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
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February
12, 2009
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Date
of Report (Date of Earliest Event
Reported)
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ITRON,
INC.
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(Exact
Name of Registrant as Specified in its
Charter)
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Washington
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000-22418
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91-1011792
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File No.)
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(IRS
Employer
Identification
No.)
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2111
N. Molter Road, Liberty Lake, WA 99019
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(Address
of Principal Executive Offices, Zip
Code)
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(509)
924-9900
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(Registrant’s
Telephone Number, Including Area
Code)
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(Former
Name or Former Address, if Changed Since Last
Report)
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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 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))
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Item 5.02
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers.
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(b) and (c) Departure and
Appointment of Certain Officers
On
February 12, 2009, Itron Inc.’s Board of Directors elected Malcolm Unsworth, 59,
to succeed LeRoy Nosbaum as President and Chief Executive Officer, effective
March 31, 2009. Mr. Nosbaum will remain on the Board and serve as its
Executive Chairman until December 31, 2009.
Malcolm
Unsworth joined Itron in July of 2004 as Sr. Vice President, Hardware Solutions,
following the acquisition of Schlumberger Electricity Metering. In
April 2007, Mr. Unsworth was named Sr. Vice President and Chief Operating
Officer of Actaris and promoted to President and Chief Operating Officer of the
Company in April, 2008. In December 2008, he was elected to the Board
of Directors. Prior to joining Itron, Mr. Unsworth spent 25 years
with Schlumberger in a variety of management positions in the electricity, gas,
water, and systems businesses.
In
connection with his promotion, Mr. Unsworth was granted an incentive stock
option to purchase 50,000 shares of the Company’s common stock at an exercise
price of $57.96 per share, the fair market value of our stock on February 13,
2009. The option vests 33 1/3% on each of February 13, 2010, 2011,
and 2012, and expires on February 13, 2019.
Also in
connection with his promotion, Mr. Unsworth’s base salary was increased from
$520,000 to $650,000, effective March 31, 2009. At the same time, Mr.
Nosbaum’s base salary will be reduced from $825,000 to $425,000.
(e) Revised/ New
Award Agreements
On
February 12, 2009, the Compensation Committee of the Board of Directors of the
Company approved the form of award agreements listed below, which are attached
to this Form 8-K, for awards to be issued under the Company’s Amended and
Restated 2000 Stock Incentive Plan.
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o
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Form
of Restricted Stock Unit Award Notice and Agreement for U.S. Employees for
use in connection with the Company’s Long-Term Performance Plan (LTPP) and
issued under the Company’s Amended and Restated 2000 Stock Incentive Plan.
(Exhibit 10.1 hereof)
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o
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Form
of Restricted Stock Unit Award Notice and Agreement for International
Employees (other than French) for use in connection with the Company’s
LTPP and issued under the Company’s Amended and Restated 2000 Stock
Incentive Plan. (Exhibit 10.2
hereof)
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o
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Form
of Restricted Stock Unit Award Notice and Agreement for French Employees
for use in connection with the Company’s LTPP and issued under the
Company’s Amended and Restated 2000 Stock Incentive Plan. (Exhibit 10.3
hereof)
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o
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Form
of Restricted Stock Unit Award Notice and Agreement for U.S. Employees for
use in connection with the Company’s Amended and Restated 2000 Stock
Incentive Plan. (Exhibit 10.4
hereof)
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o
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Form
of Restricted Stock Unit Award Notice and Agreement for French Employees
for use in connection with the Company’s Amended and Restated 2000 Stock
Incentive Plan. (Exhibit 10.5
hereof)
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o
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Form
of Restricted Stock Unit Award Notice and Agreement for International
Employees (other than French) for use in connection with the Company’s
Amended and Restated 2000 Stock Incentive Plan. (Exhibit 10.6
hereof)
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o
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Form
of Non-Qualified Stock Option Grant Notice and Agreement for use in
connection with the Company’s Amended and Restated 2000 Stock Incentive
Plan. (Exhibit 10.7 hereof)
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o
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Form
of Incentive Stock Option Grant Notice and Agreement for use in connection
with the Company’s Amended and Restated 2000 Stock Incentive Plan.
(Exhibit 10.8 hereof)
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(e) Material Award
Grants
The
following awards were granted by the Compensation Committee under the LTPP to
our named executive officers (other than our CEO) on February 12, 2009 and to
our CEO, Mr. Nosbaum, on February 13, 2009 by the Board, based upon
attainment of certain pre-determined goals established for the performance
period that began January 1, 2008 and ended December 31, 2008:
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Name
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Position
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Restricted
Stock Units
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LeRoy
D. Nosbaum
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Chairman
of the Board and Chief Executive Officer
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6,957
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Malcolm
Unsworth
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President
and Chief Operating Officer and Director
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3,715
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Steven
M. Helmbrecht
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Sr.
Vice President and Chief Financial Officer
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2,532
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John
W. Holleran
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Sr.
Vice President, General Counsel and Corporate Secretary
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2,217
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Philip
C. Mezey
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Sr.
Vice President and Chief Operating Officer - Itron North
America
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2,409
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The
restricted stock units (RSUs) vest entirely three years from the date of grant
and each RSU is the equivalent of one share of the Company’s Common Stock. Other
terms of the awards are as described in the LTPP (filed as Exhibit 10.1 to the
Form 8-K filed with the SEC on February 20, 2008) and in the related Form of
Restricted Stock Unit Award Notice and Agreement.
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Item
9.01
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Financial
Statements and Exhibits.
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(d)
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Exhibits.
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Exhibit
Number
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Description
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10.1
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Form
of Restricted Stock Unit Award Notice and Agreement for U.S. Employees for
use in connection with the Company’s Long-Term Performance Plan (LTPP) and
issued under the Company’s Amended and Restated 2000 Stock Incentive
Plan.
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10.2
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Form
of Restricted Stock Unit Award Notice and Agreement for International
Employees (other than French) for use in connection with the Company’s
LTPP and issued under the Company’s Amended and Restated 2000 Stock
Incentive Plan.
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10.3
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Form
of Restricted Stock Unit Award Notice and Agreement for French Employees
for use in connection with the Company’s LTPP and issued under the
Company’s Amended and Restated 2000 Stock Incentive Plan.
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10.4
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Form
of Restricted Stock Unit Award Notice and Agreement for U.S. Employees for
use in connection with the Company’s Amended and Restated 2000 Stock
Incentive Plan.
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10.5
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Form
of Restricted Stock Unit Award Notice and Agreement for French Employees
for use in connection with the Company’s Amended and Restated 2000 Stock
Incentive Plan.
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10.6
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Form
of Restricted Stock Unit Award Notice and Agreement for International
Employees (other than French) for use in connection with the Company’s
Amended and Restated 2000 Stock Incentive Plan.
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10.7
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Form
of Non-Qualified Stock Option Grant Notice and Agreement for use in
connection with the Company’s Amended and Restated 2000 Stock Incentive
Plan.
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10.8
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Form
of Incentive Stock Option Grant Notice and Agreement for use in connection
with the Company’s Amended and Restated 2000 Stock Incentive
Plan.
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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.
ITRON,
INC.
Dated: February
18,
2009 By:
/s/ Steven M.
Helmbrecht
Steven M. Helmbrecht
Sr. Vice President and Chief Financial
Officer
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 Restricted Stock Unit Award Notice and Agreement for U.S. Employees for
use in connection with the Company’s Long-Term Performance Plan (LTPP) and
issued under the Company’s Amended and Restated 2000 Stock Incentive
Plan.
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10.2
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Form
of Restricted Stock Unit Award Notice and Agreement for International
Employees (other than French) for use in connection with the Company’s
LTPP and issued under the Company’s Amended and Restated 2000 Stock
Incentive Plan.
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10.3
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Form
of Restricted Stock Unit Award Notice and Agreement for French Employees
for use in connection with the Company’s LTPP and issued under the
Company’s Amended and Restated 2000 Stock Incentive Plan.
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10.4
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Form
of Restricted Stock Unit Award Notice and Agreement for U.S. Employees for
use in connection with the Company’s Amended and Restated 2000 Stock
Incentive Plan.
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10.5
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Form
of Restricted Stock Unit Award Notice and Agreement for French Employees
for use in connection with the Company’s Amended and Restated 2000 Stock
Incentive Plan.
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10.6
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Form
of Restricted Stock Unit Award Notice and Agreement for International
Employees (other than French) for use in connection with the Company’s
Amended and Restated 2000 Stock Incentive Plan.
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10.7
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Form
of Non-Qualified Stock Option Grant Notice and Agreement for use in
connection with the Company’s Amended and Restated 2000 Stock Incentive
Plan.
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10.8
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Form
of Incentive Stock Option Grant Notice and Agreement for use in connection
with the Company’s Amended and Restated 2000 Stock Incentive
Plan.
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Exhibit
10.1
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ITRON,
INC.
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RESTRICTED
STOCK UNIT AWARD NOTICE FOR PARTICIPANTS IN THE UNITED
STATES
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AMENDED
AND RESTATED 2000 STOCK INCENTIVE PLAN
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LONG
TERM PERFORMANCE PLAN
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Itron,
Inc. (the "Company")
hereby grants to Participant a Restricted Stock Unit Award (the "Award"). The
Award is subject to all the terms and conditions set forth in this
Restricted Stock Unit Award Notice (the "Award
Notice"), the Restricted Stock Unit Award Agreement (“RSU Award
Agreement”), the Company Long Term Perfomance Plan (“LTPP”), and the
Itron, Inc. Amended and Restated 2000 Stock Incentive Plan (the "Plan"),
which are incorporated into this Award Notice in their
entirety.
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Participant:
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Award
Date:
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Number of Restricted Stock
Units:
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Vesting
Commencement Date:
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Vesting
Schedule:
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The
Award will vest in full on the third anniversary of the Vesting
Commencement Date (the “Vest Date”)
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Additional
Terms: This Award is subject to all the terms and
conditions set forth in this Award Notice, the RSU Award Agreement, the
LTPP, and the Plan which are attached to and incorporated into the Award
Notice in their entirety.
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I
accept this award subject to the terms and conditions stated
herein.
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Attachments:
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1. Restricted
Stock Unit Award Agreement
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2. 2000
Stock Incentive Plan
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3. Plan
Summary
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4. LTPP
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ITRON,
INC.
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AMENDED
AND RESTATED 2000 STOCK INCENTIVE
PLAN
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RESTRICTED
STOCK UNIT AWARD AGREEMENT
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Pursuant
to your Restricted Stock Unit Award Notice (the "Award
Notice"), the LTPP, and this Restricted Stock Unit Award Agreement
(this "Agreement"),
Itron, Inc. (the "Company")
has granted you a Restricted Stock Unit Award (the "Award")
under its Amended and Restated 2000 Stock Incentive Plan (the "Plan")
for the number of Restricted Stock Units indicated in your Award
Notice. Capitalized terms not expressly defined in this RSU
Award Agreement but defined in the Plan shall have the same definitions as
in the Plan.
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The
details of the Award are as
follows:
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1.Vesting
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The
Award will vest according to the vesting schedule set forth in the Award
Notice (the "Vesting
Schedule"). One share of the
Company's Common Stock will be issuable for each Restricted Stock Unit
that vests. Restricted Stock Units that have vested and are no
longer subject to forfeiture according to the Vesting Schedule are
referred to herein as "Vested
Units." Restricted
Stock Units that have not vested and remain subject to forfeiture under
the Vesting Schedule are referred to herein as "Unvested
Units." The
Unvested Units will vest (and to the extent so vested cease to be Unvested
Units remaining subject to forfeiture) in accordance with the Vesting
Schedule (the Unvested and Vested Units are collectively referred to
herein as the "Units"). Except
as provided in Section 2.1(b) below, all Vested Units will be settled on
the Vest Date set forth in the Award Notice and the Vest Date shall be the
“payment date” for purposes of Section 409A. The Award will
terminate and the Unvested Units will be subject to forfeiture upon your
termination of employment as set forth in
Section 2.1(a).
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2.Termination
of Employment; Corporate
Transaction
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2.1 Termination
of Employment
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(a)
Vesting of Units. Except
as provided in Section 2.2 below, if your employment terminates during the
Units' vesting period for any reason other than Cause, the Unvested Units
will vest pro-rata, based on the number of calendar days of employment
with the Company during the vesting period (rounded down to the nearest
whole number); provided, however, that your termination of employment must
constitute a “separation from service” under Section 409A of the Code and
the regulations thereunder (“409A”); and, provided further, that the Units
that become Vested Units as a result of such pro-rata vesting will not be
settled in shares of Common Stock until the date that is six months after
such separation from service. In the event that your
termination of employment does not satisfy the definition of "separation
from service" under Section 409A, then Unvested Units will still vest
pro-rata, based on the number of calendar days of employment with the
Company during the vesting period (rounded down to the nearest whole
number), but the Units that become Vested Units as a result of such
pro-rata vesting will not be settled in shares of Common Stock until the
Vest Date. If your employment terminates for Cause, any
Unvested Units will be forfeited immediately to the
Company.
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(b) Settlement of Vested Units. For
purposes of determining the settlement date under Section 2.1(a) for
issuing stock in exchange for the pro-rated Vested Units, if your
employment terminates by reason of (a) death, (b) Disability that also
satisfies the definition of "disability" under Section 409A or (c)
Retirement that also satisfies the definition of "separation from service"
under Section 409A, the settlement date shall be (i) if you are a
“specified employee,” the date six months after the date of death,
Disability or Retirement or (ii) if you are not a “specified employee,”
the date of death, Disability, or Retirement, and shares shall be issued
within 90 days of the settlement date. If your employment
terminates by reason of a Disability that does not satisfy the definition
of "disability" under Section 409A or by reason of Retirement that does
not satisfy the definition of "separation from service" under Section
409A, the settlement date shall be the Vest Date set forth in the Award
Notice and the Vest Date shall be the “payment date” for purposes of
Section 409A.
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2.2 Corporate
Transaction
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In
the event of a Corporate Transaction (other than a Related Party
Transaction) that also constitutes a change in control event within the
meaning of Section 409A, any Unvested Units will accelerate in vesting and
become Vested Units immediately prior to such
transaction.
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3.Securities
Law Compliance
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3.1 You
represent and warrant that you (a) have been furnished with a copy of
the prospectus for the Plan and all information which you deem necessary
to evaluate the merits and risks of receipt of the Award, (b) have
had the opportunity to ask questions and receive answers concerning the
information received about the Award and the Company, and (c) have
been given the opportunity to obtain any additional information you deem
necessary to verify the accuracy of any information obtained concerning
the Award and the Company.
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3.2 You
hereby agree that you will in no event sell or distribute all or any part
of the shares of the Company's Common Stock that you receive pursuant to
settlement of this Award (the "Shares")
unless (a) there is an effective registration statement under the
Securities Act of 1933, as amended (the "Securities
Act") and applicable state securities laws covering any such
transaction involving the Shares or (b) the Company receives an
opinion of your legal counsel (concurred in by legal counsel for the
Company) stating that such transaction is exempt from registration or the
Company otherwise satisfies itself that such transaction is exempt from
registration. You understand that the Company has no obligation
to you to register the Shares with the Securities and Exchange Commission
and has not represented to you that it will so register the
Shares.
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3.3 You
confirm that you have been advised, prior to your receipt of the Shares,
that neither the offering of the Shares nor any offering materials have
been reviewed by any administrator under the Securities Act or any other
applicable securities act (the "Acts")
and that the Shares cannot be resold unless they are registered under the
Acts or unless an exemption from such registration is
available.
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3.4 You
hereby agree to indemnify the Company and hold it harmless from and
against any loss, claim or liability, including attorneys' fees or legal
expenses, incurred by the Company as a result of any breach by you of, or
any inaccuracy in, any representation, warranty or statement made by you
in this Agreement or the breach by you of any terms or conditions of this
Agreement.
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4.Transfer
Restrictions
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Units
shall not be sold, transferred, assigned, encumbered, pledged or otherwise
disposed of, whether voluntarily or by operation of
law.
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5.No
Rights as Shareholder
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You
shall not have voting or other rights as a shareholder of the Company with
respect to the Units.
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6.Independent
Tax Advice
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You
acknowledge that determining the actual tax consequences to you of
receiving or disposing of the Units and Shares may be
complicated. These tax consequences will depend, in part, on
your specific situation and may also depend on the resolution of currently
uncertain tax law and other variables not within the control of the
Company. You are aware that you should consult a competent and
independent tax advisor for a full understanding of the specific tax
consequences to you of receiving the Units and receiving or disposing of
the Shares. Prior to executing this Agreement, you either have
consulted with a competent tax advisor independent of the Company to
obtain tax advice concerning the receipt of the Units and the receipt or
disposition of the Shares in light of your specific situation or you have
had the opportunity to consult with such a tax advisor but chose not to do
so.
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7. Book
Entry Registration of Shares
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The
Company will issue the Shares by registering the Shares in book entry form
with the Company's transfer agent in your name and the applicable
restrictions will be noted in the records of the Company's transfer agent
and in the book entry system.
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8.Withholding
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8.1 You
are ultimately responsible for all taxes owed in connection with this
Award including any domestic or foreign tax withholding obligation
required by law, whether national, federal, state or local, including FICA
or any other social tax obligation (the "Tax Withholding
Obligation"), regardless of any action the Company or any Related
Corporations take with respect to any such Tax Withholding Obligation that
arises in connection with this Award. The Company may refuse to
issue any Shares to you, or your beneficiary, until you satisfy the Tax
Withholding Obligation.
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8.2 In
order to satisfy your obligations set forth in Section 8.1, you hereby
irrevocably appoint any brokerage firm acceptable to the Company for such
purpose (the "Agent") as
your Agent, and authorize the Agent, to:
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(a)
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Sell
on the open market at the then prevailing market price(s), on your behalf,
as soon as practicable on or after the settlement date for any Vested
Unit, the minimum number of Shares (rounded up to the next whole number)
sufficient to generate proceeds to cover the withholding taxes that you
are required to pay pursuant to Section 8.1 and all applicable
fees and commissions due to, or required to be collected by, the
Agent;
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(b)
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Remit
directly to the Company the cash amount necessary to cover the payment of
all taxes required to be withheld with respect to the settlement of a
Vested Unit, as of such date;
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(c)
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Retain
the amount required to cover all applicable fees and commissions due to,
or required to be collected by, the Agent, relating directly to the sale
of Shares referred to in clause (a) above;
and
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(d)
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Remit
any remaining funds to you.
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It is the
intent of the parties that this Agreement comply with the requirements of Rule
10b5-1(c)(1)(i)(B) under the Exchange Act and this Agreement will be interpreted
to comply with the requirements of Rule 10b5-1(c) of the Exchange
Act.
You
understand that the Agent may affect sales as provided in clause (a) above
jointly with sales for other employees of the Company and that the average price
for executions resulting from bunched orders will be assigned to your
account. In addition, you acknowledge that it may not be possible to
sell Shares as provided by this Section 8.2 due to (i) a legal or contractual
restriction applicable to you or the Agent, (ii) a market disruption, or (iii)
rules governing order execution priority on the NASDAQ or other exchange where
the Shares may be traded. In the event of the Agent’s inability to
sell Shares, you will continue to be responsible for payment to the Company of
all federal, state, local and foreign taxes that are required by applicable laws
and regulations to be withheld.
You
acknowledge that regardless of any other term or condition of this Agreement,
the Agent will not be liable to you for (a) special, indirect, punitive,
exemplary, or consequential damages, or incidental losses or damages of any
kind, or (b) any failure to perform or for any delay in performance that results
from a cause or circumstance that is beyond its reasonable control.
You
hereby agree to execute and deliver to the Agent any other agreements or
documents as the Agent reasonably deems necessary or appropriate to carry out
the purposes and intent of this Section 8.2. The Agent is a third
party beneficiary of this Section 8.2.
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8.3 Notwithstanding
the forgoing, to the maximum extent permitted by law, the Company has the
right to retain without notice from Shares issuable under the Award or
from salary or other amounts payable to you, Shares or cash having a value
sufficient to satisfy the Tax Withholding
Obligation.
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9.General
Provisions
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9.1 Successors and
Assigns. The provisions of this Agreement will inure to
the benefit of the successors and assigns of the Company and be binding
upon you and your heirs, executors, administrators, successors, and
assigns.
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9.2 No Employment or Service
Contract. Nothing in this Agreement will be deemed to be
an employment contract or limit in any way theright of the Company to
terminate your employment at any time, with or without
cause.
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9.3 Section 409A
Compliance. Notwithstanding any provision in the Plan or
this Agreement to the contrary, the Plan Administrator may, at any time
and without your consent, modify the terms of the Award as it determines
appropriate to avoid the imposition of interest or penalties under Section
409A.
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9.4 Governing
Law. This Agreement will be construed and administered
in accordance with and governed by the laws of the State of Washington
without giving effect to principles of conflicts of law. For
the purposes of litigating any dispute that arises under this Agreement,
the parties hereby consent to exclusive jurisdiction and agree that such
litigation shall be conducted in the federal or state courts of the State
of Washington.
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Exhibit
10.2
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ITRON,
INC.
