NETAPP, INC. PERFORMANCE UNIT AGREEMENT
Exhibit (d)(1)
NetApp, Inc. (the “Company”) hereby grants you, (the “Participant”), an award of performance units
(“Performance Units”) under the NetApp, Inc. 1999 Stock Option Plan (the “Plan”). Subject to the
provisions of Appendix A (attached) and of the Plan, the principal features of this award are as
follows:
Participant:
«FIRST_NAME» «MIDDLE_NAME» «LAST_NAME»
«ADDRESS_LINE_1»
«ADDRESS_LINE_2»
«CITY», «STATE» «ZIP_CODE»
«COUNTRY»
«ADDRESS_LINE_1»
«ADDRESS_LINE_2»
«CITY», «STATE» «ZIP_CODE»
«COUNTRY»
Grant Date: «GRANT_DATE»
Grant Number: «NUM»
Number of Performance Units: «SHARES»
Vesting Commencement Date: «VEST_BASE_DATE»
Vesting of Performance Units: The Performance Units will vest according to the following
schedule:
Twenty-five percent (25%) of the Performance Units will vest on the first annual anniversary of the
Vesting Commencement Date, and on the next three annual anniversary dates thereafter, subject to
Participant’s continuous Service through each such date.
Unless otherwise defined herein or in Appendix A, capitalized terms herein or in Appendix A will
have the defined meanings ascribed to them in the Plan.
Participant acknowledges and agrees that by clicking the “ACCEPT” button on the Company’s on-line
grant agreement (“XXXX”) response page, it will act as Participant’s electronic signature to the
Performance Unit Agreement (the “Agreement”) and will result in a contract between Participant and
the Company with respect to this award of Performance Units. Participant agrees and acknowledges
that Participant’s electronic signature indicates Participant’s agreement and understanding that
this award of Performance Units is subject to all of the terms and conditions contained in Appendix
A and the Plan. For example, important additional information on vesting and forfeiture of the
Performance Units is contained in Paragraphs 3 through 5 of Appendix A. PLEASE BE SURE TO READ ALL
OF APPENDIX A, WHICH CONTAINS THE SPECIFIC TERMS AND CONDITIONS OF THIS AGREEMENT.
Participant should retain a copy of Participant’s electronically signed Agreement; Participant may
obtain a paper copy at any time and at the Company’s expense by requesting one from Stock
Administration at xxxxxxxxxx@xxxxxx.xxx. If Participant would prefer not to electronically sign
this Agreement, Participant may accept this Agreement by signing a paper copy of the Agreement and
delivering it to Stock Administration at 000 X. Xxxx Xxxxx, Xxxxxxxxx, XX 00000. A copy of the
Plan is available upon request made to Stock Administration.
APPENDIX A
TERMS AND CONDITIONS OF PERFORMANCE UNITS
Grant # «NUM»
1. Grant. The Company hereby grants to the Participant under the
Plan an award of Performance Units, subject to all of the terms and conditions in this Agreement
and the Plan.
2. Company’s Obligation to Pay. Each Performance Unit represents the right to receive
a share of Common Stock on the date it becomes vested. Unless and until the Performance Units will
have vested in the manner set forth in paragraphs 3 and 4, the Participant will have no right to
payment of any such Performance Units. Prior to actual payment of any vested Performance Units,
such Performance Units will represent an unsecured obligation of the Company, payable (if at all)
only from the general assets of the Company.
3. Vesting Schedule. Subject to paragraph 4, the Performance Units awarded by this
Agreement will vest in the Participant according to the vesting schedule set forth on the attached
Performance Unit Agreement, subject to the Participant’s continuous Service through each such date.
4. Forfeiture upon Termination of Continuous Service. Notwithstanding any contrary
provision of this Agreement, if the Participant’s continuous Service terminates for any or no
reason, the then-unvested Performance Units awarded by this Agreement will thereupon be forfeited
at no cost to the Company and the Participant will have no further rights thereunder.
5. Payment after Vesting. Any Performance Units that vest in accordance with
paragraph 3 will be paid to the Participant (or in the event of the Participant’s death, to his or
her estate) in whole shares of Common Stock, provided that to the extent determined appropriate by
the Company, any federal, state and local withholding taxes with respect to such Performance Units
will be paid by reducing the number of shares actually paid to the Participant (see Section 7).
