VIA FEDERAL EXPRESS January 9, 2009 Lanny H. Michael 20529 NE 126th Way Woodinville, WA 98077 Re: Amended Separation Agreement Dear Lanny:
Exhibit 10.57
XXX XXXXXXX
XXXXXXX
Xxxxxxx
0, 0000
Xxxxx X.
Xxxxxxx
00000 XX
000xx Xxx
Xxxxxxxxxxx,
XX 00000
Re:
Amended Separation Agreement
Dear
Xxxxx:
This
letter amends and supersedes the letter agreement dated and delivered to you on
December 18, 2008 and sets forth the terms and conditions for your separation
from Intermec, Inc. and its subsidiaries (the “Company”) (the
“Agreement”). If you accept this Agreement within the time specified
in paragraph 16 and do not revoke the Agreement within the time specified in
paragraph 17, the following terms and conditions will apply.
1.
Definitions
Capitalized
terms not otherwise defined in this Agreement are defined in paragraph
25.
2.
Officer Status and
Remaining Employment Period
As of the
Effective Date (defined in paragraph 25(c)), you are no longer Chief Financial
Officer of the Company and no longer one of the Company’s Section 16 reporting
persons. You will remain an employee of the Company from the
Effective Date until December 28, 2008 (the “Separation Date”), at which time
you will resign from all of your remaining offices and positions with the
Company.
3.
Compensation and
Benefits During Remaining Employment Period
During
the period from the Effective Date through the Separation Date, you will receive
your current base salary, less income tax withholding and other payroll
deductions required by law or elected by you. During the same period,
unless otherwise addressed in this Agreement, you may continue to participate in
and receive benefits under the Company’s standard employee benefit plans and
programs in accordance with their respective terms. However, if the
terms of any such plan or program or applicable law precludes you from
participating in any such plan, you will not be permitted to do
so. For example, the Company’s 401(k) plan (the Financial Security
and Savings Program, or “FSSP”) does not permit contributions or benefits based
on salary continuation pay, and you will no longer accrue benefits under that
plan after the Effective Date.
During
the period from the Effective Date through the Separation Date, you will not
accrue any vacation pay or sick pay under the Company’s policies. The
Amended and Restated Change of Control Employment Agreement between you and the
Company is terminated as of the Effective Date.
4.
Payment Due Following
Separation
Provided
that you sign and do not revoke the General Release of Additional Claims
described in paragraph 19 and attached hereto as Exhibit B, on the date set
forth below the Company will make the following payments to you:
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a.
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a
severance payment of Three Hundred Sixty Three Thousand U.S.
Dollars (US $363,000.00) less income tax withholding and other deductions
required by law or elected by you;
and
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b.
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an
additional severance payment of Seventy Thousand U.S. Dollars (US
$70,000.00) less income tax withholding and other deductions required by
law or elected by you; and
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c.
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an
additional payment of Twenty Two Thousand Seven Hundred and Fifty U.S.
Dollars (US $22,750.00) less income tax withholding and other deductions
required by law. (This additional payment is intended to help
cover the cost of COBRA coverage as described below and income taxes
thereon.); and
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d.
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up
to Fifteen Thousand U.S. Dollars (US $15,000.00) of executive outplacement
services to be provided by a firm selected by and paid directly to the
executive outplacement firm by the
Company.
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The
payments described in this paragraph 4 will be made as soon as practicable after
this Agreement becomes irrevocable pursuant to its terms and not later than
January 26, 2009. You acknowledge that the payments described in
sections (b) and (c) of this paragraph 4 are over and above anything which
Company may owe you. You also acknowledge that the payments described
in this paragraph 4 are in lieu of any severance pay for which you may be
eligible under any Company severance, bonus or incentive compensation plan,
program or policy.
5.
COBRA
Coverage
Following
the Separation Date, you will be notified of your right to elect the
continuation of certain group health plan coverage in compliance with the
federal law known as COBRA. If you timely elect COBRA coverage for
you and/or your eligible family members, you will be solely responsible for
payment of the related premiums.