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AMENDED
AND RESTATED 2000 STOCK INCENTIVE PLAN
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RESTRICTED
STOCK UNIT AWARD NOTICE
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FOR
NON-U.S. PARTICIPANTS
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LONG-TERM
PERFORMANCE PLAN
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Itron,
Inc. (the “Company”)
hereby grants to Participant a restricted stock unit award (the “Award”). The
Award is subject to all the terms and conditions set forth in this
Restricted Stock Unit Award Notice (the “Award
Notice”), the Restricted Stock Unit Award Agreement, including any
appendix thereto for Participant’s country (the “Agreement”),
the Itron, Inc. Long-Term Performance Plan (the “LTPP”)
and the Itron, Inc. Amended and Restated 2000 Stock Incentive Plan (the
“Plan”),
all of which are incorporated into the Award Notice in their
entirety.
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Participant:
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Award
Date:
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Vesting
Commencement Date:
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Number of Restricted Stock
Units:
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Vesting
Schedule:
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The Award
will vest in full on the third anniversary of the Vesting Commencement Date (the
“Vest
Date”).
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Additional
Terms: This Award is subject to all the terms and
conditions set forth in this Award Notice, the Agreement, the LTPP and the
Plan, all of which are attached to and incorporated into the Award Notice
in their entirety.
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I
accept this award subject to the terms and conditions stated
herein.
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Attachments:
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1.Restricted
Stock Unit Award Agreement including country appendix
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2.Long-Term
Performance Plan
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3. Plan
Summary
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4. 2000
Stock Incentive Plan
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ITRON,
INC.
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AMENDED
AND RESTATED 2000 STOCK INCENTIVE
PLAN
|
|
RESTRICTED
STOCK UNIT AWARD AGREEMENT
|
|
FOR
NON-U.S. PARTICIPANTS
|
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LONG-TERM
PERFORMANCE PLAN
|
|
Pursuant
to your Restricted Stock Unit Award Notice (the “Award
Notice”) and this Restricted Stock Unit Award Agreement (this
“Agreement”),
Itron, Inc. (the “Company”)
has granted you a restricted stock unit award (the “Award”)
under its Amended and Restated 2000 Stock Incentive Plan (the “Plan”)
and its Long-Term Performance Plan (the “LTPP”)
for the number of restricted stock units indicated in your Award
Notice. Capitalized terms not expressly defined in this
Agreement but defined in the Plan shall have the same definitions as in
the Plan.
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The
details of the Award are as follows:
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1.
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Vesting
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The
Award will vest according to the vesting schedule set forth in the Award
Notice (the “Vesting
Schedule”). One share of
Common Stock will be issuable for each restricted stock unit that
vests. Restricted stock units that have vested and are no
longer subject to forfeiture according to the Vesting Schedule are
referred to herein as “Vested
Units.” Restricted
stock units that have not vested and remain subject to forfeiture under
the Vesting Schedule are referred to herein as “Unvested
Units.” The
Unvested Units will vest (and to the extent so vested cease to be Unvested
Units remaining subject to forfeiture) in accordance with the Vesting
Schedule (the Unvested and Vested Units are collectively referred to
herein as the “Units”). Except
as provided in Section 2.1(b) below, all Vested Units will be settled on
the Vest Date set forth in the Award Notice and the Vest Date shall be the
“payment date” for purposes of Section 409A. The Award will
terminate and the Unvested Units will be subject to forfeiture upon your
termination of employment as set forth in Section 2.1(a) and as
further described in Section 8(l).
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2.
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Termination
of Employment; Corporate
Transaction
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2.1
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Termination
of Employment
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(a) Vesting of
Units. Except as provided in Section 2.2 below, if your
employment terminates during the Units' vesting period for any reason other than
Cause, the Unvested Units will vest pro-rata, based on the number of calendar
days of employment with the Company or a Related Corporation during the vesting
period (rounded down to the nearest whole number); provided, however, that your
termination of employment must constitute a “separation from service” under
Section 409A of the Code and the regulations thereunder (“Section
409A”)1; and, provided further, that the Units that
become Vested Units as a result of such pro-rata vesting will not be settled in
shares of Common Stock until the date that is six months after such separation
from service. In the event that your termination of employment does
not satisfy the definition of "separation from service" under Section 409A, then
Unvested Units will still vest pro-rata, based on the number of calendar days of
employment with the Company or a Related Corporation during the vesting period
(rounded down to the nearest whole number), but the Units that become Vested
Units as a result of such pro-rata vesting will not be settled in shares of
Common Stock until the Vest Date. If your employment terminates for
Cause, any Unvested Units will be forfeited immediately to the
Company.
(b) Settlement of Vested
Units. For purposes of determining the settlement date under
Section 2.1(a) for issuing shares of Common Stock, if your employment terminates
by reason of (a) death or (b) Disability that also satisfies the definition of
“disability” under Section 409A, the settlement date shall be (i) if you are a
“specified employee,” the date six months after the date of death or Disability
or (ii) if you are not a “specified employee,” the date of death or Disability,
and shares of Common Stock shall be issued within 90 days of the settlement
date. If your employment terminates by reason of a Disability that
does not satisfy the definition of “disability” under Section 409A, the
settlement date shall be the Vest Date set forth in the Award Notice and the
Vest Date shall be the “payment date” for purposes of Section 409A.
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2.2
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Corporate
Transaction
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In
the event of a Corporate Transaction (other than a Related Party
Transaction) that also constitutes a change in control event within the
meaning of Section 409A, any Unvested Units will accelerate in vesting and
become Vested Units immediately prior to such
transaction.
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3.
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Securities
Law Compliance
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3.1 You
represent and warrant that you (a) have been furnished with a copy of the
prospectus for the Plan and all information which you deem necessary to evaluate
the merits and risks of receipt of the Award, (b) have had the opportunity
to ask questions and receive answers concerning the information received about
the Award and the Company, and (c) have been given the opportunity to
obtain any additional information you deem necessary to verify the accuracy of
any information obtained concerning the Award and the Company.
3.2 You
hereby agree that you will in no event sell or distribute all or any part of the
shares of Common Stock that you receive pursuant to settlement of this Award
(the “Shares”)
unless (a) there is an effective registration statement under the U.S.
Securities Act of 1933, as amended (the “Securities
Act”) and any applicable state and foreign securities laws covering any
such transaction involving the Shares or (b) the Company receives an
opinion of your legal counsel (concurred in by legal counsel for the Company)
stating that such transaction is exempt from registration or the Company
otherwise satisfies itself that such transaction is exempt from
registration. You understand that the Company has no obligation to
you to register the Shares with the U.S. Securities and Exchange Commission or
any foreign securities regulator and has not represented to you that it will so
register the Shares.
3.3 You
confirm that you have been advised, prior to your receipt of the Shares, that
neither the offering of the Shares nor any offering materials have been reviewed
by any administrator under the Securities Act or any other applicable securities
act (the “Acts”) and
that the Shares cannot be resold unless they are registered under the Acts or
unless an exemption from such registration is available.
3.4 You
hereby agree to indemnify the Company and hold it harmless from and against any
loss, claim or liability, including attorneys’ fees or legal expenses, incurred
by the Company as a result of any breach by you of, or any inaccuracy in, any
representation, warranty or statement made by you in this Agreement or the
breach by you of any terms or conditions of this Agreement.
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4.
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Transfer
Restrictions
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Units
shall not be sold, transferred, assigned, encumbered, pledged or otherwise
disposed of, whether voluntarily or by operation of law.
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5.
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No
Rights as Shareholder
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You
shall not have voting or other rights as a shareholder of the Company with
respect to the Units.
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6.
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Book
Entry Registration of Shares
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The Company will issue the Shares
by registering the Shares in book entry form with the Company’s transfer
agent in your name and the applicable restrictions will be noted in the
records of the Company’s transfer agent and in the book entry
system.
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7.
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Responsibility
for Taxes
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7.1 Regardless
of any action the Company or your employer (the “Employer”)
takes with respect to any or all income tax, social insurance, payroll tax,
payment on account or other tax-related items related to your participation in
the Plan and legally applicable to you (“Tax-Related
Items”), you acknowledge that the ultimate liability for all Tax-Related
Items is and remains your responsibility and may exceed the amount actually
withheld by the Company and/or the Employer. You further acknowledge
that the Company and the Employer (a) make no representations or undertakings
regarding the treatment of any Tax-Related Items in connection with any aspect
of the Award, including, but not limited to, the granting or vesting of the
Award, the settlement of Vested Units, the issuance of Shares upon settlement of
the Vested Units, the subsequent sale of Shares acquired upon settlement of the
Vested Units and the receipt of any dividends; and (b) do not commit to and are
under no obligation to structure the terms of the grant or any aspect of the
Award to reduce or eliminate your liability for Tax-Related Items or achieve any
particular tax result. Further, if you have become subject to tax in
more than one jurisdiction between the Award Date and the date of any relevant
taxable event, you acknowledge that the Company and/or the Employer (or former
employer, as applicable) may be required to withhold or account for Tax-Related
Items in more than one jurisdiction.
7.2 Prior to
any relevant taxable or tax withholding event, as applicable, you will pay or
make adequate arrangements satisfactory to the Company and or the Employer to
satisfy all Tax-Related Items.
(a) In this
regard, you hereby irrevocably appoint Fidelity or any brokerage firm designated
by the Company for such purpose (the "Agent") as
your Agent, and authorize the Agent, to:
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(i)
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Sell
on the open market at the then prevailing market price(s), on your behalf,
as soon as practicable on or after the settlement date for any Vested
Unit, the minimum number of Shares (rounded up to the next whole number)
sufficient to generate proceeds to cover the Tax-Related Items and all
applicable fees and commissions due to, or required to be collected by,
the Agent;
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(ii)
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Remit
directly to the Company the cash amount necessary to cover the Tax-Related
Items;
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(iii)
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Retain
the amount required to cover all applicable fees and commissions due to,
or required to be collected by, the Agent, relating directly to the sale
of Shares referred to in clause (i) above;
and
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(iv)
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Remit
any remaining funds to you.
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(b) Alternatively,
or in addition to or in combination with the withholding mechanism described in
Section 7.2(a), you authorize the Company and/or the Employer at their
discretion, to satisfy the obligations with regard to all Tax-Related Items
by:
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(i)
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requiring
you to pay to the Company or the Employer any amount of the Tax-Related
Items; and/or
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(ii)
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withholding
any amount of the Tax-Related Items from your wages or other cash
compensation paid to you by the Company and/or the Employer;
and/or
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(iii)
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withholding
in Shares to be issued upon settlement of the Vested
Units.
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(c) To avoid
negative accounting treatment, the Company may withhold or account for
Tax-Related Items by considering applicable minimum statutory withholding
amounts or other applicable withholding rates. If the obligation for
Tax-Related Items is satisfied by withholding in Shares, for tax purposes, you
will be deemed to have been issued the full number of Shares subject to the
Vested Units notwithstanding that a number of the Shares are held back solely
for the purpose of paying the Tax-Related Items due as a result of any aspect of
your participation in the Plan. The Company may refuse to issue or
deliver Shares to you if you fail to comply with your obligations in connection
with the Tax-Related Items.
7.3 You
represent and warrant that you are not aware of any material, nonpublic
information with respect to the Company or any securities of the Company; you
are not subject to any legal, regulatory or contractual restriction which would
prevent the Agent from conducting sales as provided herein; you do not have, and
will not attempt to exercise, authority, influence or control over any sales of
Shares effected pursuant to Section 7.2(a); and you are entering into this
Agreement in good faith and not as part of a plan or scheme to evade the
prohibitions of Rule 10b5-1 (regarding trading of the Company’s securities on
the basis of material nonpublic information) under the U.S. Securities Exchange
Act of 1934, as amended (the “Exchange
Act”). It is the intent of the parties that this Agreement
comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act
and this Agreement will be interpreted to comply with the requirements of Rule
10b5-1(c) of the Exchange Act.
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You
understand that the Agent may effect sales as provided in Section 7.2(a)
above jointly with sales for other employees of the Company and/or Related
Corporations and that the average price for executions resulting from
bunched orders will be assigned to your account. In addition,
you acknowledge that it may not be possible to sell Shares as provided by
Section 7.2(a) due to (i) a legal or contractual restriction applicable to
you or the Agent, (ii) a market disruption, or (iii) rules governing order
execution priority on the NASDAQ or other exchange where the Shares may be
traded. In the event of the Agent’s inability to sell Shares,
you will continue to be responsible for the Tax-Related
Items.
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You
acknowledge that regardless of any other term or condition of this Agreement,
the Agent will not be liable to you for (a) special, indirect, punitive,
exemplary, or consequential damages, or incidental losses or damages of any
kind, or (b) any failure to perform or for any delay in performance that results
from a cause or circumstance that is beyond its reasonable control.
You
hereby agree to execute and deliver to the Agent any other agreements or
documents as the Agent reasonably deems necessary or appropriate to carry out
the purposes and intent of Section 7.2(a) and this Section 7.3. The
Agent is a third party beneficiary of Section 7.2(a) and this Section
7.3.
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8.
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Nature of
Grant
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In
accepting the grant, you acknowledge that:
(a) the Plan
is established voluntarily by the Company, it is discretionary in nature and it
may be modified, amended, suspended or terminated by the Company at any
time;
(b) the grant
of the Award is voluntary and occasional and does not create any contractual or
other right to receive future grants of restricted stock units, or benefits in
lieu of restricted stock units, even if restricted stock units have been granted
repeatedly in the past;
(c) all
decisions with respect to future grants of restricted stock units, if any, will
be at the sole discretion of the Company;
(d) your
participation in the Plan shall not create a right to further employment with
the Employer and shall not interfere with the ability of the Employer to
terminate your employment relationship at any time;
(e) you are
voluntarily participating in the Plan;
(f) the Award
and the Shares subject to the Award are an extraordinary item that does not
constitute compensation of any kind for services of any kind rendered to the
Company or the
Employer, and which is outside the scope of your employment contract, if
any;
(g) the Award
and the Shares subject to the Award are not intended to replace any pension
rights or compensation;
(h) the Award
and the Shares subject to the Award are not part of normal or expected
compensation or salary for any purposes, including, but not limited to,
calculating any severance, resignation, termination, redundancy, end of service
payments, bonuses, long-service awards, pension or retirement or welfare
benefits or similar payments and in no event should be considered as
compensation for, or relating in any way to, past services for the Company, the
Employer or any Related Corporation;
(i) the grant
of the Award and your participation in the Plan will not be interpreted to form
an employment contract or relationship with the Company or any Related
Corporation;
(j) the
future value of the underlying Shares is unknown and cannot be predicted with
certainty;
(k) in
consideration of the grant of the Award, no claim or entitlement to compensation
or damages shall arise from termination of the Award or diminution in value of
the Shares underlying the Award resulting from termination of your employment by
the Company or the Employer (for any reason whatsoever and whether or not in
breach of local labor laws) and you irrevocably release the Company and the
Employer from any such claim that may arise; if, notwithstanding the foregoing,
any such claim is found by a court of competent jurisdiction to have arisen, you
shall be deemed irrevocably to have waived your entitlement to pursue such
claim;
(l) in the
event of termination of your employment (whether or not in breach of local labor
laws), your right to vest in the Award, if any, will terminate effective as of
the date that you are no longer actively employed and will not be extended by
any notice period mandated under local law (e.g., active employment would
not include a period of “garden leave” or similar period pursuant to local law);
the Board (or a committee appointed by the Board) shall have the exclusive
discretion to determine when you are no longer actively employed for purposes of
the Award; and
(m) the Award
and the benefits under the Plan, if any, will not automatically transfer to
another company in the case of a merger, take-over or transfer of
liability.
9. No
Advice Regarding Grant
The
Company is not providing any tax, legal or financial advice, nor is the Company
making any recommendations regarding your participation in the Plan or your
acquisition or sale of the underlying Shares. You are hereby advised
to consult with your own personal tax, legal and financial advisors regarding
your participation in the Plan before taking any action related to the
Plan. You acknowledge that you have either consulted with competent
advisors independent of the Company to obtain advice concerning the receipt of
the Award and the acquisition or disposition of any Shares to be issued pursuant
to the Award in light of your specific situation or had the opportunity to
consult with such advisors but chose not to do so.
10. Data
Privacy
You hereby explicitly and unambiguously
consent to the collection, use and transfer, in electronic or other form, of
your personal data as described in this Agreement and any other Award materials
by and among, as applicable, the Employer, the Company and its Related
Corporations for the exclusive purpose of implementing, administering and
managing your participation in the Plan.
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You
understand that the Company and the Employer may hold certain personal
information about you, including, but not limited to, your name, home
address and telephone number, date of birth, social insurance number or
other identification number, salary, nationality, job title, any shares of
stock or directorships held in the Company, details of all Awards or any
other entitlement to shares of stock awarded, canceled, exercised, vested,
unvested or outstanding in your favor, for the exclusive purpose of
implementing, administering and managing the Plan
(“Data”).
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You
understand that Data will be transferred to Fidelity or such other stock
plan service provider as may be selected by the Company in the future,
which is assisting the Company with the implementation, administration and
management of the Plan. You understand that the recipients of
Data may be located in the United States or elsewhere, and that the
recipients’ country (e.g., the United States) may have different data
privacy laws and protections than your country. You understand
that you may request a list with the names and addresses of any potential
recipients of Data by contacting your local human resources
representative. You authorize the Company, Fidelity and any
other possible recipients which may assist the Company (presently or in
the future) with implementing, administering and managing the Plan to
receive, possess, use, retain and transfer Data, in electronic or other
form, for the sole purpose of implementing, administering and managing
your participation in the Plan. You understand that Data will
be held only as long as is necessary to implement, administer and manage
your participation in the Plan. You understand that you may, at
any time, view Data, request additional information about the storage and
processing of Data, require any necessary amendments to Data or refuse or
withdraw the consents herein, in any case without cost, by contacting in
writing your local human resources representative. You
understand, however, that refusing or withdrawing your consent may affect
your ability to participate in the Plan. For more information
on the consequences of your refusal to consent or withdrawal of consent,
you understand that you may contact your local human resources
representative.
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11. Electronic Delivery and
Participation
The Company may, in its sole
discretion, decide to deliver any documents related to current or future
participation in the Plan by electronic means. You hereby consent to
receive such documents by electronic delivery and agree to participate in the
Plan through an on-line or electronic system established and maintained by the
Company or a third party designated by the Company.
12. Language
If you
have received this Agreement or any other document related to the Plan
translated into a language other than English and if the meaning of the
translated version is different from the English version, the English version
will control.
13. General
Provisions
13.1 Successors and
Assigns. The provisions of this Agreement will inure to the
benefit of the successors and assigns of the Company and be binding upon you and
your heirs, executors, administrators, successors and assigns.
13.2 Section 409A
Compliance. Notwithstanding any provision in the Plan or this
Agreement to the contrary, the Plan Administrator may, at any time and without
your consent, modify the terms of the Award as it determines appropriate to
avoid the imposition of interest or penalties under Section 409A.
13.3 Governing Law and Choice of
Venue. The Award and the provisions of this Agreement will be
construed and administered in accordance with and governed by the laws of the
State of Washington without giving effect to such state’s principles of conflict
of laws. For the purposes of litigating any dispute that arises under
this grant of this Agreement, the parties hereby submit to and consent to the
exclusive jurisdiction of the State of Washington and agree that such litigation
shall be conducted in the courts of Spokane County, Washington, or the federal
courts for the United States for the Eastern District of Washington, where this
grant is made and/or to be performed.
13.4 Severability. The provisions of this
Agreement are severable and if any one or more provisions are determined to be
illegal or otherwise unenforceable, in whole or in part, the remaining
provisions shall nevertheless be binding and enforceable.
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13.5 Notice. Any
notice required or permitted hereunder shall be made in writing and sent
to the following address:
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Itron,
Inc.
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Attn: General
Counsel
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2111
N. Molter Road
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Liberty
Lake,
WA USA 99019
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14. Appendix
Notwithstanding any provisions in this
Agreement, the Award shall be subject to any special terms and conditions set
forth in any appendix to this Agreement for your country (the “Appendix”). Moreover,
if you relocate to one of the countries included in the Appendix, the special
terms and conditions for such country will apply to you, to the extent the
Company determines
that the application of such terms and conditions is necessary or advisable in
order to comply with local law or facilitate the administration of the
Plan. The Appendix constitutes part of this Agreement.
15. Imposition
of Other Requirements
The Company reserves the right to
impose other requirements on your participation in the Plan, on the Award and on
any Shares acquired under the Plan, to the extent the Company determines it is
necessary or advisable in order to comply with local law or facilitate the
administration of the Plan, and to require you to sign any additional agreements
or undertakings that may be necessary to accomplish the foregoing.
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APPENDIX
ITRON,
INC.
AMENDED
AND RESTATED 2000 STOCK INCENTIVE PLAN
RESTRICTED
STOCK UNIT AWARD AGREEMENT
FOR
NON-U.S. PARTICIPANTS
LONG-TERM
PERFORMANCE PLAN
Terms
and Conditions
This
Appendix includes additional terms and conditions that govern the restricted
stock unit award (the “Award”)
granted to you under the Itron, Inc. Amended and Restated 2000 Stock Incentive
Plan (the “Plan”)
and the Itron, Inc. Long-Term Performance Plan (the “LTPP”) if
you reside in one of the countries listed below. Capitalized terms
not expressly defined in this Appendix but defined in the Plan or the Restricted
Stock Unit Award Agreement (the “Agreement”)
shall have the same definitions as in the Plan and/or the Agreement, as
applicable.