Subject to the provisions of Section 5(b), vested Performance Units will be paid in whole shares of
Common Stock as soon as practicable after vesting, but in each such case no later than the date
that is two-and-one-half (2 1/2) months from the later of (i) the end of the Company’s tax year that
includes the vesting date, or (ii) the end of Participant’s tax year that includes the vesting
date.
(b) Notwithstanding anything in the Plan or this Agreement to the contrary, if the vesting of
the balance, or some lesser portion of the balance, of the Performance Units is accelerated in
connection with Participant’s termination of continuous Service (provided that such termination is
a “separation from service” within the meaning of Section 409A, as determined by the Company),
other than due to death, and if (x) Participant is a “specified employee” within the meaning of
Section 409A at the time of such termination of continuous Service and (y) the payment of such
accelerated Performance Units will result in the imposition of additional tax under Section 409A if
paid to Participant on or within the six (6) month period following Participant’s termination of
continuous Service, then the payment of such accelerated Performance Units will not be made until
the date six (6) months and one (1) day following the date of Participant’s termination of
continuous Service, unless Participant dies following his or her termination, in which case, the
Performance Units will be paid in shares of Common Stock in accordance with Section 6 as soon as
practicable following his or her death. It is the intent of this Agreement to comply with the
requirements of Section 409A so that none
of the Performance Units provided under this Agreement or shares of Common Stock issuable
thereunder will be subject to the additional tax imposed under Section 409A, and any ambiguities
herein will be interpreted to so comply. For purposes of this Agreement, “Section 409A” means
Section 409A of the Internal Revenue Code of 1986, as amended, and any proposed, temporary or final
Treasury Regulations and Internal Revenue Service guidance thereunder, as each may be amended from
time to time.
6. Payments after Death. Any distribution or delivery to be made to the Participant under
this Agreement will, if the Participant is then deceased, be made to the Participant’s designated
beneficiary, or if no beneficiary survives the Participant, administrator or executor of the
Participant’s estate. Any such transferee must furnish the Company with (a) written notice of his
or her status as transferee, and (b) evidence satisfactory to the Company to establish the validity
of the transfer and compliance with any laws or regulations pertaining to said transfer.
7. Withholding of Taxes. Notwithstanding any contrary provision of this Agreement, no
Shares of Common Stock will be issued to the Participant, unless and until satisfactory
arrangements (as determined by the Plan Administrator) will have been made by the Participant with
respect to the payment of income (including federal, state, foreign and local taxes), employment,
social insurance, payroll tax, payment on account and other taxes which the Company determines must
be withheld with respect to such Shares so issuable (the “Withholding Taxes”). Participant
acknowledges that the ultimate liability for all Withholding Taxes legally due by the Participant
is and remains the Participant’s responsibility and that the Company and/or the Participant’s
actual employer (the “Employer”) (i) make no representations or undertakings regarding the
treatment of any Withholding Taxes in connection with any aspect of the Performance Units,
including the grant of the Performance Units, the vesting of Performance Units, the settlement of
the Performance Units in shares of Common Stock or the receipt of an equivalent cash payment, the
subsequent sale of any shares of Common Stock acquired at vesting and the receipt of any dividends;
and (ii) do not commit to structure the terms of the grant or any aspect of the Performance Units
to reduce or eliminate the Participant’s liability for Withholding Taxes.
To satisfy the Withholding Taxes, the Company may withhold otherwise deliverable shares of
Common Stock upon vesting of Performance Units, according to the vesting schedule, having a Fair
Market Value equal to the minimum amount required to be withheld for the payment of the Withholding
Taxes pursuant to such procedures as the Plan Administrator may specify from time to time. The
Company will not retain fractional shares of Common Stock to satisfy any portion of the Withholding
Taxes. If the Plan Administrator determines that the withholding of whole shares of Common Stock
results in an over-withholding to meet the minimum tax withholding requirements, a reimbursement
will be made to the Participant as soon as administratively possible.
If the Company does not withhold in shares of Common Stock as described above, prior to the
issuance of shares of Common Stock upon vesting of Performance Units or the receipt of an
equivalent cash payment, the Participant shall pay, or make adequate arrangements satisfactory to
the Company or to the Employer (in their sole discretion) to satisfy all withholding and payment on
account obligations of the Company and/or the Employer. In this regard, the Participant authorizes
the Company or the Employer to withhold all applicable Withholding Taxes legally payable by the
Participant from the
Participant’s wages or other cash compensation payable to the Participant by the Company or
the Employer or from any equivalent cash payment received upon vesting of the Performance Units.
