UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 23, 2014
Imation Corp.
(Exact name of registrant as specified in its charter)
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DELAWARE
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1-14310
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41-1838504
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(State or other jurisdiction
of incorporation)
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(Commission File Number)
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(IRS Employer
Identification Number)
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1 IMATION WAY
OAKDALE, MINNESOTA
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55128
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area code:
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(651) 704-4000
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None
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
e)
In November 2014, the Board of Directors of Imation Corp. (the “Company”) approved both a reduction in its own compensation (as described in Item 8.01 below) and a reduction in the cost of certain executive compensation programs as described below. These actions were taken after extensive analysis over the last several months and with the advice of the Board’s independent compensation consultant. The Board anticipates that these are the first steps in transforming our compensation structure to better align it with the future direction and size of the Company.
As part of those efforts, on November 23, 2014, the Board approved certain changes to the Company’s form of severance agreement for executive officers. The Board determined that it was appropriate to remove the provisions that provide an executive with a cash “gross-up payment” to cover any federal excise tax due under Section 4999 of the Internal Revenue Code and reduce the severance and other Change of Control (as defined in the agreement) payments to an amount so that no federal excise tax is owed by the executive.
The Board also determined it was appropriate to make the following additional changes to the Company’s form of severance agreement for executive officers: If an executive officer is terminated other than after a Change of Control (as defined in the severance agreement), the executive officer will be entitled to receive, in addition to other payments, payment of the prorated portion of the annual bonus under the annual bonus plan for the year in which the termination occurs, only if and to the extent that the performance metrics are met, payable at the time the Company’s annual bonus is payable. If there is a Change of Control, the executive officer will receive upon the Change of Control a prorated portion of the annual bonus under the annual bonus plan as if the performance metrics were met at target (100%) level. For termination after a Change of Control, in addition to other payments, the executive officer will receive a prorated bonus payment under the annual bonus plan for the year in which the termination occurs as if the performance metrics were met at target (100%) level, provided the executive officer was not already paid under the Change of Control provision described above.
The Company expects that these changes to the form of severance agreement will reduce the cost to the Company in the event of a Change of Control by approximately 50%. Each named executive officer has executed the new form of severance agreement.
The foregoing description of the changes to the severance agreement for executive officers is not complete and is qualified in its entirety by reference to the Amended and Restated Severance and Change in Control Agreement, a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
On November 23, 2014, the Company’s Board of Directors also approved certain changes to the Company’s form of Performance Award Agreement for executive officers and Performance Based Restricted Stock Award Agreement for executive officers for use under the Company’s 2011 Stock Incentive Plan. The form of Performance Award Agreement was amended to provide that, in the event of a Change in Control (as defined in the award agreement), the executive would receive a prorated portion of the performance award as if the performance metric for the year of the Change in Control were met at target (100%) level. The form of Performance Based Restricted Stock Award Agreement was amended to provide that, in the event of a Change in Control (as defined in the award agreement), the right to receive the shares will be converted to a right to receive the cash value of the shares based on their cash value at the time of the Change in Control and the executive would receive a prorated portion of the performance award as if the performance metric for the year of the Change in Control were met at target (100%) level. Both award agreements were also amended to provide that if an executive is terminated within twelve months of a Change in Control, the executive would receive an additional payment as if the all the performance metrics at the date of the Change in Control were met at target (100%) level, less any amounts previously paid at the time of the Change in Control. The Performance Based Restricted Stock Award Agreements and Performance Award Agreements outstanding under the Company’s 2011 Stock Incentive Plan and held by named executive officers will be amended to reflect the new terms summarized above.
The foregoing description of the changes to the form of Performance Based Restricted Stock Award Agreement for executive officers and Performance Award Agreement for executive officers for use under the Company’s 2011 Stock Incentive Plan is not complete and is qualified in its entirety by reference to the form of Performance Based Restricted Stock Award Agreement for executive officers, Performance Award Agreement for executive officers, Amendments to
Performance Based Restricted Stock Award Agreement for executive officers and Amendments to Performance Award Agreement for Executive Officers, a copy of which is filed as Exhibit 10.2, Exhibit 10.3, Exhibit 10.4 and Exhibit 10.5, 10.6, 10.7, 10.8 and 10.9 respectively, to this Current Report on Form 8-K and is incorporated herein by reference.
Item 8.01. Other Events
On November 7, 2014, the Board of Directors approved a reduction in Board of Director compensation effective in May 2015. The annual equity grant of restricted stock to all members of the Board of Directors will be reduced from a dollar value of $175,000 to a dollar value of $150,000. The Non-Executive Chairman Fee will be reduced from $87,500 to $75,000 and the additional annual equity grant to the Non-Executive Chairman will be reduced from a dollar value of $87,500 to a dollar value of $75,000. The Board took this action, and its prior action reducing the size of the Board, to right size board compensation and decrease overall costs to the Company as part of its strategic transformation.
(d) Exhibits
10.1 Form of Amended and Restated Severance and Change of Control Agreement
10.2 Form of 2011 Stock Incentive Plan Performance Based Restricted Stock Award Agreement for Executive Officers
10.3 Form of 2011 Stock Incentive Plan Performance Award Agreement for Executive Officers
10.4 Form of 2011 Stock Incentive Plan Amendment to Performance Award Agreement for Executive Officers (2014)
10.5 Form of 2011 Stock Incentive Plan Amendment to Performance Based Restricted Stock Award Agreement for Executive Officers (2014)
10.6 Form of 2011 Stock Incentive Plan Amendment to Performance Award Agreement for Executive Officers (2013)
10.7 Form of 2011 Stock Incentive Plan Amendment to Performance Based Restricted Stock Award Agreement for Executive Officers (2013)
10.8 Form of 2011 Stock Incentive Plan Amendment to Performance Award Agreement for Executive Officers (pre 2013)
10.9 Form of 2011 Stock Incentive Plan Amendment to Performance Based Restricted Stock Award Agreement for Executive Officers (pre 2013)
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Imation Corp.
(REGISTRANT)
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Date:
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November 24, 2014
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By:
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/s/Scott J. Robinson
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Scott J. Robinson
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Vice President, Chief Financial Officer
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EXHIBIT INDEX
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Exhibit
Number
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Description
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10.1
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Form of Amended and Restated Severance and Change of Control Agreement
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10.2
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Form of 2011 Stock Incentive Plan Performance Based Restricted Stock Award Agreement for Executive Officers
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10.3
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Form of 2011 Stock Incentive Plan Performance Award Agreement for Executive Officers
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10.4
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Form of 2011 Stock Incentive Plan Amendment to Performance Based Restricted Stock Award Agreement for Executive Officers (2014)
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10.5
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Form of 2011 Stock Incentive Plan Amendment to Performance Award Agreement for Executive Officers (2014)
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10.6
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Form of 2011 Stock Incentive Plan Amendment to Performance Based Restricted Stock Award Agreement for Executive Officers (2013)
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10.7
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Form of 2011 Stock Incentive Plan Amendment to Performance Award Agreement for Executive Officers (2013)
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10.8
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Form of 2011 Stock Incentive Plan Amendment to Performance Based Restricted Stock Award Agreement for Executive Officers (pre 2013)
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10.9
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Form of 2011 Stock Incentive Plan Amendment to Performance Award Agreement for Executive Officers (pre 2013)
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Exhibit 10.1
AMENDED AND RESTATED
SEVERANCE AND CHANGE OF CONTROL AGREEMENT
THIS AMENDED AND RESTATED SEVERANCE AND CHANGE OF CONTROL AGREEMENT (this “Agreement”) is made as of the ___ day of November, 2014 between Imation Corp., a Delaware corporation, with its principal offices at One Imation Way, Oakdale, Minnesota 55128 (the “Company”) and ______________ at
________________.
WHEREAS, this Agreement is intended to specify the financial arrangements that the Company will provide to you upon a Change of Control (as defined herein) or your separation from employment with the Company and all of its Affiliates (as defined herein) under any of the circumstances described herein; and
WHEREAS, this Agreement is entered into by the Company in the belief that it is in the best interests of the Company and its shareholders to help assure that the Company will have your continued dedication during your employment with the Company, by providing for certain Change of Control and severance benefits under certain circumstances in connection with your employment with the Company or any of its Affiliates, thereby enhancing the Company’s ability to attract and retain highly qualified people; and
WHEREAS, this Agreement hereby amends and restates in its entirety any previous Severance Agreement between the Company and you.
NOW THEREFORE, to assure the Company that it will have your continued dedication, and to induce you to remain in the employ of the Company or any of its Affiliates, and for other good and valuable consideration, the Company and you agree as follows:
1.
Term of Agreement
. The term of this Agreement shall commence on the date of this Agreement (the “Effective Date”) and shall continue in effect until the first anniversary of the Effective Date, and shall thereafter be automatically renewed for successive one-year terms provided that you are employed by the Company or any of its Affiliates on each anniversary of the Effective Date (the “Covered Period”), unless the Company, upon authorization by its Board of Directors gives notice to you that the Company does not wish to extend this Agreement, and
provided further
, that, notwithstanding any such notice by the Company not to extend, the Covered Period and this Agreement shall continue in effect for a period of 12 months from the date of the notice in the event the notice is not given following a Change of Control, or for a period of 24 months following the date of a Change of Control in the event the notice is given following such Change of Control.
2.
Definitions
. When the following terms are used in this Agreement with initial capital letters, they shall have the following meanings.
(i) “Affiliate” means any entity that, together with the Company, is treated as a single employer under Code section 414(b) or (c). For purposes of determining whether a Termination of Employment has occurred, the term Affiliate will be determined by applying Code section 1563(a)((1), (2) and (3) for purposes of determining a controlled group of corporations under Code section 414(b) and in applying Treas. Reg. Section 1.414(c)-2 for purposes of determining trades or businesses that are under common control for purposes of Code section 414(c), the phrase “at least 50 percent” will be used instead of “at least 80 percent” each place it appears.
(ii) “Cause” shall mean termination by the Company or an Affiliate of your employment based upon:
(a) your gross incompetence or substantial failure to perform your duties;
or
(b) misconduct by you that causes or is likely to cause harm to the Company or an Affiliate or that causes or is likely to cause harm to the Company’s or an Affiliate’s reputation, as determined by the Company’s or Affiliate’s Board of Directors in its sole and absolute discretion (such misconduct may include, without limitation, insobriety at the workplace during working hours or the use of illegal drugs); or
(c) failure to follow directions of the Company’s or Affiliate’s Board of Directors that are consistent with your duties; or
(d) your conviction of, or entry of a pleading of guilty or nolo contendere to, any crime involving moral turpitude, or the entry of an order duly issued by any federal or state regulatory agency having jurisdiction in the matter permanently prohibiting you from participating in the conduct of the affairs of the Company or an Affiliate; or
(e) commission of any act of dishonesty, theft, fraud, embezzlement, misappropriation or illegal conduct which is, in each case, materially injurious to the Company or its affiliates, regardless of whether an indictment, criminal conviction or plea of no contest occurs; or
(f) .violation of any applicable laws, rules or regulations or failure to comply with applicable confidentiality, non-disparagement, non-solicitation and non-competition obligations to the Company, corporate code of business conduct or other material policies of the Company in connection with or during performance of the Executive’s duties to the Company that could, in the Board’s opinion, cause material injury to the Company, which violation, if curable, is not cured within thirty (30) days after notice thereof to the Executive.
(iii) “Good Reason” shall mean the occurrence of any of the following events, except for occurrence of such an event in connection with the termination of your employment or reassignment by the Company or an Affiliate for Cause, for disability or for death, provided you have given the Company written notice within ninety (90) days of the initial existence of the Good Reason event and the Company has not cured such event within thirty (30) days of the receipt of such notice:
(a) a material diminution, either prior to or following a Change of Control, of your authority, duties or responsibilities from your authority, duties or responsibilities as of the date of this Agreement; or
(b) a material diminution, either prior to or following a Change of Control,
in your base compensation (specifically excluding any long-term incentive compensation for which you are eligible), excluding any reduction caused by a restructuring by management of benefits for the employees of the company as a whole that affects you in a manner comparable to other senior executives of the Company; or
(c) a material change in the geographic location at which you perform your services following a Change of Control (but in no event including a relocation that does not increase the actual distance required for you to commute from your home to the new place of business by more than 50 miles).
(iv) “Change of Control” means any one of the following events:
(a) 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 (iii)(c) apply); or
(b) 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, 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
(c) 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
(d) approval by the stockholders of the dissolution of the Company.
(v) “Date of Termination” shall mean the date specified in the Notice of Termination (except in the case of your death, in which case Date of Termination shall be the date of death); provided the Date of Termination is consistent with your Termination of Employment.
(vi) “Notice of Termination” shall mean a written notice which sets forth the Date of Termination and, in reasonable detail, the facts and circumstances claimed to provide a basis, if any, for your Termination of Employment.