Notifications
This
Appendix also includes information regarding exchange control and other issues
of which you should be aware with respect to your participation in the
Plan. The information is based on the exchange control, securities
and other laws in effect in the respective countries as of November
2008. Such laws are often complex and change
frequently. As a result, the Company strongly recommends that you not
rely on the information herein as the only source of information relating to the
consequences of participation in the Plan because the information may be out of
date at the time that the Award vests or the Shares acquired under the Plan are
sold.
In
addition, the information contained herein is general in nature and may not
apply to your particular situation and the Company is not in a position to
assure you of a particular result. Accordingly, you are advised to
seek appropriate professional advice as to how the relevant laws in your country
may apply to your situation.
Finally,
if you are a citizen or resident of a country other than the one in which you
are currently working, the information contained herein may not be applicable to
you.
BELGIUM
Notifications
Tax Reporting
Notification. If you are a Belgian resident, you are required
to report any bank or brokerage accounts held outside of Belgium on your annual
tax return.
GERMANY
Notifications
Exchange Control
Notification. Cross-border payments in excess of €12,500 must
be reported monthly to the German Federal Bank. If you use a German
bank to transfer a cross-border payment in excess of €12,500 in connection with
the sale of Shares acquired under the Plan, the bank will make the report for
you. In addition, you must report any receivables, payables, or debts
in foreign currency exceeding an amount of €5,000,000 in any month.
UNITED
KINGDOM
Terms
and Conditions
Vesting. This
provision supplements Section 1 of the Agreement:
Notwithstanding
any discretion or anything to the contrary in the Plan and/or the Agreement, the
grant of the Award does not provide any right for you to receive a cash payment
and the Vested Units will be settled in Shares only.
Responsibility for
Taxes. The following provision supplements Section 7 of the
Agreement:
If
payment or withholding of the Tax-Related Items (including the Employer’s
Liability, as defined below) is not made within ninety (90) days of the event
giving rise to the Tax-Related Items (the “Due
Date”) or such other period specified in Section 222(1)(c) of the U.K.
Income Tax (Earnings and Pensions) Act 2003, the amount of any uncollected
Tax-Related Items will constitute a loan owed by you to the Employer, effective
on the Due Date. You agree that the loan will bear interest at the
then-current official rate of Her Majesty’s Revenue and Customs (“HMRC”),
it will be immediately due and repayable, and the Company or the Employer may
recover it at any time thereafter by any of the means referred to in Section 7.2
of the Agreement. Notwithstanding the foregoing, if you are a
director or executive officer of the Company (within the meaning of Section
13(k) of the U.S. Securities and Exchange Act of 1934, as amended), you will not
be eligible for such a loan to cover the Tax-Related Items. In the
event that you are a director or executive officer and the Tax-Related Items are
not collected from or paid by you by the Due Date, the amount of any uncollected
Tax-Related Items will constitute a benefit to you on which additional income
tax and national insurance contributions (including the Employer’s Liability, as
defined below) will be payable. You will be responsible for reporting
and paying any income tax and national insurance contributions (including the
Employer’s Liability, as defined below) due on this additional benefit directly
to HMRC under the self-assessment regime.
Joint Election. As
a condition of your participation in the Plan, you agree to accept any liability
for secondary Class 1 national insurance contributions (the “Employer’s
Liability”) which may be payable by the Company and/or the
Employer in connection with the Award and any event giving rise to
Tax-Related Items. To accomplish the foregoing, you agree to execute the
following joint election with the Company (the “Joint
Election”), the form of such Joint Election being formally approved by
HMRC, and any other consent or elections required to accomplish the transfer of
the Employer’s Liability to you. You further agree to execute such
other joint elections as may be required between yourself and any successor to
the Company and/or the Employer. You further agree that the Company
and/or the Employer may collect the Employer’s Liability by any of the means set
forth in Section 7.2 of the Agreement.
If you do
not enter into a Joint Election prior to vesting of the Award or any other event
giving rise to Tax-Related Items, you will forfeit the Units and any benefits in
connection with the Award, and any Shares that have been issued will be returned
to the Company at no cost to the Company, without any liability to the Company
and/or the Employer.
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ITRON,
INC.
AMENDED
AND RESTATED 2000 STOCK INCENTIVE PLAN
Important
Note on the Joint Election to Transfer
Employer
National Insurance Contributions
As
a condition of participation in the Itron, Inc. Amended and Restated 2000 Stock
Incentive Plan (the “Plan”) and the vesting of the restricted stock unit award
(the “Award”) that has been granted to you by Itron, Inc. (the “Company”), you
are required to enter into a joint election to transfer to you any liability for
employer national insurance contributions (the “Employer’s Liability”) that may
arise in connection with the Award, or in connection with future restricted
stock unit awards, granted to you by the Company under the Plan (the “Joint
Election”).
If
you do not agree to enter into the Joint Election, the Award will be worthless,
as (under the terms of the Restricted Stock Unit Award Agreement), you will not
be able to vest in the Award or receive any benefit in connection with the
Award.
By
entering into the Joint Election:
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you
agree that any Employer’s Liability that may arise in connection with or
pursuant to the vesting of the Award (and the acquisition of shares of the
Company’s common stock) or other taxable events in connection with the
Award will be transferred to you;
and
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you
authorise the Company and/or your employer to recover an amount sufficient
to cover this liability by any method set forth in the Restricted Stock
Unit Award Agreement and/or the Joint
Election.
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To enter into the Joint Election,
please click on the "[INSERT NAME OF BOTTON/BOX]" button [below] [on the [INSERT
NAME OF SCREEN]. In addition to indicating your acceptance of the
Restricted Stock Unit Award Agreement, clicking on the
"[INSERT NAME OF BOTTON/BOX]" button indicates your agreement to be bound by the
terms of the Joint Election.
Please
read the terms of the Joint Election carefully before
accepting
the Restricted Stock Unit Award Agreement
and
the Joint Election.
Please
print and keep a copy of the Joint Election
for
your records.
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ITRON,
INC.
AMENDED
AND RESTATED 2000 STOCK INCENTIVE PLAN
Restricted
Stock Units
for
Employees in the United Kingdom
FORM OF ELECTION TO TRANSFER
THE EMPLOYER’S SECONDARY
CLASS 1 NATIONAL INSURANCE
LIABILITY TO THE EMPLOYEE
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1.
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Parties
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This
Election is between:
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(A)
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You,
the individual who has obtained access to this Election (the “Employee”),
who is employed by one of the employing companies listed in the attached
schedule (the “Employer”),
and who is eligible to receive a restricted stock unit award pursuant to
the terms and conditions of the Itron, Inc. Amended and Restated 2000
Stock Incentive Plan (the “Plan”),
and
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(B)
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Itron,
Inc. of 2111 N. Molter Road, Lake Liberty, Washington 99019, U.S.A. (the
“Company”)
which may grant restricted stock unit awards under the Plan and is
entering this Election on behalf of the
Employer.
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2.
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Purpose of
Election
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2.1
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This
Election relates to the Employer’s secondary Class 1 national insurance
contributions (the “Employer’s
Liability”) which may arise on the occurrence of a "Taxable
Event" pursuant to section 4(4)(a) of the Social Security
Contributions and Benefits Act 1992,
including:
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(i)
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the
acquisition of securities pursuant to the restricted stock unit award
(pursuant to section 477(3)(a) ITEPA);
and/or
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(ii)
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the
assignment or release of the restricted stock unit award in return for
consideration (pursuant to section 477(3)(b) ITEPA);
and/or
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(iii)
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the
receipt of a benefit in connection with the restricted stock unit award
other than a benefit within (i) or (ii) above (pursuant to section
477(3)(c) ITEPA).
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In this
Election, ITEPA means the Income Tax (Earnings and Pensions) Act
2003.
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2.2
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This
Election is made in accordance with paragraph 3B(1) of Schedule 1 to the
Social Security Contributions and Benefits Act
1992.
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2.3
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This
Election applies to all restricted stock unit awards granted to the
Employee under the Plan, on or after [insert date] up to the termination
date of the Plan.
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2.4
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This
Election does not apply in relation to any liability, or any part of
any liability, arising as a result of regulations being given
retrospective effect by virtue of section 4B(2) of either the Social
Security Contributions and Benefits Act 1992, or the Social Security
Contributions and Benefits (Northern Ireland) Act
1992.
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2.5
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This
Election will not apply to the extent that it relates to relevant
employment income which is employment income of the earner by virtue of
Chapter 3A of Part 7 of ITEPA 2003 (employment income: securities with
artificially depressed market
value).
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3.
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The
Election
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The
Employee and the Company jointly elect that the entire liability of the Employer
to pay the Employer’s Liability on the Taxable Event is hereby transferred to
the Employee. The Employee understands that by clicking on the
“[INSERT NAME OF BUTTON/BOX]” button where indicated [below] [on the [INSERT
NAME OF SCREEN], he or she will become personally liable for the Employer’s
Liability covered by this Election.
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4.
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Payment of the
Employer’s Liability
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4.1
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Notwithstanding
that pursuant to this Election, the Employer’s Liability is transferred to
the Employee, the Employee authorises the Employer and the Employer
agrees, to remit the Employer’s Liability to Her Majesty’s Revenue and
Customs (“HMRC”)
on behalf of the Employee. The Employee agrees to pay to the
Employer the Employer’s Liability on demand at any time on or after the
Taxable Event.
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4.2
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Without
limitation to Clause 4.1 above, the Employee hereby authorises the Company
and/or the Employer to collect the Employer’s Liability from the Employee
at any time on or after the Taxable
Event:
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(i)
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by
deduction from salary or any other payment payable to the Employee at any
time on or after the date of the Taxable Event;
and/or
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(ii)
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directly
from the Employee by payment in cash or cleared funds;
and/or
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(iii)
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by
arranging, on behalf of the Employee, for the sale of some of the
securities which the Employee is entitled to receive in respect of the
restricted stock unit award; and/or
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(iv)
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through
any other method set forth in the Restricted Stock Unit Award Agreement
entered into between the Employee and the
Company.
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4.3
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The
Company hereby reserves for itself and the Employer the right to withhold
the transfer of any securities to the Employee until full payment of the
Employer’s Liability is received.
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5. Duration of
Election
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5.1
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The
Employee and the Company agree to be bound by the terms of this Election
regardless of whether the Employee is transferred abroad or is not
employed by the UK Employer on the date on which the Employer’s Liability
becomes due.
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5.2 This
Election will continue in effect until the earliest of the
following:
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(i)
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such
time as both the Employee and the Company agree in writing that it should
cease to have effect;
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(ii)
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the
date the Company serves written notice on the Employee terminating its
effect;
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(iii)
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the
date HMRC withdraws approval of this Form of Election;
or
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(iv)
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the
date the Election ceases to have effect in accordance with its terms in
respect of any outstanding restricted stock unit awards granted under the
Plan.
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Acceptance by the
Employee
The
Employee acknowledges that by clicking on the “[INSERT NAME OF BUTTON/BOX]”
button where indicated [below] [on the [INSERT NAME OF SCREEN], the Employee
agrees to be bound by the terms of this Election as stated above.
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Acceptance by the
Company
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The
Company acknowledges that by arranging for the scanned signature of an
authorised representative to appear on this Election, the Company agrees to be
bound by the terms of this Election as stated above.
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Schedule
to Form of Election – Employing
Companies
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The
Employing Companies to which this Form of Election relates are:
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(1)
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Actaris
UK Limited
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| Registered Office: |
Langer
Road,
Felixstowe, Suffolk, IP11 2ER
United Kingdom
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| Company Number: | 04274515 |
| Corporation Tax District: | |
| Corporation Tax Reference: | |
| PAYE District: | |
| PAYE Reference: |
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Exhibit
10.3
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ITRON,
INC.
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AMENDED
AND RESTATED 2000 STOCK INCENTIVE PLAN
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RESTRICTED
STOCK UNIT AWARD NOTICE
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FOR
PARTICIPANTS IN FRANCE
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LONG-TERM
PERFORMANCE PLAN
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Itron,
Inc. (the "Company")
hereby grants to Participant a restricted stock unit award (the "Award"). The
Award is subject to all the terms and conditions set forth in this Restricted
Stock Unit Award Notice (the "Award
Notice"), the Restricted Stock Unit Award Agreement, the Itron, Inc.
Long-Term Performance Plan (the "LTPP") and
the Itron, Inc. Amended and Restated 2000 Stock Incentive Plan (the "Plan"),
all of which are incorporated into the Award Notice in their
entirety.
Participant:
Award Date:
Number of Restricted Stock
Units:
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Vesting
Schedule:
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The
Award will vest in full on the second anniversary of the Award Date
("Vesting
Date").
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Holding
Period
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From
_________, 20__ until ________, 20__ inclusive (2 years from Vesting
Date), or such other period applicable under French
law.
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Additional
Terms: This Award is subject to all the terms and
conditions set forth in this Award Notice, the Restricted Stock Unit Award
Agreement, the LTPP and the Plan, all of which are attached hereto and
incorporated into the Award Notice in their
entirety.
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I
accept this award subject to the terms and conditions stated
herein.
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Attachments:
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1.
Restricted Stock Unit Award Agreement
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2.
Long-Term Performance Plan
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3.
Plan Summary
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4.
2000 Stock Incentive Plan
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ITRON,
INC.
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AMENDED
AND RESTATED 2000 STOCK INCENTIVE
PLAN
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RESTRICTED
STOCK UNIT AWARD AGREEMENT
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FOR
PARTICIPANTS IN FRANCE
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LONG-TERM
PERFORMANCE PLAN
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Pursuant
to your Restricted Stock Unit Award Notice (the "Award
Notice") and this Restricted Stock Unit Award Agreement (the "Agreement"),
Itron, Inc. (the "Company")
has granted you a Restricted Stock Unit Award (the "Award")
under its Amended and Restated 2000 Stock Incentive Plan (the "Plan") and
its Long-Term Performance Plan (the “LTPP”) for
the number of restricted stock units indicated in your Award
Notice. Capitalized terms not expressly defined in this Agreement but
defined in the Plan shall have the same definitions as in the Plan.
The
following has been established for the purpose of granting you an Award which
qualifies for the favorable tax and social security treatment in France
applicable to shares granted for no consideration under Sections L. 225-197-1 to
L. 225-197-5 of the French Commercial Code, as amended, to eligible individuals
who are resident in France for French tax purposes and/or subject to the French
social security regime (a "French-Qualified
Award").
However,
certain events may affect the status of the Award as a French-Qualified Award
and the Award may be disqualified in the future. The Company does not
make any undertaking or representation to maintain the French-qualified status
of the Award. If the Award no longer qualifies as a French-Qualified
Award, the favorable tax and social security treatment will not apply and you
will be required to pay your portion of social security contributions resulting
from the Award.
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Moreover,
if you relocate to another country, any special terms and conditions
applicable to restricted stock unit awards granted in such country will
apply to you, to the extent the Company determines that the application of
such terms and conditions is necessary or advisable in order to comply
with local law or facilitate the administration of the Plan.
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In
addition, the Company reserves the right to impose other requirements on the
Award and any shares of Common Stock acquired under the Plan, to the extent the
Company determines it is necessary or advisable in order to comply with local
law or facilitate the administration of the Plan, and to require you to sign any
additional agreements or undertakings that may be necessary to accomplish the
foregoing.
The
details of the Award are as follows:
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1.
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Definitions
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The
following additional terms shall be defined as follows:
"Disability"
means disability as determined in categories 2 and 3 under Section 341-4 of the
French Social Security Code, as amended, and subject to the fulfillment of
related conditions.
"Holding
Period" means the 2-year period starting on the Vesting Date (or such
other period as is required to comply with the minimum mandatory holding period
applicable to shares underlying a French-Qualified Award under Section L.
225-197-1 of the French Commercial Code, as amended, or under the relevant
sections of the French Tax Code of the French Security Code, as amended) during
which the Participant shall hold the shares of Common Stock issued pursuant to
the vesting of the Award in order to benefit from the favorable tax and social
security regime in France.
"French
Subsidiaries" means all the French subsidiaries of the Company within the
meaning of Section L. 225-197-2 of the French Commercial Code or any provision
substituted for same.
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2.
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Eligibility
to Participate
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(a) Subject
to Section 2(c) below, any individual who, on the Award Date and to the extent
required under French law, is employed under the terms and conditions of an
employment contract (“contrat
de travail”) by a French Subsidiary or who is a corporate officer of a
French Subsidiary (subject to Section 2(c) below) shall be eligible to receive,
at the discretion of the Plan Administrator, a French-Qualified Award, provided
he or she also satisfies the eligibility conditions of Section 5 of the
Plan.
(b) French-Qualified
Awards may not be issued to a corporate officer of a French Subsidiary, other
than the managing corporate officers (i.e., Président du Conseil
d’Administration, Directeur Général, Directeur Général Délégué,
Membre du Directoire,
Gérant de Sociétés par
actions), unless the corporate officer is employed by a French
Subsidiary, as defined by French law.
(c) French-Qualified
Awards may not be issued to Participants owning more than ten percent (10%) of
the Company’s share capital or to individuals other than employees and corporate
executives of a French Subsidiary, as set forth in this Section 2.
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3.
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Vesting
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The Award
will vest according to the vesting schedule set forth in the Award Notice (the
"Vesting
Schedule"). One share of Common
Stock will be issuable for each restricted stock unit that
vests. Restricted stock units that have vested and are no longer
subject to forfeiture according to the Vesting Schedule are referred to herein
as "Vested
Units." Restricted stock units that have not vested and remain
subject to forfeiture under the Vesting Schedule are referred to herein as
"Unvested
Units." The Unvested Units will vest (and to the extent so
vested cease to be Unvested Units remaining subject to forfeiture) in accordance
with the Vesting Schedule (the Unvested and Vested Units are collectively
referred to herein as the "Units").
Unless
otherwise provided in this Agreement, as soon as practicable after the Vesting
Date, the Company will settle the Vested Units by issuing to you one share of
Common Stock for each Vested Unit.
The Award
will terminate and the Unvested Units will be subject to forfeiture upon your
termination of employment as set forth in Section 6 and as further
described in Section 12(l) below.
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4.
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Non-Transferability
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Notwithstanding
any provision in the Plan to the contrary, except in the case of death, the
Units shall not be transferred to any third party other than your heirs and the
shares of Common Stock shall be issued only to you during your
lifetime.
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5.
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No
Rights as Shareholder
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You shall
not have voting, dividends rights or other rights as a shareholder of the
Company with respect to the Units.
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6.
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Termination
of Employment; Corporate
Transaction
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6.1
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Termination
of Employment.
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If your
employment terminates during the Units' vesting period for any reason other than
Cause or death, the Unvested Units will vest pro-rata, based on the number of
calendar days of employment with the Company or a Related Corporation during the
vesting period, rounded down to the nearest whole number.
If your
employment terminates during the Units’ vesting period and a number of Units
become Vested Units as a result of the pro-rata vesting described above, such
Vested Units will not be settled in shares of Common Stock until the date such
Units would otherwise have been settled in accordance with the Vesting Schedule,
except if your employment terminates by reason of Disability in which case the
Vested Units will be settled as described below.
If your
employment terminates during the Units’ vesting period by reason of Disability,
the Units that become Vested Units as a result of such pro-rata vesting will be
settled to you within a reasonable period following the acknowledgement by the
Company/the French Subsidiary of the Disability. You shall not be bound by the
Holding Period.
If your
employment terminates during the Units' vesting period by reason of death, the
Units will become transferable to your heirs. The Company will issue
the shares of Common Stock subject to the Units to your heirs upon their
request, provided they contact the Company within six (6) months following your
death. If your heirs do not request the issuance of the shares of
Common Stock within six (6) months of your death, the Units will be forfeited to
the Company. Your heirs shall not be bound by the Holding
Period.
If your
employment terminates for Cause, any Unvested Units will be forfeited
immediately to the Company.
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6.2
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Corporate
Transactions.
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In the
event of a Corporate Transaction as described in Section 14.3.1 of the Plan, the
Plan Administrator may, in its discretion, authorize an adjustment to the terms
and conditions of the Award or the underlying shares of Common Stock in
accordance with the Plan and pursuant to applicable French legal and
tax rules. Nevertheless, the Plan Administrator, at its
discretion, may decide to make adjustments which are not authorized under French
law, in which case the Award may no longer qualify as a French-Qualified Award
and the favorable tax and social security treatment for the Award may be
lost.
Assumption
of the Award in the case of a Corporate Transaction, as well as an acceleration
of vesting or the Holding Period or any other mechanism implemented upon a
Corporate Transaction, or in any other event, to compensate you, may result in
the Award no longer being eligible for the favorable French tax and social
security regime.
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7.
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Holding
Period and Shareholding
Restrictions
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Subject
to the provisions of Section 6.1 above, you shall hold and keep the shares
of Common Stock issued pursuant to the vesting of the Units during the
Holding Period, even if you are no longer an employee or corporate
officer, as applicable, of the French Subsidiary. As from the end of the
Holding Period, the corresponding shares of Common Stock shall be freely
transferable, subject to applicable legal and regulatory provisions in
force and in particular to the provisions of Section 8
below.