Alternatively, or in addition, if permissible under local law, the Participant may instruct and
authorize the Plan Administrator to pay Withholding Taxes, in whole or in part, by one of the
additional following alternatives:
(a) the Participant providing irrevocable instructions to a Company-designated broker to
deliver cash to the Company (or the Employer) from the Participant’s previously established account
with such broker equal to the Withholding Taxes; or
(b) the Participant providing irrevocable instructions to a Company-designated broker to sell
a sufficient number of shares of Common Stock otherwise deliverable to the Participant having a
Fair Market Value equal to the Withholding Taxes, provided that such sale does not violate Company
policy or Applicable Laws.
If the Participant fails to make satisfactory arrangements for the payment of the Withholding
Taxes hereunder at the time any applicable Performance Units otherwise are scheduled to vest
pursuant to Section 3, the Participant will permanently forfeit such Performance Units and any
shares of Common Stock otherwise deliverable with respect thereto, and the Performance Units will
be returned to the Company at no cost to the Company.
8. Rights as Stockholder. Neither the Participant nor any person claiming under or
through the Participant will have any of the rights or privileges of a stockholder of the Company
in respect of any shares of Common Stock deliverable hereunder unless and until certificates
representing such shares will have been issued, recorded on the records of the Company or its
transfer agents or registrars, and delivered to the Participant.
9. No Effect on Service. The Participant’s service with the Company and its
Subsidiaries is on an at-will basis only. Accordingly, the terms of the Participant’s service with
the Company and its Subsidiaries will be determined from time to time by the Company or the
Subsidiary employing or retaining the Participant (as the case may be), and the Company or the
Subsidiary, as applicable, will have the right, which is hereby expressly reserved, to terminate or
change the terms of the employment or service of the Participant at any time for any reason
whatsoever, with or without good cause.
10. Address for Notices. Any notice to be given to the Company under the terms of
this Agreement will be addressed to the Company at 000 Xxxx Xxxx Xxxxx, Xxxxxxxxx, XX 00000, Attn:
Stock Administration, or at such other address as the Company may hereafter designate in writing.
11. Grant is Not Transferable. Except to the limited extent provided in paragraph 6,
this grant and the rights and privileges conferred hereby will not be transferred, assigned,
pledged or hypothecated in any way (whether by operation of law or otherwise) and will not be
subject to sale under execution, attachment or similar process. Upon any attempt to transfer,
assign, pledge, hypothecate or otherwise dispose of this grant, or any right or privilege conferred
hereby, or upon any attempted sale under any execution, attachment or similar process, this grant
and the rights and privileges conferred hereby immediately will become null and void.
12. Leave of Absence. The following provisions shall apply upon Participant’s
commencement of an authorized leave of absence:
(a) If the leave of absence is protected by any statute such that re-employment upon
expiration of such protected leave is guaranteed, the Performance Units awarded by this Agreement
that are scheduled to vest shall be modified as follows:
(i) The vesting schedule in effect under this Agreement shall continue for a period of up to
twelve (12) weeks from the first day of the authorized leave. If Participant does not resume
active Employee status within such twelve (12)-week period, then no Service credit shall be given
for the balance of the leave of absence, unless applicable laws governing such statutory leave
would require a longer vesting continuance period, in which case vesting shall continue as provided
in this Agreement for such period required by such statute.
(b) If the leave of absence is not protected by statute such that re-employment upon
expiration of such leave is not guaranteed by statute, the Performance Units awarded by this
Agreement that are scheduled to vest shall be modified as follows:
(i) The vesting schedule in effect under this Agreement shall be frozen as of the first day of
the authorized leave.
(ii) Should Participant resume active Employee status within sixty (60) days after the start
date of the authorized leave, Participant shall, for purposes of the vesting schedule set forth in
this Agreement, receive Service credit for the entire period of such leave. If Participant does
not resume active Employee status within such sixty (60)-day period, then no Service credit shall
be given for the period of such leave.
13. Binding Agreement. Subject to the limitation on the transferability of this grant
contained herein, this Agreement will be binding upon and inure to the benefit of the heirs,
legatees, legal representatives, successors and assigns of the parties hereto.
14. Additional Conditions to Issuance of Stock. If at any time the Company will
determine, in its discretion, that the listing, registration or qualification of the shares of
Common Stock upon any securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory authority is necessary or desirable as a condition to the
issuance of shares to the Participant (or his estate), such issuance will not occur unless and
until such listing, registration, qualification, consent or approval will have been effected or
obtained free of any conditions not acceptable to the Company. Where the Company determines that
the delivery of the payment of any Shares will violate federal securities laws or other applicable
laws, the Company will defer delivery until the earliest date at which the Company reasonably
anticipates that the delivery of shares will no longer cause such violation. The Company will make
all reasonable efforts to meet the requirements of any such state or federal law or securities
exchange and to obtain any such consent or approval of any such governmental authority.
