INTERMEC, INC. 2008 OMNIBUS INCENTIVE PLAN PERFORMANCE BASED RESTRICTED STOCK UNIT AGREEMENT
Exhibit 10.2
INTERMEC, INC.
2008 OMNIBUS INCENTIVE PLAN
PERFORMANCE BASED RESTRICTED STOCK UNIT AGREEMENT
This Performance Based Restricted Stock Unit Agreement (the Agreement) is made as of May 24, 2011, between Intermec, Inc., a Delaware corporation (the Company), and Patrick J. Byrne (the Participant or you).
WHEREAS, the Companys 2008 Omnibus Incentive Plan (the Plan) was adopted by the Board of Directors of the Company on March 19, 2008, and approved by the stockholders of the Company on May 23, 2008; and
WHEREAS, as an inducement to you to remain in the employ of the Company or one of its Related Companies (collectively, the Company), the Company desires to award you restricted Stock Units (as that term is defined in the Plan) in accordance with the terms and conditions of the Plan and this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants hereinafter set forth, and other good and valuable consideration, the Company and you hereby agree as follows:
1. Award. The Company hereby grants you, as a matter of separate inducement and agreement, and not in lieu of salary or other compensation for services, an Award of 43,750 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 14.1 of the Plan. You shall have no obligation to pay the Company additional consideration for the Awarded Shares. The Grant Date for the RSUs is May 24, 2011.
The Plan, a copy of which has been made available to you, is incorporated herein by reference and is made part of this Agreement as if fully set forth herein. By accepting the Award, you also acknowledge receipt of the Plan and the plan summary for the Plan. You are encouraged to review the Companys most recent annual report and proxy statement, which may be found at www.intermec.com. 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 you 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 16.1 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 your rights under this Agreement without your written consent. This Agreement shall be subject, without further action by the Company or you, to such amendment, modification or restatement.
Page 1 of 5
2. Acceptance of Award. This Award is subject to your timely acceptance in accordance with this Paragraph 2. Unless you accept the Award by December 31, 2011 (the Acceptance Deadline), this Award will be cancelled automatically, and you will have no further right under this Agreement to any Awarded Shares. It is your sole responsibility to take appropriate actions by the Acceptance Deadline to accept the Award.
3. Achievement of Performance Measure and Restriction Period.
(a) The number of RSUs that may be earned under this Agreement initially shall be subject to achievement of the following performance measure approved by the Committee, and measured as of December 31, 2011 (the Measurement Date):
Achievement of business operating profit before interest and taxes (BOP) of 1.5% of revenue for the year ending December 31, 2011 (the Performance Measure).
For purposes of determining attainment of the Performance Measure, BOP attained is calculated excluding charges related to (i) restructuring costs; (ii) transaction costs and intangible amortization from any current year business acquisitions; (iii) distressed asset impairments; and (iv) resolution of legal disputes.
In the event the Performance Measure is not achieved as of the Measurement Date or, except as otherwise provided in Paragraph 4 hereof, in the event of your Termination of Service prior to the Measurement Date, this Award will be cancelled in its entirety automatically, and you will have no further right under this Agreement to any Awarded Shares.
(b) Subject to achievement of the Performance Measure as of the Measurement Date and further subject to the provisions of Paragraph 2 and 4 of this Agreement, there shall be a Period of Restriction (the Restriction Period) beginning on the Grant Date and ending as to approximately thirty-three percent of the shares (i.e., 14,437 shares) on the first anniversary of the Grant Date, as to approximately thirty-three percent of the shares (i.e., 14,437 shares) on the second anniversary of the Grant Date and as to approximately thirty-four percent of the shares (i.e., 14,876 shares) on the third anniversary of the Grant Date (each, a Vesting Date). Except as otherwise provided in Paragraph 4 hereof, all RSUs still subject to restriction on the date of your Termination of Service shall be forfeited by you.
4. Termination Due to Death or Disability; Effect of Change of Control.
(a) RSUs Subject to Achievement of Performance Measure. Subject to achievement of the Performance Measure as of the Measurement Date and notwithstanding any other provision of this Agreement, in the event of your Termination of Service as a result of death or Disability prior to the Measurement Date, you (or your beneficiary) will be entitled to receive payment of the RSUs in shares of Common Stock, provided that (i) such amount shall be prorated for the number of full months worked during 2011 and (ii) payment in shares of Common Stock shall be made no later than 2 1/2 months following the Measurement Date. In the event of a Change of Control prior to the Measurement Date, the RSUs shall be deemed to have been earned based on the Performance Measure being attained as of the effective date of the Change of Control, except that if the Change of Control occurs on or after July 1, 2011, the RSUs shall be deemed to have been earned based on actual performance attained as of the
Page 2 of 5
effective date of the Change of Control. In such event, any RSUs that shall continue after the Change of Control shall be subject to the Restriction Period and its related terms set forth herein.
(b) RSUs Subject to Restriction Period. Notwithstanding any other provision of this Agreement, all RSUs granted hereunder and still subject to the Restriction Period shall become fully vested and free of all restrictions to the full extent of the original grant upon the occurrence of either of the following events: (a) your Termination of Service by reason of death or (b) your Termination of Service by reason of Disability. The effect of a Change of Control on the RSUs subject to the Restriction Period shall be governed by the terms of a Company change of control policy or agreement as then in effect and applicable to such RSUs. In the event no policy or agreement addresses the effect of a Change of Control on the RSUs, the terms of the Plan shall govern.