(vii) “Termination of Employment” means a termination of your employment relationship with the Company and all Affiliates or such other change in your relationship with the Company and all Affiliates that would be considered a “separation from service” under Section 409A of the Code. Your employment relationship will be treated as remaining intact while you are on a military leave, a sick leave or other bona fide leave of absence (pursuant to which there is a reasonable expectation that you will return to perform services for the Company or an Affiliate) but only if the period of such leave does not exceed six (6) months, or if longer, so long as you retain a right to reemployment by the Company or an Affiliate under applicable statute or by contract, provided, however, where your leave is due to any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than six (6) months and such impairment causes you to be unable to perform the duties of your position of employment or any substantially similar position of employment, a twenty-nine (29) month period of absence may be substituted for such six (6) month period of absence. In all cases, the Executive’s Termination of Employment must constitute a “separation from service” under Section 409A of the Code and any “separation under service” under Section 409A of the Code shall be treated as a Termination of Employment.
3.
Change of Control Benefit.
If a Change of Control occurs during your employment relationship with the Company or any Affiliate and the Covered Period, at the time of the occurrence of a Change of Control, you shall be paid an amount equal to a prorated portion of the annual bonus you would have been entitled to receive under the applicable annual bonus plan in effect for the calendar year in which the Change of Control occurs and assuming that all of the performance metrics for the annual bonus plan would be achieved at the target (100%) level, prorated based on the number of months in the year up to and including the month of the occurrence of the Change of Control.
4.
Termination Procedures
. Any purported Termination of Employment by the Company or an Affiliate or you (other than by reason of your death) during the Covered Period shall be communicated by a Notice of Termination in accordance with Section 9 hereof. No purported Termination of Employment by the Company or an Affiliate during the Covered Period shall be effective if it is not pursuant to a Notice of Termination. Failure by you to provide Notice of Termination shall not limit any of your rights under this Agreement except to the extent the Company can demonstrate that it suffered actual damages by reason of such failure.
5.
Qualification for Severance Benefits
. You shall be eligible for severance benefits pursuant to the terms of this Agreement on account of your Termination of Employment if the Date of Termination occurs during the Covered Period in either of the following circumstances:
(i) Termination of Employment by the Company or an Affiliate of your employment with the Company and its Affiliates for any reason other than Cause; or
(ii) Termination of Employment by you for Good Reason within the twenty-four (24) month period following the initial existence of the Good Reason event and, in the event of a Change in Control, only on or after the 120
th
day following the Change in Control;
provided
,
however
, that you shall not begin receiving any severance payments or benefits under this Agreement unless and until you execute a general release of all claims against the Company and its Affiliates, including non-competition and non-solicitation covenants, in the form attached hereto as Exhibit A and you have not rescinded such release within the permitted time period for rescission under Section 3.J therein; and
provided
further
, that in such case, failure to execute such release within 21 days of your Date of Termination shall result in the loss of any rights to receive severance payments or benefits under this Agreement. No severance benefits become payable pursuant to this Agreement in the event of Termination of Employment upon your death or disability.
6.
Compensation Upon Termination.
(i)
Amounts
. Upon qualification for severance benefits pursuant to this Agreement, you shall be entitled to the benefits, to be funded from the general assets of the Company, provided below:
(a) The Company shall pay to you (1) the full base salary earned by you and unpaid through the Date of Termination, at the rate in effect on the date of the Notice of Termination, (2) any amount earned by you as a bonus with respect to the fiscal year of the Company immediately preceding the Date of Termination if such bonus has not theretofore been paid to you, and (3) an amount representing credit for any paid time off earned or accrued by you but not taken during the current “paid time off year”;
(b) In lieu of any further base salary payments to you for periods subsequent to the Date of Termination, the Company shall pay to you:
(I) If the Date of Termination for a Termination of Employment by the Company other than for Cause, or the event giving rise to Termination of Employment by you for Good Reason, occurs prior to a Change of Control (a “Non-Change-of-Control Termination”), the sum of an amount equal to:
(A) the target bonus under the applicable annual bonus plan for the fiscal year in which the Date of Termination occurs (specifically excluding any long-term incentive compensation for which you are eligible);
(B) an amount equal to your annual base salary for the fiscal year in which the Date of Termination occurs (but
disregarding any decrease thereof that constituted “Good Reason”); plus
(C), if (and only if) the required performance metrics under the applicable annual bonus plan for the fiscal year in which the Date of Termination occurs are met, an amount equal to a prorated portion of the annual bonus you would have been entitled to receive as if you had remained employed until the end of the calendar year, prorated based on the number of days in the calendar year up to and including the Date of Termination, payable at the time of the payment under the applicable annual bonus plan for bonuses payable for said year.
or
(II) If the Date of Termination for a Termination of Employment by the Company other than for Cause, or the event giving rise to Termination of Employment by you for Good Reason, occurs after a Change of Control (a “Change-of-Control Termination”):
(A) if the Date of Termination occurs one year or less after the Change of Control, the sum of (i) an amount equal to two (2) times the average of the sum of the actual annual bonuses paid to you for the two years prior to the fiscal year in which the Date of Termination occurs provided that if you are an employee for more than one year and less than two years prior to the fiscal year in which the termination occurs, such amount will be equal to two (2) times the last year’s actual bonus paid, or if you are employed less than one year, such amount shall be equal to two (2) times the target amount for that year as determined by the Compensation Committee (specifically excluding any long-term incentive compensation for which you are eligible) plus (ii) an amount equal to two (2) times your annual base salary for the fiscal year in which the Date of Termination occurs (but disregarding any decrease thereof that constituted “Good Reason”); or
(B) if the Date of Termination occurs more than one year, but within two years, after the Change of Control, an amount equal to one (1) times the average of the sum of the actual annual bonuses paid to you for the two years prior to the fiscal year in which the Date of Termination occurs provided that if you are an employee for more than one year and less than two years prior to the fiscal year in which the termination occurs, such amount will be equal to the last year’s actual bonus paid, or if you are
employed less than one year, such amount shall be equal to the target amount for that year as determined by the Compensation Committee (specifically excluding any long-term incentive compensation for which you are eligible) plus an amount equal to one (1) times your annual base salary for the fiscal year in which the Date of Termination occurs (but disregarding any decrease thereof that constituted “Good Reason”); plus
(C) an amount equal to a prorated portion of the annual bonus you would have been entitled to receive under the applicable annual bonus plan as if you had remained employed until the end of the calendar year and assuming that all of the performance metrics for the annual bonus plan would be achieved at the target (100%) level, prorated based on the number of days in the calendar year up to and including the Date of Termination,
provided however
, no amounts shall be payable under this subsection (C) to the extent that amounts under the same annual bonus plan for the same fiscal year were previously paid under paragraph 3 hereunder.
(c) The Company shall provide you a lump sum payment equal to the aggregate amount of the employer portion of COBRA premiums (and excluding any administration fees) that would be incurred for continuation under the Company’s employee group medical and dental Plan based on coverage and COBRA continuation premiums in effect immediately prior to the Date of Termination, (1) equal to twelve (12) months of continuation coverage following the Date of Termination in the case of a Non-Change-of-Control Termination, or (2) equal to twenty-four (24) months of continuation coverage following the Date of Termination in the case of a Change-of-Control Termination that occurs within two years of the Change-of- Control.
(d) The Company shall provide you with up to $10,000 in outplacement services from the vendor of your choice, payable directly to the vendor, to be used (or forfeited) within three (3) months of the Date of Termination.
(ii)
No Disability or Life Insurance Benefits
. The Company shall not be required to continue to provide disability or life insurance benefits (group or individual) following your Date of Termination other than with respect to benefits to which you became entitled prior to the Date of Termination and which are required to be paid following such Date of Termination in accordance with the terms of applicable disability or life insurance plans or policies in effect prior to such Date of Termination.
(iii)
Time and Form of Cash Payments.
(a) In the case of a Non-Change-of-Control Termination, the cash payments provided for in Section 6(I) above shall be paid by the Company in a single lump sum payment as promptly as practicable after the Date of Termination (but not later than the earlier of 90 days after the Date of Termination or March 15 of the calendar year following the calendar in which the Date of Termination occurred, in either case subject to the provisions of Section 4 of this Agreement relating to execution of a release in the form of Exhibit A and provided you have not rescinded such release within the permitted time period for rescission under Section 3.J thereof). All severance payments are subject to any required withholding.
(b) In the case of a Change-of-Control Termination, the cash payments provided for in Section 6(II) above shall be paid by the Company in a single lump sum payment as promptly as practicable after the Date of Termination (but no later than the earlier of 90 days after the Date of Termination or March 15 of the calendar year following the calendar year in which the Date of Termination occurred, in either case subject to the provisions of Section 4 of this Agreement relating to execution of a release in the Form of Exhibit A and provided you have not rescinded such release within the permitted time period for rescission under Section 3.J thereof). All severance payments are subject to any required withholding.
(iv)
Effect of Reemployment
. If you are re-employed by the Company or an Affiliate after severance payments have been scheduled to be made but before the final severance payment is made, all remaining severance payments shall be forfeited and shall automatically terminate as of the date of re-employment. If you have received severance payments in a single lump sum and are re-employed before the date the final severance payment would have been made if payments had been made at regular payroll intervals in an amount equal to your base salary that you were receiving before your Termination of Employment (plus an amount equal to the pro rata portion of your target bonus), you will be required to refund to the Company: (a) that portion of the lump sum payment representing severance payments you would have received after the date of re-employment minus (b) an amount equal to any taxes paid or payable on such portion of the lump sum payment.
(v)
No Mitigation
. You shall not be required to mitigate the amount of any payment provided for in this Section 6 by seeking other employment or otherwise, nor shall the amount of any payment provided for in this Section 6 be reduced by any compensation earned by you as the result of employment by another employer after the Date of Termination, or otherwise, except as set forth in Section 6(iv) hereof.
(vi)
Six Month Suspension for Specified Key Employees
. Notwithstanding the foregoing, if at the time of your Termination of Employment you are a Specified
Employee, then any payment that the Company reasonably determines is deferred compensation subject to the requirements of Section 409A of the Code and that is payable on account of your Termination of Employment
shall not be paid to you until the first day after the end of the six (6) month period following your Termination of Employment, or, if earlier, upon your death. You are a “Specified Employee” if on the date of your Termination of Employment you are a “key employee” (defined below), and the Company or any entity that owns 50% or more of the Company has stock that is publicly traded on an established securities market within the meaning of such term under Section 409A(a)(2)(B) of the Code. For this purpose, you are a “key employee” during the 12-month period beginning on the April 1 immediately following a calendar year, if at any time during such preceding calendar year you were employed by the Company or any Affiliate and satisfied the requirements of Section 416(i)(1)(A)(i), (ii) or (iii) of the Code (applied in accordance with the regulations issued thereunder and disregarding Section 416(i)(5) of the Code). You will not be treated as a Specified Employee if you are not required to be treated as a Specified Employee under Treasury Regulations issued under Section 409A of the Code.
(i) Anything in this Agreement to the contrary notwithstanding, in the event it shall be determined that any payments or distributions by the Company, any person or entity whose actions result in a Change of Control or any person or entity affiliated with the Company or such person or entity, to or for your benefit (whether paid or payable or distributed or distributable pursuant to the terms of this Agreement, any option agreement, restricted stock award agreement or otherwise (collectively, the “Payments”) would be subject to the excise tax imposed by Section 4999 of the Code or you incur any interest or penalties with respect to such excise tax (such excise tax, together with any such interest and penalties, are hereinafter collectively referred to as the "Excise Tax"), then such Payments received shall be reduced (but not below zero) by the amount, if any, necessary to prevent any part of the Payments from being treated as an “excess parachute payment” within the meaning of Section 280G(b)(1) of the Code. For purposes of the foregoing, (i) no portion of the Payments shall be taken into account which in the opinion of tax counsel selected by the Company and acceptable to you does not constitute a “parachute payment” within the meaning of Section 280G(b)(2) of the Code; (ii) any reduction in payments shall be computed by taking into account that portion of Payments which constitute reasonable compensation within the meaning of Section 280G(b)(4) of the Code in the opinion of such tax counsel; (iii) the value of any non-cash benefit or of any deferred cash payment included in the Payments shall be determined by the Company in accordance with the principles of Section 280G(d)(3)(iv) of the Code; and (iv) in the event of any uncertainty as to whether a reduction in Payments is required pursuant to this paragraph, the Company shall initially make the payment and you shall be required to refund to the Company any amounts ultimately determined not to have been payable under the terms of this paragraph.
(ii) You will be permitted to provide the Company with written notice specifying which of the Payments will be subject to reduction or elimination (the “Reduction Notice”). But, if your exercise of authority pursuant to the Reduction Notice would cause any Payments to become subject to any taxes or penalties pursuant to Section 409A of the Code or if you fail to timely provide the Company with the Reduction Notice, then the Company will reduce or eliminate the Payments in the following order: (i) first, by reducing or eliminating the portion of the Payments that are payable in cash and (ii) second, by reducing or eliminating the non-cash portion of the Payments, in each case, in reverse chronological order beginning with payments or benefits under the most recently dated agreement, arrangement or award, but in all events such chronology shall be applied in such a manner so as to produce the least amount of reduction necessary. Any Reduction Notice will take precedence over the provisions of any other plan, arrangement or agreement governing your rights and entitlements to any benefits or compensation.
(iii) If any Payments are subject to the Excise Tax, the Company shall withhold the amount of such Excise Tax to the extent required by law, but shall not be obligated to you, directly or indirectly, for the amount of the Excise Tax.
