Exhibit 10.4
Imation Corp. 2008 Stock Incentive Plan
Stock Option Agreement
This STOCK OPTION AGREEMENT (the
“Agreement”) effective as of « GrantDt
» is between Imation Corp., a Delaware corporation (the
“Company”), and , « Name » a
non-employee Director of the Company (the
“Participant”), pursuant to and subject to the terms
and conditions of the Imation Corp. 2008 Stock Incentive Plan (the
“Plan”).
The Company desires to provide the
Participant with an opportunity to purchase shares of the
Company’s common stock, par value $.01 per share (the
“Common Stock”), 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 a Non-Qualified Stock
Option 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. Grant of
Non-qualified Stock Option . Effective « GrantDt
» (the “Effective Date”), the Company granted to
the Participant the right and option to purchase all or any part of
an aggregate of « Shares » («
NbrShares ») shares of Common Stock on the terms and
conditions set forth in this Agreement and in accordance with the
terms of the Plan (the “Option”). The Option is not
intended to be an incentive stock option within the meaning of
Section 422 of the Internal Revenue Code of 1986, as amended (the
“Code”).
Section 2. Purchase Price
. The purchase price of the shares of Common Stock subject to the
Option shall be «Price» per share.
Section 3. Term of the
Option . The term of the Option (the “Option
Period”) shall be for a period of ten (10) years from
the Effective Date, terminating at the close of business on the
tenth anniversary of the Effective Date (the “Expiration
Date”) or such shorter period as provided in Section 6
hereof.
Section 4. Vesting of the
Option . Subject to Section 6 hereof, the Option may be
exercised at any time or from time to time beginning on the first
anniversary of the Effective Date and continuing throughout the
remainder of the Option Period, as to any part or all of the shares
covered thereby.
Section 5.
Transferability . The Option may not be assigned,
transferred (other than by will or the laws of descent and
distribution), pledged, hypothecated (whether by operation of law
or otherwise) or otherwise conveyed or encumbered, and shall not be
subject to execution, attachment or similar process. Any attempted
assignment, transfer, pledge, hypothecation or other disposition of
the Option contrary to the provisions of the Plan or this
Agreement, or the levy of any execution, attachment or similar
process upon the Option, shall be void and unenforceable against
the Company and shall constitute an immediate cancellation of the
Option.
Section 6. Effect of
Termination of Board Service; Change in Control .
(a) Except
as otherwise provided in Section 6(e) hereof, in the event the
Participant shall cease to serve on the Board of Directors of the
Company for any reason other than removal for cause, Retirement,
death or Disability, the Participant may exercise the Option to the
extent of (but only to the extent of) the vested shares the
Participant was entitled to purchase under the Option on the last
day of Board service, and the exercise of the Option to that extent
may be effected at any time within thirty (30) days after the
last day of Board service but not thereafter; provided, however,
that the Option may not be exercised after the Expiration
Date.
(b) In
the event the Participant shall cease to serve on the Board of
Directors of the Company upon removal for cause by the
Company’s shareholders, the Option shall be terminated as of
the date of such removal.
(c) Except
as otherwise provided in Sections 6(b) and 6(e), in the event the
Participant shall cease to serve on the Board of Directors of the
Company because of Retirement, the Option, shall become immediately
exercisable in full as of the date of the Participant’s
Retirement, and the exercise of the Option may be effected at any
time within three (3) years after the date of the
Participant’s Retirement but not thereafter; provided
, however , that the Option may not be exercised after the
Expiration Date. If a Participant who has thus retired dies within
three (3) years after the date of the Participant’s
Retirement and prior to the Expiration Date, the exercise of the
Option may be effected by the Participant’s estate or by any
Person or Persons to whom the Option has been transferred by will
or the applicable laws of descent and distribution at any time
within two (2) years after the date of the Participant’s
death, but not after the Expiration Date.
(d) Except
as otherwise provided in Section 6(b) and 6(e), in the event the
Participant dies or is deemed to suffer a Disability while serving
on the Board of Directors of the Company, the Option shall become
immediately exercisable in full as of the date of the
Participant’s death or Disability. In the event of
Participant’s death, the exercise of the Option may be
effected by the Participant’s estate or by any Person or
Persons to whom the Option has been transferred by will or the
applicable laws of descent and distribution at any time within two
(2) years after the date of the Participant’s death, but
not after the Expiration Date. In the event of the
Participant’s Disability, the exercise of the Option may be
effected by the Participant at any time within two (2) years
after the date of the Participant’s Disability, but not after
the Expiration Date.
(e) Notwithstanding
the provisions of Sections 4, 6(a), 6(c) and 6(d) hereof, in
the event of a Change in Control, the Option shall become
immediately exercisable in full as of the date of the Change in
Control, and the exercise of the Option may be effected at any time
thereafter and within six (6) months after the director ceases
to serve on the Board of Directors following the Change in Control,
but not after the Expiration Date. In the event that the provisions
of this Section 6(e) result in “payments” that are
finally and conclusively determined by a court or Internal Revenue
Service proceeding to be subject to the excise tax imposed by
Section 4999 of the Code, the Company shall pay to the
Participant an additional amount such
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that the
net amount retained by the Participant following realization of all
compensation under the Plan that resulted in such
“payments,” after allowing for the amount of such
excise tax and any additional federal, state and local income and
employment taxes paid on the additional amount, shall be equal to
the net amount that would otherwise have been retained by the
Participant if there were no excise tax imposed by
Section 4999 of the Code.
Section 7. Anti-Dilution and
Fundamental Change Adjustments .
(a) In
the event that any dividend or other distribution (whether in the
form of cash, shares of Common Stock, other securities or other
property), 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 affects the shares of Common
Stock covered by the Option 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 the shares
covered by the Option and the exercise price of the Option.
(b) In
the event of a proposed Fundamental Change, the Committee may, but
shall not be obligated to:
(i) with respect to a Fundamental
Change that involves a merger or consolidation, make appropriate
provision for the protection of the Option by the substitution of
options and appropriate voting common stock of the corporation
surviving any such merger or consolidation or, if appropriate, the
“parent corporation” (as defined in Section 424(e) of
the Code, or any successor provision) of the Company or such
surviving corporation, in lieu of the Option and shares of Common
Stock of the Company, or
(ii) with respect to any Fundamental
Change, including, without limitation, a merger or consolidation,
declare, prior to the occurrence of the Fundamental Change, and
provide written notice to the holder of the Option of the
declaration, that the Option, whether or not then exercisable,
shall be canceled at the time of, or immediately prior to the
occurrence of, the Fundamental Change in exchange for payment to
the holder of the Option, within 20 days after the Fundamental
Change, of cash (or, if the Committee so elects in lieu of solely
cash, of such form(s) of consideration, including cash and/or
property, singly or in such combination as the Committee shall
determine, that the holder of the Option would have received as a
result of the Fundamental Change if the holder of the Option had
exercised the Option immediately prior to the Fundamental Change)
equal to, for each share of Common Stock covered by the canceled
Option, the amount, if any, by which the Fair Market Value (as
defined in this Section 7(b)) per share of Common Stock
exceeds the exercise price per share of Common Stock covered by the
Option. At the time of the declaration provided for in the
immediately preceding sentence, the Option shall immediately
become
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exercisable in
full and the holder of the Option shall have the right, during the
period preceding the time of cancellation of the Option, to
exercise the Option as to all or any part of the shares of Common
Stock covered
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