5. Nontransferability. 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, you shall not be permitted to sell, assign, transfer, pledge, or otherwise encumber the RSUs or the Awarded Shares.
6. Form and Timing of Payment. 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 4 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 you 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 4.
7. Rights as a Stockholder. Except as otherwise provided in this Agreement or the Plan, you shall not have any rights of a stockholder with respect to the RSUs or, prior to vesting, the Awarded Shares.
8. Withholding. No later than the date as of which an amount first becomes includable in your gross income for federal income tax purposes with respect to any Awarded Shares, you 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 (the Mandatory Withholding Taxes). The obligations of the Company hereunder shall be conditional on such payment or arrangements. Notwithstanding the foregoing, to the maximum extent permitted by applicable law, the Company has the right to retain, without notice to you, from the total number of shares of Common Stock issuable and deliverable to you pursuant to this Agreement, or from salary or other amounts payable to you, the number of shares or cash having a value not less than the Mandatory Withholding Taxes; the Company currently intends to satisfy such Mandatory Withholding Taxes by retaining shares of Common Stock otherwise issuable under this Award (up to the minimum statutory amount required to be withheld by the Company).
Regardless of any action the Company takes with respect to any or all of the Mandatory Withholding Taxes, you acknowledge that the ultimate liability for all withholding taxes legally due by you is and remains your responsibility and that the Company (a) makes no representations or undertakings regarding the treatment of any withholding taxes in connection with any aspect of the RSUs, including the grant, lapse of the Restriction Period or other vesting
Page 3 of 5
of the RSUs, the subsequent sale of shares of Common Stock received upon lapse of the Restriction Period or other vesting of the RSUs, if any, and the receipt of any dividends or dividend equivalents; and (b) does not commit to structure the terms of the Award or any aspect of the Award to reduce or eliminate your liability for withholding taxes.
9. Miscellaneous
(a) You understand and acknowledge that you are one of a limited number of employees of the Company and its Related Companies who have been selected to receive grants of RSUs and that your Award is considered Company confidential information. You hereby covenant and agree not to disclose the Award of RSUs pursuant to this Agreement to any other person except (i) your immediate family and legal or financial advisors who agree to maintain the confidentiality of this Agreement, (ii) as required in connection with the administration of this Agreement and the Plan as it relates to this Award or under applicable law, and (iii) to the extent the terms of this Award have been publicly disclosed.
(b) The grant of RSUs to you in any year shall give you neither any right to similar grants in future years nor any right to be retained in the employ or service of the Company or its Related Companies, 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 Related Companies to dismiss or discharge you is specifically and unqualifiedly unimpaired by this Agreement.
(c) Each notice relating to this Agreement shall be in writing and delivered in person or by mail to the Company at its office, 6001 36th Avenue West, Everett, WA ###-###-####, to the attention of the Companys Secretary or at such other address as the Company may specify in writing to you by a notice delivered in accordance with this paragraph. All notices to you shall be delivered to you at the most recent address for you in the Companys records or at such other address as you may specify in writing to the Secretary of the Company by a notice delivered in accordance with this Paragraph 9(c).
(d) 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 Washington, U.S.A., 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 you. For purposes of litigating any dispute that arises directly or indirectly from the relationship of the parties evidenced by the grant of this Agreement, the parties hereby submit to and consent to the exclusive jurisdiction of the State of Washington, U.S.A., and agree that such litigation shall be conducted only in the courts of Washington, U.S.A., or the federal courts for the United States for the Western District of Washington, and no other courts where this grant is made and/or to be performed.
(e) 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 your heirs, legal representatives, and successors.
(f) 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.
Page 4 of 5
(g) 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.
(h) Payments made pursuant to this Agreement are intended to qualify for an exception from Section 409A of the Code. Notwithstanding any other provision in this Agreement and the Plan, the Company, to the extent it deems necessary or advisable in its sole discretion, reserves the right, but shall not be required, to unilaterally amend or modify this Agreement and/or the Plan so that the RSUs granted to you qualify for exemption from or comply with Section 409A; provided, however, that the Company makes no representations that the RSUs shall be exempt from or comply with Section 409A and makes no undertaking to preclude Section 409A from applying to the RSUs. Also notwithstanding the foregoing, if at the time of a scheduled Vesting Date, including one provided for under Paragraph 3 of this Agreement, you are a specified employee of the Company within the meaning of that term under Section 409A and as determined by the Company, and payment would be treated as a payment made on separation from service within the meaning of that term under Section 409A, then, if such delayed commencement is otherwise required in order to avoid a prohibited distribution under Section 409A, the payment shall be delayed until the date which is six months after the date of such separation from service or if earlier the date of your death.
IN WITNESS WHEREOF, this Agreement is executed by you and by the Company through its duly authorized officer or officers as of the day and year first above written.
INTERMEC, INC. | ||
By: | /s/ Robert J. Driessnack | |
Robert J. Driessnack | ||
Chief Financial Officer and Senior Vice President | ||
PARTICIPANT: | ||
| ||
Patrick J. Byrne |
Page 5 of 5