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In
addition, if you qualify as a managing corporate officer, as defined in
Section 2(b) above, and you are subject to shareholding restrictions under
French law, you must hold 20% of the shares of Common Stock issued upon
vesting of the Units and you may not sell such shares until you cease to
serve as a managing corporate officer. To ensure compliance
with any applicable shareholding restrictions, the Company may require
that the shares of Common Stock be held with a broker appointed by the
Company (or according to any procedure implemented by the Company) until
you cease to be subject to the shareholding restrictions.
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8.
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Closed
Periods
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As long
as the Award and the shares of Common Stock issued upon vesting of the Units
maintain their French-qualified status and to the extent such restriction is
applicable under French law, the shares of Common Stock may not be sold during
the "Closed
Periods" defined in Section L. 225-197-1 of the French Commercial Code,
as amended, which are currently: (a) ten quotation days before and after the
disclosure to the public of the consolidated financial statements or the annual
statements of the Company, and (b) any period during which the corporate
management of the Company possesses material information which could, if
disclosed to the public, significantly impact the quotation of the shares of
Common Stock, until ten quotation days after the day such information is
disclosed to the public.
To ensure
compliance with the Closed Periods and the Holding Period described in Section 7
above, the Company may require that the shares of Common Stock be held with a
broker appointed by the Company (or according to any procedure implemented by
the Company) until such shares of Common Stock are sold.
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9.
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Securities
Law Compliance
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9.1 You
represent and warrant that you (a) have been furnished with a copy of the
prospectus for the Plan and all information which you deem necessary to evaluate
the merits and risks of receipt of the Award, (b) have had the opportunity
to ask questions and receive answers concerning the information received about
the Award and the Company, and (c) have been given the opportunity to
obtain any additional information you deem necessary to verify the accuracy of
any information obtained concerning the Award and the Company.
9.2 You
hereby agree that you will in no event sell or distribute all or any part of the
shares of Common Stock that you receive pursuant to settlement of this Award
(the "Shares") unless (a) there is
an effective registration statement under the U.S. Securities Act of 1933, as
amended (the "Securities
Act") and any applicable state and foreign securities laws covering any
such transaction involving the Shares or (b) the Company receives an
opinion of your legal counsel (concurred in by legal counsel for the Company)
stating that such transaction is exempt from registration or the Company
otherwise satisfies itself that such transaction is exempt from
registration. You understand that the Company has no obligation to
you to register the Shares with the U.S. Securities and Exchange Commission or
any foreign securities regulator and has not represented to you that it will so
register the Shares.
9.3 You
confirm that you have been advised, prior to your receipt of the Shares, that
neither the offering of the Shares nor any offering materials have been reviewed
by any administrator under the Securities Act or any other applicable securities
act (the "Acts") and
that the Shares cannot be resold unless they are registered under the Acts or
unless an exemption from such registration is available.
9.4 You
hereby agree to indemnify the Company and hold it harmless from and against any
loss, claim or liability, including attorneys' fees or legal expenses, incurred
by the Company as a result of any breach by you of, or any inaccuracy in, any
representation, warranty or statement made by you in this Agreement or the
breach by you of any terms or conditions of this Agreement.
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10.
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Book
Entry Registration of Shares
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The
Company will issue the Shares by registering the Shares in book entry form with
the Company's transfer agent in your name and the applicable restrictions will
be noted in the records of the Company's transfer agent and in the book entry
system.
This book
entry form will expressly stipulate to both you and the Company's transfer agent
that the Shares are non-transferable during the entire Holding Period. You must
accept this condition.
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11.
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Responsibility
for Taxes
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11.1 Regardless
of any action the Company or your employer (the "Employer")
takes with respect to any or all income tax, social security, payroll tax or
other tax-related items related to your participation in the Plan and legally
applicable to you ("Tax-Related
Items"), you acknowledge that the ultimate liability for all Tax-Related
Items is and remains your responsibility and may exceed the amount actually
withheld by the Company and/or the Employer. You further acknowledge
that the Company and the Employer (a) make no representations or undertakings
regarding the treatment of any Tax-Related Items in connection with any aspect
of the Award, including, but not limited to, the granting or vesting of the
Award, the settlement of Vested Units, the issuance of Shares upon settlement of
the Vested Units, the subsequent sale of Shares acquired upon settlement of the
Vested Units and the receipt of any dividends; and (b) do not commit to and are
under no obligation to structure the terms of the grant or any aspect of the
Award to reduce or eliminate your liability for Tax-Related Items or achieve any
particular tax result. Further, if you have become subject to tax in
more than one jurisdiction between the Award Date and the date of any relevant
taxable event, you acknowledge that the Company and/or the Employer (or former
employer, as applicable) may be required to withhold or account for Tax-Related
Items in more than one jurisdiction.
11.2 Prior to
any relevant taxable or tax withholding event, as applicable, you will pay or
make adequate arrangements satisfactory to the Company and or the Employer to
satisfy all Tax-Related Items.
(a) In this
regard, you hereby irrevocably appoint Fidelity or any brokerage firm designated
by the Company for such purpose (the "Agent") as
your Agent, and authorize the Agent, to:
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(i)
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Sell
on the open market at the then prevailing market price(s), on your behalf,
as soon as practicable on or after the settlement date for any Vested
Unit, the minimum number of Shares (rounded up to the next whole number)
sufficient to generate proceeds to cover the Tax-Related Items and all
applicable fees and commissions due to, or required to be collected by,
the Agent;
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(ii)
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Remit
directly to the Company the cash amount necessary to cover the Tax-Related
Items;
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(iii)
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Retain
the amount required to cover all applicable fees and commissions due to,
or required to be collected by, the Agent, relating directly to the sale
of Shares referred to in clause (i) above;
and
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(iv)
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Remit
any remaining funds to you.
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(b) Alternatively,
or in addition to or in combination with the withholding mechanism described in
Section 11.2(a), you authorize the Company and/or the Employer at their
discretion, to satisfy the obligations with regard to all Tax-Related Items
by:
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(i)
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requiring
you to pay to the Company or the Employer any amount of the Tax-Related
Items; and/or
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(ii)
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withholding
any amount of the Tax-Related Items from your wages or other cash
compensation paid to you by the Company and/or the Employer;
and/or
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(iii)
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withholding
in Shares to be issued upon settlement of the Vested
Units.
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(c) If the
amount withheld is greater than the actual Tax-Related Items, the difference
will be refunded to you as soon as practicable. To avoid negative
accounting treatment, the Company may withhold or account for Tax-Related Items
by considering applicable minimum statutory withholding amounts or other
applicable withholding rates. If the obligation for Tax-Related Items
is satisfied by withholding in Shares, for tax purposes, you will be deemed to
have been issued the full number of Shares subject to the Vested Units
notwithstanding that a number of the Shares are held back solely for the purpose
of paying the Tax-Related Items due as a result of any aspect of your
participation in the Plan. The Company may refuse to issue or deliver
Shares to you if you fail to comply with your obligations in connection with the
Tax-Related Items.
11.3 You
represent and warrant that you are not aware of any material, nonpublic
information with respect to the Company or any securities of the Company; you
are not subject to any legal, regulatory or contractual restriction which would
prevent the Agent from conducting sales as provided herein; you do not have, and
will not attempt to exercise, authority, influence or control over any sales of
Shares effected pursuant to Section 11.2(a); and you are entering into this
Agreement in good faith and not as part of a plan or scheme to evade the
prohibitions of Rule 10b5-1 (regarding trading of the Company’s securities on
the basis of material nonpublic information) under the U.S. Securities Exchange
Act of 1934, as amended (the "Exchange
Act"). It is the intent of the parties that this Agreement
comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act
and this Agreement will be interpreted to comply with the requirements of Rule
10b5-1(c) of the Exchange Act.
You
understand that the Agent may effect sales as provided in Section 11.2(a) above
jointly with sales for other employees of the Company and/or Related
Corporations and that the average price for executions resulting from bunched
orders will be assigned to your account. In addition, you acknowledge
that it may not be possible to sell Shares as provided by Section 11.2(a) due to
(i) a legal or contractual restriction applicable to you or the Agent, (ii) a
market disruption, or (iii) rules governing order execution priority on the
NASDAQ or other exchange where the Shares may be traded. In the event
of the Agent’s inability to sell Shares, you will continue to be
responsible for the Tax-Related Items.
You
acknowledge that regardless of any other term or condition of this Agreement,
the Agent will not be liable to you for (a) special, indirect, punitive,
exemplary, or consequential damages, or incidental losses or damages of any
kind, or (b) any failure to perform or for any delay in performance that results
from a cause or circumstance that is beyond its reasonable control.
You
hereby agree to execute and deliver to the Agent any other agreements or
documents as the Agent reasonably deems necessary or appropriate to carry out
the purposes and intent of Section 11.2(a) and this Section 11.3. The
Agent is a third party beneficiary of Section 11.2(a) and this Section
11.3.
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12.
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Nature of
Grant
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In
accepting the grant, you acknowledge that:
(a) the Plan
is established voluntarily by the Company, it is discretionary in nature and it
may be modified, amended, suspended or terminated by the Company at any
time;
(b) the grant
of the Award is voluntary and occasional and does not create any contractual or
other right to receive future grants of restricted stock units, or benefits in
lieu of restricted stock units, even if restricted stock units have been granted
repeatedly in the past;
(c) all
decisions with respect to future grants of restricted stock units, if any, will
be at the sole discretion of the Company;
(d) your
participation in the Plan shall not create a right to further employment with
the Employer and shall not interfere with the ability of the Employer to
terminate your employment relationship at any time;
(e) you are
voluntarily participating in the Plan;
(f) the Award
and the Shares subject to the Award are an extraordinary item that does not
constitute compensation of any kind for services of any kind rendered to the
Company or the
Employer, and which is outside the scope of your employment contract, if
any;
(g) the Award
and the Shares subject to the Award are not intended to replace any pension
rights or compensation;
(h) the Award
and the Shares subject to the Award are not part of normal or expected
compensation or salary for any purposes, including, but not limited to,
calculating any severance, resignation, termination, redundancy, end of service
payments, bonuses, long-service awards, pension or retirement or welfare
benefits or similar payments and in no event should be considered as
compensation for, or relating in any way to, past services for the Company, the
Employer or any Related Corporation;
(i) the grant
of the Award and your participation in the Plan will not be interpreted to form
an employment contract or relationship with the Company or any Related
Corporation;
(j) the
future value of the underlying Shares is unknown and cannot be predicted with
certainty;
(k) in
consideration of the grant of the Award, no claim or entitlement to compensation
or damages shall arise from termination of the Award or diminution in value of
the Shares underlying the Award resulting from termination of your employment by
the Company or the Employer (for any reason whatsoever and whether or not in
breach of local labor laws) and you irrevocably release the Company and the
Employer from any such claim that may arise; if, notwithstanding the foregoing,
any such claim is found by a court of competent jurisdiction to have arisen, you
shall be deemed irrevocably to have waived your entitlement to pursue such
claim;
(l) in the
event of termination of your employment (whether or not in breach of local labor
laws), your right to vest in the Award, if any, will terminate effective as of
the date that you are no longer actively employed and will not be extended by
any notice period mandated under local law (e.g., active employment would
not include a period of “garden leave” or similar period pursuant to local law);
the Board (or a committee appointed by the Board) shall have the exclusive
discretion to determine when you are no longer actively employed for purposes of
the Award; and
(m) the Award
and the benefits under the Plan, if any, will not automatically transfer to
another company in the case of a merger, take-over or transfer of
liability.
13. No
Advice Regarding Grant
The
Company is not providing any tax, legal or financial advice, nor is the Company
making any recommendations regarding your participation in the Plan or your
acquisition or sale of the underlying Shares. You are hereby advised
to consult with your own personal tax, legal and financial advisors regarding
your participation in the Plan before taking any action related to the
Plan. You acknowledge that you have either consulted with competent
advisors independent of the Company to obtain advice concerning the receipt of
the Award and the acquisition or disposition of any Shares to be issued pursuant
to the Award in light of your specific situation or had the opportunity to
consult with such advisors but chose not to do so.
14. Data
Privacy
You
hereby explicitly and unambiguously consent to the collection, use and transfer,
in electronic or other form, of your personal data as described in this
Agreement and any other Award materials by and among, as applicable, the
Employer, the Company and its Related Corporations for the exclusive purpose of
implementing, administering and managing your participation in the
Plan.
You
understand that the Company and the Employer may hold certain personal
information about you, including, but not limited to, your name, home address
and telephone number, date of birth, social insurance number or other
identification number, salary, nationality, job title, any shares of stock or
directorships held in the Company, details of all Awards or any other
entitlement to shares of stock awarded, canceled, exercised, vested, unvested or
outstanding in your favor, for the exclusive purpose of implementing,
administering and managing the Plan (“Data”).
You
understand that Data will be transferred to Fidelity or such other stock plan
service provider as may be selected by the Company in the future, which is
assisting the Company with the implementation, administration and management of
the Plan. You understand that the recipients of Data may be located
in the United States or elsewhere, and that the recipients’ country (e.g., the
United States) may have different data privacy laws and protections than
France. You understand that you may request a list with the names and
addresses of any potential recipients of Data by contacting your local human
resources representative. You authorize the Company, Fidelity and any
other possible recipients which may assist the Company (presently or in the
future) with implementing, administering and managing the Plan to receive,
possess, use, retain and transfer Data, in electronic or other form, for the
sole purpose of implementing, administering and managing your participation in
the Plan. You understand that Data will be held only as long as is
necessary to implement, administer and manage your participation in the
Plan. You understand that you may, at any time, view Data, request
additional information about the storage and processing of Data, require any
necessary amendments to Data or refuse or withdraw the consents herein, in any
case without cost, by contacting in writing your local human resources
representative. You understand, however, that refusing or withdrawing
your consent may affect your ability to participate in the Plan. For
more information on the consequences of your refusal to consent or withdrawal of
consent, you understand that you may contact your local human resources
representative.
15. Electronic Delivery and
Participation
The
Company may, in its
sole discretion, decide to deliver any documents related to current or future
participation in the Plan by electronic means. You hereby consent to
receive such documents by electronic delivery and agree to participate in the
Plan through an on-line or electronic system established and maintained by the
Company or a third party designated by the Company.
16. Language
If you
have received this Agreement or any other document related to the Plan
translated into a language other than English and if the meaning of the
translated version is different from the English version, the English version
will control.
By
signing and submitting the Award Notice, you confirm that you have read and
understood the documents relating to this Award (the Award Notice, the Plan and
the Agreement) which were provided in the English language. You
accept the terms of these documents accordingly.
En
signant et en renvoyant la Notification d’Attribution, vous
confirmez ainsi avoir lu et compris les documents relatifs à cette Attribution
(la Notification d’Attribution, le Plan et ce Contrat d’attribution) qui ont été
communiqués en langue anglaise. Vous en acceptez les termes en
connaissance de cause.
17. General
Provisions
17.1 Successors and
Assigns. The provisions of this Agreement will inure to the
benefit of the successors and assigns of the Company and be binding upon you and
your heirs, executors, administrators, successors and assigns.
17.2 Governing Law and Choice of
Venue. The Award and the provisions of this Agreement will be
construed and administered in accordance with and governed by the laws of the
State of Washington without giving effect to such state’s principles of conflict
of laws. For the purposes of litigating any dispute that arises under
this grant of this Agreement, the parties hereby submit to and consent to the
exclusive jurisdiction of the State of Washington and agree that such litigation
shall be conducted in the courts of Spokane County, Washington, or the federal
courts for the United States for the Eastern District of Washington, where this
grant is made and/or to be performed.
17.3 Severability. The provisions of this
Agreement are severable and if any one or more provisions are determined to be
illegal or otherwise unenforceable, in whole or in part, the remaining
provisions shall nevertheless be binding and enforceable.
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17.4 Notice. Any
notice required or permitted hereunder shall be made in writing and sent
to the following address:
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|
Itron, Inc.
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Attn. General
Counsel
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2111 N. Molter
Road
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Liberty Lake,
WA USA 99019
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********
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Exhibit
10.4
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|
ITRON,
INC.
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RESTRICTED
STOCK UNIT AWARD NOTICE FOR PARTICIPANTS IN THE UNITED
STATES
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AMENDED
AND RESTATED 2000 STOCK INCENTIVE
PLAN
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|
Itron,
Inc. (the "Company")
hereby grants to Participant a Restricted Stock Unit Award (the "Award"). The
Award is subject to all the terms and conditions set forth in this
Restricted Stock Unit Award Notice (the "Award
Notice"), the Restricted Stock Unit Award Agreement (“Agreement”),
and the Itron, Inc. Amended and Restated 2000 Stock Incentive Plan (the
"Plan"),
which are incorporated into this Award Notice in their
entirety.
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Participant:
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Grant
Date:
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Number of Restricted Stock
Units:
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Vesting Schedule:The
Award will vest in full on the third anniversary of the Grant Date (the
“Vest Date”).
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Additional
Terms: This Award is subject to all the terms and
conditions set forth in this Award Notice, the RSU Award Agreement, and
the Plan which are attached to and incorporated into the Award Notice in
their entirety.
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|
I
accept this award subject to the terms and
|
|
conditions
stated herein.
|
|
Attachments:
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|
1. Restricted
Stock Unit Award Agreement
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|
2. 2000
Stock Incentive Plan
|
|
3. Plan
Summary
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|
ITRON,
INC.
|
|
AMENDED
AND RESTATED 2000 STOCK INCENTIVE
PLAN
|
|
RESTRICTED
STOCK UNIT AWARD AGREEMENT
|
|
Pursuant
to your Restricted Stock Unit Award Notice (the "Award
Notice") and this Restricted Stock Unit Award Agreement (this "RSU
Award Agreement"),
Itron, Inc. (the "Company")
has granted you a Restricted Stock Unit Award (the "Award")
under its Amended and Restated 2000 Stock Incentive Plan (the "Plan")
for the number of Restricted Stock Units indicated in your Award
Notice. Capitalized terms not expressly defined in this RSU
Award Agreement but defined in the Plan shall have the same definitions as
in the Plan.
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The
details of the Award are as
follows:
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1.Vesting
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The
Award will vest according to the vesting schedule set forth in the Award
Notice (the "Vesting
Schedule"). One share of the
Company's Common Stock will be issuable for each Restricted Stock Unit
that vests. Restricted Stock Units that have vested and are no
longer subject to forfeiture according to the Vesting Schedule are
referred to herein as "Vested
Units." Restricted Stock Units that have not vested and
remain subject to forfeiture under the Vesting Schedule are referred to
herein as "Unvested
Units." The Unvested Units will vest (and to the extent
so vested cease to be Unvested Units remaining subject to forfeiture) in
accordance with the Vesting Schedule (the Unvested and Vested Units are
collectively referred to herein as the "Units"). Except
as provided in Section 2.1(b) below, all Vested Units will be settled on
the Vest Date set forth in the Award Notice and the Vest Date shall be the
“payment date” for purposes of Section 409A. The Award will
terminate and the Unvested Units will be subject to forfeiture upon your
termination of employment as set forth in
Section 2.1(a).
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2.Termination
of Employment; Corporate
Transaction
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2.1 Termination
of Employment
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(a)
Vesting of Units. Except
as provided in Section 2.2 below, if your employment terminates during the
Units' vesting period by reason of (a) death, (b) Disability that also
satisfies the definition of "disability" under Section 409A of the Code
and the regulations thereunder ("Section
409A") or (c) Retirement that also satisfies the definition of
"separation from service" under Section 409A, the Unvested Units will vest
pro-rata, based on the number of calendar days of employment with the
Company during the vesting period (rounded down to the nearest whole
number); provided, however, that if your employment terminates by reason
of Retirement as provided above and if you are a "specified employee"
under Section 409A, the Units that become Vested Units as a result of such
pro-rata vesting will not be settled in shares of Common Stock until the
date that is six months after such separation from service. For
purposes of this Agreement, “Retirement” shall mean a termination of
employment on or after the Participant’s 65th
birthday. In the event that your termination of employment is
by reason of a Disability that does not satisfy the definition of
"disability" under Section 409A or by reason of Retirement that does not
satisfy the definition of "separation from service" under Section 409A,
then Unvested Units will still vest pro-rata, based on the number of
calendar days of employment with the Company during the vesting period
(rounded down to the nearest whole number), but the Units that become
Vested Units as a result of such pro-rata vesting will not be settled in
shares of Common Stock until the Vest Date. If your employment
terminates for Cause, any Unvested Units will be forfeited immediately to
the Company.
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(b) Settlement of Vested Units. For
purposes of determining the settlement date under Section 2.1(a) for
issuing stock in exchange for the pro-rated Vested Units, if your
employment terminates by reason of (a) death, (b) Disability that also
satisfies the definition of "disability" under Section 409A or (c)
Retirement that also satisfies the definition of "separation from service"
under Section 409A, the settlement date shall be (i) if you are a
“specified employee,” the date six months after the date of death,
Disability or Retirement or (ii) if you are not a “specified employee,”
the date of death, Disability, or Retirement, and shares shall be issued
within 90 days of the settlement date. If your employment
terminates by reason of a Disability that does not satisfy the definition
of "disability" under Section 409A or by reason of Retirement that does
not satisfy the definition of "separation from service" under Section
409A, the settlement date shall be the Vest Date set forth in the Award
Notice and the Vest Date shall be the “payment date” for purposes of
Section 409A.