6.
Stock Options,
Restricted Stock Units and Performance Share Units
Your
outstanding vested and unvested Intermec stock options (“SOs”), restricted
Intermec stock units (“RSUs”) and performance share units (“PSUs”) as of the
Effective Date are summarized in Exhibit A to this Agreement. The
summary in Exhibit A is subject to and qualified by the terms of the relevant
agreements and plan documents. Your rights with respect to these
vested and unvested SOs, RSUs and PSUs are set forth in the agreements in which
the Company granted them to you. The 20,000 RSUs granted to you in
2006 vested on the Separation Date and they will be paid to you at the time
specified in the final section of paragraph 4 of this Agreement.
The SOs,
RSUs and PSUs will continue to vest in accordance with those documents between
the Effective Date and the Separation Date. However, you will not
receive any additional grants of SOs, RSUs or PSUs between the Effective Date
and the Separation Date.
7.
Management Incentive
Compensation Plan
You will
not be eligible to receive a bonus payment (if any) under the Company’s
Management Incentive Compensation Plan (MICP) for fiscal year 2008 or fiscal
year 2009.
8.
Securities
Trading
During
the period from the Effective Date through the Separation Date, you will
continue to be subject to the Company’s policies and procedures that preclude
designated employees from directly or indirectly trading Intermec securities
during prohibited “blackout” periods, and that require these employees to obtain
a clearance before engaging in transactions at other times. If the
Separation Date occurs during a blackout period, you will continue to be subject
to the blackout period until it ends.
9.
Reporting
You
acknowledge and agree that information concerning the actual or anticipated
compensation and other payments and benefits due to you under this Agreement
must be properly reported by you and the Company to the appropriate governmental
authorities. You agree to cooperate with the Company in reporting
that information to the appropriate authorities.
10. Cooperation
After the
Separation Date, you will cooperate and assist the Company in its prosecution or
defense of litigation, claims, and Company or governmental investigations or
audits if you have relevant information or may be a witness. The
Company will reimburse you for the reasonable expenses you incur due to such
cooperation and assistance.
11. Non-Competition
During
the one (1) year period following the Separation Date you will not (except with
the prior written consent of the Company) directly or indirectly: (a) engage in,
be employed by, perform services for, participate in the ownership, management,
control or operation of a Tier I Company or a Tier II Company or (b) engage in
any other activity with a Tier I Company or a Tier II Company if that activity
conflicts or interferes with the economic or business interests or contractual
relationships of the Company or any subsidiary or affiliate
thereof.
12. Non-Solicitation
During
the one (1) year period following the Separation Date, you will not directly or
indirectly: (a) solicit or entice any employee of the Company, its subsidiaries
or affiliates to terminate or reduce his or her employment with the Company, its
subsidiaries or affiliates or (b) hire (as an employee, independent contractor
or otherwise) on your own behalf or on behalf of another Person any employee of
the Company, its subsidiaries or affiliates.
13. Non-Disparagement
You and
the Company agree that (i) the Company, its directors, officers and employees
will not make any disparaging or derogatory remarks (whether oral or written)
about you and (ii) you will not make any disparaging or derogatory remarks
(whether oral or written) about the Company, its subsidiaries or affiliates or
their officers, directors, employees or agents, make any other remark or
statement (whether oral or written) or engage in any conduct that is detrimental
to the businesses or reputations of those Persons.
This
paragraph 13 is not intended to and does not prevent you or the Company
from making truthful statements when required by law or order of a court or
government agency of competent jurisdiction. If you receive legal
process requiring such statements, you will promptly notify the Company and
cooperate with the Company in seeking a protective order or in taking other
appropriate action with respect to such legal process.