8.
Section 409A of the Code
. The parties intend that payments under this Agreement be exempt from or otherwise comply with the requirements of Section 409A of the Code (including current and future guidance issued by the Department of Treasury or Internal Revenue Service).
9.
Successors
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(i) This Agreement shall inure to the benefit of and be binding upon the Company and its successors and assigns.
(ii) This Agreement shall inure to the benefit of and be enforceable by your personal or legal representatives, executors, administrators, successors, heirs, distributees, devisees, and legatees. If you should die while any amount would still be payable to you hereunder if you had continued to live, all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement, to your devisee, legatee or other designee or, if there is no such designee, to your estate or, if no estate, in accordance with applicable law.
(iii) The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company), by agreement in form and substance satisfactory to you, to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. Failure of the Company to obtain such agreement prior to the effectiveness of any such succession shall be a breach of this Agreement and shall entitle you to compensation from the Company in the same amount and on the same terms as you
would be entitled hereunder if you terminated your employment for Good Reason, except that for purposes of implementing the foregoing, the date on which any such succession becomes effective shall be deemed the Date of Termination. As used in this Agreement, “Company” shall mean the Company and any successor to its business and/or assets which executes and delivers the agreement provided for in this Section 8 or which otherwise becomes bound by all the terms and provisions of this Agreement by operation of law.
10.
Notice
. All notices, requests, demands and all other communications required or permitted by either party to the other party by this Agreement (including, without limitation, any Notice of Termination) shall be in writing and shall be deemed to have been duly given when delivered personally or received by certified or registered mail, return receipt requested, postage prepaid, at the address of the other party as follows:
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If to the Company:
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Imation Corp.
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Attention: General Counsel
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One Imation Way
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Oakdale, Minnesota 55128
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If to you:
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Either party to this Agreement may change its address for purposes of this Section 9 by giving fifteen (15) days’ prior written notice to the other party hereto.
11.
Miscellaneous
. No provision of this Agreement may be modified, waived or discharged unless such waiver, modification or discharge is agreed to in writing and signed by you and the Company. The validity, interpretation, construction, and performance of this Agreement shall be governed by the laws of the State of Minnesota without regard to its conflicts of law principles.
12.
Effect of Agreement; Entire Agreement
. This agreement supersedes any and all other oral or written agreements or policies made relating to the subject matter hereof and constitutes the entire agreement of the parties relating to the subject matter hereof.
13.
Validity
. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
14.
Counterparts
. This Agreement may be executed in several counterparts, each of which shall be deemed to be an original but all of which together will constitute one and the same instrument.
15.
Employment
. This Agreement does not constitute a contract of employment or impose on the Company or any subsidiaries of the Company any obligation to retain you as an employee, to continue your current employment status or to change any employment policies of the Company or any subsidiary of the Company, including but not limited to the Company’s Employee Agreement.
If this letter sets forth our agreement on the subject matter hereof, please sign and return to the Company the enclosed copy of this letter which will then constitute our agreement on this subject.
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IMATION CORP.:
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By:
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Name:
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Its:
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EXECUTIVE:
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EXHIBIT A
CONFIDENTIAL GENERAL RELEASE OF ALL CLAIMS
This Confidential General Release of All Claims ("Agreement") is made and entered into between
_________________________,
("Employee") and Imation Corp. ("Imation").
EMPLOYEE UNDERSTANDS THAT EMPLOYEE MAY CONSIDER THIS AGREEMENT FOR AT LEAST TWENTY-ONE (21) DAYS AFTER EMPLOYEE HAS RECEIVED THIS AGREEMENT, WHICH WAS ON
, UNLESS EMPLOYEE CHOOSES TO WAIVE THAT RIGHT BY EXECUTING THE AGREEMENT WITHIN THE TWENTY-ONE (21) DAY PERIOD.
1.
What Imation Agrees To Do
In return for this Agreement and for Employee's termination from Imation as described herein and in full and final settlement, compromise, and release of all of Employee's employment-related claims (as described in section 2 below), Imation agrees to pay Employee in accordance with the terms set forth in the Amended and Restated Severance Agreement.
2.
What Employee Agrees To Do
As a condition to receiving the payments and benefits set forth in Section 1, Employee agrees as follows:
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A)
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Employee must return all Imation property currently in Employee's possession, including, but not limited to, all notes, memoranda, correspondence, files, notebooks, technical charts or diagrams, customer lists or information, sales and marketing information, computer recorded information, software, equipment, materials, keys and credit cards. Employee acknowledges that this obligation is continuing and agrees to promptly return to Imation any subsequently discovered property as described above.
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B)
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Employee also agrees to repay to Imation the amount of any permanent or temporary advances or other monies due and owing Imation, and to pay off the remaining balance on his/her corporate credit cards. If Employee fails to make such payments as of the date he/she signs this Agreement, Employee agrees that Imation may deduct any monies owed from the Agreement payments, if no other written arrangements are made for repayment by the date this Agreement is signed.
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C)
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Employee hereby irrevocably and unconditionally releases and forever discharges Imation from any and all federal, state or local charges, claims, controversies, causes of action, damages, costs, attorneys' fees, or liabilities of any nature, both past and present, known and unknown, including but not limited to claims arising under federal, state, local, and common laws and under any regulations of any jurisdiction that in any way relate to employment and termination of employment existing at any time up to and including the date of this Agreement, that Employee now may have or ever have had.
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This Agreement specifically includes, but is not limited to, ANY CLAIMS UNDER THE AGE DISCRIMINATION IN EMPLOYMENT ACT of 1967, THE OLDER WORKERS BENEFIT PROTECTION ACT OF 1990, Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, any state or local human rights act, claims for wrongful termination, breach of contract, and tort claims (for example, defamation, emotional distress or any tort or negligence-based claim). Employee expressly acknowledges that this Agreement also is intended to include in its scope, without limitation, all claims that Employee does not know of or expect to exist in Employee's favor at the time Employee signs this Agreement and that this Agreement contemplates the extinguishment of any such claim or claims that in any way relate to employment or termination of employment except as expressly provided in this Section. THE EMPLOYEE IS NOT WAIVING ANY RIGHTS FOR EVENTS ARISING AFTER THE DATE OF THIS AGREEMENT.
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D)
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Employee agrees that, for a period of two years after termination of employment with Imation:
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i
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Employee will inform any new employer, prior to accepting employment, of the existence of this provision of the Confidential General Release and provide such employer with a copy thereof.
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ii.
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Employee agrees not to directly or indirectly, render services to any Conflicting Organization in the United States or in any country in which Imation has a plant for manufacturing a product upon which Employee worked during employment by Imation, except that Employee may accept employment with a large Conflicting Organization whose business is diversified (and which has separate and distinct divisions), and which as to part of its business is not a Conflicting Organization, provided Imation, prior to Employee accepting such employment, shall receive separate written assurances satisfactory to Imation from such Conflicting Organization and from Employee that Employee will not render services directly or indirectly in connection with the development, manufacture, marketing, sale, merchandising, leasing, servicing or promotion of any Conflicting Product.
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"Conflicting Product" means any product, process, system or service of any person or organization other than Imation, in existence or under development, which is the same as or similar to or competes with, or has a usage allied to, a product, process, system or service upon which Employee worked during the last three years of Employee's employment by Imation.
"Conflicting Organization" means any person or organization which is engaged in or about to become engaged in, research on or development, production, marketing, leasing, selling or services of a Conflicting Product.
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E)
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Employee also agrees that following Employee's termination from Imation, Employee will not make disparaging remarks about Imation and will not interfere with Imation's business relationships with its customers, vendors, or distributors.
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F)
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Employee further agrees that Employee will not solicit Imation employees, either on behalf of Employee or any third party, to resign from Imation to work for Employee or any third party.
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G)
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As further consideration for this Agreement, Employee agrees that if requested by Imation, Employee will make himself/herself available at reasonable times to assist and cooperate with Imation in the litigation of any lawsuits or claims, and agrees to be available to Imation to testify honestly with regard to such lawsuits or claims if Employee is determined by Imation to be a material witness. Similarly, Employee agrees that he/she will decline to voluntarily aid, assist, or cooperate with any parties who are involved in claims or lawsuits by or against Imation, or with their attorneys or agents; and will notify Imation when and if the Employee is contacted by other parties or their attorneys or agents involving claims or lawsuits by or against Imation. It is understood and intended that nothing in this paragraph shall prevent Employee from honestly testifying at a legal proceeding in response to a lawful and properly served subpoena in a proceeding involving Imation.
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H)
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Employee agrees that Imation shall be entitled to injunctive and other equitable relief to prevent a breach or threatened breach of the provisions of this Agreement, without the necessity of proving actual damages. Such injunctive relief shall be in addition to any other damages that may be available at law. Employee also acknowledges that if Imation is required to bring an action to enforce its rights under this Agreement, it shall be entitled to recover its attorney's fees and costs associated with such an action, if Imation prevails.
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3.
Other Understandings, Agreements, and Representations
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A)
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Employee agrees that Employee's Imation employment will terminate effective ____________________. Employee further understands and agrees that Employee will not be eligible for and will not receive consideration, severance pay or benefits under any other group Income Assistance Pay Plan for which Employee might otherwise have been eligible.
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B)
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Employee understands that the term Imation, as used in this Agreement, includes: (1) its past, present, and future divisions, subsidiaries, affiliates successors and assigns, and their officers, directors, employees, agents, insurers and legal counsel; (2) any ERISA employee benefit plan sponsored by Imation, acting as plan administrator, fiduciary or party in interest with respect to such plan. Employee agrees that this Agreement binds Employee and also binds Employee's heirs, executors, administrators, assigns, agents, partners and successors in interest.
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C)
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Employee agrees that this Agreement and the payment of money and benefits to Employee by Imation is not an admission by Imation of any violation of Employee's rights or of any statutory or other legal obligation.
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D)
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Employee represents that no right, claim, or cause of action covered by this Agreement has been assigned or given to someone else.
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E)
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Employee represents that, except as provided in Section 5(iv) of the Amended and Restated Severance Agreement, Employee will not apply for or accept employment with Imation in any capacity.
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F)
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Except as set forth in Section 2.D.i Employee represents that Employee will keep the terms of this Agreement strictly confidential, except that Employee may tell Employee's spouse or domestic partner, legal counsel and tax advisor. In the event Employee chooses to communicate any information about the existence of the Agreement or any of its terms to Employee's spouse or domestic partner, legal counsel and/or accountant or investment advisor, Employee shall instruct such persons that information about the existence of the Agreement and its terms are confidential and that the spouse or domestic partner, legal counsel or accountant is not to disclose, disseminate or publicize, or cause or permit to be disclosed, disseminated or publicized, the information to any other party, entity, person (including any current or former employee of Imation), company, government agency, publication judicial authority. Employee may also disclose information regarding the Agreement (1) to the extent necessary to report the sum awarded to appropriate taxing authorities or (2) in response to any subpoena issued by a state or federal governmental agency or court of competent jurisdiction; provided, however, that notice of receipt of such order or subpoena shall be promptly communicated to Imation by telephone and in writing to General Counsel, Imation Legal Affairs, 1 Imation Way, Oakdale, Minnesota 55128, telephone (651) 704-5516 so that Imation shall have an opportunity to intervene and assert what rights it has to nondisclosure prior to any response to such order or subpoena. Any court reviewing a subpoena should be aware that part of the consideration for the Agreement is the agreement of Employee not to testify regarding the existence of the Agreement or any of its terms.
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G)
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This Agreement and the Amended and Restated Severance Agreement contain the entire understanding between Employee and Imation and supersedes all prior agreements and understandings relating to the subject matter of this Agreement. This Agreement shall not be modified, amended, or terminated except as provided in section 3.J. unless such modification, amendment, or termination is executed in writing by Employee and Imation.
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H)
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Employee agrees that Imation may use this Agreement to secure withdrawal of any federal, state, or local charge Employee might have filed or will file, that Employee will sign any document necessary to obtain the withdrawal of any such charge, and that
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Employee waives the right to receive monetary damages or other legal or equitable relief awarded by any governmental agency related to any such charge.
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I)
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Employee represents and certifies that Employee has twenty-one (21) days to consider whether to accept this Agreement and enter into this Release; review it before being asked to sign it; has read this Agreement carefully; has been given a fair opportunity to discuss and negotiate the terms of this Agreement; understands its provisions; has been advised to consult an attorney; has determined that it is in Employee's best interest to enter into this Agreement; has not been influenced to sign this Agreement by any statement or representation by Imation not contained in this Agreement; and enters into this Agreement knowingly and voluntarily. If Employee chooses to sign this Agreement before twenty-one (21) days have passed, Employee understands that it is their decision to execute the Agreement early and that Imation has made the full twenty-one (21) day period available for Employee to consider the Agreement.
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J)
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Employee understands that pursuant to the provisions of Minnesota Statutes ' 363.031, subd. 2, Employee may rescind this Agreement by notifying Imation of Employee's desire to do so in a writing delivered to Imation personally or by certified mail, return receipt requested, within fifteen (15) calendar days of Employee's execution of this Agreement. To be effective, such notice of rescission, if mailed, must be postmarked within the fifteen (15) day period and addressed as follows:
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Imation Corp.