15. Plan Governs. This Agreement is subject to all terms and provisions of the Plan.
In the event of a conflict between one or more provisions of this Agreement and one or more
provisions of the Plan, the provisions of the Plan will govern.
16. Administrator Authority. The Plan Administrator will have the power to interpret
the Plan and this Agreement and to adopt such rules for the administration, interpretation and
application of the Plan as are consistent therewith and to interpret or revoke any such rules
(including, but not limited to, the determination of whether or not any Performance Units have
vested). All actions taken and all interpretations and determinations made by the Plan
Administrator in good faith will be final and binding upon Participant, the Company and all other
interested persons. No member of the Plan Administrator will be personally liable for any action,
determination or interpretation made in good faith with respect to the Plan or this Agreement.
17. Captions. Captions provided herein are for convenience only and are not to serve
as a basis for interpretation or construction of this Agreement.
18. Agreement Severable. In the event that any provision in this Agreement will be
held invalid or unenforceable, such provision will be severable from, and such invalidity or
unenforceability will not be construed to have any effect on, the remaining provisions of this
Agreement.
19. Labor Law. By accepting this award of Performance Units, the Participant
acknowledges that: (a) the grant of this award of Performance Units is a one-time benefit which
does not create any contractual or other right to receive future grants of Performance Units, or
benefits in lieu of Performance Units; (b) all determinations with respect to any future grants,
including, but not limited to, the times when the Performance Units shall be granted, the number of
shares of Common Stock issuable pursuant to each award of Performance Units, the time or times when
Performance Units shall vest, will be at the sole discretion of the Company; (c) the Participant’s
participation in the Plan is voluntary; (d) this award of Performance Units is an extraordinary
item of compensation which is outside the scope of the Participant’s employment contract, if any;
(e) this award of Performance Units is not part of the Participant’s normal or expected
compensation for purposes of calculating any severance, resignation, redundancy, end-of-service
payments, bonuses, long-service awards, pension or retirement benefits or similar payments; (f) the
vesting of this award of Performance Units ceases upon termination of Service for any reason except
as may otherwise be explicitly provided in the Plan or this Agreement; (g) the future value of the
underlying shares of Common Stock is unknown and cannot be predicted with certainty; (h) this award
of Performance Units has been granted to the Participant in the Participant’s status as an
Employee, a non-employee member of the Board or a consultant or independent advisor of the Company
or its Parent or Subsidiary; (i) any claims resulting from this award of Performance Units shall be
enforceable, if at all, against the Company; and (j) there shall be no additional obligations for
the Participant’s Employer as a result of this award of Performance Units.
20. Disclosure of Participant Information. By accepting this award of Performance
Units, the Participant consents to the collection, use and transfer of personal data as described
in this paragraph. The Participant understands that the Company and its Parent and Subsidiaries
hold certain personal information about him or her, including his or her name, home address and
telephone number, date of birth, social security or identity number, salary, nationality, job
title, any shares of stock or
directorships held in the Company, details of all awards of Performance Units or any other
entitlement to shares of Common Stock awarded, canceled, exercised, vested, unvested or outstanding
in his or her favor, for the purpose of managing and administering the Plan (“Data”). The
Participant further understands that the Company and/or its Parent or Subsidiaries will transfer
Data among themselves as necessary for the purpose of implementation, administration and management
of his or her participation in the Plan, and that the Company and/or any of its Parent or
Subsidiaries may each further transfer Data to any third parties assisting the Company in the
implementation, administration and management of the Plan. The Participant authorizes the Company
to receive, possess, use, retain and transfer the Data in electronic or other form, for the
purposes of implementing, administering and managing his or her participation in the Plan,
including any requisite transfer to a broker or other third party with whom he or she may elect to
deposit any shares of Common Stock acquired from this award of Performance Units of such Data as
may be required for the administration of the Plan and/or the subsequent holding of the shares of
Common Stock on his or her behalf. The Participant understands that he or she may, at any time,
view the Data, require any necessary amendments to the Data or withdraw the consent herein in
writing by contacting the Human Resources Department and/or Stock Administration Department for his
or her Employer.