14. Confidentiality and
Non-Use
You
acknowledge and agree that information not generally known to the public that
relates to the business, technology, customers, prospects, employees, finances,
legal activities, plans, proposals, policies or practices of the Company, its
subsidiaries or affiliates or of any third parties doing business with the
Company is confidential information (“Confidential Information”) and the sole
property of the Company, its subsidiaries and affiliates. You further
acknowledge and agree that Confidential Information includes, but is not limited
to, the trade secrets, strategic plans, business plans, legal strategies, legal
plans, software programs, financial data, customer lists, identities of
customers and prospects, marketing plans, nonpublic financial information, any
other information about the Company, its subsidiaries or affiliates which they
designate as “confidential” and all other information about the Company, its
subsidiaries and affiliates that is not generally known to the
public. Confidential Information does not include
(a) information that is or becomes generally known to the public through no
fault of your own or (b) information received by you from a third party
without a duty of confidentiality.
At all
times during your employment by the Company and continuing through the
Separation Date, you will not copy or in any way use any Confidential
Information for any purpose other than the discharge of your duties as an
employee of the Company and you will not disclose any Confidential Information
to any Person other than the officers, directors, employees and agents of the
Company, its subsidiaries or affiliates without the Company’s prior
consent. The preceding sentence is not intended to and does not
prevent you from making truthful statements when required by law or order of a
court or government agency of competent jurisdiction. If you receive
legal process requiring such statements, you will promptly notify the Company
and cooperate with the Company in seeking a protective order or taking other
appropriate action with respect to such legal process.
Following
the Separation Date, you will not disclose to any third party, or use any
Confidential Information without the Company’s prior written
consent. The preceding sentence is not intended to and does not
prevent you from making truthful statements when required by law or order of a
court or government agency of competent jurisdiction. If you receive
legal process requiring such statements, you will promptly notify the Company
and cooperate with the Company in seeking a protective order or taking other
appropriate action with respect to such legal process.
On or
before the Separation Date, you will deliver to the Company, and not keep or
deliver to anyone else, any and all notes, files, memoranda, papers, electronic
files and, in general, any and all physical material containing Confidential
Information, including without limitation, any and all physical materials
relating to the conduct of business of the Company or any subsidiary or
affiliate of the Company which are in your possession, except for (a) any
documents for which the Company or any subsidiary or affiliate of the Company
has given written consent to removal at the time of the termination of your
employment with the Company; and (b) your personal rolodex, phone book and
similar items. Following the Effective Date, you will not use any
computer access code or password issued to or created by you during your
employment and you will not access any computer or database in the possession,
custody or control of the Company.
15. General Release of Existing
Claims
You (on
your own behalf and on behalf of your successors, heirs, beneficiaries and
permitted assigns) fully, finally and forever expressly waive, release and
discharge the Company, its subsidiaries and affiliates and their officers,
directors, employees and agents (“Releasees”) of and from any and all claims,
causes of action, claims for damages and claims for relief of any kind or
nature, whether known or unknown, asserted or unasserted, that you may have on
or prior to the Separation Date which are connected in any way whatsoever with
your employment with the Company, its subsidiaries or affiliates (“Existing
Claims”). You represent and warrant that this release is knowing and
voluntary.
You
understand and agree that the foregoing release includes, but is not limited to,
any and all Existing Claims with respect to wages, bonuses, equity compensation,
or any other form of incentive compensation, or employment benefits arising out
of any oral or written contract or agreement (whether express or implied by
operation of law or otherwise), any covenant of good faith and fair dealing
(whether express or implied by operation of law or otherwise), any theory of
wrongful discharge, any common law or statutory legal restriction on the
Company’s or its subsidiaries’ or affiliates’ right to change or terminate
employment, any federal, state or other governmental statute or ordinance or
other legal limitation on the employment relationship, including without
limitation, Title VII of the Civil Rights Act of 1964, the federal Age
Discrimination in Employment Act, the federal American with Disabilities Act,
the federal Family and Medical Leave Act, the federal Employee Retirement Income
Security Act of 1974, the Washington State Law Against Discrimination, the Iowa
Civil Rights Act, equivalent laws or regulations of any state within the United
States and equivalent laws or regulations of any national or regional government
or agency outside of the United States.