Attn: General Counsel
1 Imation Way
Oakdale, MN 55128
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K)
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In case any part of this Agreement is held invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected in any way, it being intended that the provisions of this Agreement are severable, EXCEPT THAT, if paragraph 2 of this Agreement is held invalid, illegal, or unenforceable, this Agreement is voidable, and, if Employee seeks to void this Agreement, Employee understands and agrees that Employee will repay the total amount of consideration paid to Employee under this Agreement.
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L)
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Any dispute arising between Employee and Imation under this Agreement will be submitted to final and binding arbitration in accordance with the rules of the American Arbitration Association before an arbitrator mutually selected by the parties. In the event that the parties cannot agree on an arbitrator, the parties agree to submit the dispute before an arbitrator selected by the Chief Judge of Ramsey County Court. The Arbitration shall be conducted in St. Paul, Minnesota and shall be final and binding on both parties. The expenses of the neutral arbitrator(s) and any court reporter shall be equally divided between Employee and Imation.
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M)
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The agreement will be governed by and construed and interpreted according to the laws of the State of Minnesota.
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N)
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Nothing in this Agreement shall be deemed to terminate or reduce in any way any right Employee might have to indemnification from Imation under the provisions of the Delaware General Corporation Law and Imation’s Restated Certificate of Incorporation and Bylaws, each as in effect on the date of employment termination, for acts, omissions or events that occurred or are alleged to have occurred prior to the date of termination of employment.
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ACCEPTED AND AGREED:
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IMATION CORP.
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By:
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By:
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Date:
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Date:
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WAIVER OF
CONSIDERATION PERIOD
I understand that under the law I have 21 days to consider the Confidential General Release of All Claims. I knowingly and voluntarily waive this consideration period. The 15 day rescission period to revoke the acceptance of the Confidential General Release of All Claims remains in effect.
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Print Name
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Signature
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Date
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Exhibit 10.2
Executive Officers
Imation Corp. 2011 Stock Incentive Plan
Performance-Based Restricted Stock Award Agreement
This PERFORMANCE-BASED RESTRICTED STOCK AWARD AGREEMENT (the “Agreement”) effective as of
«GrantDt»
is between Imation Corp., a Delaware corporation (the “Company”), and ,
«Name»
an employee of the Company or one of its Affiliates (the “Participant”), pursuant to and subject to the terms and conditions of the Imation Corp. 2011 Stock Incentive Plan (the “Plan”).
The Company desires to award to the Participant a number of shares of the Company’s common stock, par value $.01 per share (the “Common Stock”), subject to certain restrictions as provided in this Agreement, in order to carry out the purpose of the Plan. The purpose of this Agreement is to evidence the terms and conditions of an award of performance-based restricted stock granted to the Participant under the Plan.
Accordingly, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Participant hereby agree as follows:
Section 1.
Award of Performance-Based Restricted Stock
. Effective
«GrantDt»
(the “Effective Date”), the Company granted to the Participant a restricted stock award of
«GrantDt»(«GrantDt»)
shares of Common Stock (the “Shares”), subject to the terms and conditions set forth in this Agreement and in accordance with the terms of the Plan (the “Restricted Stock Award”).
Section 2.
Rights with Respect to the Shares
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(a)
Stockholder Rights
. With respect to the Shares, the Participant shall be entitled at all times on and after the date of issuance of the Shares to exercise the rights of a stockholder of Common Stock of the Company, including the right to vote the Shares and the right to receive dividends on the Shares as provided in Section 2(b) hereof, unless and until the Shares are forfeited pursuant to Section 3 hereof. However, the Shares shall be nontransferable and subject to a risk of forfeiture to the Company at all times prior to the dates on which such Shares become vested, and the restrictions with respect to the Shares lapse, in accordance with Section 3 of this Agreement.
(b)
Dividends
. As a condition to receiving the Shares under the Plan, the Participant hereby agrees to defer the receipt of dividends paid on the Shares. Cash dividends or other cash distributions paid with respect to the Shares prior to the date or dates the Shares vest shall be subject to the same restrictions, terms and conditions as the Shares to which they relate, shall be promptly deposited with the Secretary of the Company or a custodian designated by the Secretary, and shall be forfeited in the event that the Shares with respect to which the dividends were paid are forfeited.
(c)
Issuance of Shares
. The Company shall cause the Shares to be issued in the Participant’s name or in a nominee name on the Participant’s behalf, either by book-entry registration or issuance of a stock certificate or certificates evidencing the Shares, which certificate or certificates shall be held by the Secretary of the Company or the stock transfer agent or brokerage service selected by the Secretary of the Company to provide such services for the Plan. The Shares shall be restricted from transfer and shall be subject to an appropriate stop-transfer order. If any certificate is issued, the certificate shall bear an appropriate legend referring
to the restrictions applicable to the Shares. The Participant hereby agrees to the retention by the Company of the Shares and, if a stock certificate is issued, the Participant agrees to execute and deliver to the Company a blank stock power with respect to the Shares as a condition to the receipt of this Restricted Stock Award. After any Shares vest pursuant to Section 3 hereof, and following payment of the applicable withholding taxes pursuant to Section 6 of this Agreement, the Company shall promptly cause to be issued a certificate or certificates, registered in the Participant’s name, evidencing such vested whole Shares (less any Shares withheld to pay withholding taxes) and shall cause such certificate or certificates to be delivered to the Participant free of the legend and the stop-transfer order referenced above. The Company will not deliver any fractional Share but will pay, in lieu thereof, the Fair Market Value of such fractional Share at the time certificates evidencing the Shares are delivered to the Participant.
Section 3.
Vesting; Forfeiture
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(a)
Vesting
. Subject to the terms and conditions of this Agreement, and except as otherwise provided in Section 3(c) hereof, the Shares shall vest, and the restrictions with respect to the Shares shall lapse, in accordance with the performance criteria and vesting schedule set forth on Exhibit A if the Participant remains continuously employed by the Company or an Affiliate of the Company until such respective vesting dates. The Committee shall validate whether the performance criteria described in Exhibit A were achieved. Such validation shall be made at a meeting of the Committee next following the end of the performance period, shall be based on the Company’s audited financial statements and shall be final and conclusive with respect to the achievement of the performance criteria.
(b)
Forfeiture
. Except as otherwise provided in Section 3(c) hereof, if the Participant ceases to be employed by the Company and all Affiliates 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 in Control; Job Elimination; Death; or Disability
. 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:
(i) in the event of a Change in Control, with respect to the portion of the Shares that have not previously vested or been forfeited, the right to receive the Shares hereunder shall be converted to a right to receive an amount equal to the cash value of the Shares (based on the cash value of a Share at the time of the Change in Control) and the the Participant shall be vested in a portion of the cash value of the Shares assuming that the performance goal for the year of the Change in Control would be achieved at the target (100%) level, as set forth in Exhibit A, prorated based on the number of calendar days in the year up to and including the date of Change in Control. Participant shall also be entitled to payment for Performance Periods completed based on the actual level of achievement, to the extent such amounts had not been previously paid prior to termination. Payments shall occur as of the date of the Change in Control. Participant shall not be entitled to any other payments under this Performance Award for Performance Periods ending after the year of Change in Control, unless the Participant’s employment with the Company is involuntarily terminated (other than Termination for
Cause) within twelve (12) months after a Change in Control or the Participant terminates employment for Good Reason only on or after the 120th day following the Change in Control and within twelve (12) months after a Change in Control, in which case, the Participant shall be entitled to receive an additional payment as if the entire Performance Award was achieved at the target (100%) level, as set forth in Exhibit A, as of the date of the Change in Control (regardless of actual performance or whether the performance metrics continue to be measured after the Change in Control), less any amounts paid to Participant as of the date of the Change of Control as set forth above. Such payment shall be made promptly after the date of such termination, but in no event later than thirty (30) calendar days following such event.
(ii) in the event the Company or an Affiliate terminates the Participant’s employment with the Company (other than Termination for Cause or after a Change in Control), the Participant terminates employment for Good Reason (other than after a Change in Control) or a Participant dies or is deemed to have suffered a Disability, then the Participant shall be vested in a portion of the Shares assuming that the performance goal for the year of termination, death or Disability would be achieved at the target (100%) level, as set forth in Exhibit A, prorated based on the number of calendar days in the year up to and including the date of the Participant’s termination, death or Disability. Participant shall also be entitled to the Shares for Performance Periods completed based on the actual level of achievement, to the extent such amounts had not been previously vested prior to termination. Vesting shall occur as of the date of termination, death or Disability. Participant shall not be entitled to any other payments under this Performance Award for Performance Periods ending after the year of termination.
(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.
(e)
Clawback
. In the event that after the grant of the Restricted Stock Award but prior to a Change in Control (1) the Company issues a material restatement of an initial financial statement, and (2) the Participant engaged in intentional misconduct that caused or contributed to the need for such a restatement because of material noncompliance by the Company with applicable financial reporting requirements (a “Forfeiture Event”), the Participant, at the request of the Committee made within 90 days after the restatement, shall forfeit those Shares, if any, owned by the Participant at the time of the initial financial statement that is subsequently restated, regardless of whether those Shares are subject to restrictions at such time or whether the restrictions on such Shares shall have lapsed (the “Forfeitable Shares”). In addition, if a Forfeiture Event occurs, the Participant, at the Committee’s request (which request must be made within 90 days after the restatement), shall forfeit all dividends deferred pursuant to Section 2(b) with respect to the Forfeitable Shares that then remain subject to restrictions prior to the Committee’s request and promptly remit to the Company cash equal to the Net Dividends (as hereinafter defined) received by the Participant at any time on the Forfeitable Shares. If the Forfeitable Shares are not owned by the Participant at the time of the Committee’s request, the Participant shall promptly remit to the Company the “Net Proceeds” (as hereinafter defined) from any sale, after the issuance of an initial financial statement that is subsequently restated, of
Forfeitable Shares in lieu of the Forfeitable Shares. “Net Dividends” or “Net Proceeds” shall mean dividends or proceeds, as the case may be net of taxes paid or payable by the Participant as a result of the receipt of such dividends and the sale of such Shares in an amount reasonably determined by the Committee but including interest on the amount of cash repaid from the date of the receipt by Participant of such dividends or sale proceeds to the date of payment of such amount to the Company at a rate reasonably determined by the Committee. The Committee may, but shall not be required by Participant to, reduce the forfeiture, return and/or payment obligations hereunder to the extent that the Committee, in its sole and absolute discretion, shall deem appropriate. Nothing herein shall limit any other rights the Company shall have by law for misconduct of the Participant that caused or contributed to the need for such restatement.
Section 4.
Restrictions on Transfer
. Until the Shares vest pursuant to Section 3 hereof, neither the Shares, nor any right with respect to the Shares under this Agreement, may be sold, assigned, transferred, pledged, hypothecated (by operation of law or otherwise) or otherwise conveyed or encumbered and shall not be subject to execution, attachment or similar process. Any attempted sale, assignment, transfer, pledge, hypothecation or other conveyance or encumbrance shall be void and unenforceable against the Company or any Affiliate of the Company.
Section 5.
Distributions and Adjustments
.
(a) If any Shares vest subsequent to any change in the number or character of the Common Stock of the Company through any stock dividend or other distribution, recapitalization, stock split, reverse stock split, reorganization, merger, consolidation, split-up, spin-off, combination, repurchase or exchange of shares or other securities of the Company, issuance of warrants or other rights to purchase shares of Common Stock or other securities of the Company or other similar corporate transaction or event such that an adjustment is necessary in order to prevent dilution or enlargement of the benefits or potential benefits intended to be made available under this Agreement, then the Committee shall, in such manner as it may deem equitable, adjust any or all of the number and type of such Shares.
(b) Any additional shares of Common Stock of the Company, any other securities of the Company and any other property distributed with respect to the Shares prior to the date or dates the Shares vest shall be subject to the same restrictions, terms and conditions as the Shares to which they relate and shall be promptly deposited with the Secretary of the Company or a custodian designated by the Secretary.
Section 6.
Taxes
.
(a) The Participant acknowledges that the Participant will consult with the Participant’s personal tax adviser regarding the income tax consequences of the grant of the Shares, payment of dividends on the Shares, the vesting of the Shares and any other matters related to this Agreement. In order to comply with all applicable federal, state, local or foreign income tax laws or regulations, the Company may take such action as it deems appropriate to ensure that all applicable federal, state, local or foreign payroll, withholding, income or other taxes, which are the Participant’s sole and absolute responsibility, are withheld or collected from the Participant.
(b) In accordance with the terms of the Plan, and such rules as may be adopted by the Committee administering the Plan, the Participant may elect to satisfy tax withholding obligations arising from the receipt of, or the lapse of restrictions relating to, the Shares by (i) delivering cash, check, bank draft, money order or wire transfer payable to the order of the Company, (ii) having the Company withhold a portion of the Shares otherwise to be delivered having a Fair Market Value equal to the amount of such taxes, or (iii) delivering to the Company shares of Common Stock having a Fair Market Value equal to the amount of such taxes. The Company will not deliver any fractional Share but will pay, in lieu thereof, the Fair Market Value of such fractional Share. The Participant’s election must be made on or before the date that the amount of tax to be withheld is determined. If the Participant does not make an election, the Company will withhold a portion of the Shares otherwise to be delivered having a Fair Market Value equal to the amount of such taxes.