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2.2 Corporate
Transaction
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In
the event of a Corporate Transaction (other than a Related Party
Transaction) that also constitutes a change in control event within the
meaning of Section 409A, any Unvested Units will accelerate in vesting and
become Vested Units immediately prior to such
transaction.
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3.Securities
Law Compliance
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3.1 You
represent and warrant that you (a) have been furnished with a copy of
the prospectus for the Plan and all information which you deem necessary
to evaluate the merits and risks of receipt of the Award, (b) have
had the opportunity to ask questions and receive answers concerning the
information received about the Award and the Company, and (c) have
been given the opportunity to obtain any additional information you deem
necessary to verify the accuracy of any information obtained concerning
the Award and the Company.
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3.2 You
hereby agree that you will in no event sell or distribute all or any part
of the shares of the Company's Common Stock that you receive pursuant to
settlement of this Award (the "Shares")
unless (a) there is an effective registration statement under the
Securities Act of 1933, as amended (the "Securities
Act") and applicable state securities laws covering any such
transaction involving the Shares or (b) the Company receives an
opinion of your legal counsel (concurred in by legal counsel for the
Company) stating that such transaction is exempt from registration or the
Company otherwise satisfies itself that such transaction is exempt from
registration. You understand that the Company has no obligation
to you to register the Shares with the Securities and Exchange Commission
and has not represented to you that it will so register the
Shares.
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3.3 You
confirm that you have been advised, prior to your receipt of the Shares,
that neither the offering of the Shares nor any offering materials have
been reviewed by any administrator under the Securities Act or any other
applicable securities act (the "Acts")
and that the Shares cannot be resold unless they are registered under the
Acts or unless an exemption from such registration is
available.
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3.4 You
hereby agree to indemnify the Company and hold it harmless from and
against any loss, claim or liability, including attorneys' fees or legal
expenses, incurred by the Company as a result of any breach by you of, or
any inaccuracy in, any representation, warranty or statement made by you
in this Agreement or the breach by you of any terms or conditions of this
Agreement.
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|
4.Transfer
Restrictions
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Units
shall not be sold, transferred, assigned, encumbered, pledged or otherwise
disposed of, whether voluntarily or by operation of
law.
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|
5.No
Rights as Shareholder
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|
You
shall not have voting or other rights as a shareholder of the Company with
respect to the Units.
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6.Independent
Tax Advice
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You
acknowledge that determining the actual tax consequences to you of
receiving or disposing of the Units and Shares may be
complicated. These tax consequences will depend, in part, on
your specific situation and may also depend on the resolution of currently
uncertain tax law and other variables not within the control of the
Company. You are aware that you should consult a competent and
independent tax advisor for a full understanding of the specific tax
consequences to you of receiving the Units and receiving or disposing of
the Shares. Prior to executing this Agreement, you either have
consulted with a competent tax advisor independent of the Company to
obtain tax advice concerning the receipt of the Units and the receipt or
disposition of the Shares in light of your specific situation or you have
had the opportunity to consult with such a tax advisor but chose not to do
so.
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7. Book
Entry Registration of Shares
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The Company will issue the Shares
by registering the Shares in book entry form with the Company's transfer
agent in your name and the applicable restrictions will be noted in the
records of the Company's transfer agent and in the book entry
system.
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8.Withholding
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8.1
You are ultimately responsible
for all taxes owed in connection with this Award including any domestic or
foreign tax withholding obligation required by law, whether national,
federal, state or local, including FICA or any other social tax obligation
(the "Tax Withholding
Obligation"), regardless of any action the Company or any Related
Corporations take with respect to any such Tax Withholding Obligation that
arises in connection with this Award. The Company may refuse to
issue any Shares to you, or your beneficiary, until you satisfy the Tax
Withholding Obligation.
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8.2 In
order to satisfy your obligations set forth in Section 8.1, you hereby
irrevocably appoint any brokerage firm acceptable to the Company for such
purpose (the "Agent") as
your Agent, and authorize the Agent, to:
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(a)
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Sell
on the open market at the then prevailing market price(s), on your behalf,
as soon as practicable on or after the settlement date for any Vested
Unit, the minimum number of Shares (rounded up to the next whole number)
sufficient to generate proceeds to cover the withholding taxes that you
are required to pay pursuant to Section 8.1 and all applicable fees
and commissions due to, or required to be collected by, the
Agent;
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(b)
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Remit
directly to the Company the cash amount necessary to cover the payment of
all taxes required to be withheld with respect to the settlement of a
Vested Unit, as of such date;
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(c)
|
Retain
the amount required to cover all applicable fees and commissions due to,
or required to be collected by, the Agent, relating directly to the sale
of Shares referred to in clause (a) above;
and
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(d)
|
Remit
any remaining funds to you.
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It is the
intent of the parties that this Agreement comply with the requirements of Rule
10b5-1(c)(1)(i)(B) under the Exchange Act and this Agreement will be interpreted
to comply with the requirements of Rule 10b5-1(c) of the Exchange
Act.
You
understand that the Agent may affect sales as provided in clause (a) above
jointly with sales for other employees of the Company and that the average price
for executions resulting from bunched orders will be assigned to your
account. In addition, you acknowledge that it may not be possible to
sell Shares as provided by this Section 8.2 due to (i) a legal or contractual
restriction applicable to you or the Agent, (ii) a market disruption, or (iii)
rules governing order execution priority on the NASDAQ or other exchange where
the Shares may be traded. In the event of the Agent’s inability to
sell Shares, you will continue to be responsible for payment to the Company of
all federal, state, local and foreign taxes that are required by applicable laws
and regulations to be withheld.
You
acknowledge that regardless of any other term or condition of this Agreement,
the Agent will not be liable to you for (a) special, indirect, punitive,
exemplary, or consequential damages, or incidental losses or damages of any
kind, or (b) any failure to perform or for any delay in performance that results
from a cause or circumstance that is beyond its reasonable control.
You
hereby agree to execute and deliver to the Agent any other agreements or
documents as the Agent reasonably deems necessary or appropriate to carry out
the purposes and intent of this Section 8.2. The Agent is a third
party beneficiary of this Section 8.2.
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8.3 Notwithstanding
the forgoing, to the maximum extent permitted by law, the Company has the
right to retain without notice from Shares issuable under the Award or
from salary or other amounts payable to you, Shares or cash having a value
sufficient to satisfy the Tax Withholding
Obligation.
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9.General
Provisions
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9.1 Successors and
Assigns. The provisions of this Agreement will inure to
the benefit of the successors and assigns of the Company and be binding
upon you and your heirs, executors, administrators, successors, and
assigns.
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9.2 No Employment or Service
Contract. Nothing in this Agreement will be deemed to be
an employment contract or limit in any way theright of the Company to
terminate your employment at any time, with or without
cause.
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9.3 Section 409A
Compliance. Notwithstanding any provision in the Plan or
this Agreement to the contrary, the Plan Administrator may, at any time
and without your consent, modify the terms of the Award as it determines
appropriate to avoid the imposition of interest or penalties under Section
409A.
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9.4 Governing
Law. This Agreement will be construed and administered
in accordance with and governed by the laws of the State of Washington
without giving effect to principles of conflicts of law. For
the purposes of litigating any dispute that arises under this Agreement,
the parties hereby consent to exclusive jurisdiction and agree that such
litigation shall be conducted in the federal or state courts of the State
of Washington.
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Exhibit
10.5
|
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ITRON,
INC.
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|
AMENDED
AND RESTATED 2000 STOCK INCENTIVE PLAN
|
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RESTRICTED
STOCK UNIT AWARD NOTICE
|
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FOR
NON-U.S. PARTICIPANTS
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Itron,
Inc. (the “Company”)
hereby grants to Participant a restricted stock unit award (the “Award”). The
Award is subject to all the terms and conditions set forth in this
Restricted Stock Unit Award Notice (the “Award
Notice”), the Restricted Stock Unit Award Agreement, including any
appendix thereto for Participant’s country (the “Agreement”)
and the Itron, Inc. Amended and Restated 2000 Stock Incentive Plan (the
“Plan”),
all of which are incorporated into the Award Notice in their
entirety.
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Participant:
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Grant
Date:
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Number of Restricted Stock
Units:
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Vesting Schedule:The
Award will vest in full on the third anniversary of the Grant Date (the
“Vest
Date”).
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Additional
Terms/Acknowledgement: This Award is subject to all the
terms and conditions set forth in this Award Notice, the Agreement, and
the Plan which are attached to and incorporated into this Award Notice in
their entirety.
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I
accept this award subject to the terms and
|
|
conditions
stated herein.
|
|
Attachments:
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|
1. Restricted
Stock Unit Award Agreement including country appendix
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|
2. 2000
Stock Incentive Plan
|
|
3. Plan
Summary
|
|
ITRON,
INC.
|
|
AMENDED
AND RESTATED 2000 STOCK INCENTIVE
PLAN
|
|
RESTRICTED
STOCK UNIT AWARD AGREEMENT
|
|
FOR
NON-U.S. PARTICIPANTS
|
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Pursuant
to your Restricted Stock Unit Award Notice (the “Award
Notice”) and this Restricted Stock Unit Award Agreement (this
“Agreement”),
Itron, Inc. (the “Company”)
has granted you a restricted stock unit award (the “Award”)
under its Amended and Restated 2000 Stock Incentive Plan (the “Plan”)
for the number of restricted stock units indicated in your Award
Notice. Capitalized terms not expressly defined in this
Agreement but defined in the Plan shall have the same definitions as in
the Plan.
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The
details of the Award are as follows:
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1.
|
Vesting
|
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The
Award will vest according to the vesting schedule set forth in the Award
Notice (the “Vesting
Schedule”). One share of
Common Stock will be issuable for each restricted stock unit that
vests. Restricted stock units that have vested and are no
longer subject to forfeiture according to the Vesting Schedule are
referred to herein as “Vested
Units.” Restricted
stock units that have not vested and remain subject to forfeiture under
the Vesting Schedule are referred to herein as “Unvested
Units.” The
Unvested Units will vest (and to the extent so vested cease to be Unvested
Units remaining subject to forfeiture) in accordance with the Vesting
Schedule (the Unvested and Vested Units are collectively referred to
herein as the “Units”). Except
as provided in Section 2.1(b) below, all Vested Units will be settled on
the Vest Date set forth in the Award Notice and the Vest Date shall be the
“payment date” for purposes of Section 409A. The Award will
terminate and the Unvested Units will be subject to forfeiture upon your
termination of employment as set forth in Section 2.1(a) and as
further described in Section 8(l).
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2.
|
Termination
of Employment; Corporate
Transaction
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2.1
|
Termination
of Employment
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(a) Vesting of
Units. Except as provided in Section 2.2 below, if your
employment terminates during the Units’ vesting period by reason of (a) death or
(b) Disability that also satisfies the definition of “disability” under Section
409A of the Code and the regulations thereunder (“Section
409A”)1, the Unvested Units will vest
pro-rata, based on the number of calendar days of employment with the Company or
a Related Corporation during the vesting period (rounded down to the nearest
whole number). In the event that your termination of employment is by
reason of a Disability that does not satisfy the definition of “disability”
under Section 409A, then Unvested Units will still vest pro-rata, based on the
number of calendar days of employment with the Company or a Related Corporation
during the vesting period (rounded down to the nearest whole number), but the
Units that become Vested Units as a result of such pro-rata vesting will not be
settled in shares of Common Stock until the Vest Date. If your
employment terminates for any other reason, any Unvested Units will be forfeited
immediately to the Company.
(b) Settlement of Vested
Units. For purposes of determining the settlement date under
Section 2.1(a) for issuing shares of Common Stock, if your employment terminates
by reason of (a) death or (b) Disability that also satisfies the definition of
“disability” under Section 409A, the settlement date shall be (i) if you are a
“specified employee,” the date six months after the date of death or Disability
or (ii) if you are not a “specified employee,” the date of death or Disability,
and shares of Common Stock shall be issued within 90 days of the settlement
date. If your employment terminates by reason of a Disability that
does not satisfy the definition of “disability” under Section 409A, the
settlement date shall be the Vest Date set forth in the Award Notice and the
Vest Date shall be the “payment date” for purposes of Section 409A.
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2.2
|
Corporate
Transaction
|
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In
the event of a Corporate Transaction (other than a Related Party
Transaction) that also constitutes a change in control event within the
meaning of Section 409A, any Unvested Units will accelerate in vesting and
become Vested Units immediately prior to such
transaction.
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|
3.
|
Securities
Law Compliance
|
3.1 You
represent and warrant that you (a) have been furnished with a copy of the
prospectus for the Plan and all information which you deem necessary to evaluate
the merits and risks of receipt of the Award, (b) have had the opportunity
to ask questions and receive answers concerning the information received about
the Award and the Company, and (c) have been given the opportunity to
obtain any additional information you deem necessary to verify the accuracy of
any information obtained concerning the Award and the Company.
3.2 You
hereby agree that you will in no event sell or distribute all or any part of the
shares of Common Stock that you receive pursuant to settlement of this Award
(the “Shares”)
unless (a) there is an effective registration statement under the U.S.
Securities Act of 1933, as amended (the “Securities
Act”) and any applicable state and foreign securities laws covering any
such transaction involving the Shares or (b) the Company receives an
opinion of your legal counsel (concurred in by legal counsel for the Company)
stating that such transaction is exempt from registration or the Company
otherwise satisfies itself that such transaction is exempt from
registration. You understand that the Company has no obligation to
you to register the Shares with the U.S. Securities and Exchange Commission or
any foreign securities regulator and has not represented to you that it will so
register the Shares.
3.3 You
confirm that you have been advised, prior to your receipt of the Shares, that
neither the offering of the Shares nor any offering materials have been reviewed
by any administrator under the Securities Act or any other applicable securities
act (the “Acts”) and
that the Shares cannot be resold unless they are registered under the Acts or
unless an exemption from such registration is available.
3.4 You
hereby agree to indemnify the Company and hold it harmless from and against any
loss, claim or liability, including attorneys’ fees or legal expenses, incurred
by the Company as a result of any breach by you of, or any inaccuracy in, any
representation, warranty or statement made by you in this Agreement or the
breach by you of any terms or conditions of this Agreement.
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4.
|
Transfer
Restrictions
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|
Units
shall not be sold, transferred, assigned, encumbered, pledged or otherwise
disposed of, whether voluntarily or by operation of law.
|
|
5.
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No
Rights as Shareholder
|
|
You
shall not have voting or other rights as a shareholder of the Company with
respect to the Units.
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6.
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Book
Entry Registration of Shares
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The Company will issue the Shares
by registering the Shares in book entry form with the Company’s transfer
agent in your name and the applicable restrictions will be noted in the
records of the Company’s transfer agent and in the book entry
system.
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7.
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Responsibility
for Taxes
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7.1 Regardless
of any action the Company or your employer (the “Employer”)
takes with respect to any or all income tax, social insurance, payroll tax,
payment on account or other tax-related items related to your participation in
the Plan and legally applicable to you (“Tax-Related
Items”), you acknowledge that the ultimate liability for all Tax-Related
Items is and remains your responsibility and may exceed the amount actually
withheld by the Company and/or the Employer. You further acknowledge
that the Company and the Employer (a) make no representations or undertakings
regarding the treatment of any Tax-Related Items in connection with any aspect
of the Award, including, but not limited to, the granting or vesting of the
Award, the settlement of Vested Units, the issuance of Shares upon settlement of
the Vested Units, the subsequent sale of Shares acquired upon settlement of the
Vested Units and the receipt of any dividends; and (b) do not commit to and are
under no obligation to structure the terms of the grant or any aspect of the
Award to reduce or eliminate your liability for Tax-Related Items or achieve any
particular tax result. Further, if you have become subject to tax in
more than one jurisdiction between the Grant Date and the date of any relevant
taxable event, you acknowledge that the Company and/or the Employer (or former
employer, as applicable) may be required to withhold or account for Tax-Related
Items in more than one jurisdiction.
7.2 Prior to
any relevant taxable or tax withholding event, as applicable, you will pay or
make adequate arrangements satisfactory to the Company and or the Employer to
satisfy all Tax-Related Items.
(a) In this
regard, you hereby irrevocably appoint Fidelity or any brokerage firm designated
by the Company for such purpose (the "Agent") as
your Agent, and authorize the Agent, to:
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(i)
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Sell
on the open market at the then prevailing market price(s), on your behalf,
as soon as practicable on or after the settlement date for any Vested
Unit, the minimum number of Shares (rounded up to the next whole number)
sufficient to generate proceeds to cover the Tax-Related Items and all
applicable fees and commissions due to, or required to be collected by,
the Agent;
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(ii)
|
Remit
directly to the Company the cash amount necessary to cover the Tax-Related
Items;
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(iii)
|
Retain
the amount required to cover all applicable fees and commissions due to,
or required to be collected by, the Agent, relating directly to the sale
of Shares referred to in clause (i) above;
and
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(iv)
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Remit
any remaining funds to you.
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(b) Alternatively,
or in addition to or in combination with the withholding mechanism described in
Section 7.2(a), you authorize the Company and/or the Employer at their
discretion, to satisfy the obligations with regard to all Tax-Related Items
by:
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(i)
|
requiring
you to pay to the Company or the Employer any amount of the Tax-Related
Items; and/or
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|
(ii)
|
withholding
any amount of the Tax-Related Items from your wages or other cash
compensation paid to you by the Company and/or the Employer;
and/or
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(iii)
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withholding
in Shares to be issued upon settlement of the Vested
Units.
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(c) To avoid
negative accounting treatment, the Company may withhold or account for
Tax-Related Items by considering applicable minimum statutory withholding
amounts or other applicable withholding rates. If the obligation for
Tax-Related Items is satisfied by withholding in Shares, for tax purposes, you
will be deemed to have been issued the full number of Shares subject to the
Vested Units notwithstanding that a number of the Shares are held back solely
for the purpose of paying the Tax-Related Items due as a result of any aspect of
your participation in the Plan. The Company may refuse to issue or
deliver Shares to you if you fail to comply with your obligations in connection
with the Tax-Related Items.
7.3 You
represent and warrant that you are not aware of any material, nonpublic
information with respect to the Company or any securities of the Company; you
are not subject to any legal, regulatory or contractual restriction which would
prevent the Agent from conducting sales as provided herein; you do not have, and
will not attempt to exercise, authority, influence or control over any sales of
Shares effected pursuant to Section 7.2(a); and you are entering into this
Agreement in good faith and not as part of a plan or scheme to evade the
prohibitions of Rule 10b5-1 (regarding trading of the Company’s securities on
the basis of material nonpublic information) under the U.S. Securities Exchange
Act of 1934, as amended (the “Exchange
Act”). It is the intent of the parties that this Agreement
comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act
and this Agreement will be interpreted to comply with the requirements of Rule
10b5-1(c) of the Exchange Act.
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You
understand that the Agent may effect sales as provided in Section 7.2(a)
above jointly with sales for other employees of the Company and/or Related
Corporations and that the average price for executions resulting from
bunched orders will be assigned to your account. In addition,
you acknowledge that it may not be possible to sell Shares as provided by
Section 7.2(a) due to (i) a legal or contractual restriction applicable to
you or the Agent, (ii) a market disruption, or (iii) rules governing order
execution priority on the NASDAQ or other exchange where the Shares may be
traded. In the event of the Agent’s inability to sell Shares,
you will continue to be responsible for the Tax-Related
Items.
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You
acknowledge that regardless of any other term or condition of this Agreement,
the Agent will not be liable to you for (a) special, indirect, punitive,
exemplary, or consequential damages, or incidental losses or damages of any
kind, or (b) any failure to perform or for any delay in performance that results
from a cause or circumstance that is beyond its reasonable control.
You
hereby agree to execute and deliver to the Agent any other agreements or
documents as the Agent reasonably deems necessary or appropriate to carry out
the purposes and intent of Section 7.2(a) and this Section 7.3. The
Agent is a third party beneficiary of Section 7.2(a) and this Section
7.3.
