POLYCOM, INC. RESTRICTED STOCK UNIT AGREEMENT FOR EMPLOYEES IN ISRAEL
Exhibit (a)(1)(Q)
POLYCOM, INC.
RESTRICTED STOCK UNIT AGREEMENT
FOR EMPLOYEES IN ISRAEL
[NAME]
Employee ID Number: [Number]
NOTICE OF GRANT
Polycom, Inc. (the “Company”) hereby grants you, [Name] (the “Employee”), an award of Restricted Stock Units (“Award”) under the Company’s 2004 Equity Incentive Plan (the “U.S. Plan”) and the Polycom, Inc. 2004 Equity Incentive Plan Sub-Plan for Israeli Participants (the “Sub-Plan”) (together with the U.S. Plan, the “Plan”). The Restricted Stock Units are intended to qualify for the favorable tax treatment under Section 102(b)(2) and Section 102(b)(3) of the Income Tax Ordinance (New Version), 1961 (the “ITO”) and the Rules promulgated thereunder. The date of this Restricted Stock Unit Agreement (the “Agreement”) is [DATE] (the “Grant Date”). Subject to the provisions of Appendix A (attached), Appendix B for the Employee’s country (if any) and of the Plan, the principal features of this Award are as follows:
| Number of Restricted Stock Units: |
[ ] | |
| Vesting Schedule: | The Restricted Stock Units will vest in accordance with the following schedule: One-half of the shares subject to the Restricted Stock Units will vest on the first anniversary of the Grant Date, and the remaining one-half of the shares subject to the Restricted Stock Units will vest on the second anniversary of the Grant Date.* | |
| 24-Month Holding Period | Any shares acquired at vesting of the Restricted Stock Units must not be sold for at least two years from the Date of Grant, regardless of when the Restricted Stock Units vest. | |
IMPORTANT:
| * | Except as otherwise provided in Appendix A, the Employee will not vest in the Restricted Stock Units unless he or she is employed by the Company or one of its Subsidiaries through the applicable vesting date. |
Your signature below indicates your agreement and understanding that this Award is subject to all of the terms and conditions contained in Appendix A, Appendix B (if any) and the Plan. For example, important additional information on vesting and forfeiture of the Restricted Stock Units is contained in paragraphs 3 through 5 and paragraph 7 of Appendix A. PLEASE BE SURE TO READ ALL OF APPENDIX A, WHICH CONTAINS THE SPECIFIC TERMS AND CONDITIONS OF THIS AGREEMENT.
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Your signature below further indicates that you understand that the Restricted Stock Units are granted to you under and governed by Section 102(b)(2) and Section 102(b)(3) of the ITO and the Rules promulgated thereunder, the Plan and any trust agreement entered into by the Company for the purpose of administration of the Plan. Furthermore, by your signature below, you agree that the Restricted Stock Units will be issued to the Trustee to hold on your behalf, pursuant to the terms of Appendix A, Appendix B (if any), the U.S. Plan, the ITO, the Sub-Plan and any trustee agreement. You confirm that you are familiar with the terms and provisions of Section 102 of the ITO, particularly the Capital Gains Track described in subsection (b)(2) and (b)(3) thereof, and agree that you will not require the trustee to release the Restricted Stock Units or shares to you or to any third party during the requisite 24-month holding period, unless permitted to do so by applicable law.
| POLYCOM, INC. | EMPLOYEE | |||
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| [NAME] | [NAME] | |||
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| [TITLE] | ||||
| Date: , 200 | Date: , 200 | |||
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APPENDIX A
TERMS AND CONDITIONS OF RESTRICTED STOCK UNITS
FOR EMPLOYEES IN ISRAEL
1. Grant. The Company hereby grants to the Employee under the Plan and the Sub-Plan thereto for Israeli Participants (jointly referred to herein as the “Plan”) an Award of Restricted Stock Units set forth in the Notice of Grant, subject to all of the terms and conditions in this Agreement and the Plan. When Shares are issued for the benefit of the Employee (as described below) in payment for the Restricted Stock Units, par value will be deemed paid by the Employee for each Restricted Stock Unit by services rendered by the Employee, and the Share issuance or the sale or transfer of the Shares issued pursuant to the vesting of the Restricted Stock Units will be subject to the appropriate tax withholdings, as described in paragraph 10. Unless otherwise defined herein, capitalized terms used herein shall have the meanings ascribed to them in the Plan.
The Restricted Stock Units are granted as a 102 Capital Gains Track Grant, subject to the terms and conditions of Section 102(b)(2) and Section 102(b)(3) of the Israeli Income Tax Ordinance [New Version] – 1961 (the “ITO”), the Plan, any Appendix B for the Employee’s country, and the Trust Agreement entered into between the Company and Xxx Xxxxxx, CPA (the “Trustee”).
2. Company’s Obligation to Pay. Each Restricted Stock Unit has a value equal to the Fair Market Value of a Share on the date that the Restricted Stock Unit is granted. Unless and until the Restricted Stock Units have vested in the manner set forth in paragraphs 3 through 5, the Employee will have no right to Shares and no rights as a Company shareholder. Prior to actual payment of any vested Restricted Stock Units, such Restricted Stock Units will represent an unsecured obligation. Payment of any vested Restricted Stock Units will be made in whole Shares only.