Section 7.
Definitions
. Terms not defined in this Agreement shall have the meanings given to them in the Plan, and the following terms shall have the following meanings when used in this Agreement:
(a) “Change in 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 an Affiliate of the Company, or any employee benefit plan of the Company or an Affiliate 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, 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 Affiliates) 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.
(b) “Disability” shall be as defined under the Imation Corp. Long Term Disability Income Protection Plan.
(c) “Termination for Cause” means termination of Participant’s employment with the Company or an Affiliate for the following acts: (a) your gross incompetence or substantial failure to perform your duties; or (b) misconduct by you that causes or is likely to cause harm to the Company or an Affiliate or that causes or is likely to cause harm to the Company’s or an Affiliate’s reputation, as determined by the Company’s or Affiliate’s Board of Directors in its sole and absolute discretion (such misconduct may include, without limitation, insobriety at the workplace during working hours or the use of illegal drugs); or (c) failure to follow directions of the Company’s or Affiliate’s Board of Directors that are consistent with your duties; or (d) your conviction of, or entry of a pleading of guilty or nolo contendere to, any crime involving moral turpitude, or the entry of an order duly issued by any federal or state regulatory agency having jurisdiction in the matter permanently prohibiting you from participating in the conduct of the affairs of the Company or an Affiliate.; or (e) commission of any act of dishonesty, theft, fraud, embezzlement, misappropriation or illegal conduct which is, in each case, materially injurious to the Company or its affiliates, regardless of whether an indictment, criminal conviction or plea of no contest occurs; or (f) violation of any applicable laws, rules or regulations or failure to comply with applicable confidentiality, non-disparagement, non-
solicitation and non-competition obligations to the Company, corporate code of business conduct or other material policies of the Company in connection with or during performance of the Executive’s duties to the Company that could, in the Board’s opinion, cause material injury to the Company, which violation, if curable, is not cured within thirty (30) days after notice thereof to the Executive.
(d) “Good Reason” shall mean the occurrence of any of the following events, except for occurrence of such an event in connection with the termination of your employment or reassignment by the Company or an Affiliate for Cause, for disability or for death, provided you have given the Company written notice within ninety (90) days of the initial existence of the Good Reason event and the Company has not cured such event within thirty (30) days of the receipt of such notice: (a) a material diminution, either prior to or following a Change of Control, of your authority, duties or responsibilities from your authority, duties or responsibilities as of the date of this Agreement; or (b) a material diminution, either prior to or following a Change of Control, in your base compensation (specifically excluding any long-term incentive compensation for which you are eligible), excluding any reduction caused by a restructuring by management of benefits for the employees of the company as a whole that affects you in a manner comparable to other senior executives of the Company; or (c) a material change in the geographic location at which you perform your services following a Change of Control (but in no event including a relocation that does not increase the actual distance required for you to commute from your home to the new place of business by more than 50 miles).
Section 8.
Governing Law
. The internal law, and not the law of conflicts, of the State of Delaware will govern all questions concerning the validity, construction and effect of this Agreement.
Section 9.
Plan Provisions
. This Agreement is made under and subject to the provisions of the Plan, and all of the provisions of the Plan are also provisions of this Agreement. If there is a difference or conflict between the provisions of this Agreement and the provisions of the Plan, the provisions of the Plan will govern. By signing this Agreement, the Participant confirms that the Participant has received a copy of the Plan and represents that the Participant is familiar with the terms and provisions thereof, and hereby accepts this Restricted Stock Award subject to all the terms and provisions of the Plan. ‘
Section 10.
No Rights to Continue Service or Employment
. Nothing herein shall be construed as giving the Participant the right to continue in the employ or to provide services to the Company or any Affiliate, whether as an employee or as a consultant or otherwise, or interfere with or restrict in any way the right of the Company or any Affiliate to discharge the Participant, whether as an employee or consultant or otherwise, at any time, with or without cause. In addition, the Company or any Affiliate may discharge the Participant free from any liability or claim under this Agreement, unless otherwise expressly provided herein.
Section 11.
Entire Agreement
. (i) This Agreement together with the Plan supersede any and all other prior understandings and agreements, either oral or in writing, between the parties with respect to the subject matter hereof and constitute the sole and only agreements between the parties with respect to said subject matter; (ii) all prior negotiations and agreements between the parties with respect to the subject matter hereof are merged into this Agreement; and (iii) each party to this Agreement acknowledges that no representations, inducements, promises
or agreements, orally or otherwise, have been made by any party or by anyone acting on behalf of any party, which are not embodied in this Agreement or the Plan and that any agreement, statement or promise that is not contained in this Agreement or the Plan shall not be valid or binding or of any force or effect.
Section 12.
Modification
. No change or modification of this Agreement shall be valid or binding upon the parties unless the change or modification is in writing and signed by the parties. Notwithstanding the preceding sentence, the Plan, this Agreement and the Restricted Stock Award may be amended, altered, suspended, discontinued or terminated to the extent permitted by the Plan.
Section 13.
Shares Subject to Agreement
. The Shares shall be subject to the terms and conditions of this Agreement. Except as otherwise provided in Section 5, no adjustment shall be made for dividends or other rights for which the record date is prior to the issuance of the Shares. The Company shall not be required to deliver any Shares until the requirements of any federal or state securities or other laws, rules or regulations (including the rules of any securities exchange) as may be determined by the Committee to be applicable are satisfied. \
Section 14.
Severability
. In the event that any provision that is contained in the Plan or this Agreement is or becomes or is deemed to be invalid, illegal or unenforceable in any jurisdiction or would disqualify the Plan or this Agreement for any reason and under any law as deemed applicable by the Committee, the invalid, illegal or unenforceable provision shall be construed or deemed amended to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the determination of the Committee, materially altering the purpose or intent of the Plan or this Agreement, such provision shall be stricken as to such jurisdiction or Shares, and the remainder of the Plan or this Agreement shall remain in full force and effect.
Section 15.
Headings
. Headings are given to the sections and subsections of this Agreement solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of this Agreement or any provision hereof.
Section 16.
Participant’s Acknowledgments
. The Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee or the Board of Directors of the Company, as appropriate, upon any questions arising under the Plan or this Agreement. Any determination in this connection by the Company, including the Board of Directors of the Company or the Committee, shall be final, binding and conclusive. The obligations of the Company and the rights of the Participant are subject to all applicable laws, rules and regulations.
Section 17.
Parties Bound
. The terms, provisions and agreements that are contained in this Agreement 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 herein. This Agreement shall have no force or effect unless it is duly executed and delivered by the Company and the Participant or until such Agreement is delivered and accepted through any electronic medium in accordance with procedures established by the Company.
The Company has caused this Agreement to be signed (which may be by electronic signature) and delivered and the Participant has caused this Agreement to be accepted (which may be by electronic acceptance) as of the date set forth above.
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IMATION CORP.
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By:
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Name:
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Title:
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Participant
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Exhibit A
Description of performance criteria and vesting schedule
Exhibit 10.3
Executive Officers
Imation Corp. 2011 Stock Incentive Plan
Performance Award Agreement
This PERFORMANCE AWARD AGREEMENT (the “Agreement”) effective as of
«GrantDt»
is between Imation Corp., a Delaware corporation (the “Company”), and
«Name»
, an employee of the Company or one of its Affiliates (the “Participant”), pursuant to and subject to the terms and conditions of the Imation Corp. 2011 Stock Incentive Plan (the “Plan”).
For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company and the Participant hereby agree as follows:
Section 1.
Performance Award
. Effective
«GrantDt»
(the “Effective Date”), the Company granted to the Participant a performance award with the specific terms set forth on Exhibit A hereto and subject to the terms and conditions set forth in this Agreement and the Plan (the “Performance Award”).
Section 2.
Payment; Forfeiture
.
(a)
Payment
. Subject to the terms and conditions of this Agreement, and except as otherwise provided in Section 2(c) hereof, the amount to be paid to the Participant pursuant to this Performance Award, if any, shall be determined as set forth on Exhibit A if the Participant remains continuously employed by the Company or an Affiliate of the Company from the Effective Date until the end of each of the performance periods set forth on Exhibit A (the “Performance Periods”). The Committee shall validate whether the performance criteria described in Exhibit A were achieved. Such validation shall be made at a meeting of the Committee next following the end of each Performance Period, shall be based on the Company’s audited financial statements and shall be final and conclusive with respect to the achievement of the performance criteria. Any payment of this Performance Award shall be made within a reasonable time following the validation of the payout by the Committee, but in no event later than seventy-four (74) calendar days following the end of each Performance Period, subject to the payment of applicable withholding taxes pursuant to Section 5 hereof.
(b)
Forfeiture
. Except as otherwise provided in Section 2(c) hereof, if the Participant ceases to be employed by the Company and all Affiliates of the Company for any reason prior to the end of any Performance Period, this Performance Award shall be immediately and irrevocably forfeited.
(c)
Change in Control; Job Elimination; Death Disability
. Notwithstanding the payment and forfeiture provisions contained in Sections 2(a) and 2(b) hereof, but subject to the other terms and conditions set forth in this Agreement:
(i) in the event of a Change in Control, with respect to the portion of this Performance Award that has not previously vested or been forfeited, then the Participant shall be entitled to receive a payment for a portion of this Performance Award assuming that the performance goal for the year of the Change in Control would be achieved at the target (100%) level, as set forth in Exhibit A, prorated based on the number of calendar days in the year up to and including the date of the Change in Control. Participant shall also be entitled to payment for Performance Periods completed based on the actual level of achievement, to the
extent such amounts had not been previously paid prior to termination. Such payments shall be made as of the Change in Control. Participant shall not be entitled to any other payments under this Performance Award for Performance Periods ending after the year of Change in Control unless the Participant’s employment with the Company is involuntarily terminated (other than Termination for Cause) within twelve (12) months after a Change in Control or the Participant terminates employment for Good Reason only on or after the 120th day following the Change in Control and within twelve (12) months after a Change in Control, in which case, the Participant shall be entitled to receive an additional payment as if the entire Performance Award was achieved at the target (100%) level, as set forth in Exhibit A, as of the date of the Change in Control (regardless of actual performance or whether the performance metrics continue to be measured after the Change in Control), less any amounts paid to Participant as of the date of the Change of Control as set forth above. Such payment shall be made promptly after the date of such termination, but in no event later than thirty (30) calendar days following such event.
(ii) In addition, if the Company or an Affiliate terminates the Participant’s employment with the Company (other than Termination for Cause or after a Change in Control), the Participant terminates employment for Good Reason (other than after a Change in Control) or a Participant’s employment is terminated as a result of death or is deemed to have suffered a Disability, then the Participant shall be entitled to receive a payment for a portion of this Performance Award assuming that the performance goal for the year of termination, death or Disability would be achieved at the target (100%) level, as set forth in Exhibit A, prorated based on the number of calendar days in the year up to and including the date of the Participant’s termination, death or Disability. Participant shall also be entitled to payment for Performance Periods completed based on the actual level of achievement, to the extent such amounts had not been previously paid prior to termination. Such payments shall be made promptly after the date of such termination, death or Disability, but in no event later than thirty (30) calendar days following such event. Participant shall not be entitled to any other payments under this Performance Award for Performance Periods ending after the year of termination.
(d)
No Early Payment
. Except as otherwise provided in Section 2(c) hereof, in no event will the Performance Award be paid out prior to the end of the Performance Period unless otherwise determined by the Committee in its sole discretion, and any such payment shall be made within thirty (30) calendar days following such determination.
(e)
Clawback
. In the event that after the grant of the Performance Award but prior to a Change in Control (1) the Company issues a material restatement of an initial financial statement, and (2) the Participant engaged in intentional misconduct that caused or contributed to the need for such a restatement because of material noncompliance by the Company with applicable financial reporting requirements (a “Forfeiture Event”), the Participant, at the request of the Committee made within 90 days after the restatement, shall forfeit this Performance Award if the restatement relates to a period covered by the Performance Period, regardless of whether
this Performance Award has been paid out ( “Forfeitable Performance Award”). If the Forfeitable Performance Award has been paid out at the time of the Committee’s request, the Participant shall promptly remit to the Company the “Net Proceeds” (as hereinafter defined) of the Forfeitable Performance Award in lieu of the Forfeitable Performance Award. “Net Proceeds” shall mean proceeds, net of taxes paid or payable by the Participant, from the receipt of any payment made pursuant to Section 2(a) hereof in an amount reasonably determined by the Committee but including interest on the amount of cash repaid from the date of the receipt by Participant of such payment made pursuant to Section 2(a) hereof to the date of payment of such amount to the Company at a rate reasonably determined by the Committee. The Committee may, but shall not be required by Participant to, reduce the forfeiture, return and/or payment obligations hereunder to the extent that the Committee, in its sole and absolute discretion, shall deem appropriate. Nothing herein shall limit any other rights the Company shall have by law for misconduct of the Participant that caused or contributed to the need for such restatement.
Section 3.