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8.
|
Nature of
Grant
|
In
accepting the grant, you acknowledge that:
(a) the Plan
is established voluntarily by the Company, it is discretionary in nature and it
may be modified, amended, suspended or terminated by the Company at any
time;
(b) the grant
of the Award is voluntary and occasional and does not create any contractual or
other right to receive future grants of restricted stock units, or benefits in
lieu of restricted stock units, even if restricted stock units have been granted
repeatedly in the past;
(c) all
decisions with respect to future grants of restricted stock units, if any, will
be at the sole discretion of the Company;
(d) your
participation in the Plan shall not create a right to further employment with
the Employer and shall not interfere with the ability of the Employer to
terminate your employment relationship at any time;
(e) you are
voluntarily participating in the Plan;
(f) the Award
and the Shares subject to the Award are an extraordinary item that does not
constitute compensation of any kind for services of any kind rendered to the
Company or the
Employer, and which is outside the scope of your employment contract, if
any;
(g) the Award
and the Shares subject to the Award are not intended to replace any pension
rights or compensation;
(h) the Award
and the Shares subject to the Award are not part of normal or expected
compensation or salary for any purposes, including, but not limited to,
calculating any severance, resignation, termination, redundancy, end of service
payments, bonuses, long-service awards, pension or retirement or welfare
benefits or similar payments and in no event should be considered as
compensation for, or relating in any way to, past services for the Company, the
Employer or any Related Corporation;
(i) the grant
of the Award and your participation in the Plan will not be interpreted to form
an employment contract or relationship with the Company or any Related
Corporation;
(j) the
future value of the underlying Shares is unknown and cannot be predicted with
certainty;
(k) in
consideration of the grant of the Award, no claim or entitlement to compensation
or damages shall arise from termination of the Award or diminution in value of
the Shares underlying the Award resulting from termination of your employment by
the Company or the Employer (for any reason whatsoever and whether or not in
breach of local labor laws) and you irrevocably release the Company and the
Employer from any such claim that may arise; if, notwithstanding the foregoing,
any such claim is found by a court of competent jurisdiction to have arisen, you
shall be deemed irrevocably to have waived your entitlement to pursue such
claim;
(l) in the
event of termination of your employment (whether or not in breach of local labor
laws), your right to vest in the Award, if any, will terminate effective as of
the date that you are no longer actively employed and will not be extended by
any notice period mandated under local law (e.g., active employment would
not include a period of “garden leave” or similar period pursuant to local law);
the Board (or a committee appointed by the Board) shall have the exclusive
discretion to determine when you are no longer actively employed for purposes of
the Award; and
(m) the Award
and the benefits under the Plan, if any, will not automatically transfer to
another company in the case of a merger, take-over or transfer of
liability.
9. No
Advice Regarding Grant
The
Company is not providing any tax, legal or financial advice, nor is the Company
making any recommendations regarding your participation in the Plan or your
acquisition or sale of the underlying Shares. You are hereby advised
to consult with your own personal tax, legal and financial advisors regarding
your participation in the Plan before taking any action related to the
Plan. You acknowledge that you have either consulted with competent
advisors independent of the Company to obtain advice concerning the receipt of
the Award and the acquisition or disposition of any Shares to be issued pursuant
to the Award in light of your specific situation or had the opportunity to
consult with such advisors but chose not to do so.
10. Data
Privacy
You hereby explicitly and unambiguously
consent to the collection, use and transfer, in electronic or other form, of
your personal data as described in this Agreement and any other Award materials
by and among, as applicable, the Employer, the Company and its Related
Corporations for the exclusive purpose of implementing, administering and
managing your participation in the Plan.
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You
understand that the Company and the Employer may hold certain personal
information about you, including, but not limited to, your name, home
address and telephone number, date of birth, social insurance number or
other identification number, salary, nationality, job title, any shares of
stock or directorships held in the Company, details of all Awards or any
other entitlement to shares of stock awarded, canceled, exercised, vested,
unvested or outstanding in your favor, for the exclusive purpose of
implementing, administering and managing the Plan
(“Data”).
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You
understand that Data will be transferred to Fidelity or such other stock
plan service provider as may be selected by the Company in the future,
which is assisting the Company with the implementation, administration and
management of the Plan. You understand that the recipients of
Data may be located in the United States or elsewhere, and that the
recipients’ country (e.g., the United States) may have different data
privacy laws and protections than your country. You understand
that you may request a list with the names and addresses of any potential
recipients of Data by contacting your local human resources
representative. You authorize the Company, Fidelity and any
other possible recipients which may assist the Company (presently or in
the future) with implementing, administering and managing the Plan to
receive, possess, use, retain and transfer Data, in electronic or other
form, for the sole purpose of implementing, administering and managing
your participation in the Plan. You understand that Data will
be held only as long as is necessary to implement, administer and manage
your participation in the Plan. You understand that you may, at
any time, view Data, request additional information about the storage and
processing of Data, require any necessary amendments to Data or refuse or
withdraw the consents herein, in any case without cost, by contacting in
writing your local human resources representative. You
understand, however, that refusing or withdrawing your consent may affect
your ability to participate in the Plan. For more information
on the consequences of your refusal to consent or withdrawal of consent,
you understand that you may contact your local human resources
representative.
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11. Electronic Delivery and
Participation
The Company may, in its sole
discretion, decide to deliver any documents related to current or future
participation in the Plan by electronic means. You hereby consent to
receive such documents by electronic delivery and agree to participate in the
Plan through an on-line or electronic system established and maintained by the
Company or a third party designated by the Company.
12. Language
If you
have received this Agreement or any other document related to the Plan
translated into a language other than English and if the meaning of the
translated version is different from the English version, the English version
will control.
13. General
Provisions
13.1 Successors and
Assigns. The provisions of this Agreement will inure to the
benefit of the successors and assigns of the Company and be binding upon you and
your heirs, executors, administrators, successors and assigns.
13.2 Section 409A
Compliance. Notwithstanding any provision in the Plan or this
Agreement to the contrary, the Plan Administrator may, at any time and without
your consent, modify the terms of the Award as it determines appropriate to
avoid the imposition of interest or penalties under Section 409A.
13.3 Governing Law and Choice of
Venue. The Award and the provisions of this Agreement will be
construed and administered in accordance with and governed by the laws of the
State of Washington without giving effect to such state’s principles of conflict
of laws. For the purposes of litigating any dispute that arises under
this grant of this Agreement, the parties hereby submit to and consent to the
exclusive jurisdiction of the State of Washington and agree that such litigation
shall be conducted in the courts of Spokane County, Washington, or the federal
courts for the United States for the Eastern District of Washington, where this
grant is made and/or to be performed.
13.4 Severability. The provisions of this
Agreement are severable and if any one or more provisions are determined to be
illegal or otherwise unenforceable, in whole or in part, the remaining
provisions shall nevertheless be binding and enforceable.
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13.5 Notice. Any notice
required or permitted hereunder shall be made in writing and sent to the
following address:
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|
Itron, Inc.
|
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Attn. General
Counsel
|
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2111 N. Molter
Road
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Liberty Lake,
WA USA 99019
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14. Appendix
Notwithstanding any provisions in this
Agreement, the Award shall be subject to any special terms and conditions set
forth in any appendix to this Agreement for your country (the “Appendix”). Moreover,
if you relocate to one of the countries included in the Appendix, the special
terms and conditions for such country will apply to you, to the extent the
Company determines
that the application of such terms and conditions is necessary or advisable in
order to comply with local law or facilitate the administration of the
Plan. The Appendix constitutes part of this Agreement.
15. Imposition
of Other Requirements
The Company reserves the right to
impose other requirements on your participation in the Plan, on the Award and on
any Shares acquired under the Plan, to the extent the Company determines it is
necessary or advisable in order to comply with local law or facilitate the
administration of the Plan, and to require you to sign any additional agreements
or undertakings that may be necessary to accomplish the foregoing.
APPENDIX
ITRON,
INC.
AMENDED
AND RESTATED 2000 STOCK INCENTIVE PLAN
RESTRICTED
STOCK UNIT AWARD AGREEMENT
FOR
NON-U.S. PARTICIPANTS
Terms
and Conditions
This
Appendix includes additional terms and conditions that govern the restricted
stock unit award (the “Award”)
granted to you under the Itron, Inc. Amended and Restated 2000 Stock Incentive
Plan (the “Plan”) if
you reside in one of the countries listed below. Capitalized terms
not expressly defined in this Appendix but defined in the Plan or the Restricted
Stock Unit Award Agreement (the “Agreement”)
shall have the same definitions as in the Plan and/or the Agreement, as
applicable.
Notifications
This
Appendix also includes information regarding exchange control and other issues
of which you should be aware with respect to your participation in the
Plan. The information is based on the exchange control, securities
and other laws in effect in the respective countries as of November
2008. Such laws are often complex and change
frequently. As a result, the Company strongly recommends that you not
rely on the information herein as the only source of information relating to the
consequences of participation in the Plan because the information may be out of
date at the time that the Award vests or the Shares acquired under the Plan are
sold.
In
addition, the information contained herein is general in nature and may not
apply to your particular situation and the Company is not in a position to
assure you of a particular result. Accordingly, you are advised to
seek appropriate professional advice as to how the relevant laws in your country
may apply to your situation.
Finally,
if you are a citizen or resident of a country other than the one in which you
are currently working, the information contained herein may not be applicable to
you.
ARGENTINA
Notifications
Securities Law
Notification. Neither the Award nor
the underlying Shares are publicly offered or listed on any stock exchange in
Argentina. The offer is private and not subject to the supervision of
any Argentine governmental authority.
Exchange Control
Notification. In the event that you transfer proceeds in
excess of US$2,000,000 from the sale of Shares into Argentina in a single month,
you will be required to place 30% of any proceeds in excess of US$2,000,000 in a
non-interest-bearing dollar-denominated mandatory deposit account for a holding
period of 365 days.
BELGIUM
Notifications
Tax Reporting
Notification. If you are a Belgian resident, you are required
to report any bank or brokerage accounts held outside of Belgium on your annual
tax return.
BRAZIL
Terms
and Conditions
Compliance with the
Law. In accepting the grant of the Award, you acknowledge your
agreement to comply with applicable Brazilian laws and to pay any and all
applicable tax associated with the Award and the sale of the Shares acquired
under the Plan.
Notifications
Exchange Control Notification.
If you are a
resident or domiciled in Brazil, you will be required to submit an annual
declaration of assets and rights held outside of Brazil to the Central Bank of
Brazil if the aggregate value of such assets and rights is equal to or greater
than US$100,000. Assets and rights that must be reported include
Shares acquired under the Plan.
CHINA
Terms
and Conditions
Vesting. This provision
supplements Section 1 of the Agreement.
To
facilitate compliance with applicable laws or regulations in China, you agree
and acknowledge that the Company or the Agent is entitled to
(a) immediately sell all Shares issued to you upon settlement of the Vested
Units (on your behalf pursuant to this authorization), either at the time the
Vested Units are settled or when you cease employment with the Employer, the
Company or a Related Corporation, or (b) require that any Shares acquired
under the Plan be held with Fidelity (or another brokerage firm designated by
the Company) until the Shares are sold. In any event, when the Shares
acquired under the Plan are sold, the proceeds of the sale of the Shares, less
any applicable Tax-Related Items and broker’s fees or commissions, will be
remitted to you in accordance with applicable exchange control law and
regulations, as further described below.
Exchange Control
Requirements. You understand and agree that, pursuant to local
exchange control requirements, you will be required to repatriate the cash
proceeds from the sale of the Shares acquired under the Plan to
China. You further understand that, under local law, such
repatriation of the cash proceeds may need to be effectuated through a special
exchange control account established by the Company, a Related Corporation or
the Employer, and you hereby consent and agree that any cash proceeds from the
sale of Shares acquired under the Plan may be transferred to such special
account prior to being delivered to you. You further agree to comply
with any other requirements that may be imposed by the Company in the future in
order to facilitate compliance with exchange control requirements in
China.
GERMANY
Notifications
Exchange Control
Notification. Cross-border payments in excess of €12,500 must
be reported monthly to the German Federal Bank. If you use a German
bank to transfer a cross-border payment in excess of €12,500 in connection with
the sale of Shares acquired under the Plan, the bank will make the report for
you. In addition, you must report any receivables, payables, or debts
in foreign currency exceeding an amount of €5,000,000 in any month.
HUNGARY
Notifications
Social Insurance
Notification. This provision supplements Section 7.1 of
the Agreement:
Pursuant
to the Social Insurance Act (Act. No. LXXX of 1997 on Social Insurance
Contributions), you are responsible for paying both the employee
portion and the employer portion of social insurance contributions due in
connection with the Award.
INDIA
Terms
and Conditions
Fringe Benefit Tax
Obligation. This provision
supplements Section 7.1 of the Agreement:
In
accepting the grant of the Award, you consent and agree to assume any and all
liability for fringe benefit tax that may be payable by the Company and/or the
Employer in connection with the Award, at the discretion of the Company and/or
the Employer. Further, in accepting the grant of the Award, you agree
that the Company and/or the Employer may collect the fringe benefit tax from you
by any of the means set forth in Section 7.2 of the Agreement or any other
reasonable method established by the Company. You also agree to
execute any other consents or elections required to accomplish the foregoing,
promptly upon request by the Company.
Notifications
Exchange Control
Notification. You understand that you
must repatriate any proceeds from the sale of Shares acquired under the Plan to
India and convert the proceeds into local currency within ninety (90) days of
receipt. You will receive a foreign inward remittance certificate
(“FIRC”)
from the bank where you deposit the foreign currency. You should
maintain the FIRC as evidence of the repatriation of the proceeds in the event
the Reserve Bank of India or the Employer requests proof of
repatriation.
ITALY
Terms
and Conditions
Data Privacy. This provision replaces
Section 10 of the Agreement:
You
hereby explicitly and unambiguously consent to the collection, use, processing
and transfer, in electronic or other form, of your personal data as described
below by and among, as applicable, the Employer, the Company, and any Related
Corporation, for the exclusive purpose of implementing, administering, and
managing your participation in the Plan.
You
understand that the Employer, the Company, and any Related Corporation may hold
certain personal information about you, including, but not limited to, your
name, home address and telephone number, date of birth, social insurance or
other identification number, salary, nationality, job title, any shares of stock
or directorships held in the Company or any Related Corporation, details of all
Awards, or any other entitlement to shares of stock awarded, canceled,
exercised, vested, unvested or outstanding in your favor, for the exclusive
purpose of implementing, managing and administering the Plan
(“Data”).
You
also understand that providing the Company with Data is necessary for the
performance of the Plan and that your refusal to provide Data would make it
impossible for the Company to perform its contractual obligations and may affect
your ability to participate in the Plan. The controller of personal data
processing is Itron, Inc. with registered offices at 2111 N. Molter Road,
Liberty Lake, Washington 99019, U.S.A., and, pursuant to Legislative Decree no.
196/2003, its representative in Italy is [insert name of Italian data privacy
representative, e.g., applicable Italian subsidiary], with registered offices at
[insert address of Italian data privacy representative].
You
understand that Data will not be publicized, but it may be transferred to banks,
other financial institutions, or brokers involved in the management and
administration of the Plan. You understand that Data may also be
transferred to the independent registered public accounting firm engaged by the
Company. You further understand that the Company and/or its Related
Corporations, will transfer Data among themselves as necessary for the purpose
of implementing, administering and managing your participation in the Plan, and
that the Company and its Related Corporations may each further transfer Data to
third parties assisting the Company in the implementation, administration, and
management of the Plan, including any requisite transfer of Data to a broker or
other third party with whom you may elect to deposit any Shares acquired at
settlement of the Vested Units. Such recipients may receive, possess,
use, retain, and transfer Data in electronic or other form, for the purposes of
implementing, administering, and managing your participation in the
Plan. You understand that these recipients may be located in or
outside the European Economic Area, such as in the United States or
elsewhere. Should the Company exercise its discretion in suspending
all necessary legal obligations connected with the management and administration
of the Plan, it will delete Data as soon as it has completed all the necessary
legal obligations connected with the management and administration of the
Plan.
You
understand that Data processing related to the purposes specified above shall
take place under automated or non-automated conditions, anonymously when
possible, that comply with the purposes for which Data is collected and with
confidentiality and security provisions, as set forth by applicable laws and
regulations, with specific reference to Legislative Decree no.
196/2003.
The
processing activity, including communication, the transfer of Data abroad,
including outside of the European Economic Area, as herein specified and
pursuant to applicable laws and regulations, does not require your consent
thereto, as the processing is necessary for the performance of contractual
obligations related to the implementation, administration, and management of the
Plan. You understand that, pursuant to Section 7 of the Legislative
Decree no. 196/2003, you have the right to, including but not limited to,
access, delete, update, correct, or terminate, for legitimate reason, the Data
processing.
Furthermore,
you are aware that Data will not be used for direct-marketing
purposes. In addition, Data provided can be reviewed and questions or
complaints can be addressed by contacting your local human resources
representative.
Plan Document
Acknowledgment. In accepting the grant of the Award, you
acknowledge that you have received a copy of the Plan and the Agreement and have
reviewed the Plan and the Agreement, including this Appendix, in their entirety
and fully understand and accept all provisions of the Plan and the Agreement,
including this Appendix.
You
further acknowledge that you have read and specifically and expressly approve
the following sections of the Agreement and this Appendix: Section 1:
Vesting; Section 2: Termination of Employment; Corporate Transaction;
Section 7: Responsibility for Taxes; Section 8: Nature of Grant;
Section 11: Electronic Delivery and Participation; Section 12:
Language; Section 13.3: Governing Law and Choice of Venue; Section 15:
Imposition of Other Requirements; and the Data Privacy provision
above.
Notifications
Exchange Control
Notification. You are required to report in your annual tax
return: (a) any transfers of cash or Shares to or from Italy
exceeding €10,000, and (b) any foreign investments or investments (including
proceeds from the sale of Shares acquired under the Plan) held outside of Italy
exceeding €10,000, if the investment may give rise to income in
Italy. You are exempt from the formalities in (a) if the investments
are made through an authorized broker resident in Italy, as the broker will
comply with the reporting obligation on your behalf.
LUXEMBOURG
Notifications
Exchange Control
Notification. You are required to report any inward
remittances of funds to the Banque Central de Luxembourg
and/or the Service Central de
La Statistique et des Études Économiques within fifteen (15) working days
following the month during the transaction occurred. If a Luxembourg
financial institution is involved in the transaction, it generally will fulfill
the reporting obligation on your behalf; otherwise, you will have to report the
transaction yourself.
MALAYSIA
Notifications
Securities Law
Notification. You should be aware of the Malaysian insider
trading rules summarized below.
Under the
Malaysian Capital Markets and Services Act, 2007, you are prohibited from
acquiring Shares or rights to Shares (e.g., an Award) or selling
Shares when you are in possession of information which is not generally
available and which you know or should know will have a material effect on the
Company’s stock price once such information is generally available.
Director Notification
Obligation. If you are a director of a Malaysian Related
Corporation, you are subject to certain notification requirements under the
Malaysian Companies Act, 1965. Among these requirements is an
obligation to notify the Malaysian Related Corporation in writing when you
acquire or dispose of an interest (e.g., an Award or Shares) in
the Company or a Related Corporation. Such notifications must be made
within fourteen (14) days of acquiring or disposing of any interest in the
Company or a Related Corporation.
NETHERLANDS
Notifications
Securities Law
Notification. You should be aware of
Dutch insider trading rules which may impact the sale of Shares acquired under
the Plan. In particular, you may be prohibited from effecting certain
Share transactions if you have insider information regarding the
Company.
It is
your responsibility to comply with the following Dutch insider trading
rules:
Under
Article 46 of the Act on the Supervision of the Securities Trade 1995, anyone
who has “inside information” related to the Company is prohibited from
effectuating a transaction in securities in or from the
Netherlands. “Inside information” is knowledge of a detail concerning
the issuer to which the securities relate that is not public and which, if
published, would reasonably be expected to affect the stock price, regardless of
the development of the price. The insider could be any employee of
the Company or a Related Corporation in the Netherlands who has inside
information as described herein.
Given the
broad scope of the definition of inside information, certain employees of the
Company working at a Related Corporation in the Netherlands (including you) may
have inside information and, thus, would be prohibited from effectuating a
transaction in securities in the Netherlands at a time when the employee had
such inside information.
PORTUGAL
Notifications
Exchange Control
Notification. If you acquire Shares upon settlement of the
Vested Units, the acquisition of the Shares should be reported to the Banco de Portugal for
statistical purposes. If the Shares are deposited with a commercial
bank or financial intermediary in Portugal, such bank or financial intermediary
will submit the report on your behalf. If the Shares are not
deposited with a commercial bank or financial intermediary in Portugal, you are
responsible for submitting the report to the Banco de
Portugal.
SOUTH
AFRICA
Terms
and Conditions
Responsibility for
Taxes. The following provision supplements Section 7 of
the Agreement:
In
accepting the grant of the Award, you agree that, immediately upon vesting of
the Award, you will notify the Employer of the amount of any gain
realized. If you fail to advise the Employer of the gain realized
upon vesting, you may be liable for a fine. You will be solely
responsible paying any difference the actual tax liability resulting from the
Award and the amount withheld by the Company or the Employer.
Notifications
Exchange Control
Notification. Exchange control approval is no longer required
in order for South African residents to participate in foreign share incentive
schemes. However, certain exchange control regulations may still
affect your participation in the Plan.
Because exchange control regulations
change frequently and without notice, you should consult your legal advisor
prior to the acquisition or sale of Shares under the Plan to ensure compliance
with current regulations. It is your responsibility to comply
with South African exchange control laws, and neither the Company nor the
Employer will be liable for any fines or penalties resulting from your failure
to comply with applicable laws.
SPAIN
Terms
and Conditions
Nature of
Grant. The following provision supplements Section 8 of
the Agreement:
In
accepting the grant of the Award, you consent to participation in the Plan and
acknowledge that you have received a copy of the Plan.
