
|
Restricted
Stocks
|
05/08/2003
|
6,667
|
n/a
|
6,667
|
-
|
-
|
n/a
|
|
Subtotal
|
|
11,668
|
|
11,668
|
-
|
-
|
|
|
|
|
|
|
|
|
|
|
|
Performance
Share Units
|
05/06/2004
|
4,925
|
n/a
|
4,925
|
-
|
-
|
n/a
|
|
Performance
Share Units
|
05/17/2005
|
11,667
|
n/a
|
-
|
-
|
11,667
|
n/a
|
|
Performance
Share Units
|
05/16/2006
|
15,000
|
n/a
|
-
|
-
|
15,000
|
n/a
|
|
Performance
Share Units
|
05/15/2007
|
11,250
|
n/a
|
-
|
-
|
11,250
|
n/a
|
|
Subtotal
|
|
42,842
|
|
4,925
|
-
|
37,917
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Note
(1) - Shares scheduled to vest on various dates, assuming awardee
remains
employed on vesting date.
|
|||||||
|
Note
(2) - Unvested shares as of the Separation Date will be forfeited
and
cancelled.
|
|||||||
|
Note
(3) - Vested and unexercised shares as of the Separation Date remain
exercisable until expiration.
|
|||||||
EXHIBIT
B
GENERAL
RELEASE OF ADDITIONAL CLAIMS
This
agreement (the “Agreement”) is
made by and between Intermec, Inc. (the “Company”) and Xxxxxx X. Xxxxxx
(“Winter”) (collectively, the “Parties” and individually, a “Party”) as of
November 30, 2007 (the “Effective Date”).
WHEREAS,
the Parties entered into a
Separation Agreement effective as of September 25, 2007 (the “SA”) which, among
other things, provides that the Company will, under certain circumstances,
make
certain payments to Winter following the Separation Date (as that term is
defined in the SA);
WHEREAS,
in paragraph 14 of the SA,
Winter released certain claims against the Company, its subsidiaries and
affiliates;
WHEREAS,
additional claims in favor of
Winter and against the Company, its subsidiaries or affiliates may have come
into existence since the effective date of the SA;
WHEREAS,
paragraph 15 of the SA gives
Winter the right (but not the obligation) to waive, release and discharge any
claims he may have against the Company, its subsidiaries or affiliates
concerning events that post-date the effective date of the SA;
WHEREAS,
paragraph 4 of the SA gives
the Company the right (but not the obligation) to withhold the payment described
in paragraph 4(c) of the SA if Winter chooses not to sign this Agreement within
the 21-day period provided in paragraph 15 of the SA;
WHEREAS,
paragraph 4 of the SA also
gives the Company the right (but not the obligation) to withhold the payment
described in paragraph 4(c) of the SA if Winter chooses to revoke this Agreement
within the 7-day revocation period provided in 15 of the SA;
WHEREAS,
Winter wishes to receive the
payment described in paragraph 4(c) of the SA;
NOW
THEREFORE, for
good and value consideration, receipt of which is hereby acknowledged, the
Parties hereby agree:
1.
General Release
Winter
(on his own behalf and on behalf of his successors, heirs, beneficiaries and
permitted assigns) fully, finally and forever expressly waive, release and
discharge the Company, its subsidiaries and affiliates and their officers,
directors, employees and agents of and from any and all claims, causes of
action, claims for damages and claims for relief of any kind or nature, whether
known or unknown, asserted or unasserted, that Winter may have had during the
period from the Effective Date of the SA through November 30, 2007 (the
“Separation Date”) which are connected in any way whatsoever with his employment
with the Company, its subsidiaries or affiliates (the “ Additional
Claims”). The foregoing release does not include claims or causes of
action related to enforcement of the SA.
Winter
understands and agrees that the foregoing release includes, but is not limited
to, any and all Additional Claims with respect to wages, bonuses, equity
compensation, or any other form of incentive compensation, or employment
benefits arising out of any oral or written contract or agreement (whether
express or implied by operation of law or otherwise), any covenant of good
faith
and fair dealing (whether express or implied by operation of law or otherwise),
any theory of wrongful discharge, any common law or statutory legal restriction
on the Company’s or its subsidiaries’ or affiliates’ right to change or
terminate employment, any federal, state or other governmental statute or
ordinance or other legal limitation on the employment relationship, including
without limitation, Title VII of the Civil Rights Act of 1964, the federal
Age
Discrimination in Employment Act, the federal American with Disabilities Act,
the federal Family and Medical Leave Act, the federal Employee Retirement Income
Security Act of 1974, the Washington State Law Against Discrimination,
equivalent laws or regulations of any state within the United States and
equivalent laws or regulations of any national or regional government or agency
outside of the United States.
Winter
also understands and agrees that the foregoing release shall operate as a
complete and total bar and defense to any Additional Claim that has or in the
future may, directly or indirectly, be brought by Winter or his successors,
heirs, or beneficiaries against the Company, its subsidiaries or its
affiliates.
Winter
represents and warrants that he has not directly or indirectly filed any
complaints, charges or lawsuits against the Company, its subsidiaries or
affiliates with any governmental agency or any court within or outside of the
United States, and agrees that he will not initiate or encourage any such
actions. Winter also represents and warrants that he has not assigned
any Additional Claim to any third party, and that no third party has any
ownership interest or any lien of any kind or nature with respect to any
Additional Claim.