3. Vesting Schedule/Period of Restriction. Except as provided in paragraphs 4 and 5, and subject to paragraph 8, the Restricted Stock Units awarded by this Agreement shall vest in accordance with the vesting provisions set forth in the Notice of Grant. Restricted Stock Units shall not vest in accordance with any of the provisions of this Agreement unless the Employee shall have been continuously employed by the Company or by one of its Subsidiaries from the Grant Date until the date the Restricted Stock Units are otherwise scheduled to vest.
4. Modifications to Vesting Schedule.
(a) Vesting upon Leave of Absence. In the event that the Employee takes an authorized leave of absence (“LOA”), the Restricted Stock Units awarded by this Agreement that are scheduled to vest shall be modified as follows:
(i) if the duration of the Employee’s LOA is sixty (60) days or less, the vesting schedule set forth in the Notice of Grant shall not be affected by the Employee’s LOA.
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(ii) if the duration of the Employee’s LOA is greater than sixty (60) days, the scheduled vesting of any Restricted Stock Units awarded by this Agreement that are not then vested shall be deferred for a period of time equal to the duration of the Employee’s LOA unless and to the extent local law requires continued vesting during the LOA.
(b) Death or Disability of Employee. In the event that the Employee incurs a Termination of Service due to his or her death or disability (as determined by the Committee pursuant to local law), the Employee shall immediately vest as to the number of Restricted Stock Units that would have vested had the Employee remained an employee of the Company or one of its Subsidiaries through the next regularly scheduled vesting date (in accordance with the vesting provisions set forth in the Notice of Grant) that coincides with, or immediately follows, the date the Employee incurs a Termination of Service due to his or her death or disability.
In the event that any applicable law limits the Company’s ability to accelerate the vesting of this Award of Restricted Stock Units, this paragraph 4(b) shall be limited to the extent required to comply with applicable law.
(c) Change in Control.
(i) In the event of a Change in Control, this Award shall be subject to the definitive agreement governing such Change in Control. Such agreement, without the Employee’s consent and notwithstanding any provision to the contrary in this Agreement or the Plan, must provide for one of the following: (a) the assumption of this Award by the surviving corporation or its parent; (b) the substitution by the surviving corporation or its parent of an award with substantially the same terms as this Award; or (c) the cancellation of this Award after payment to the Employee in Shares of an amount equal to the Restricted Stock Units subject to this Award at the time of the Change in Control. In the event the definitive agreement does not provide for one of the foregoing alternatives with respect to the treatment of this Award, this Award shall have the treatment specified in clause (c) of the preceding sentence. The Committee may, in its sole discretion, accelerate the vesting of this Award in connection with any of the foregoing alternatives, notwithstanding any tax consequences to the Employee. For purposes of this Agreement, “Change in Control” means the occurrence of any of the following events: (a) any “person” (as such term is used in Sections 13(d) and 14(d) of the 0000 Xxx) becomes the “beneficial owner” (as defined in Rule 13d-3 of the 1934 Act), directly or indirectly, of securities of the Company representing more than fifty percent (50%) of the total voting power represented by the Company’s then outstanding voting securities; (b) the consummation of the sale or disposition by the Company of all or substantially all of the Company’s assets; (c) a change in the composition of the Board occurring within a one-year period, as a result of which fewer than a majority of the directors are Incumbent Directors; or (d) the consummation of a merger or consolidation of the Company with any other corporation, other than a merger or consolidation which would result in the voting securities of the Company outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into voting securities of the surviving entity or its parent) at least fifty percent (50%) of the total voting power represented by the voting securities of the Company or such surviving entity or its parent outstanding immediately after such merger or consolidation. “Incumbent Directors” means directors who either (A) are Directors as of the effective date of the Plan, or (B) are elected, or nominated for election, to the Board with the affirmative votes of at least a majority of the Directors at the time of such election or nomination (but will not include an individual whose election or nomination is in connection with an actual or threatened proxy contest relating to the election of directors to the Company).
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(ii) Notwithstanding anything herein to the contrary, in the event the Employee incurs a Termination of Service within twelve (12) months following a Change in Control on account of a termination by the Company (or any Subsidiary) for any reason other than Misconduct, then this Award immediately will vest in one hundred percent (100%) of the Restricted Stock Units subject to this Award, notwithstanding any tax consequences to the Employee.
For purposes of this Agreement, “Misconduct” means (a) the commission of any act of fraud, embezzlement or dishonesty by the Employee, (b) the Employee’s conviction of, or plea of nolo contendre to, a felony (or a similar offense under local law), (c) any unauthorized use or disclosure by the Employee of confidential information or trade secrets of the Company or of any Subsidiary, or (d) any other intentional misconduct by the Employee adversely affecting the business or affairs of the Company or of any Subsidiary in a material manner. The preceding definition shall not be deemed to be inclusive of all the acts or omissions that the Company (or any Subsidiary) may consider as grounds for the dismissal or discharge of the Employee or any other individual in the service of the Company (or any Subsidiary).