You
understand that the Company has unilaterally, gratuitously and in its sole
discretion decided to grant Awards to individuals who may be employees of the
Company or a Related Corporation throughout the world. The decision
is limited and entered into based upon the express assumption and condition that
any grant will not bind the Company or a Related Corporation, other than as
expressly set forth in the Agreement. Consequently, you understand
that the Award is granted on the assumption and condition that the Award and any
Shares acquired upon settlement of the Vested Units are not part of any
employment contract (whether with the Company or a Related Corporation) and
shall not be considered a mandatory benefit, salary for any purpose (including
severance compensation), or any other right whatsoever. Furthermore,
you understand that you will not be entitled to continue vesting in the Award
once your active employment with the Company or a Related Corporation
ceases. In addition, you understand that this grant would not be made
but for the assumptions and conditions set forth above; thus, you acknowledge
and freely accept that, should any or all of the assumptions be mistaken or any
of the conditions not be met for any reason, then the grant of or any right to
the Award and the underlying Shares shall be null and void.
Notifications
Exchange Control
Notification. You must declare the acquisition of Shares to
the Dirección General de
Política Comercial e Inversiones Exteriores (“DGPCIE”) of the Ministerio de Economia for
statistical purposes. You must also declare the ownership of any
Shares with the Directorate of Foreign Transactions each January while the
Shares are owned. In addition, if you wish to import the ownership
title of the Shares (e.g., share certificates)
into Spain, you must declare the importation of such securities to the
DGPCIE.
When
receiving foreign currency payments derived from the ownership of Shares (i.e., dividends or sale
proceeds), you must inform the financial institution receiving the payment of
the basis upon which such payment is made. You will need to provide
the following information: (i) your name, address, and fiscal
identification number; (ii) the name and corporate domicile of the Company;
(iii) the amount of the payment and the currency used; (iv) the country of
origin; (v) the reasons for the payment; and (vi) any further information that
may be required.
SWEDEN
There are
no country-specific provisions.
UNITED ARAB
EMIRATES
There are
no country-specific provisions.
UNITED
KINGDOM
Terms
and Conditions
Vesting. This
provision supplements Section 1 of the Agreement:
Notwithstanding
any discretion or anything to the contrary in the Plan and/or the Agreement, the
grant of the Award does not provide any right for you to receive a cash payment
and the Vested Units will be settled in Shares only.
Responsibility for
Taxes. The following provision supplements Section 7 of the
Agreement:
If
payment or withholding of the Tax-Related Items (including the Employer’s
Liability, as defined below) is not made within ninety (90) days of the event
giving rise to the Tax-Related Items (the “Due
Date”) or such other period specified in Section 222(1)(c) of the U.K.
Income Tax (Earnings and Pensions) Act 2003, the amount of any uncollected
Tax-Related Items will constitute a loan owed by you to the Employer, effective
on the Due Date. You agree that the loan will bear interest at the
then-current official rate of Her Majesty’s Revenue and Customs (“HMRC”),
it will be immediately due and repayable, and the Company or the Employer may
recover it at any time thereafter by any of the means referred to in Section 7.2
of the Agreement. Notwithstanding the foregoing, if you are a
director or executive officer of the Company (within the meaning of Section
13(k) of the U.S. Securities and Exchange Act of 1934, as amended), you will not
be eligible for such a loan to cover the Tax-Related Items. In the
event that you are a director or executive officer and the Tax-Related Items are
not collected from or paid by you by the Due Date, the amount of any uncollected
Tax-Related Items will constitute a benefit to you on which additional income
tax and national insurance contributions (including the Employer’s Liability, as
defined below) will be payable. You will be responsible for reporting
and paying any income tax and national insurance contributions (including the
Employer’s Liability, as defined below) due on this additional benefit directly
to HMRC under the self-assessment regime.
Joint Election. As
a condition of your participation in the Plan, you agree to accept any liability
for secondary Class 1 national insurance contributions (the “Employer’s
Liability”) which may be payable by the Company and/or the
Employer in connection with the Award and any event giving rise to
Tax-Related Items. To accomplish the foregoing, you agree to execute the
following joint election with the Company (the “Joint
Election”), the form of such Joint Election being formally approved by
HMRC, and any other consent or elections required to accomplish the transfer of
the Employer’s Liability to you. You further agree to execute such
other joint elections as may be required between yourself and any successor to
the Company and/or the Employer. You further agree that the Company
and/or the Employer may collect the Employer’s Liability by any of the means set
forth in Section 7.2 of the Agreement.
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If
you do not enter into a Joint Election prior to vesting of the Award or
any other event giving rise to Tax-Related Items, you will forfeit the
Units and any benefits in connection with the Award, and any Shares that
have been issued will be returned to the Company at no cost to the
Company, without any liability to the Company and/or the
Employer.
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Exhibit
10.6
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ITRON,
INC.
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AMENDED
AND RESTATED 2000 STOCK INCENTIVE
PLAN
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RESTRICTED
STOCK UNIT AWARD NOTICE
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FOR
PARTICIPANTS IN FRANCE
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Itron,
Inc. (the "Company")
hereby grants to Participant a restricted stock unit award (the "Award"). The
Award is subject to all the terms and conditions set forth in this
Restricted Stock Unit Award Notice (the "Award
Notice"), the Restricted Stock Unit Award Agreement (the
“Agreement”) and the Itron, Inc. Amended and Restated 2000 Stock Incentive
Plan (the "Plan"),
all of which are incorporated into the Award Notice in their
entirety.
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Participant:
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Grant
Date:
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Number of Restricted Stock
Units:
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Vesting Schedule:
The Award will vest in full on the second anniversary of the Grant
Date ("Vesting
Date").
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Holding Period: From _________, 20__
until ________, 20__ inclusive (2 years from Vesting Date), or such other
period applicable under French law.
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Additional
Terms/Acknowledgement: This Award is subject to all the
terms and conditions set forth in this Award Notice, the Agreement, and
the Plan which are attached to and incorporated into this Award Notice in
their entirety.
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I
accept this award subject to the terms and
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conditions
stated herein.
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Attachments:
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1. Restricted
Stock Unit Award Agreement
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2. Plan
Summary
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3. Stock
Incentive Plan
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ITRON,
INC.
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AMENDED
AND RESTATED 2000 STOCK INCENTIVE
PLAN
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RESTRICTED
STOCK UNIT AWARD AGREEMENT
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FOR
PARTICIPANTS IN FRANCE
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Pursuant
to your Restricted Stock Unit Award Notice (the "Award
Notice") and this Restricted Stock Unit Award Agreement (the "Agreement"),
Itron, Inc. (the "Company")
has granted you a Restricted Stock Unit Award (the "Award")
under its Amended and Restated 2000 Stock Incentive Plan (the "Plan")
for the number of restricted stock units indicated in your Award
Notice. Capitalized terms not expressly defined in this
Agreement but defined in the Plan shall have the same definitions as in
the Plan.
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The
following has been established for the purpose of granting you an Award
which qualifies for the favorable tax and social security treatment in
France applicable to shares granted for no consideration under Sections L.
225-197-1 to L. 225-197-5 of the French Commercial Code, as amended, to
eligible individuals who are resident in France for French tax purposes
and/or subject to the French social security regime (a "French-Qualified
Award").
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However,
certain events may affect the status of the Award as a French-Qualified
Award and the Award may be disqualified in the future. The
Company does not make any undertaking or representation to maintain the
French-qualified status of the Award. If the Award no longer
qualifies as a French-Qualified Award, the favorable tax and social
security treatment will not apply and you will be required to pay your
portion of social security contributions resulting from the
Award.
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Moreover,
if you relocate to another country, any special terms and conditions
applicable to restricted stock unit awards granted in such country will
apply to you, to the extent the Company determines that the application of
such terms and conditions is necessary or advisable in order to comply
with local law or facilitate the administration of the Plan.
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In
addition, the Company reserves the right to impose other requirements on
the Award and any shares of Common Stock acquired under the Plan, to the
extent the Company determines it is necessary or advisable in order to
comply with local law or facilitate the administration of the Plan, and to
require you to sign any additional agreements or undertakings that may be
necessary to accomplish the foregoing.
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The
details of the Award are as follows:
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1.
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Definitions
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The
following additional terms shall be defined as
follows:
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"Disability"
means disability as determined in categories 2 and 3 under Section 341-4
of the French Social Security Code, as amended, and subject to the
fulfillment of related conditions.
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"Holding
Period" means the 2-year period starting on the Vesting Date (or
such other period as is required to comply with the minimum mandatory
holding period applicable to shares underlying a French-Qualified Award
under Section L. 225-197-1 of the French Commercial Code, as amended, or
under the relevant sections of the French Tax Code of the French Security
Code, as amended) during which the Participant shall hold the shares of
Common Stock issued pursuant to the vesting of the Award in order to
benefit from the favorable tax and social security regime in
France.
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"French
Subsidiaries" means all the French subsidiaries of the Company
within the meaning of Section L. 225-197-2 of the French Commercial Code
or any provision substituted for
same.
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2.
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Eligibility
to Participate
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(a) Subject
to Section 2(c) below, any individual who, on the Grant Date of the Award and to
the extent required under French law, is employed under the terms and conditions
of an employment contract (“contrat de travail”) by a
French Subsidiary or who is a corporate officer of a French Subsidiary (subject
to Section 2(c) below) shall be eligible to receive, at the discretion of the
Plan Administrator, a French-Qualified Award, provided he or she also satisfies
the eligibility conditions of Section 5 of the Plan.
(b) French-Qualified
Awards may not be issued to a corporate officer of a French Subsidiary, other
than the managing corporate officers (i.e., Président du Conseil
d’Administration, Directeur Général, Directeur Général Délégué,
Membre du Directoire,
Gérant de Sociétés par
actions), unless the corporate officer is employed by a French
Subsidiary, as defined by French law.
(c) French-Qualified
Awards may not be issued to Participants owning more than ten percent (10%) of
the Company’s share capital or to individuals other than employees and corporate
executives of a French Subsidiary, as set forth in this Section 2.
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3.
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Vesting
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The
Award will vest according to the vesting schedule set forth in the Award
Notice (the "Vesting
Schedule"). One share of
Common Stock will be issuable for each restricted stock unit that
vests. Restricted stock units that have vested and are no
longer subject to forfeiture according to the Vesting Schedule are
referred to herein as "Vested
Units." Restricted
stock units that have not vested and remain subject to forfeiture under
the Vesting Schedule are referred to herein as "Unvested
Units." The
Unvested Units will vest (and to the extent so vested cease to be Unvested
Units remaining subject to forfeiture) in accordance with the Vesting
Schedule (the Unvested and Vested Units are collectively referred to
herein as the "Units").
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Unless
otherwise provided in this Agreement, as soon as practicable after the
Vesting Date, the Company will settle the Vested Units by issuing to you
one share of Common Stock for each Vested
Unit.
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The
Award will terminate and the Unvested Units will be subject to forfeiture
upon your termination of employment as set forth in Section 6 and as
further described in Section 12(l) below.
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4.
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Non-Transferability
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Notwithstanding
any provision in the Plan to the contrary, except in the case of death,
the Units shall not be transferred to any third party other than your
heirs and the shares of Common Stock shall be issued only to you during
your lifetime.
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5.
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No
Rights as Shareholder
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You
shall not have voting, dividends rights or other rights as a shareholder
of the Company with respect to the Units.
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6.
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Termination
of Employment; Corporate
Transaction
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6.1
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Termination
of Employment.
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Except
as provided in Section 6.2 below, if your employment terminates during the
Units' vesting period by reason of Disability or Retirement, the Unvested
Units will vest pro-rata, based on the number of calendar days of
employment with the Company or a Related Corporation during the vesting
period, rounded down to the nearest whole number.
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In
case of your Retirement, the Units
that become Vested Units as a result of such pro-rata vesting will not be
settled in shares of Common Stock until the date such Units would
otherwise have been settled in accordance with the Vesting
Schedule.
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In
the event of your Disability, the
Units that become Vested Units as a result of such pro-rata vesting will
be settled to you within a reasonable period following the acknowledgement
by the Company/the French Subsidiary of the Disability. You shall not be
bound by the Holding Period.
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Except
as provided in Section 6.2 below, if your employment terminates during the
Units' vesting period by reason of death, the Units will become transferable
to your heirs. The Company will issue the shares of Common
Stock subject to the Units to your heirs upon their request, provided they
contact the Company within six (6) months following your
death. If your heirs do not request the issuance of the shares
of Common Stock within six (6) months of your death, the Units will be
forfeited to the Company. Your heirs shall not be bound by the
Holding Period.
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If
your employment terminates for reasons other than death, Disability or
Retirement, any Unvested Units will be forfeited to the
Company.
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6.2
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Corporate
Transactions.
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In
the event of a Corporate Transaction as described in Section 14.3.1 of the
Plan, the Plan Administrator may, in its discretion, authorize an
adjustment to the terms and conditions of the Award or the underlying
shares of Common Stock in accordance with the Plan and pursuant to
applicable French legal and tax rules. Nevertheless, the Plan
Administrator, at its discretion, may decide to make adjustments which are
not authorized under French law, in which case the Award may no longer
qualify as a French-Qualified Award and the favorable tax and social
security treatment for the Award may be
lost.
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Assumption
of the Award in the case of a Corporate Transaction, as well as an
acceleration of vesting or the Holding Period or any other mechanism
implemented upon a Corporate Transaction, or in any other event, to
compensate you, may result in the Award no longer being eligible for the
favorable French tax and social security regime.
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7.
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Holding
Period and Shareholding
Restrictions
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Subject
to the provisions of Section 6.1 above, you shall hold and keep the shares
of Common Stock issued pursuant to the vesting of the Units during the
Holding Period, even if you are no longer an employee or corporate
officer, as applicable, of the French Subsidiary. As from the end of the
Holding Period, the corresponding shares of Common Stock shall be freely
transferable, subject to applicable legal and regulatory provisions in
force and in particular to the provisions of Section 8
below.
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In
addition, if you qualify as a managing corporate officer, as defined in
Section 2(b) above, and you are subject to shareholding restrictions under
French law, you must hold 20% of the shares of Common Stock issued upon
vesting of the Units and you may not sell such shares until you cease to
serve as a managing corporate officer. To ensure compliance
with any applicable shareholding restrictions, the Company may require
that the shares of Common Stock be held with a broker appointed by the
Company (or according to any procedure implemented by the Company) until
you cease to be subject to the shareholding restrictions.
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8.
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Closed
Periods
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As
long as the Award and the shares of Common Stock issued upon vesting of
the Units maintain their French-qualified status and to the extent such
restriction is applicable under French law, the shares of Common Stock may
not be sold during the "Closed
Periods" defined in Section L. 225-197-1 of the French Commercial
Code, as amended, which are currently: (a) ten quotation days before and
after the disclosure to the public of the consolidated financial
statements or the annual statements of the Company, and (b) any period
during which the corporate management of the Company possesses material
information which could, if disclosed to the public, significantly impact
the quotation of the shares of Common Stock, until ten quotation days
after the day such information is disclosed to the
public.
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To
ensure compliance with the Closed Periods and the Holding Period described
in Section 7 above, the Company may require that the shares of Common
Stock be held with a broker appointed by the Company (or according to any
procedure implemented by the Company) until such shares of
Common Stock are sold.
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9.
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Securities
Law Compliance
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9.1 You
represent and warrant that you (a) have been furnished with a copy of the
prospectus for the Plan and all information which you deem necessary to evaluate
the merits and risks of receipt of the Award, (b) have had the opportunity
to ask questions and receive answers concerning the information received about
the Award and the Company, and (c) have been given the opportunity to
obtain any additional information you deem necessary to verify the accuracy of
any information obtained concerning the Award and the Company.
9.2 You
hereby agree that you will in no event sell or distribute all or any part of the
shares of Common Stock that you receive pursuant to settlement of this Award
(the "Shares") unless (a) there is
an effective registration statement under the U.S. Securities Act of 1933, as
amended (the "Securities
Act") and any applicable state and foreign securities laws covering any
such transaction involving the Shares or (b) the Company receives an
opinion of your legal counsel (concurred in by legal counsel for the Company)
stating that such transaction is exempt from registration or the Company
otherwise satisfies itself that such transaction is exempt from
registration. You understand that the Company has no obligation to
you to register the Shares with the U.S. Securities and Exchange Commission or
any foreign securities regulator and has not represented to you that it will so
register the Shares.
9.3 You
confirm that you have been advised, prior to your receipt of the Shares, that
neither the offering of the Shares nor any offering materials have been reviewed
by any administrator under the Securities Act or any other applicable securities
act (the "Acts") and
that the Shares cannot be resold unless they are registered under the Acts or
unless an exemption from such registration is available.
9.4 You
hereby agree to indemnify the Company and hold it harmless from and against any
loss, claim or liability, including attorneys' fees or legal expenses, incurred
by the Company as a result of any breach by you of, or any inaccuracy in, any
representation, warranty or statement made by you in this Agreement or the
breach by you of any terms or conditions of this Agreement.
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10.
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Book
Entry Registration of Shares
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The
Company will issue the Shares by registering the Shares in book entry form
with the Company's transfer agent in your name and the applicable
restrictions will be noted in the records of the Company's transfer agent
and in the book entry system.
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This
book entry form will expressly stipulate to both you and the Company's
transfer agent that the Shares are non-transferable during the entire
Holding Period. You must accept this condition.
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11.
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Responsibility
for Taxes
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11.1 Regardless
of any action the Company or your employer (the "Employer") takes
with respect to any or all income tax, social security, payroll tax or other
tax-related items related to your participation in the Plan and legally
applicable to you ("Tax-Related
Items"), you acknowledge that the ultimate liability for all Tax-Related
Items is and remains your responsibility and may exceed the amount actually
withheld by the Company and/or the Employer. You further acknowledge
that the Company and the Employer (a) make no representations or undertakings
regarding the treatment of any Tax-Related Items in connection with any aspect
of the Award, including, but not limited to, the granting or vesting of the
Award, the settlement of Vested Units, the issuance of Shares upon settlement of
the Vested Units, the subsequent sale of Shares acquired upon settlement of the
Vested Units and the receipt of any dividends; and (b) do not commit to and are
under no obligation to structure the terms of the grant or any aspect of the
Award to reduce or eliminate your liability for Tax-Related Items or achieve any
particular tax result. Further, if you have become subject to tax in
more than one jurisdiction between the Grant Date and the date of any relevant
taxable event, you acknowledge that the Company and/or the Employer (or former
employer, as applicable) may be required to withhold or account for Tax-Related
Items in more than one jurisdiction.
11.2 Prior to
any relevant taxable or tax withholding event, as applicable, you will pay or
make adequate arrangements satisfactory to the Company and or the Employer to
satisfy all Tax-Related Items.
(a) In this
regard, you hereby irrevocably appoint Fidelity or any brokerage firm designated
by the Company for such purpose (the "Agent") as
your Agent, and authorize the Agent, to:
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(i)
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Sell
on the open market at the then prevailing market price(s), on your behalf,
as soon as practicable on or after the settlement date for any Vested
Unit, the minimum number of Shares (rounded up to the next whole number)
sufficient to generate proceeds to cover the Tax-Related Items and all
applicable fees and commissions due to, or required to be collected by,
the Agent;
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(ii)
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Remit
directly to the Company the cash amount necessary to cover the Tax-Related
Items;
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(iii)
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Retain
the amount required to cover all applicable fees and commissions due to,
or required to be collected by, the Agent, relating directly to the sale
of Shares referred to in clause (i) above;
and
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(iv)
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Remit
any remaining funds to you.
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(b) Alternatively,
or in addition to or in combination with the withholding mechanism described in
Section 11.2(a), you authorize the Company and/or the Employer at their
discretion, to satisfy the obligations with regard to all Tax-Related Items
by:
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(i)
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requiring
you to pay to the Company or the Employer any amount of the Tax-Related
Items; and/or
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(ii)
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withholding
any amount of the Tax-Related Items from your wages or other cash
compensation paid to you by the Company and/or the Employer;
and/or
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(iii)
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withholding
in Shares to be issued upon settlement of the Vested
Units.
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(c) If the
amount withheld is greater than the actual Tax-Related Items, the difference
will be refunded to you as soon as practicable. To avoid negative
accounting treatment, the Company may withhold or account for Tax-Related Items
by considering applicable minimum statutory withholding amounts or other
applicable withholding rates. If the obligation for Tax-Related Items
is satisfied by withholding in Shares, for tax purposes, you will be deemed to
have been issued the full number of Shares subject to the Vested Units
notwithstanding that a number of the Shares are held back solely for the purpose
of paying the Tax-Related Items due as a result of any aspect of your
participation in the Plan. The Company may refuse to issue or deliver
Shares to you if you fail to comply with your obligations in connection with the
Tax-Related Items.
11.3 You
represent and warrant that you are not aware of any material, nonpublic
information with respect to the Company or any securities of the Company; you
are not subject to any legal, regulatory or contractual restriction which would
prevent the Agent from conducting sales as provided herein; you do not have, and
will not attempt to exercise, authority, influence or control over any sales of
Shares effected pursuant to Section 11.2(a); and you are entering into this
Agreement in good faith and not as part of a plan or scheme to evade the
prohibitions of Rule 10b5-1 (regarding trading of the Company’s securities on
the basis of material nonpublic information) under the U.S. Securities Exchange
Act of 1934, as amended (the "Exchange
Act"). It is the intent of the parties that this Agreement
comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act
and this Agreement will be interpreted to comply with the requirements of Rule
10b5-1(c) of the Exchange Act.