2.
Review and Revocation Periods
Winter
has twenty-one (21) calendar days following November 30, 2007 to review (with
his legal counsel if he wishes), sign and return this Agreement to the
Company. If Winter signs this Agreement and returns it to the Company
within such 21-day period, he will have an additional seven (7) calendar days
from the date he executed the Agreement to revoke it by providing the Company
with notice of such revocation in the manner set forth in paragraph 5 of this
Agreement. If Winter does not revoke the Agreement within such 7-day
period, it will become binding, enforceable and irrevocable on the day after
that revocation period expires.
3.
Effect of Revocation
Winter
acknowledges and agrees that, if he chooses to revoke this Agreement within
the
7-day revocation period specified in paragraph 2 of this Agreement, the Company
will have the right (but not the obligation) to withhold the payment described
in paragraph 4(c) of the SA..
4. Effect
of Unexercised Revocation Right
The
Company acknowledges and agrees that, if Winter chooses to sign this Agreement
and return it to the Company within the 21-day period specified by paragraph
2
and if Winter chooses not to exercise his right to revoke this Agreement within
the 7-day revocation period specified in that paragraph, the Company will be
obligated to make the payment described in paragraph 4(c) of the
SA.
5.
Notices
Any
and
all notices, demands, or other communications required or desired to be given
hereunder by any Party shall be in writing and shall be validly given or made
to
another Party if personally served or if deposited in the United States mail,
certified or registered, postage prepaid, return receipt requested or deposited
with an established overnight delivery service for delivery the next business
day. If such notice or demand is served personally, notice shall be
deemed constructively made at the time of such personal service. If
such notice, demand or other communication is given by mail, such notice shall
be conclusively deemed given five days after deposit thereof in the United
States mail, certified or registered mail, postage prepaid, return receipt
requested, addressed to the Party to whom such notice, demand or other
communication is to be given as follows:
If
to
Company:
Xxxxxxx
X. Xxxxx
Chief
Executive Officer
0000
00xx Xxxxxx
Xxxx
Xxxxxxx,
XX 00000
With
a
copy to:
Xxxxx
X.
Xxxxxxx
Senior
Vice President,
General
Counsel and
Corporate
Secretary
0000
00xx Xxxxxx
Xxxx,
Xxxxxxx,
XX 00000-0000
If
to
Xxxxxx X. Xxxxxx:
Xxxxxx
X.
Xxxxxx
000
-
000xx Xxxxxx XX
Xxxxxxxxx,
XX 00000
Any
Party
hereto may change its address for purposes of this paragraph 5 by written notice
given in the manner provided above.
6. Miscellaneous
(a) Entire
Agreement. The Parties agree that this
Agreement and the SA contain the entire agreement and understanding of the
Parties with respect to the subject matter thereof and that there are no
promises or terms of the agreement between the Parties other than those
expressly written in this Agreement or the SA.
(b) Binding
Effect. This Agreement shall be binding
upon the Parties and their respective successors, heirs, beneficiaries, assigns,
subsidiaries and affiliates.
(c) Third
Party Beneficiaries. This Agreement is only
for the benefit of, and is only enforceable, by the Company, its subsidiaries
and affiliates and their officers, directors, employees, agents, successors
and
assigns. The Agreement is not intended to and shall not be construed
to confer any right or benefit on any third party other than those identified
in
the preceding sentence.
(d)
Severability. If any
provision or term of this Agreement is determined by a court of law or
government tribunal to be unenforceable, then such unenforceable provision
or
term will be modified so as to make it enforceable, or if that is not possible,
then it will be deleted from this Agreement, and the remaining part of the
Agreement shall remain in full, force and effect.
(e)
Amendments, Waivers and
Modification. No amendment, waiver or
modification of this Agreement will be enforceable unless it is in writing,
signed by authorized representatives of each of the Parties.
(f)
Controlling Law. This
Agreement will be interpreted, construed and enforced in all respects in
accordance with the laws of the State of Washington, without reference to its
choice of law or conflict of laws principles.
(g)
No Admission. Nothing in this Agreement shall
be construed as an admission by the Company or any of its subsidiaries or
affiliates with respect to any Existing Claim or any other claim, cause of
action, claim for damages or other relief or otherwise that Winter may have
during the period from the effective date of the SA through November 30,
2007.
(h)
Headings. The headings to
the various sections of this Agreement have been inserted for the convenience
of
the Parties only. They shall not be used to interpret or construe the
meaning of the terms and provisions of such sections.
(i)
Counterparts. This Agreement
may be signed in counterparts and, subject to paragraph 2, when each party
has
signed a counterpart, the Agreement shall be final and binding upon the
parties.
IN
WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
signed on their behalf as of the Effective Date.
|
COMPANY:
|
WINTER:
|
|
|
Xxxxxx
X. Xxxxxx
|
||
|
By: /s/
Xxxxx X. Xxxxxxx
Name: Xxxxx
X. Xxxxxxx
Title: Sr.
Vice President, Chief Financial Officer
Date: October
9, 2007
|
By: /s/
Xxxxx X. Xxxxxx
Date:
10/11/2007
|