You also
understand and agree that the foregoing release shall operate as a complete and
total bar and defense to any Existing Claim that has or in the future may,
directly or indirectly, be brought by you or your successors, heirs, or
beneficiaries against the Releasees.
You
represent and warrant that, as of the Separation Date, you have not directly or
indirectly filed any complaints, charges or lawsuits against any Releasee with
any governmental agency or any court within or outside of the United States, and
you have not encouraged any such actions. You also represent and
warrant that you have not assigned any Existing Claim to any third party, and
that no third party has any ownership interest or any lien of any kind or nature
with respect to any Existing Claim. You also hereby waive any right
to become, and promise not to consent to become, a member of any class in a case
in which claims are asserted against any Releasee that are related in any way to
your employment or the termination of your employment with Company, and that
involve events which have occurred as of the Separation Date. If, without your
prior knowledge and consent, you are made a member of a class in any such
proceeding, you agree to opt out of the class at the first opportunity afforded
to you after you learn of your inclusion. In this regard, you agree
to execute, without objection or delay, an "opt-out" form presented to you
either by the court in which such proceeding is pending or by counsel for
Company if Company is made a defendant in any such proceeding. You
also agree that you will not share in any remedy sought in any court or
administrative agency proceedings involving the matters released
herein.
16. Review
Period
You have
twenty-one (21) calendar days from the Separation Date plus an additional seven
(7) calendar days to review, sign and return this Agreement to me (i.e., it must
be signed and returned to me by January 16, 2009). You are advised to
consult with your private attorney prior to signing the Agreement.
17. Revocation
Period
If you
sign this Agreement and return it to me by the date indicated in paragraph 16,
you will have an additional seven (7) calendar days from the date you executed
the Agreement to revoke it. If you do not revoke the Agreement within
such 7-day period, it will become binding, enforceable and irrevocable on the
day after that revocation period expires. If you desire to
revoke the Agreement you must send me written notice within the 7-day
period.
18. Company Disclosures Relating
To This Agreement
As you
know, the Company is a publicly-traded company and may be required by law to
publicly disclose the signing of this Agreement and some or all of its
terms. You agree that the Company may make such disclosures to the
extent that the Company, in its sole discretion, deems necessary or appropriate
to comply with the laws and regulations within or outside of the United States
that apply to publicly-traded companies.
19. Other Disclosures Relating
To This Agreement
Following
the Separation Date, you will not make any statements, whether oral or written,
to any person or entity (other than your personal legal and financial advisers)
concerning this Agreement without the Company’s prior written
consent. The preceding sentence is not intended to and does not
prevent you from making truthful statements when required by law or order of a
court or government agency of competent jurisdiction. If you receive
legal process requiring such statements, you will promptly notify the Company
and cooperate with the Company in seeking a protective order or taking other
appropriate action with respect to such legal process.
20. Early
Termination
(a)
Notwithstanding any other provision of this Agreement, the Company has the right
(but not the obligation) to immediately withhold any payments due to you in the
future under any of the following circumstances:
(i) The
Company determines, in its sole discretion, that you have directly or indirectly
materially breached paragraphs 10 through 14 or paragraph 20 of this Agreement
or that you are going to materially breach one or more of those
paragraphs.
(ii) The
Company determines, in its sole discretion, that the representations made by you
in paragraph 15 of this Agreement were false as of the Separation
Date.
(iii) The
Company determines, in its sole discretion, that, during your employment with
the Company, its subsidiaries or affiliates (whether such employment occurred
before or after the Separation Date), you have directly or indirectly engaged in
or that you are directly or indirectly engaging in conduct that constitutes a
breach of fiduciary duty, actual or constructive fraud, gross negligence or
willful misconduct which has or could cause economic harm to or damage the
reputation of the Company, its subsidiaries or affiliates.