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You
understand that the Agent may effect sales as provided in Section 11.2(a)
above jointly with sales for other employees of the Company and/or Related
Corporations and that the average price for executions resulting from
bunched orders will be assigned to your account. In addition,
you acknowledge that it may not be possible to sell Shares as provided by
Section 11.2(a) due to (i) a legal or contractual restriction applicable
to you or the Agent, (ii) a market disruption, or (iii) rules governing
order execution priority on the NASDAQ or other exchange where the Shares
may be traded. In the event of the Agent’s inability to sell
Shares, you will continue to be responsible for the Tax-Related
Items.
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You
acknowledge that regardless of any other term or condition of this Agreement,
the Agent will not be liable to you for (a) special, indirect, punitive,
exemplary, or consequential damages, or incidental losses or damages of any
kind, or (b) any failure to perform or for any delay in performance that results
from a cause or circumstance that is beyond its reasonable control.
You
hereby agree to execute and deliver to the Agent any other agreements or
documents as the Agent reasonably deems necessary or appropriate to carry out
the purposes and intent of Section 11.2(a) and this Section 11.3. The
Agent is a third party beneficiary of Section 11.2(a) and this Section
11.3.
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12.
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Nature of
Grant
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In
accepting the grant, you acknowledge that:
(a) the Plan
is established voluntarily by the Company, it is discretionary in nature and it
may be modified, amended, suspended or terminated by the Company at any
time;
(b) the grant
of the Award is voluntary and occasional and does not create any contractual or
other right to receive future grants of restricted stock units, or benefits in
lieu of restricted stock units, even if restricted stock units have been granted
repeatedly in the past;
(c) all
decisions with respect to future grants of restricted stock units, if any, will
be at the sole discretion of the Company;
(d) your
participation in the Plan shall not create a right to further employment with
the Employer and shall not interfere with the ability of the Employer to
terminate your employment relationship at any time;
(e) you are
voluntarily participating in the Plan;
(f) the Award
and the Shares subject to the Award are an extraordinary item that does not
constitute compensation of any kind for services of any kind rendered to the
Company or the
Employer, and which is outside the scope of your employment contract, if
any;
(g) the Award
and the Shares subject to the Award are not intended to replace any pension
rights or compensation;
(h) the Award
and the Shares subject to the Award are not part of normal or expected
compensation or salary for any purposes, including, but not limited to,
calculating any severance, resignation, termination, redundancy, end of service
payments, bonuses, long-service awards, pension or retirement or welfare
benefits or similar payments and in no event should be considered as
compensation for, or relating in any way to, past services for the Company, the
Employer or any Related Corporation;
(i) the grant
of the Award and your participation in the Plan will not be interpreted to form
an employment contract or relationship with the Company or any Related
Corporation;
(j) the
future value of the underlying Shares is unknown and cannot be predicted with
certainty;
(k) in
consideration of the grant of the Award, no claim or entitlement to compensation
or damages shall arise from termination of the Award or diminution in value of
the Shares underlying the Award resulting from termination of your employment by
the Company or the Employer (for any reason whatsoever and whether or not in
breach of local labor laws) and you irrevocably release the Company and the
Employer from any such claim that may arise; if, notwithstanding the foregoing,
any such claim is found by a court of competent jurisdiction to have arisen, you
shall be deemed irrevocably to have waived your entitlement to pursue such
claim;
(l) in the
event of termination of your employment (whether or not in breach of local labor
laws), your right to vest in the Award, if any, will terminate effective as of
the date that you are no longer actively employed and will not be extended by
any notice period mandated under local law (e.g., active employment would
not include a period of “garden leave” or similar period pursuant to local law);
the Board (or a committee appointed by the Board) shall have the exclusive
discretion to determine when you are no longer actively employed for purposes of
the Award; and
(m) the Award
and the benefits under the Plan, if any, will not automatically transfer to
another company in the case of a merger, take-over or transfer of
liability.
13. No
Advice Regarding Grant
The
Company is not providing any tax, legal or financial advice, nor is the Company
making any recommendations regarding your participation in the Plan or your
acquisition or sale of the underlying Shares. You are hereby advised
to consult with your own personal tax, legal and financial advisors regarding
your participation in the Plan before taking any action related to the
Plan. You acknowledge that you have either consulted with competent
advisors independent of the Company to obtain advice concerning the receipt of
the Award and the acquisition or disposition of any Shares to be issued pursuant
to the Award in light of your specific situation or had the opportunity to
consult with such advisors but chose not to do so.
14. Data
Privacy
You
hereby explicitly and unambiguously consent to the collection, use and transfer,
in electronic or other form, of your personal data as described in this
Agreement and any other Award materials by and among, as applicable, the
Employer, the Company and its Related Corporations for the exclusive purpose of
implementing, administering and managing your participation in the
Plan.
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You
understand that the Company and the Employer may hold certain personal
information about you, including, but not limited to, your name, home
address and telephone number, date of birth, social insurance number or
other identification number, salary, nationality, job title, any shares of
stock or directorships held in the Company, details of all Awards or any
other entitlement to shares of stock awarded, canceled, exercised, vested,
unvested or outstanding in your favor, for the exclusive purpose of
implementing, administering and managing the Plan
(“Data”).
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You
understand that Data will be transferred to Fidelity or such other stock
plan service provider as may be selected by the Company in the future,
which is assisting the Company with the implementation, administration and
management of the Plan. You understand that the recipients of
Data may be located in the United States or elsewhere, and that the
recipients’ country (e.g., the United States) may have different data
privacy laws and protections than France. You understand that
you may request a list with the names and addresses of any potential
recipients of Data by contacting your local human resources
representative. You authorize the Company, Fidelity and any
other possible recipients which may assist the Company (presently or in
the future) with implementing, administering and managing the Plan to
receive, possess, use, retain and transfer Data, in electronic or other
form, for the sole purpose of implementing, administering and managing
your participation in the Plan. You understand that Data will
be held only as long as is necessary to implement, administer and manage
your participation in the Plan. You understand that you may, at
any time, view Data, request additional information about the storage and
processing of Data, require any necessary amendments to Data or refuse or
withdraw the consents herein, in any case without cost, by contacting in
writing your local human resources representative. You
understand, however, that refusing or withdrawing your consent may affect
your ability to participate in the Plan. For more information
on the consequences of your refusal to consent or withdrawal of consent,
you understand that you may contact your local human resources
representative.
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15. Electronic Delivery and
Participation
The
Company may, in its
sole discretion, decide to deliver any documents related to current or future
participation in the Plan by electronic means. You hereby consent to
receive such documents by electronic delivery and agree to participate in the
Plan through an on-line or electronic system established and maintained by the
Company or a third party designated by the Company.
16. Language
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If
you have received this Agreement or any other document related to the Plan
translated into a language other than English and if the meaning of the
translated version is different from the English version, the English
version will control.
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By
signing and submitting the Award Notice, you confirm that you have read
and understood the documents relating to this Award (the
Award Notice, the Plan and the Agreement) which were provided in the
English language. You accept the terms of these documents
accordingly.
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En
signant et en renvoyant la Notification d’Attribution,
vous confirmez ainsi avoir lu et compris les documents relatifs à cette
Attribution (la Notification d’Attribution, le Plan et ce Contrat
d’attribution) qui ont été communiqués en langue anglaise. Vous
en acceptez les termes en connaissance de cause.
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17. General
Provisions
17.1 Successors and
Assigns. The provisions of this Agreement will inure to the
benefit of the successors and assigns of the Company and be binding upon you and
your heirs, executors, administrators, successors and assigns.
17.2 Governing Law and Choice of
Venue. The Award and the provisions of this Agreement will be
construed and administered in accordance with and governed by the laws of the
State of Washington without giving effect to such state’s principles of conflict
of laws. For the purposes of litigating any dispute that arises under
this grant of this Agreement, the parties hereby submit to and consent to the
exclusive jurisdiction of the State of Washington and agree that such litigation
shall be conducted in the courts of Spokane County, Washington, or the federal
courts for the United States for the Eastern District of Washington, where this
grant is made and/or to be performed.
17.3 Severability. The provisions of this
Agreement are severable and if any one or more provisions are determined to be
illegal or otherwise unenforceable, in whole or in part, the remaining
provisions shall nevertheless be binding and enforceable.
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17.4 Notice. Any notice
required or permitted hereunder shall be made in writing and sent to the
following address:
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Itron, Inc.
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Attn. General
Counsel
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2111 N. Molter
Road
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Liberty Lake,
WA USA 99019
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********
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Exhibit
10.7
EMPLOYEE
STOCK OPTION
AMENDED
AND RESTATED 2000 STOCK INCENTIVE PLAN
NON-QUALIFIED
STOCK OPTION GRANT NOTICE
Itron,
Inc. (the "Company") hereby grants to Participant an Option (the "Option") to
purchase shares of the Company's Common Stock.
Participant:
Grant Date:
Number of Shares Subject to
Option:
Grant Price (per
Share):
Option Expiration
Date:
Type of
Option:
Nonqualified Stock
Option
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Vesting and
Exercisability Schedule:
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33-1/3%
of the Option will vest and become exercisable on the one-year anniversary
of the Grant Date. An additional 33-1/3% of the Option will vest and
become exercisable each year thereafter so that the entire Option will be
fully vested and exercisable three years from the Grant
Date.
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Additional
Terms: The Option is subject to all the terms and
conditions set forth in this Stock Option Grant Notice (this "Grant
Notice"), the Stock Option Agreement, and the Company's Amended and
Restated 2000 Stock Incentive Plan (the "Plan"), which are attached to and
incorporated into this Grant Notice in their
entirety.
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I accept
the Option subject to the terms and conditions
stated
herein.
Attachments:
1. Stock
Option Agreement
2. 2000
Stock Incentive Plan
3. Plan
Summary
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EMPLOYEE
STOCK OPTION
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AMENDED
AND RESTATED 2000 STOCK INCENTIVE
PLAN
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STOCK OPTION AGREEMENT
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Pursuant
to your Stock Option Grant Notice (the "Grant Notice"), Itron,
Inc. has granted you an Option under its Amended and Restated 2000 Stock
Incentive Plan (the "Plan") to purchase the number of shares of the Company's
Common Stock (“Stock”) indicated in your Grant Notice (the "Shares") at the
Grant Price indicated in your Grant Notice. Capitalized terms not
expressly defined in this Stock Option Agreement or the Grant Notice have the
same definitions as in the Plan.
The
details of the Option are as follows:
1. Vesting and
Exercisability. Subject to the limitations contained herein,
the Option will vest and become exercisable as provided in your Grant
Notice.
2. Securities Law
Compliance. At the present time, the Company has an effective
registration statement with respect to the Shares. The Company
intends to maintain this registration but has no obligation to do
so. In the event that such registration ceases to be effective, you
will not be able to exercise the Option unless exemptions from registration
under federal and state securities laws are available, which exemptions from
registration are very limited and might be unavailable. The exercise
of the Option must also comply with other applicable laws and regulations
governing the Option, and you may not exercise the Option if the Company
determines that such exercise would not be in material compliance with such laws
and regulations.
3. Method of
Exercise. You may exercise the Option upon notice and payment
of the Grant Price by any of the following methods, unless disallowed by
law:
(a) broker
assisted exercise;
(b) Stock
already owned by you; or
(c) cash.
You may elect to receive the proceeds
of the exercise in either cash or Stock.
4. Term of Option. This Option shall expire
ten years from the Grant Date thereof, but shall be subject to earlier
termination as follows:
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(a) Unvested Options. In the event
Participant ceases to be an employee of the Company for any reason, the
unvested portion of the Option shall terminate
immediately.
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(b) Vested
Options.
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1) In
the event Participant ceases to be an employee of the Company for any
reason other than death, Disability, Retirement, or Cause, the vested
portion of the Option shall remain exercisable until the earlier of (i) 90
days after the date the Participant ceases to be an employee of the
Company or (ii) the date on which the Option expires by its
terms.
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2) Death or Disability. In the
event of the death or Disability of the Participant while an employee of
the Company, the vested portion of the Option shall remain exercisable
until the earlier of (i) one year following the date of death or
Disability of the Participant or (ii) the date on which the Option expires
by its terms. Upon death of Participant, the exercisable
portion of the Option may be exercised by the personal representative of
the Participant’s estate, the person(s) to whom the Participant’s rights
under the Option have passed by will or the applicable laws of descent and
distribution, or the beneficiary designated pursuant to the
Plan.
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3) Retirement. In the event of the
Retirement of the Participant while an employee of the Company, the vested
portion of the Option shall remain exercisable until the earlier of (i)
three years following the date of Retirement or (ii) the date on which the
Option expires by its terms. For purposes of this Stock Option
Agreement, “Retirement” means retirement on or after the earlier of (i)
age 65 or (ii) age 55 plus ten years of employment with the
Company.
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4) Cause. The unvested and vested
portion of the Option will automatically expire at the time the Company
first notifies you of your termination of employment for Cause, unless the
Plan Administrator determines otherwise. If your employment
relationship is suspended pending an investigation of whether you will be
terminated for Cause, all your rights under the Option likewise will be
suspended during the period of investigation. If any facts that
would constitute termination for Cause are discovered after your
Termination of employment, any Option you then hold may be immediately
terminated by the Plan Administrator.
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It is your responsibility to
be aware of the date the Option terminates.
5. Limited
Transferability. During your lifetime only you can exercise
the Option. The Option is not transferable except by will or by the
applicable laws of descent and distribution, except to the extent permitted by
the Plan Administrator. The Plan provides for exercise of the Option
by a beneficiary designated on a Company-approved form or the personal
representative of your estate.
6. Withholding Taxes. As a condition to the
exercise of any portion of the Option, you must make such arrangements as the
Company may require for the satisfaction of any federal, state, local or foreign
withholding tax obligations that may arise in connection with such
exercise.
7. Option Not an Employment or Service
Contract. Nothing in the Plan or any award under the Plan will
be deemed to be an employment contract or limit in any way the right of the
Company to terminate your employment at any time, with or without
cause.
7. Binding
Effect. This Agreement will inure to the benefit of the
successors and assigns of the Company and be binding upon you and your heirs,
executors, administrators, successors and assigns.
Exhibit
10.8
EMPLOYEE
STOCK OPTION
AMENDED
AND RESTATED 2000 STOCK INCENTIVE PLAN
INCENTIVE
STOCK OPTION GRANT NOTICE
Itron,
Inc. (the "Company") hereby grants to Participant an Option (the "Option") to
purchase shares of the Company's Common Stock.
Participant:
Grant Date:
Number of Shares Subject to
Option:
Grant Price (per
Share):
Option Expiration
Date:
Type of
Option: Incentive Stock
Option
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Vesting and
Exercisability Schedule:
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33-1/3%
of the Option will vest and become exercisable on the one-year anniversary
of the Grant Date. An additional 33-1/3% of the Option will vest and
become exercisable each year thereafter so that the entire Option will be
fully vested and exercisable three years from the Grant
Date.
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Additional
Terms: The Option is subject to all the terms and
conditions set forth in this Stock Option Grant Notice (this "Grant
Notice"), the Stock Option Agreement, and the Company's Amended and
Restated 2000 Stock Incentive Plan (the "Plan"), which are attached to and
incorporated into this Grant Notice in their
entirety.
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I
accept the Option subject to the terms and
conditions
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stated
herein.
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Attachments:
1. Stock
Option Agreement
2. 2000
Stock Incentive Plan
3. Plan
Summary
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EMPLOYEE
STOCK OPTION
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AMENDED
AND RESTATED 2000 STOCK INCENTIVE
PLAN
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STOCK OPTION AGREEMENT
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Pursuant
to your Stock Option Grant Notice (the "Grant Notice"), Itron,
Inc. has granted you an Option under its Amended and Restated 2000 Stock
Incentive Plan (the "Plan") to purchase the number of shares of the Company's
Common Stock (“Stock”) indicated in your Grant Notice (the "Shares") at the
Grant Price indicated in your Grant Notice. Capitalized terms not
expressly defined in this Stock Option Agreement or the Grant Notice have the
same definitions as in the Plan.
The
details of the Option are as follows:
1. Vesting and
Exercisability. Subject to the limitations contained herein,
the Option will vest and become exercisable as provided in your Grant
Notice.
2. Securities Law
Compliance. At the present time, the Company has an effective
registration statement with respect to the Shares. The Company
intends to maintain this registration but has no obligation to do
so. In the event that such registration ceases to be effective, you
will not be able to exercise the Option unless exemptions from registration
under federal and state securities laws are available, which exemptions from
registration are very limited and might be unavailable. The exercise
of the Option must also comply with other applicable laws and regulations
governing the Option, and you may not exercise the Option if the Company
determines that such exercise would not be in material compliance with such laws
and regulations.
3. Method of
Exercise. You may exercise the Option upon notice and payment
of the Grant Price by any of the following methods, unless disallowed by
law:
(a) broker
assisted exercise;
(b) Stock
already owned by you; or
(c) cash.
You may elect to receive the proceeds
of the exercise in either cash or Stock provided however, that if you take the
proceeds in cash, you may not have the benefit of the intended tax treatment of
this option as an Incentive Stock Option.
4. Term of Option. This Option shall expire
ten years from the Grant Date thereof, but shall be subject to earlier
termination as follows:
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(a) Unvested Options. In the event
Participant ceases to be an employee of the Company for any reason, the
unvested portion of the Option shall terminate
immediately.
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(b) Vested
Options.
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1) In
the event Participant ceases to be an employee of the Company for any
reason other than death, Disability, Retirement, or Cause, the vested
portion of the Option shall remain exercisable until the earlier of (i) 90
days after the date the Participant ceases to be an employee of the
Company or (ii) the date on which the Option expires by its
terms.
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2) Death or Disability. In the
event of the death or Disability of the Participant while an employee of
the Company, the vested portion of the Option shall remain exercisable
until the earlier of (i) one year following the date of death or
Disability of the Participant or (ii) the date on which the Option expires
by its terms. Upon death of Participant, the exercisable
portion of the Option may be exercised by the personal representative of
the Participant’s estate, the person(s) to whom the Participant’s rights
under the Option have passed by will or the applicable laws of descent and
distribution, or the beneficiary designated pursuant to the
Plan.
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3) Retirement. In the event of the
Retirement of the Participant while an employee of the Company, the vested
portion of the Option shall remain exercisable until the earlier of (i)
three years following the date of Retirement or (ii) the date on which the
Option expires by its terms. For purposes of this Stock Option
Agreement, “Retirement” means retirement on or after the earlier of (i)
age 65 or (ii) age 55 plus ten years of employment with the
Company.
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Notwithstanding
anything to the contrary contained herein, assuming the Option does not
otherwise expire by its terms, to qualify for the beneficial tax treatment
afforded Incentive Stock Options, the Option must be exercised within 1) three
months after termination of employment for reasons other than death; and 2) one
year after termination of Service due to death or Disability.
It is your responsibility to
be aware of the date the Option terminates.
5. Limited
Transferability. During your lifetime only you can exercise
the Option. The Option is not transferable except by will or by the
applicable laws of descent and distribution, except to the extent permitted by
the Plan Administrator. The Plan provides for exercise of the Option
by a beneficiary designated on a Company-approved form or the personal
representative of your estate.
6. Withholding Taxes. As a condition to the
exercise of any portion of the Option, you must make such arrangements as the
Company may require for the satisfaction of any federal, state, local or foreign
withholding tax obligations that may arise in connection with such
exercise.
7. Option Not an Employment or Service
Contract. Nothing in the Plan or any award under the Plan will
be deemed to be an employment contract or limit in any way the right of the
Company to terminate your employment at any time, with or without
cause.
8. Binding
Effect. This Agreement will inure to the benefit of the
successors and assigns of the Company and be binding upon you and your heirs,
executors, administrators, successors and assigns.
9. Incentive Stock Option
Qualification. All or a portion of the
Option is intended to qualify as an Incentive Stock Option under federal income
tax law, but the Company does not represent or guarantee that the Option
qualifies as such.
If the
aggregate Fair Market Value (determined as of the Grant Date) of the shares of
Common Stock subject to the Option and all other Incentive Stock Options you
hold that first become exercisable during any calendar year exceeds $100,000,
any excess portion will be treated as a Nonqualified Stock Option, unless the
Internal Revenue Service changes the rules and regulations governing the
$100,000 limit for Incentive Stock Options. A portion of the Option
may be treated as a Nonqualified Stock Option if certain events cause
exercisability of the Option to accelerate.
10. Notice of Disqualifying
Disposition. To obtain certain tax benefits afforded to
Incentive Stock Options, you must hold the Shares issued upon the exercise of
the Option for two years after the Grant Date and one year after the date of
exercise. You may be subject to the alternative minimum tax at the
time of exercise. You should obtain tax advice when exercising the
Option and prior to the disposition of the Shares. By accepting the
Option, you agree to promptly notify the Company if you dispose of any of the
Shares within one year from the date you exercise all or part of the Option or
within two years from the Grant Date.