5. Committee Discretion. The Committee, in its discretion, may accelerate the vesting of the balance, or some lesser portion of the balance, of the Restricted Stock Units at any time, subject to the terms of the Plan, notwithstanding any tax consequences to the Employee. If so accelerated, such Restricted Stock Units will be considered as having vested as of the date specified by the Committee. If the Committee, in its discretion, accelerates the vesting of the balance, or some lesser portion of the balance, of the Restricted Stock Units, and to the extent the Employee is subject to Section 409A (as defined below), the Restricted Stock Units are “deferred compensation” within the meaning of Section 409A, the payment of such accelerated Restricted Stock Units nevertheless shall be made at the same time or times as if such Restricted Stock Units had vested in accordance with the vesting schedule set forth in the Notice of Grant (whether or not the Employee remains employed by the Company or by one of its Subsidiaries as of such date(s)). Notwithstanding the foregoing, if such Restricted Stock Units are accelerated in connection with the Employee’s Termination of Service (other than due to death) and the Employee is subject to Section 409A, the Restricted Stock Units that vest on account of the Employee’s Termination of Service will not be considered due or payable until the Employee has a “separation from service” within the meaning of Section 409A. In addition, if the Employee is a “specified employee” within the meaning of Section 409A at the time of the Employee’s separation from service, then any such accelerated Restricted Stock Units otherwise payable within the six (6) month period following the Employee’s separation from service instead will be paid on the date that is six (6) months and one (1) day following the date of the Employee’s separation from service, unless the Employee dies following his or her separation from service, in which case, the accelerated Restricted Stock Units will be paid to the Employee’s estate as soon as practicable following his or her death, subject to paragraph 10. Thereafter, such Restricted Stock Units shall continue to be paid in accordance with the vesting schedule set forth on the first page of this Agreement. For purposes of this Agreement, “Section 409A” means Section 409A of the U.S. Internal Revenue Code of 1986, as amended, and any final Treasury Regulations and other Internal Revenue Service guidance thereunder, as each may be amended from time to time (“Section 409A”).
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6. Payment after Vesting. Any Restricted Stock Units that vest in accordance with paragraphs 3 through 4 will be paid for the benefit of the Employee (or in the event of the Employee’s death, for the benefit of his or her estate) in Shares as soon as practicable following the date of vesting, subject to paragraph 10, but in no event later than the applicable two and one-half (2 1/2) month period of the “short-term deferral” rule set forth in Section 1.409A-1(b)(4) of the Treasury Regulations issued under Section 409A. Notwithstanding the foregoing, if the Employee is subject to Section 409A and the Restricted Stock Units are “deferred compensation” within the meaning of Section 409A, the vested Restricted Stock Units will be released to the Employee (or in the event of the Employee’s death, to his or her estate) in Shares as soon as practicable following the date of vesting, subject to paragraph 10, but in no event later than the end of the calendar year that includes the date of vesting or, if later, the fifteenth (15th) day of the third (3rd) calendar month following the date of vesting (provided that the Employee will not be permitted, directly or indirectly, to designate the taxable year of the payment). Further, if some or all of the Restricted Stock Units that are “deferred compensation” within the meaning of Section 409A, if applicable, vest on account of the Employee’s Termination of Service (other than due to death) in accordance with paragraphs 3 through 4, the Restricted Stock Units that vest on account of the Employee’s Termination of Service will not be considered due or payable until the Employee has a “separation from service” within the meaning of Section 409A. In addition, if the Employee is a “specified employee” within the meaning of Section 409A, if applicable, at the time of the Employee’s separation from service (other than due to death), then any accelerated Restricted Stock Units will be paid to the Employee no earlier than six (6) months and one (1) day following the date of the Employee’s separation from service unless the Employee dies following his or her separation from service, in which case, the Restricted Stock Units will be paid to the Employee’s estate as soon as practicable following his or her death, subject to paragraph 10. Any Restricted Stock Units that vest in accordance with paragraph 5 will be paid for the benefit of the Employee (or in the event of the Employee’s death, for the benefit of his or her estate) in Shares in accordance with the provisions of such paragraph, subject to paragraph 10. For each Restricted Stock Unit that vests, the Employee will receive one Share.
7. Section 102 Rules.
(a) The Restricted Stock Units will be registered in the Company’s records in the name of the Trustee as required to qualify under Section 102 of the ITO. The Employee shall comply with the ITO, the Rules (as defined in the Sub-Plan) and the terms and conditions of the Trust Agreement entered into between the Company and the Trustee.
(b) The Trustee will hold the Restricted Stock Units or the Shares to be issued upon vesting of the Restricted Stock Units for the Restricted Holding Period, as set forth in the Plan or as amended by the Ordinance and/or the Rules.
(c) The Employee hereby undertakes to release the Trustee from any liability in respect of any action or decision duly taken and bona fide executed in relation to the Plan, or any Restricted Stock Unit or Share granted or issued in his or her name thereunder.