(iv) You
are convicted (including without limitation by a plea of guilty or nolo
contendere) of a felony involving actual or constructive fraud, theft, or moral
turpitude while you were employed by the Company, its subsidiaries or affiliates
(whether such misconduct occurred before or after the Separation
Date).
(b) If
the Company chooses to exercise its rights under paragraphs 20(a) of this
Agreement, the other provisions of this Agreement will remain in full force and
effect during your lifetime.
(c) The
rights and remedies set forth in paragraph 21(a) are in addition to, and not in
lieu of, any other right or remedy afforded the Company under any other
provision of this Agreement or at law, in equity or otherwise.
21. Enforcement
of This Agreement
You agree
that if you materially breach any provision in paragraphs 10 through 14 or
paragraph 19 of this Agreement, the Company, its subsidiaries and its affiliates
will sustain immediate and irreparable injury. In the event of such a
breach, the Company may file any claim for breach of or to enforce this
Agreement in any court of law or tribunal of competent jurisdiction whether
within or outside the United States.
Upon
receiving actual notice of the Company’s action, you will waive and you will
direct your attorneys to waive any and all challenges to jurisdiction, venue,
service of process and, if the court or tribunal finds likelihood of success on
the merits, you will agree and you will direct your attorneys to agree to the
entry of a temporary restraining order, a preliminary injunction and a permanent
injunction requiring full performance of paragraphs 10 through 14 or paragraph
19.
In
addition, if the court or tribunal finds likelihood of success on the merits,
the Company shall have the right, but not the obligation, to terminate this
Agreement and shall be entitled to actual damages according to proof and
reimbursement of the full reasonable attorneys’ fees and costs it incurred in
bringing such action.
22. Notices
Any and
all notices, demands, or other communications required or desired to be given
hereunder by any Party shall be in writing and shall be validly given or made to
another Party if personally served or if sent by an established overnight
delivery service for delivery the next business day to the addresses set out
below. If such notice or demand is served personally, notice shall be
deemed constructively made at the time of such personal service. If
such notice, demand or other communication is sent by overnight delivery service
such notice shall be conclusively deemed given three (3) days after it is
sent.
If to
Company:
Xxxxxx
Xxxx
Vice
President, Human Resources
0000
00xx
Xxxxxx Xxxx
Xxxxxxx,
XX 00000
With a
copy to:
Xxxxx X.
Xxxxxxx
Senior
Vice President, General Counsel and
Corporate
Secretary
0000
00xx
Xxxxxx Xxxx,
Xxxxxxx,
XX 00000
If to
Xxxxx X. Xxxxxxx:
Xxxxx X.
Xxxxxxx
00000 XX
000xx Xxx
Xxxxxxxxxxx,
XX 00000
Any Party
hereto may change its address for purposes of this paragraph 23 by written
notice given in the manner provided above.
23. Miscellaneous
(a) Entire
Agreement. The Parties agree
that this Agreement contains the entire agreement and understanding of the
Parties with respect to your separation from the Company and that there are no
promises or terms of the agreement between the Parties other than those
expressly written in this Agreement. Unless this Agreement expressly
provides otherwise, this Agreement does not amend or modify any other agreements
you entered into with the Company prior to the Separation Date.
(b) Binding
Effect. This Agreement
shall be binding on the Parties and their respective successors, heirs,
beneficiaries, permitted assigns, subsidiaries and affiliates.
(c) Assignment. No party may
assign or otherwise transfer (by operation of law or otherwise) this Agreement
without the prior written consent of the other party.
(d) Third
Party Beneficiaries. This Agreement is only
for the benefit of, and is only enforceable, by you and the Company, its
subsidiaries and affiliates and their officers, directors, employees, agents,
successors and assigns. The Agreement is not intended to and shall
not be construed to confer any right or benefit on any third party other than
those identified in the preceding sentence.
(e) Severability. If any provision
or term of this Agreement is determined by a court of law or government tribunal
to be unenforceable, then such unenforceable provision or term will be modified
so as to make it enforceable, or if that is not possible, then it will be
deleted from this Agreement, and the remaining part of the Agreement shall
remain in full, force and effect.