Restrictions on Transfer
. Neither this Performance Award, nor any right with respect to the Performance Award under this Agreement, may be sold, assigned, transferred, pledged, hypothecated (by operation of law or otherwise) or otherwise conveyed or encumbered and shall not be subject to execution, attachment or similar process. Any attempted sale, assignment, transfer, pledge, hypothecation or other conveyance or encumbrance shall be void and unenforceable against the Company or any Affiliate of the Company.
Section 4.
Adjustments
. To the extent consistent with Section 162(m), the Committee may appropriately adjust any evaluation of performance under this Performance Award to exclude the effect of certain events, including, but not limited to, any of the following events: asset write-downs; litigation or claim judgments or settlements; changes in tax law, accounting principles or other such laws or provisions affecting reported results; severance, contract termination and other costs related to exiting certain business activities; acquisitions; and gains or losses from the disposition of businesses or assets or from the early extinguishment of debt.
Section 5.
Taxes
. The Participant acknowledges that the Participant will consult with the Participant’s personal tax adviser regarding the income tax consequences of the grant or payment of this Performance Award and other matters related to this Agreement. In order to comply with all applicable federal, state, local or foreign income tax laws or regulations, the Company may take such action as it deems appropriate to ensure that all applicable federal, state, local or foreign payroll, withholding, income or other taxes, which are the Participant’s sole and absolute responsibility, are withheld or collected from the Participant. In accordance with the terms of the Plan, and such rules as may be adopted by the Committee, the Company will satisfy any applicable tax withholding obligations arising from any payment of this Performance Award by withholding a portion of the cash otherwise to be delivered equal to the amount of such taxes.
Section 6.
Definitions
. Terms not defined in this Agreement shall have the meanings given to them in the Plan, and the following terms shall have the following meanings when used in this Agreement:
(a) “Change in 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 an Affiliate of the Company, or any employee benefit plan of the Company or an Affiliate 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, 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 Affiliates) 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.
(b) “Disability” shall be as defined under the Imation Corp. Long Term Disability Income Protection Plan.
(c) “Termination for Cause” means termination of Participant’s employment with the Company or an Affiliate for the following acts: (a) your gross incompetence or substantial failure to perform your duties; or (b) misconduct by you that causes or is likely to cause harm to the Company or an Affiliate or that causes or is likely to cause harm to the Company’s or an Affiliate’s reputation, as determined by the Company’s or Affiliate’s Board of Directors in its sole and absolute discretion (such misconduct may include, without limitation, insobriety at the workplace during working hours or the use of illegal drugs); or (c) failure to follow directions of the Company’s or Affiliate’s Board of Directors that are consistent with your duties; or (d) your conviction of, or entry of a pleading of guilty or nolo contendere to, any crime involving moral turpitude, or the entry of an order duly issued by any federal or state regulatory agency having jurisdiction in the matter permanently prohibiting you from participating in the conduct of the affairs of the Company or an Affiliate.; or (e) commission of any act of dishonesty, theft, fraud, embezzlement, misappropriation or illegal conduct which is, in each case, materially injurious to the Company or its affiliates, regardless of whether an indictment, criminal conviction or plea of no contest occurs; or (f) violation of any applicable laws, rules or regulations or failure to comply with applicable confidentiality, non-disparagement, non-solicitation and non-competition obligations to the Company, corporate code of business conduct or other material policies of the Company in connection with or during performance of the Executive’s duties to the Company that could, in the Board’s opinion, cause material injury to the Company, which violation, if curable, is not cured within thirty (30) days after notice thereof to the Executive.
(d) “Good Reason” shall mean the occurrence of any of the following events, except for occurrence of such an event in connection with the termination of your employment or reassignment by the Company or an Affiliate for Cause, for disability or for death, provided you have given the Company written notice within ninety (90) days of the initial existence of the Good Reason event and the Company has not cured such event within thirty (30) days of the receipt of such notice: (a) a material diminution, either prior to or following a Change of Control,
of your authority, duties or responsibilities from your authority, duties or responsibilities as of the date of this Agreement; or (b) a material diminution, either prior to or following a Change of Control, in your base compensation (specifically excluding any long-term incentive compensation for which you are eligible), excluding any reduction caused by a restructuring by management of benefits for the employees of the company as a whole that affects you in a manner comparable to other senior executives of the Company; or (c) a material change in the geographic location at which you perform your services following a Change of Control (but in no event including a relocation that does not increase the actual distance required for you to commute from your home to the new place of business by more than 50 miles).
Section 7.
Governing Law
. The internal law, and not the law of conflicts, of the State of Delaware will govern all questions concerning the validity, construction and effect of this Agreement.
Section 8.
Plan Provisions
. This Agreement is made under and subject to the provisions of the Plan, and all of the provisions of the Plan are also provisions of this Agreement. If there is a difference or conflict between the provisions of this Agreement and the provisions of the Plan, the provisions of the Plan will govern. By accepting this Agreement, the Participant confirms that the Participant has received a copy of the Plan and represents that the Participant is familiar with the terms and provisions thereof, and hereby accepts this Performance Award subject to all the terms and provisions of the Plan.
Section 9.
No Rights to Continue Service or Employment
. Nothing herein shall be construed as giving the Participant the right to continue in the employ or to provide services to the Company or any Affiliate, whether as an employee or as a consultant or otherwise, or interfere with or restrict in any way the right of the Company or any Affiliate to discharge the Participant, whether as an employee or consultant or otherwise, at any time, with or without cause. In addition, the Company or any Affiliate may discharge the Participant free from any liability or claim under this Agreement, unless otherwise expressly provided herein.
Section 10.
Entire Agreement
. Except as specifically provided herein with regard to the Severance Agreement, (i) this Agreement together with the Plan supersede any and all other prior understandings and agreements, either oral or in writing, between the parties with respect to the subject matter hereof and constitute the sole and only agreements between the parties with respect to said subject matter; (ii) all prior negotiations and agreements between the parties with respect to the subject matter hereof are merged into this Agreement; and (iii) each party to this Agreement acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party or by anyone acting on behalf of any party, which are not embodied in this Agreement or the Plan and that any agreement, statement or promise that is not contained in this Agreement or the Plan shall not be valid or binding or of any force or effect.
Section 11.
Modification
. No change or modification of this Agreement shall be valid or binding upon the parties unless the change or modification is in writing and signed by the parties. Notwithstanding the preceding sentence, the Plan, this Agreement and the Performance Award may be amended, altered, suspended, discontinued or terminated to the extent permitted by the Plan.
Section 12.
Severability
. In the event that any provision that is contained in the Plan or this Agreement is or becomes or is deemed to be invalid, illegal or unenforceable in any
jurisdiction or would disqualify the Plan or this Agreement for any reason and under any law as deemed applicable by the Committee, the invalid, illegal or unenforceable provision shall be construed or deemed amended to conform to applicable laws, or if it cannot be so construed or deemed amended without, in the determination of the Committee, materially altering the purpose or intent of the Plan or this Agreement, such provision shall be stricken as to such jurisdiction or Performance Award, and the remainder of the Plan or this Agreement shall remain in full force and effect.
Section 13.
Headings
. Headings are given to the sections and subsections of this Agreement solely as a convenience to facilitate reference. Such headings shall not be deemed in any way material or relevant to the construction or interpretation of this Agreement or any provision hereof.
Section 14.
Participant’s Acknowledgments
. The Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Committee or the Board of Directors of the Company, as appropriate, upon any questions arising under the Plan or this Agreement. Any determination in this connection by the Company, including the Board of Directors of the Company or the Committee, shall be final, binding and conclusive. The obligations of the Company and the rights of the Participant are subject to all applicable laws, rules and regulations.
Section 15.
Parties Bound
. The terms, provisions and agreements that are contained in this Agreement 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 herein. This Agreement shall have no force or effect unless it is duly executed and delivered by the Company and the Participant or until such Agreement is delivered and accepted through any electronic medium in accordance with procedures established by the Company.
The Company has caused this Agreement to be signed (which may be by electronic signature) and delivered and the Participant has caused this Agreement to be accepted (which may be by electronic acceptance) as of the date set forth above.
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IMATION CORP.
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By:
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Participant
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Exhibit A
[Description of performance criteria]
Exhibit 10.4
Executive Officers
Imation Corp. 2011 Stock Incentive Plan
Amendment to Performance-Based Restricted Stock Award Agreement (2014)
This Amendment to Performance-Based Restricted Stock Award Agreement (the “Amendment”), effective as of _______________, 2014, 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 Performance-Based 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. 2011 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(c)
of the Agreement is hereby amended in its entirety to read as follows:
(c)
Change in Control; Job Elimination; Death; or Disability
. 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:
(i) in the event of a Change in Control, with respect to the portion of the Shares that have not previously vested or been forfeited, the right to receive the Shares hereunder shall be converted to a right to receive an amount equal to the cash value of the Shares (based on the cash value of a Share at the time of the Change in Control) and the Participant shall be vested in a portion of the cash value of the Shares assuming that the performance goal for the year of the Change in Control would be achieved at the target (100%) level, as set forth in Exhibit A, prorated based on the number of calendar days in the year up to and including the date of Change in Control. Participant shall also be entitled to payment for Performance Periods completed based on the actual level of achievement, to the extent such amounts had not been previously paid prior to termination. Payments shall occur as of the date of the Change in Control. Participant shall not be entitled to any other payments under this Performance Award for Performance Periods ending after the year of Change in Control, unless the Participant’s employment with the Company is involuntarily terminated (other than Termination for Cause) within twelve (12) months after a Change in Control or the Participant terminates employment for Good Reason only on or after the 120th day following the Change in Control and within twelve (12) months after a Change in Control, in which case, the Participant shall be entitled to receive an additional payment as if the entire Performance Award was achieved at the target (100%) level, as set forth in Exhibit A, as of the date of the Change in Control (regardless of actual performance or whether the performance metrics continue to
be measured after the Change in Control), less any amounts paid to Participant as of the date of the Change of Control as set forth above. Such payment shall be made promptly after the date of such termination, but in no event later than thirty (30) calendar days following such event.
(ii) in the event the Company or an Affiliate terminates the Participant’s employment with the Company (other than Termination for Cause or under subparagraph 3(c)(i) above) or a Participant terminates employment for Good Reason (other than under subparagraph 3(c)(i) above), or a Participant dies or is deemed to have suffered a Disability, then the Participant shall be vested in a portion of the Shares assuming that the performance goal for the year of termination, death or Disability would be achieved at the target (100%) level, as set forth in Exhibit A, prorated based on the number of calendar days in the year up to and including the date of the Participant’s termination, death or Disability. Vesting shall occur as of the date of termination, death or Disability. Participant shall not be entitled to any other payments under this Performance Award for Performance Periods ending after the year of termination.
2. The definition of Termination for Cause in Section 7 is amended to read as follows and a new definition of Good Reason is added as follows:
(c) “Termination for Cause” means termination of Participant’s employment with the Company or an Affiliate for the following acts: (a) your gross incompetence or substantial failure to perform your duties; or (b) misconduct by you that causes or is likely to cause harm to the Company or an Affiliate or that causes or is likely to cause harm to the Company’s or an Affiliate’s reputation, as determined by the Company’s or Affiliate’s Board of Directors in its sole and absolute discretion (such misconduct may include, without limitation, insobriety at the workplace during working hours or the use of illegal drugs); or (c) failure to follow directions of the Company’s or Affiliate’s Board of Directors that are consistent with your duties; or (d) your conviction of, or entry of a pleading of guilty or nolo contendere to, any crime involving moral turpitude, or the entry of an order duly issued by any federal or state regulatory agency having jurisdiction in the matter permanently prohibiting you from participating in the conduct of the affairs of the Company or an Affiliate.; or (e) commission of any act of dishonesty, theft, fraud, embezzlement, misappropriation or illegal conduct which is, in each case, materially injurious to the Company or its affiliates, regardless of whether an indictment, criminal conviction or plea of no contest occurs; or (f) violation of any applicable laws, rules or regulations or failure to comply with applicable confidentiality, non-disparagement, non-solicitation and non-competition obligations to the Company, corporate code of business conduct or other material policies of the Company in connection with or during performance of the Executive’s duties to the Company that could, in the Board’s opinion, cause material injury to the Company, which violation, if curable, is not cured within thirty (30) days after notice thereof to the Executive.
(d) “Good Reason” shall mean the occurrence of any of the following events, except for occurrence of such an event in connection with the termination of your employment or reassignment by the Company or an Affiliate for Cause, for disability or for death, provided you have given the Company written notice within ninety (90) days of the initial existence of the Good Reason event and the Company has not cured such event within thirty (30) days of the receipt of such notice: (a) a material diminution, either prior to or following a Change of Control, of your authority, duties or responsibilities from your authority, duties or responsibilities as of the date of this Agreement; or (b) a material diminution, either prior to or following a Change of Control, in your base compensation (specifically excluding any long-term incentive compensation for which you are eligible), excluding any reduction caused by a restructuring by management of benefits for the employees of the company as a whole that affects you in a manner comparable to other senior executives of the Company; or (c) a material change in the geographic location at which you perform your services following a Change of Control (but in no event including a relocation that does not increase the actual distance required for you to commute from your home to the new place of business by more than 50 miles).