(d) The Company will notify the Trustee of any vesting of the Restricted Stock Units. If such notification is delivered during the Restricted Holding Period, the Shares issued upon the vesting of the Restricted Stock Unit shall be issued in the name of the Trustee, and held in trust on
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the Employee’s behalf by the Trustee. In the event that such notification is delivered after the end of the Restricted Holding Period, the Shares issued upon the vesting of the Restricted Stock Unit shall either (i) be issued in the name of the Trustee, subject to the Trustee’s prior written consent, or (ii) be transferred to the Employee directly, provided that the Employee has satisfied all tax obligations in accordance with the instructions of the Trustee and/or the Company.
(e) The Trustee shall not release any Restricted Stock Units or Shares issued upon vesting of Restricted Stock Units prior to the full payment of the Employee’s tax liabilities. During the Restricted Holding Period, the Employee may neither require the Trustee to release to the Employee or sell to a third party such Restricted Stock Units or Shares unless permitted to do so by applicable law. Notwithstanding the foregoing, the Trustee may, pursuant to a written request, release or transfer such Shares to a designated third party, provided that both of the following conditions have been fulfilled prior to such transfer: (i) payment has been rendered to the tax authorities of all taxes required to be paid upon the release and transfer of the Shares, and confirmation of such payment has been received by the Trustee and (ii) the Trustee has received written confirmation from the Company that all requirements for such release and transfer have been fulfilled according to the terms of the Company’s corporate documents, the Plan, this Agreement and any applicable law. Such sale or release during the Restricted Holding Period will result in different tax ramifications under Section 102 of the ITO and the Rules and/or any other regulations or orders or procedures promulgated thereunder, which shall apply to and shall be borne solely by the Employee.
8. Forfeiture. Notwithstanding any contrary provision of this Agreement, the balance of the Restricted Stock Units that have not vested pursuant to paragraphs 3 through 5 at the time of the Employee’s Termination of Service, as determined in accordance with paragraph 26(x), for any or no reason will be forfeited and automatically transferred to the Company at no cost to the Company.
9. Death of Employee. Any distribution or delivery to be made for the benefit of the Employee under this Agreement will, if the Employee is then deceased, be made for the benefit of the administrator or executor of the Employee’s estate or the Employee’s heirs, as required by local laws. Any such administrator, executor or heir 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.
10. Withholding of Taxes. Regardless of any action the Company, the Trustee or the employing Subsidiary takes with respect to any or all income tax (including U.S. federal, state and local tax and/or non-U.S. income tax), social insurance, health tax, payroll tax, payment on account or other tax-related items related to the Employee’s participation in the Plan and legally applicable to the Employee (“Tax-Related Items”), the Employee acknowledges that the ultimate liability for all Tax-Related Items is and remains the Employee’s responsibility and may exceed the amount actually withheld by the Company, the Trustee and/or the employing Subsidiary. The Employee further acknowledges that the Company, the Trustee and/or the employing Subsidiary make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of this Award, including the grant or vesting of the Restricted Stock Units, the issuance of Shares as payment for vested Restricted Stock Units, the subsequent transfer or sale of the Shares and the receipt of any dividends. If the Employee has become subject to tax in more than one jurisdiction between the date of grant and the date of any relevant taxable event, the Employee
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acknowledges that the Company, the Trustee and/or the employing Subsidiary (or former employer, as applicable) may be required to withhold or account for Tax-Related Items in more than one jurisdiction.
As a condition of the issuance of Shares as payment for vested Restricted Stock Units or of the sale or transfer of the Shares underlying the Restricted Stock Units, the Company, the Trustee or the employing Subsidiary may withhold a portion of the Shares that have an aggregate market value sufficient to pay all applicable Tax-Related Items legally required to be withheld by the Company, the Trustee or the employing Subsidiary with respect to this Award, unless the Company, in its sole discretion, either requires or otherwise permits the Employee to make alternate arrangements satisfactory to the Company for such Tax-Related Items in advance of the arising of any withholding obligations. The number of Shares withheld pursuant to the prior sentence will be rounded up to the nearest whole Share, with no refund for any value of the Shares withheld in excess of the tax obligation as a result of such rounding, unless required by local laws. Notwithstanding any provision of this Agreement, no Shares will be issued and the Employee will not be eligible to receive the proceeds of the sale of the Shares or transfer the Shares out of the Trustee’s custody unless and until satisfactory arrangements (as determined by the Company) have been made by the Employee with respect to the payment of any Tax-Related Items which the Company determines must be withheld or collected with respect to such Shares. In addition and to the maximum extent permitted by law, the Company, the Trustee or the employing Subsidiary has the right to retain without notice from proceeds of the sale of Shares acquired at vesting of the Restricted Stock Units either through a voluntary sale or through a mandatory sale arranged by the Company (on the Employee’s behalf pursuant to this authorization) (including the sale of an additional number of Shares to cover any additional Tax-Related Items incurred as a result of such sale) and/or from salary or other amounts payable to the Employee, cash having a sufficient value to satisfy any Tax-Related Items that the Company determines cannot be satisfied through the withholding of otherwise deliverable Shares.