(f) Amendments,
Waivers and Modification. No amendment,
waiver or modification of this Agreement will be enforceable unless it is in
writing, signed by authorized representatives of each of the
Parties.
(g) Controlling
Law. To the extent not
preempted by federal law, this Agreement will be interpreted, construed and
enforced in all respects in accordance with the laws of the State of Washington,
without reference to its choice of law or conflict of laws
principles.
(h) Choice of
Forum. Unless paragraph
21 permits a party to select a different forum, no suit, action, proceeding or
claim arising under or by reason of this Agreement will be brought by any party
in any place other than courts located in Seattle, Washington and the Parties
hereby irrevocably consent to the jurisdiction, service and venue of those
courts with respect to such suits, actions, proceedings and claims.
(i) No
Admission. Nothing in this Agreement shall be construed as an
admission by the Company or any Releasee with respect to any Existing
Claim.
(j) Headings. The headings to
the various sections of this Agreement have been inserted for the convenience of
the Parties only. They shall not be used to interpret or construe the
meaning of the terms and provisions of those sections.
(k) Counterparts. This Agreement
may be signed in counterparts and, subject to paragraph 18, when each party has
signed a counterpart, the Agreement shall be final and binding upon the
Parties.
25. Additional
Definitions
For
purposes of this Agreement, the following definitions apply:
(a)
“AIDC Industry” means
companies that sell, offer to sell, lease or offer to lease in any geographic
market (i) products that print, capture or collect data via automatic means
(including but not limited to barcode, printing, scanning or imaging, radio
frequency identification (“RFID”), smart cards, optical character recognition
(“OCR”) or magnetic strips) and subsequently store such data on a
microprocessor-controlled device (including but not limited to a computer) or
(ii) RFID chips, RFID inserts or inlays, RFID tags, RFID printers or RFID
readers or terminals.
(b)
"Control" means
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Securities Exchange Act of 1934), directly or indirectly of fifty percent (50%)
or more of the direct or indirect combined voting power of a Person’s then
outstanding voting equity generally entitled to vote in the election of
directors (or other participants of the managing authority), or (ii) acquiring
actual control of the operations of a Person, whether by means of contract or
otherwise; (ii) acquiring control through a merger or consolidation involving
Person if the equity holders of that Person
immediately before such merger or consolidation, as a result of and after such
merger or consolidation, own, directly or indirectly, less than fifty percent
(50%) of the combined voting power of the then outstanding voting securities
generally entitled to vote in the election of directors (or other participants
in the managing authority) of the entity surviving or resulting from such merger
or consolidation; or (iii) acquiring control of a Person through the purchase or
other acquisition of all or substantially all of the assets of that
Person.
(c)
“Effective Date” means
December 18, 2008.
(d)
“Person” means an
individual, a corporation, a limited liability company, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or any agency or instrumentality thereof, whether for
profit or not-for-profit.
(e)
“Tier I Companies” means
Symbol Technologies, Inc., Zebra Technologies Corp., Honeywell,
Impinj, Inc., Applied Wireless Identifications, Inc., Alien Technology
Corporation, Motorola, Inc., and their subsidiaries, affiliates and successors
thereof (including any Person that obtains Control of any such Tier I
Company).
(f) “Tier II Companies” means
value-added resellers in the AIDC Industry.
Xxxxx, if
you agree with the terms and conditions set forth above, please sign two copies
of the Agreement in the space provided below and return one signed original to
Xxxxx Xxxxxxx for our files. Please maintain the second copy for your
own records.
Sincerely,
/s/
Xxxxxx Xxxx
Xxxxxx
Xxxx
Vice
President, Human Resources
I
acknowledge that this Agreement is written in a manner that is readily
understandable, that I have read it and understand it. By signing
below I accept the terms and conditions of this Agreement.
__/s/ Xxxxx X.
Michael___________________ __1/12/2009_______
Xxxxx X.
Xxxxxxx Date