3. 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 (which may be by electronic signature) or until such Agreement is delivered and accepted through any electronic medium in accordance with procedures established by the Company.
The Company has caused this Amendment to be signed (which may be by electronic signature) and delivered and the Participant has caused this Amendment to be accepted (which may be by electronic acceptance) as of the date set forth above.
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IMATION CORP.
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By:
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Title:
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Participant
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Exhibit 10.5
Executive Officers
Imation Corp. 2011 Stock Incentive Plan
Amendment to Performance-Based Restricted Stock Award Agreement (2014)
This Amendment to Performance-Based Restricted Stock Award Agreement (the “Amendment”), effective as of _______________, 2014, 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 Performance-Based 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. 2011 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(c)
of the Agreement is hereby amended in its entirety to read as follows:
(c)
Change in Control; Job Elimination; Death; or Disability
. 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:
(i) in the event of a Change in Control, with respect to the portion of the Shares that have not previously vested or been forfeited, the right to receive the Shares hereunder shall be converted to a right to receive an amount equal to the cash value of the Shares (based on the cash value of a Share at the time of the Change in Control) and the Participant shall be vested in a portion of the cash value of the Shares assuming that the performance goal for the year of the Change in Control would be achieved at the target (100%) level, as set forth in Exhibit A, prorated based on the number of calendar days in the year up to and including the date of Change in Control. Participant shall also be entitled to payment for Performance Periods completed based on the actual level of achievement, to the extent such amounts had not been previously paid prior to termination. Payments shall occur as of the date of the Change in Control. Participant shall not be entitled to any other payments under this Performance Award for Performance Periods ending after the year of Change in Control, unless the Participant’s employment with the Company is involuntarily terminated (other than Termination for Cause) within twelve (12) months after a Change in Control or the Participant terminates employment for Good Reason only on or after the 120th day following the Change in Control and within twelve (12) months after a Change in Control, in which case, the Participant shall be entitled to receive an additional payment as if the entire Performance Award was achieved at the target (100%) level, as set forth in Exhibit A, as of the date of the Change in Control (regardless of actual performance or whether the performance metrics continue to
be measured after the Change in Control), less any amounts paid to Participant as of the date of the Change of Control as set forth above. Such payment shall be made promptly after the date of such termination, but in no event later than thirty (30) calendar days following such event.
(ii) in the event the Company or an Affiliate terminates the Participant’s employment with the Company (other than Termination for Cause or under subparagraph 3(c)(i) above) or a Participant terminates employment for Good Reason (other than under subparagraph 3(c)(i) above), or a Participant dies or is deemed to have suffered a Disability, then the Participant shall be vested in a portion of the Shares assuming that the performance goal for the year of termination, death or Disability would be achieved at the target (100%) level, as set forth in Exhibit A, prorated based on the number of calendar days in the year up to and including the date of the Participant’s termination, death or Disability. Vesting shall occur as of the date of termination, death or Disability. Participant shall not be entitled to any other payments under this Performance Award for Performance Periods ending after the year of termination.
2. The definition of Termination for Cause in Section 7 is amended to read as follows and a new definition of Good Reason is added as follows:
(c) “Termination for Cause” means termination of Participant’s employment with the Company or an Affiliate for the following acts: (a) your gross incompetence or substantial failure to perform your duties; or (b) misconduct by you that causes or is likely to cause harm to the Company or an Affiliate or that causes or is likely to cause harm to the Company’s or an Affiliate’s reputation, as determined by the Company’s or Affiliate’s Board of Directors in its sole and absolute discretion (such misconduct may include, without limitation, insobriety at the workplace during working hours or the use of illegal drugs); or (c) failure to follow directions of the Company’s or Affiliate’s Board of Directors that are consistent with your duties; or (d) your conviction of, or entry of a pleading of guilty or nolo contendere to, any crime involving moral turpitude, or the entry of an order duly issued by any federal or state regulatory agency having jurisdiction in the matter permanently prohibiting you from participating in the conduct of the affairs of the Company or an Affiliate.; or (e) commission of any act of dishonesty, theft, fraud, embezzlement, misappropriation or illegal conduct which is, in each case, materially injurious to the Company or its affiliates, regardless of whether an indictment, criminal conviction or plea of no contest occurs; or (f) violation of any applicable laws, rules or regulations or failure to comply with applicable confidentiality, non-disparagement, non-solicitation and non-competition obligations to the Company, corporate code of business conduct or other material policies of the Company in connection with or during performance of the Executive’s duties to the Company that could, in the Board’s opinion, cause material injury to the Company, which violation, if curable, is not cured within thirty (30) days after notice thereof to the Executive.
(d) “Good Reason” shall mean the occurrence of any of the following events, except for occurrence of such an event in connection with the termination of your employment or reassignment by the Company or an Affiliate for Cause, for disability or for death, provided you have given the Company written notice within ninety (90) days of the initial existence of the Good Reason event and the Company has not cured such event within thirty (30) days of the receipt of such notice: (a) a material diminution, either prior to or following a Change of Control, of your authority, duties or responsibilities from your authority, duties or responsibilities as of the date of this Agreement; or (b) a material diminution, either prior to or following a Change of Control, in your base compensation (specifically excluding any long-term incentive compensation for which you are eligible), excluding any reduction caused by a restructuring by management of benefits for the employees of the company as a whole that affects you in a manner comparable to other senior executives of the Company; or (c) a material change in the geographic location at which you perform your services following a Change of Control (but in no event including a relocation that does not increase the actual distance required for you to commute from your home to the new place of business by more than 50 miles).
3. 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 (which may be by electronic signature) or until such Agreement is delivered and accepted through any electronic medium in accordance with procedures established by the Company.
The Company has caused this Amendment to be signed (which may be by electronic signature) and delivered and the Participant has caused this Amendment to be accepted (which may be by electronic acceptance) as of the date set forth above.
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IMATION CORP.
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By:
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Title:
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Participant
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Exhibit 10.6
Executive Officers
Imation Corp. 2011 Stock Incentive Plan
Amendment to Performance-Based Restricted Stock Award Agreement (2013)
This Amendment to Performance-Based Restricted Stock Award Agreement (the “Amendment”), effective as of _______________, 2014, 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 Performance-Based 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. 2011 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(c)
of the Agreement is hereby amended in its entirety to read as follows:
(c)
Change in Control; Job Elimination; Death; or Disability
. 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:
(i) in the event of a Change in Control, with respect to the portion of the Shares that have not previously vested or been forfeited, the right to receive the Shares hereunder shall be converted to a right to receive an amount equal to the cash value of the Shares (based on the cash value of a Share at the time of the Change in Control) and the Participant shall be vested in a portion of the cash value of the Shares assuming that the performance goal for the year of the Change in Control would be achieved at the target (100%) level, as set forth in Exhibit A, prorated based on the number of calendar days in the year up to and including the date of Change in Control. Participant shall also be entitled to payment for Performance Periods completed based on the actual level of achievement, to the extent such amounts had not been previously paid prior to termination. Payments shall occur as of the date of the Change in Control. Participant shall not be entitled to any other payments under this Performance Award for Performance Periods ending after the year of Change in Control, unless the Participant’s employment with the Company is involuntarily terminated (other than Termination for Cause) within twelve (12) months after a Change in Control or the Participant terminates employment for Good Reason only on or after the 120th day following the Change in Control and within twelve (12) months after a Change in Control, in which case, the Participant shall be entitled to receive an additional payment as if the entire Performance Award was achieved at the target (100%) level, as set forth in Exhibit A, as of the date of the Change in Control (regardless of actual performance or whether the performance metrics continue to
be measured after the Change in Control), less any amounts paid to Participant as of the date of the Change of Control as set forth above. Such payment shall be made promptly after the date of such termination, but in no event later than thirty (30) calendar days following such event.
(ii) in the event the Company or an Affiliate terminates the Participant’s employment with the Company by eliminating the Participant’s position as part of a restructuring program (other than Termination for Cause or under subparagraph 3(c)(i) above) or a Participant terminates employment for Good Reason (other than under subparagraph 3(c)(i) above), or a Participant dies or is deemed to have suffered a Disability, then the Participant shall be vested in a portion of the Shares based on the achievement of the relevant performance standard for the Performance Period occurring during the year of termination, as if the Participant had remained employed until the end of the calendar year, but only to the extent such performance standard has been achieved. Vesting shall occur in accordance with Section 3(a). Participant shall not be entitled to any other payments under this Performance Award for Performance Periods ending after the year of termination.
2. The definition of Termination for Cause in Section 7 is amended to read as follows and a new definition of Good Reason is added as follows:
(c) “Termination for Cause” means termination of Participant’s employment with the Company or an Affiliate for the following acts: (a) your gross incompetence or substantial failure to perform your duties; or (b) misconduct by you that causes or is likely to cause harm to the Company or an Affiliate or that causes or is likely to cause harm to the Company’s or an Affiliate’s reputation, as determined by the Company’s or Affiliate’s Board of Directors in its sole and absolute discretion (such misconduct may include, without limitation, insobriety at the workplace during working hours or the use of illegal drugs); or (c) failure to follow directions of the Company’s or Affiliate’s Board of Directors that are consistent with your duties; or (d) your conviction of, or entry of a pleading of guilty or nolo contendere to, any crime involving moral turpitude, or the entry of an order duly issued by any federal or state regulatory agency having jurisdiction in the matter permanently prohibiting you from participating in the conduct of the affairs of the Company or an Affiliate.; or (e) commission of any act of dishonesty, theft, fraud, embezzlement, misappropriation or illegal conduct which is, in each case, materially injurious to the Company or its affiliates, regardless of whether an indictment, criminal conviction or plea of no contest occurs; or (f) violation of any applicable laws, rules or regulations or failure to comply with applicable confidentiality, non-disparagement, non-solicitation and non-competition obligations to the Company, corporate code of business conduct or other material policies of the Company in connection with or during performance of the Executive’s duties to the Company that could, in the Board’s opinion, cause material injury to the Company, which violation, if curable, is not cured within thirty (30) days after notice thereof to the Executive.
(d) “Good Reason” shall mean the occurrence of any of the following events, except for occurrence of such an event in connection with the termination of your employment or reassignment by the Company or an Affiliate for Cause, for disability or for death, provided you have given the Company written notice within ninety (90) days of the initial existence of the Good Reason event and the Company has not cured such event within thirty (30) days of the receipt of such notice: (a) a material diminution, either prior to or following a Change of Control, of your authority, duties or responsibilities from your authority, duties or responsibilities as of the date of this Agreement; or (b) a material diminution, either prior to or following a Change of Control, in your base compensation (specifically excluding any long-term incentive compensation for which you are eligible), excluding any reduction caused by a restructuring by management of benefits for the employees of the company as a whole that affects you in a manner comparable to other senior executives of the Company; or (c) a material change in the geographic location at which you perform your services following a Change of Control (but in no
event including a relocation that does not increase the actual distance required for you to commute from your home to the new place of business by more than 50 miles).
3. 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 (which may be by electronic signature) or until such Agreement is delivered and accepted through any electronic medium in accordance with procedures established by the Company.
The Company has caused this Amendment to be signed (which may be by electronic signature) and delivered and the Participant has caused this Amendment to be accepted (which may be by electronic acceptance) as of the date set forth above.
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IMATION CORP.
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By:
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Name:
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Title:
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Participant
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Exhibit 10.7
Executive Officers
Imation Corp. 2011 Stock Incentive Plan
Amendment to Performance Award Agreement (2013)
This Amendment to Performance Award Agreement (the “Amendment”), effective as of _______________, 2014, 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 Performance Award Agreement effective as of _________________ (the “Agreement”), the Company granted to Participant a performance award of $______________ subject to the terms and conditions set forth in the Agreement and in accordance with the terms and conditions of the Imation Corp. 2011 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 2(c)
of the Agreement is hereby amended in its entirety to read as follows:
(c)
Change in Control; Job Elimination; Death Disability
. Notwithstanding the payment and forfeiture provisions contained in Sections 2(a) and 2(b) hereof, but subject to the other terms and conditions set forth in this Agreement:
(i) in the event of a Change in Control, with respect to the portion of this Performance Award that has not previously vested or been forfeited, then the Participant shall be entitled to receive a payment for a portion of this Performance Award assuming that the performance goal for the year of the Change in Control would be achieved at the target (100%) level, as set forth in Exhibit A, prorated based on the number of calendar days in the year up to and including the date of the Change in Control. Participant shall also be entitled to payment for Performance Periods completed based on the actual level of achievement, to the extent such amounts had not been previously paid prior to termination. Such payments shall be made as of the Change in Control. Participant shall not be entitled to any other payments under this Performance Award for Performance Periods ending after the year of Change in Control unless the Participant’s employment with the Company is involuntarily terminated (other than Termination for Cause) within twelve (12) months after a Change in Control or the Participant terminates employment for Good Reason only on or after the 120th day following the Change in Control and within twelve (12) months after a Change in Control, in which case, the Participant shall be entitled to receive an additional payment as if the entire Performance Award was achieved at the target (100%) level, as set forth in Exhibit A, as of the date of the Change in Control (regardless of actual performance or whether the performance metrics continue to be measured after the Change in Control), less any amounts paid to Participant as of the date of the Change of Control as set forth above. Such payment shall be made
promptly after the date of such termination, but in no event later than thirty (30) calendar days following such event.