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 of Tax-Related Items is satisfied by reducing the number of Shares delivered as described herein, for tax purposes, the Employee is deemed to have been issued the full number of Shares subject to this Award notwithstanding that a number of Shares are held back solely for the purpose of paying the Tax-Related Items due as a result of any aspect of the Employee’s participation in the Plan.
All Tax-Related Items related to this Award and any Shares delivered in payment thereof are the sole responsibility of the Employee. By accepting this Award, the Employee expressly consents to the withholding of Shares, the withholding of the proceeds of the sale of Shares and to any additional cash withholding as provided for in this paragraph 10. The Company may refuse to deliver to the Employee any Shares pursuant to this Award if the Employee fails to comply with the Employee’s obligation in connection with the Tax-Related Items.
11. Rights as Stockholder. Neither the Employee nor any person claiming under or through the Employee will have any of the rights or privileges of a stockholder of the Company in respect of any Shares deliverable hereunder unless and until certificates representing such Shares (which may be in book entry form) will have been issued, recorded on the records of the Company
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or its transfer agents or registrars, and delivered to the Trustee for the benefit of the Employee (including through electronic delivery to a brokerage account). After such issuance, recordation and delivery, the Employee will have all the rights of a stockholder of the Company with respect to voting such Shares and receipt of dividends and distributions on such Shares held by the Trustee for the Employee’s benefit.
12. No Effect on Employment. A leave of absence or an interruption in service (including an interruption due to military service) authorized or acknowledged by the Company or the Subsidiary employing the Employee, as the case may be, shall not be deemed a Termination of Service for the purposes of this Agreement.
13. Address for Notices. Any notice to be given to the Company under the terms of this Agreement will be addressed to the Company, in care of its General Counsel, at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000, Xxxxxx Xxxxxx of America, or at such other address as the Company may hereafter designate in writing.
14. Grant is Not Transferable. Except to the limited extent provided in this Agreement, this grant of Restricted Stock Units and the rights and privileges conferred hereby will not be sold, pledged, assigned, hypothecated, transferred or disposed of any way (whether by operation of law or otherwise) and will not be subject to sale under execution, attachment or similar process, until the Shares in payment of the Restricted Stock Units have been issued for the benefit of the Employee. Upon any attempt to sell, pledge, assign, hypothecate, transfer 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.
15. Restrictions on Sale of Securities. The Shares issued as payment for vested Restricted Stock Units under this Agreement will be registered under U.S. federal securities laws and will be freely tradable upon receipt. However, an Employee’s subsequent sale of the Shares held by the Trustee may be subject to any market blackout-period that may be imposed by the Company and must comply with the Company’s xxxxxxx xxxxxxx policies, and any other applicable securities laws.
16. 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.
17. Additional Conditions to Issuance of Certificates for Shares. The Company shall not be required to issue any certificate or certificates for Shares hereunder prior to fulfillment of all the following conditions: (a) the admission of such Shares to listing on all stock exchanges on which such class of stock is then listed; (b) the completion of any registration or other qualification of such Shares under any U.S. state or federal law or under the rulings or regulations of the Securities and Exchange Commission or any other governmental regulatory body in the U.S or in Israel, which the Committee shall, in its absolute discretion, deem necessary or advisable; (c) the obtaining of any approval or other clearance from any U.S. state, federal or foreign governmental agency, which the Committee shall, in its absolute discretion, determine to be necessary or advisable; and (d) the lapse of such reasonable period of time following the date of vesting of the Restricted Stock Units as the Committee may establish from time to time for reasons of administrative convenience.
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18. Plan Governs. This Agreement is subject to all the 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.
19. Committee Authority. The Committee 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 Restricted Stock Units have vested). All actions taken and all interpretations and determinations made by the Committee in good faith will be final and binding upon the Employee, the Company and all other interested persons. No member of the Committee will be personally liable for any action, determination or interpretation made in good faith with respect to the Plan or this Agreement.
20. Captions. Captions provided herein are for convenience only and are not to serve as a basis for interpretation or construction of this Agreement.
21. Agreement Severable. In the event that any provision of this Agreement shall be held invalid, illegal or unenforceable in any respect, such provision will be severable from and such invalidity, illegality or unenforceability will not be construed to have any effect on, the remaining provisions of this Agreement.
22. Language. If the Employee has 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 than the English version, the English version will control.
23. Modifications to the Agreement. This Agreement constitutes the entire understanding of the parties on the subjects covered. The Employee expressly warrants that he or she is not accepting this Agreement in reliance on any promises, representations, or inducements other than those contained herein. Modifications to this Agreement or the Plan can be made only in an express written contract executed by a duly authorized officer of the Company. Notwithstanding anything to the contrary in the Plan or this Agreement, the Company reserves the right to revise this Agreement as it deems necessary or advisable, in its sole discretion and without the consent of the Employee, to comply with Section 409A or to otherwise avoid imposition of any additional tax or income recognition under Section 409A or other tax rules prior to the actual payment of Shares pursuant to this Award.
24. Amendment, Suspension or Termination of the Plan. By accepting this Award, the Employee expressly warrants that he or she has received a right to receive stock under the Plan, and has received, read and understood a description of the Plan. The Employee understands that the Plan is discretionary in nature and may be amended, suspended or terminated by the Company at any time.
25. Appendix B. Notwithstanding any provision in this Agreement to the contrary, this Award shall be subject to the special terms and provisions set forth in Appendix B for the Employee’s country, if any. Moreover, if the Employee relocates to one of the countries included in the Appendix B, the special terms and conditions for such country will apply to him or her, 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 B forms part of this Agreement.
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26. Acknowledgment. In accepting this Award, the Employee acknowledges that: (i) the Plan is established voluntarily by the Company, it is discretionary in nature and it may be amended, suspended or terminated by the Company at any time; (ii) this 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; (iii) all decisions with respect to future awards, if any, will be at the sole discretion of the Committee; (iv) the Employee’s participation in the Plan is voluntary; (v) Employee’s participation in the Plan shall not create a right to further employment with the employing Subsidiary and shall not interfere with the ability of the employing Subsidiary to terminate the Employee’s employment relationship (if any) at any time with or without cause; (vi) this Award is not part of normal or expected compensation or salary for any purposes, including, but not limited to, calculating any severance, resignation, redundancy, dismissal or 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 or the employing Subsidiary or any other Subsidiary of the Company; (vii) this Award will not be interpreted to form an employment contract or relationship with the Company or any Subsidiary of the Company; (viii) the future value of the underlying Shares is unknown and cannot be predicted with certainty; (ix) in consideration of this Award, no claim or entitlement to compensation or damages shall arise from forfeiture of the Restricted Stock Units resulting from Termination of Employment by the Company or the employing Subsidiary (for any reason whatsoever and whether or not in breach of local labor laws), and the Employee irrevocably releases the Company and the employing Subsidiary 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, the Employee shall be deemed irrevocably to have waived his or her entitlement to pursue such claim; (x) except as otherwise provided by the Committee, in the event of Termination of Employment (whether or not in breach of local labor laws), the Employee’s right to receive an Award and vest in this Award under the Plan, if any, will terminate effective as of the date that the Employee is 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 Committee shall have the exclusive discretion to determine when the Employee is no longer actively employed for purposes of this Award; (xi) the Company is not providing any tax, legal or financial advice, nor is the Company making any recommendation regarding the Employee’s participation in the Plan or the Employee’s acquisition or sale of the underlying Shares; (xii) the Employee is hereby advised to consult with the Employee’s own personal tax, legal and financial advisors regarding the Employee’s participation in the Plan before taking any action related to the Plan; and (xiii) the Restricted Stock Units 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.
27. Disclosure of Employee Information. By accepting this Award, the Employee hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Employee’s personal data as described in this Agreement and any other Restricted Stock Unit grant materials by and among, as applicable, the employing Subsidiary, the Company and its other Subsidiaries for the exclusive purpose of implementing, administering and managing the Employee’s participation in the Plan.
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The Employee understands that the Company and the employing Subsidiary may hold certain personal information about the Employee, including, but not limited to, the Employee’s 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 or its Subsidiaries, details of all Restricted Stock Units or any other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in the Employee’s favor, for the exclusive purpose of implementing, administering and managing the Plan (“Personal Data”). The Employee understands that Personal Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan (including, without limitation, the Trustee), that these recipients may be located in the Employee’s country, in the United States or elsewhere, and that the recipients’ country may have different data privacy laws and protections than the Employee’s country. The Employee understands that he or she may request a list with the names and addresses of any potential recipients of the Personal Data by contacting the Equity Programs for the Company and/or its applicable Subsidiaries. The Employee authorizes the recipients to receive, possess, use, retain and transfer the Personal Data, in electronic or other form, for the sole purpose of implementing, administering and managing the Employee’s participation in the Plan. The Employee understands that Personal Data will be held only as long as is necessary to implement, administer and manage the Employee’s participation in the Plan. The Employee understands that he or she may, at any time, view the Personal Data, request additional information about the storage and processing of Personal Data, require any necessary amendments to Personal Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Employee’s local human resources representative. The Employee understands, however, that refusal or withdrawal of consent may affect the Employee’s ability to participate in the Plan. For more information on the consequences of the Employee’s refusal to consent or withdrawal of consent, the Employee understands that he or she may contact the Equity Programs for the Company and/or its applicable Subsidiaries.
28. Electronic Delivery. The Company may, in its sole discretion, decide to deliver any documents related to this Award made under and participation in the Plan or future awards that may be made under the Plan by electronic means or to request the Employee’s consent to participate in the Plan by electronic means. The Employee hereby consents to receive such documents by electronic delivery and agrees 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.