(ii) in the event the Company or an Affiliate terminates the Participant’s employment with the Company by eliminating the Participant’s position as part of a restructuring program (other than Termination for Cause or under subparagraph 2(c)(i) above), or a Participant terminates employment for Good Reason (other than under subparagraph 2(c)(i) above) or a Participant’s employment is terminated as a result of death or Disability, then the Participant shall be entitled to receive a payment for a portion of this Performance Award based on the achievement of the relevant performance standard for the Performance Period occurring during the year of termination, as if the Participant had remained employed until the end of the calendar year, but only to the extent such performance standard has been achieved. Payment shall be made in accordance with the last sentence of Section 2(a). Participant shall not be entitled to any other payments under this Performance Award for Performance Periods ending after the year of termination.
2. The definition of Termination for Cause in Section 6 is amended to read as follows and a new definition of Good Reason is added as follows:
(c) “Termination for Cause” means termination of Participant’s employment with the Company or an Affiliate for the following acts: (a) your gross incompetence or substantial failure to perform your duties; or (b) misconduct by you that causes or is likely to cause harm to the Company or an Affiliate or that causes or is likely to cause harm to the Company’s or an Affiliate’s reputation, as determined by the Company’s or Affiliate’s Board of Directors in its sole and absolute discretion (such misconduct may include, without limitation, insobriety at the workplace during working hours or the use of illegal drugs); or (c) failure to follow directions of the Company’s or Affiliate’s Board of Directors that are consistent with your duties; or (d) your conviction of, or entry of a pleading of guilty or nolo contendere to, any crime involving moral turpitude, or the entry of an order duly issued by any federal or state regulatory agency having jurisdiction in the matter permanently prohibiting you from participating in the conduct of the affairs of the Company or an Affiliate.; or (e) commission of any act of dishonesty, theft, fraud, embezzlement, misappropriation or illegal conduct which is, in each case, materially injurious to the Company or its affiliates, regardless of whether an indictment, criminal conviction or plea of no contest occurs; or (f) violation of any applicable laws, rules or regulations or failure to comply with applicable confidentiality, non-disparagement, non-solicitation and non-competition obligations to the Company, corporate code of business conduct or other material policies of the Company in connection with or during performance of the Executive’s duties to the Company that could, in the Board’s opinion, cause material injury to the Company, which violation, if curable, is not cured within thirty (30) days after notice thereof to the Executive.
(d) “Good Reason” shall mean the occurrence of any of the following events, except for occurrence of such an event in connection with the termination of your employment or reassignment by the Company or an Affiliate for Cause, for disability or for death, provided you have given the Company written notice within ninety (90) days of the initial existence of the Good Reason event and the Company has not cured such event within thirty (30) days of the receipt of such notice: (a) a material diminution, either prior to or following a Change of Control, of your authority, duties or responsibilities from your authority, duties or responsibilities as of the date of this Agreement; or (b) a material diminution, either prior to or following a Change of Control, in your base compensation (specifically excluding any long-term incentive compensation for which you are eligible), excluding any reduction caused by a
restructuring by management of benefits for the employees of the company as a whole that affects you in a manner comparable to other senior executives of the Company; or (c) a material change in the geographic location at which you perform your services following a Change of Control (but in no event including a relocation that does not increase the actual distance required for you to commute from your home to the new place of business by more than 50 miles).
. 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 (which may be by electronic signature) or until such Agreement is delivered and accepted through any electronic medium in accordance with procedures established by the Company.
The Company has caused this Amendment to be signed (which may be by electronic signature) and delivered and the Participant has caused this Amendment to be accepted (which may be by electronic acceptance) as of the date set forth above.
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IMATION CORP.
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By:
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Title:
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Participant
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Exhibit 10.8
Executive Officers
Imation Corp. 2011 Stock Incentive Plan
Amendment to Performance-Based Restricted Stock Award Agreement (pre 2013)
This Amendment to Performance-Based Restricted Stock Award Agreement (the “Amendment”), effective as of _______________, 2014, 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 Performance-Based 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. 2011 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(c)(i)
of the Agreement is hereby amended in its entirety to read as follows:
(i) in the event of a Change in Control, with respect to the portion of the Shares that have not previously vested or been forfeited, the right to receive the Shares hereunder shall be converted to a right to receive an amount equal to the cash value of the Shares (based on the cash value of a Share at the time of the Change in Control) and the the Participant shall be vested in a portion of the cash value of the Shares assuming that the performance goal for the year of the Change in Control would be achieved at the target (100%) level, as set forth in Exhibit A, prorated based on the number of calendar days in the year up to and including the date of Change in Control. Participant shall also be entitled to payment for Performance Periods completed based on the actual level of achievement, to the extent such amounts had not been previously paid prior to termination. Payments shall occur as of the date of the Change in Control. Participant shall not be entitled to any other payments under this Performance Award for Performance Periods ending after the year of Change in Control, unless the Participant’s employment with the Company is involuntarily terminated (other than Termination for Cause) within twelve (12) months after a Change in Control or the Participant terminates
employment for Good Reason only on or after the 120th day following the Change in Control and within twelve (12) months after a Change in Control, in which case, the Participant shall be entitled to receive an additional payment as if the entire Performance Award was achieved at the target (100%) level, as set forth in Exhibit A, as of the date of the Change in Control (regardless of actual performance or whether the performance metrics continue to be measured after the Change in Control), less any amounts paid to Participant as of the date of the Change of Control as set forth above. Such payment shall be made promptly after the date of such termination, but in no event later than thirty (30) calendar days following such event.
2. The definition of Termination for Cause in Section 7 is amended to read as follows and a new definition of Good Reason is added as follows:
(c) “Termination for Cause” means termination of Participant’s employment with the Company or an Affiliate for the following acts: (a) your gross incompetence or substantial failure to perform your duties; or (b) misconduct by you that causes or is likely to cause harm to the Company or an Affiliate or that causes or is likely to cause harm to the Company’s or an Affiliate’s reputation, as determined by the Company’s or Affiliate’s Board of Directors in its sole and absolute discretion (such misconduct may include, without limitation, insobriety at the workplace during working hours or the use of illegal drugs); or (c) failure to follow directions of the Company’s or Affiliate’s Board of Directors that are consistent with your duties; or (d) your conviction of, or entry of a pleading of guilty or nolo contendere to, any crime involving moral turpitude, or the entry of an order duly issued by any federal or state regulatory agency having jurisdiction in the matter permanently prohibiting you from participating in the conduct of the affairs of the Company or an Affiliate.; or (e) commission of any act of dishonesty, theft, fraud, embezzlement, misappropriation or illegal conduct which is, in each case, materially injurious to the Company or its affiliates, regardless of whether an indictment, criminal conviction or plea of no contest occurs; or (f) violation of any applicable laws, rules or regulations or failure to comply with applicable confidentiality, non-disparagement, non-solicitation and non-competition obligations to the Company, corporate code of business conduct or other material policies of the Company in connection with or during performance of the Executive’s duties to the Company that could, in the Board’s opinion, cause material injury to the Company, which violation, if curable, is not cured within thirty (30) days after notice thereof to the Executive.
(d) “Good Reason” shall mean the occurrence of any of the following events, except for occurrence of such an event in connection with the termination of your employment or reassignment by the Company or an Affiliate for Cause, for disability or for death, provided you have given the Company written notice within ninety (90) days of the initial existence of the Good Reason event and the Company has not cured such event within thirty (30) days of the receipt of such notice: (a) a material diminution, either prior to or following a Change of Control, of your authority, duties or responsibilities from your authority, duties or responsibilities as of the date of this Agreement; or (b) a material diminution, either prior to or following a Change of Control, in your base compensation (specifically excluding any long-term incentive compensation for which you are eligible), excluding any reduction caused by a restructuring by management of benefits for the employees of the company as a whole that affects you in a manner comparable to other senior executives of the Company; or (c) a material change in the geographic location at which you perform your services following a Change of Control (but in
no event including a relocation that does not increase the actual distance required for you to commute from your home to the new place of business by more than 50 miles).
3. 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 (which may be by electronic signature) or until such Agreement is delivered and accepted through any electronic medium in accordance with procedures established by the Company.
The Company has caused this Amendment to be signed (which may be by electronic signature) and delivered and the Participant has caused this Amendment to be accepted (which may be by electronic acceptance) as of the date set forth above.
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IMATION CORP.
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By:
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Name:
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Title:
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Participant
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Exhibit 10.9
Executive Officers
Imation Corp. 2011 Stock Incentive Plan
Amendment to Performance Award Agreement (pre 2013)
This Amendment to Performance Award Agreement (the “Amendment”), effective as of _______________, 2014, 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 Performance Award Agreement effective as of _________________ (the “Agreement”), the Company granted to Participant a performance award of $______________ subject to the terms and conditions set forth in the Agreement and in accordance with the terms and conditions of the Imation Corp. 2011 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 2(c) o
f the Agreement is hereby amended to read as follows:
(c)
Change in Control
. in the event of a Change in Control, with respect to the portion of this Performance Award that has not previously vested or been forfeited, then the Participant shall be entitled to receive a payment for a portion of this Performance Award assuming that the performance goal for the year of the Change in Control would be achieved at the target (100%) level, as set forth in Exhibit A, prorated based on the number of calendar days in the year up to and including the date of the Change in Control. Participant shall also be entitled to payment for Performance Periods completed based on the actual level of achievement, to the extent such amounts had not been previously paid prior to termination. Such payments shall be made as of the Change in Control. Participant shall not be entitled to any other payments under this Performance Award for Performance Periods ending after the year of Change in Control unless the Participant’s employment with the Company is involuntarily terminated (other than Termination for Cause) within twelve (12) months after a Change in Control or the Participant terminates employment for Good Reason only on or after the 120th day following the Change in Control and within twelve (12) months after a Change in Control, in which case, the Participant shall be entitled to receive an
additional payment as if the entire Performance Award was achieved at the target (100%) level, as set forth in Exhibit A, as of the date of the Change in Control (regardless of actual performance or whether the performance metrics continue to be measured after the Change in Control), less any amounts paid to Participant as of the date of the Change of Control as set forth above. Such payment shall be made promptly after the date of such termination, but in no event later than thirty (30) calendar days following such event.
2. The definition of Termination for Cause in Section 6 is amended to read as follows and a new definition of Good Reason is added as follows:
(c) “Termination for Cause” means termination of Participant’s employment with the Company or an Affiliate for the following acts: (a) your gross incompetence or substantial failure to perform your duties; or (b) misconduct by you that causes or is likely to cause harm to the Company or an Affiliate or that causes or is likely to cause harm to the Company’s or an Affiliate’s reputation, as determined by the Company’s or Affiliate’s Board of Directors in its sole and absolute discretion (such misconduct may include, without limitation, insobriety at the workplace during working hours or the use of illegal drugs); or (c) failure to follow directions of the Company’s or Affiliate’s Board of Directors that are consistent with your duties; or (d) your conviction of, or entry of a pleading of guilty or nolo contendere to, any crime involving moral turpitude, or the entry of an order duly issued by any federal or state regulatory agency having jurisdiction in the matter permanently prohibiting you from participating in the conduct of the affairs of the Company or an Affiliate.; or (e) commission of any act of dishonesty, theft, fraud, embezzlement, misappropriation or illegal conduct which is, in each case, materially injurious to the Company or its affiliates, regardless of whether an indictment, criminal conviction or plea of no contest occurs; or (f) violation of any applicable laws, rules or regulations or failure to comply with applicable confidentiality, non-disparagement, non-solicitation and non-competition obligations to the Company, corporate code of business conduct or other material policies of the Company in connection with or during performance of the Executive’s duties to the Company that could, in the Board’s opinion, cause material injury to the Company, which violation, if curable, is not cured within thirty (30) days after notice thereof to the Executive.
(d) “Good Reason” shall mean the occurrence of any of the following events, except for occurrence of such an event in connection with the termination of your employment or reassignment by the Company or an Affiliate for Cause, for disability or for death, provided you have given the Company written notice within ninety (90) days of the initial existence of the Good Reason event and the Company has not cured such event within thirty (30) days of the receipt of such notice: (a) a material diminution, either prior to or following a Change of Control, of your authority, duties or responsibilities from your authority, duties or responsibilities as of the date of this Agreement; or (b) a material diminution, either prior to or following a Change of Control, in your base compensation (specifically excluding any long-term incentive compensation for which you are eligible), excluding any reduction caused by a restructuring by management of benefits for the employees of the company as a whole that affects you in a manner comparable to other senior executives of the Company; or (c) a material change in the geographic location at which you perform your services following a Change of Control (but in no event including a relocation that does not increase the actual distance required for you to commute from your home to the new place of business by more than 50 miles).
3. 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 (which may be by electronic signature) or until such Agreement is delivered and accepted through any electronic medium in accordance with procedures established by the Company.
The Company has caused this Amendment to be signed (which may be by electronic signature) and delivered and the Participant has caused this Amendment to be accepted (which may be by electronic acceptance) as of the date set forth above.
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IMATION CORP.
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By:
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Name:
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Title:
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Participant
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