29. Notice of Governing Law and Choice of Venue. Except with regard to the tax consequences, this Award shall be governed by, and construed in accordance with, the laws of the State of California, United States of America, without regard to principles of conflict of laws. For purposes of litigating any dispute that arises under this Award or this Agreement, the parties hereby submit to and consent to the jurisdiction of the State of California, United States of America, and agree that such litigation shall be conducted in the courts of Alameda County, California, or the federal courts of the United States of America for the Northern District of California, where this Award is made and/or to be performed.
30. Imposition of Other Requirements. The Company reserves the right to impose other requirements on the Employee’s participation in the Plan, on the Restricted Stock Units and on any Shares acquired under the Plan, to the extent the Company determines it is necessary or advisable in
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order to comply with local law or facilitate the administration of the Plan, and to require the Employee to sign any additional agreements or undertakings that may be necessary to accomplish the foregoing.
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APPENDIX B
Argentina
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Securities Law Information
Neither the Restricted Stock Units nor the underlying Shares are publicly offered or listed on any stock exchange in Argentina. The offer of Restricted Stock Units under the Plan is private and not subject to the supervision of any Argentine governmental authority.
Exchange Control Requirements
By accepting the Restricted Stock Units, the Employee agrees to comply with any and all Argentine currency exchange control restrictions, approvals and reporting requirements in connection with the Restricted Stock Units.
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APPENDIX B
Brazil
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Exchange Control Requirements
The Employee is required to prepare and submit a declaration of assets and rights held outside of Brazil to the Central Bank on an annual basis. The assets and rights that must be reported include Shares issued pursuant to the Restricted Stock Units. However, if the Employee holds assets or rights valued at less than US$100,000, the Employee will not be required to submit a declaration.
Intent to Comply with Law
By accepting the Award, the Employee agrees that he or she will comply with Brazilian law when the Employee receives the grant of Restricted Stock Units, vests in the Restricted Stock Units and sells the Shares issued pursuant to the Restricted Stock Units. The Employee also agrees to report and pay any and all taxes associated with the vesting of the Restricted Stock Units and the sale of Shares issued pursuant to the Restricted Stock Units.
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XXXXXXXX X
Xxxxxx
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Vesting of Restricted Stock Units
The Company may, in its sole discretion, accelerate the vesting of a number of Restricted Stock Units it determines sufficient to cover the amount of any taxes due at the time of the exchange of your eligible options for Restricted Stock Units pursuant to the Offer to Exchange Certain Outstanding Options for Restricted Stock Units.
Securities Law Information
The Employee is permitted to sell Shares issued pursuant to the Restricted Stock Units through the designated broker appointed under the Plan provided the resale of Shares issued pursuant to the Restricted Stock Units takes place outside of Canada through facilities of a stock exchange on which the Shares are listed. The Shares are currently listed on the Nasdaq Global Select Market in the United States.
Consent to Receive Information in English for Quebec Employees
The parties acknowledge that it is their express wish that the Agreement, as well as all documents, notices and legal proceedings entered into, given or instituted pursuant hereto or relating directly or indirectly hereto, be drawn up in English.
Les parties reconnaissent avoir exigé la rédaction en anglais de cette convention, ainsi que de tous documents exécutés, xxxx xxxxxx et procédures judiciaries intentées, directement ou indirectement, relativement à ou suite à la présente convention.
Award Payable Only in Shares
Restricted Stock Units granted to Employees in Canada shall be paid in Shares only and do not provide any right for the Employee to receive a cash payment, notwithstanding any discretion contained in the Plan, or any provision in the Agreement to the contrary.
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APPENDIX B
China
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Vesting of Restricted Stock Units
If the Employee is a Chinese national working in China, the Restricted Stock Units shall vest as follows: One-half of the shares subject to the Restricted Stock Units will vest on the later of (i) the first anniversary of the Grant Date, or (ii) the date on which the Company has received all necessary exchange control and other approvals from the State Administration of Foreign Exchange or its local counterpart (“SAFE”) under applicable exchange control rules for Restricted Stock Units granted under the Plan; and the remaining one-half of the shares subject to the Restricted Stock Units will vest on the later of (i) the second anniversary of the Grant Date, or (ii) the date on which the Company has received all necessary approvals from SAFE under applicable exchange control rules for Restricted Stock Units granted under the Plan.
The Company is in the process of obtaining SAFE approval but is not in a position to guarantee, undertake or represent whether or when SAFE approval can be obtained. Consequently, the Employee acknowledges and agrees that he or she is not entitled to any compensation or other damages if SAFE approval is not obtained and, as a result, the Restricted Stock Units do not vest.
Immediate Sale Restriction
Notwithstanding anything to the contrary in the Plan or Agreement, due to exchange control laws in China, the Company may require that all Shares issued at vesting of the Restricted Stock Units be sold on the Employee’s behalf pursuant to this authorization as soon as administratively possible on or after the respective vesting date. In this case, the Employee will not be entitled to hold any Shares. Instead, the Employee will receive the sale proceeds less any Tax-Related Items and broker’s fees or commissions.
Exchange Control Information
The Employee understands and agrees that, due to exchange control laws in China, the Employee will be required to immediately repatriate the proceeds from the sale of any Shares acquired at vesting of the Restricted Stock Units to China. The Employee further understands that, under local law, such repatriation of the cash proceeds may need to be effected through a special exchange control account established by the Company or one of its Subsidiaries in China, and the Employee hereby consents and agrees that the proceeds may be transferred to such special account prior to being delivered to him or her. The Employee agrees to bear any currency fluctuation risk between the time the Shares are sold and the time the proceeds are distributed through any such special exchange account. The Employee further agrees 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. This repatriation requirement will not apply to non-Chinese nationals.
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APPENDIX B
France
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Reporting Requirements
The Employee may hold the Shares issued pursuant to the Restricted Stock Units outside of France, provided the Employee declares all foreign accounts, whether open, current, or closed, in his or her income tax return.
Consent to Receive Information in English
By accepting the Restricted Stock Units, the Employee confirms having read and understood this Appendix B, the Agreement and the Plan, including all terms and conditions included therein, which were provided in the English language. The Employee accepts the terms of those documents accordingly.
En acceptant les Restricted Stock Units, le Employee confirme avoir lu et compris cette Appendix B, le Contrat et le Plan, incluant tous leurs termes et conditions, qui ont été transmis en langue anglaise. Le Employee accepte les dispositions de ces documents en connaissance de cause.
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APPENDIX B
Germany
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Exchange Control Requirements
Cross-border payments in excess of €12,500 must be reported monthly to the German Federal Bank. If the Employee uses 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 the Employee. In addition, the Employee must report any receivables or payables or debts in foreign currency exceeding an amount of €5,000,000 on a monthly basis.
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XXXXXXXX X
Xxxx Xxxx
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Securities Law Notice
This grant of Restricted Stock Units and the Shares to be issued pursuant to the Restricted Stock Units are not a public offer of securities and are available only for employees of the Company or any of its Subsidiaries participating in the Plan. The contents of this Appendix B, the Agreement and the Plan have not been reviewed by any regulatory authority in Hong Kong. The Employee is advised to exercise caution in relation to this grant of Restricted Stock Units. If the Employee has any doubts as to the contents of this Appendix B, the Agreement or the Plan, the Employee should obtain independent professional advice.
Award Payable Only in Shares
Restricted Stock Units granted to Employees in Hong Kong shall be paid in Shares only and do not provide any right for the Employee to receive a cash payment, notwithstanding any discretion contained in the Plan, or any provision in the Agreement to the contrary.
Nature of Scheme
The Company specifically intends that the Plan will not be an occupational retirement scheme for purposes of the Occupational Retirement Schemes Ordinance.
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APPENDIX B
India
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Exchange Control Requirements
The Employee must repatriate the proceeds from the sale of Shares to India within 90 days after receipt. The Employee must maintain the foreign inward remittance certificate received from the bank where the foreign currency is deposited in the event that the Reserve Bank of India or the Employer requests proof of repatriation.
Fringe Benefit Tax
By accepting the Restricted Stock Units, the Employee consents and agrees to assume liability for any fringe benefit tax that may be payable by the Company and/or the Employer in connection with the Restricted Stock Units, to the extent determined by the Company and/or the Employer. The Employee further understands that the settlement of the Restricted Stock Units is contingent upon the Employee’s agreement to assume liability for fringe benefit tax payable on the Restricted Stock Units.
Further, by accepting the Restricted Stock Units, the Employee agrees that the Company and/or the Employer may collect the fringe benefit tax from the Employee by any of the means set forth in the Agreement or any other reasonable method established by the Company. The Employee also agrees to execute any other consents or elections required to accomplish the foregoing, promptly upon request of the Company.
B-8
APPENDIX B
Israel
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Please refer to the Polycom, Inc. 2004 Equity Incentive Plan Sub-Plan for Israeli Participants and the Restricted Stock Unit Agreement for Employees in Israel.
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APPENDIX B
Italy
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Exchange Control Requirements
The Employee is required to report in his or her annual tax return: (a) any transfers of cash or Shares to or from Italy exceeding €10,000 or the equivalent amount in U.S. dollars; 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 or the equivalent amount in U.S. dollars, if the investment may give rise to income in Italy. The Employee is 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 the Employee’s behalf.
Data Privacy Notice and Consent
This provision replaces in its entirety Section 26 of the Agreement:
The Employee hereby explicitly and unambiguously consents to the collection, use, processing and transfer, in electronic or other form, of his or her personal data as described in this section of this Appendix B by and among, as applicable, the Employer, the Company and any Subsidiary for the exclusive purpose of implementing, administering, and managing the Employee’s participation in the Plan.
The Employee understands that the Employer, the Company and any Subsidiary hold certain personal information about him or her, including, but not limited to, the Employee’s name, home address and telephone number, date of birth, social insurance or other identification number, salary, nationality, job title, any Shares or directorships held in the Company or any Subsidiary, details of all Restricted Stock Units or any other entitlement to Shares awarded, canceled, exercised, vested, unvested or outstanding in the Employee’s favor, for the exclusive purpose of implementing, managing and administering the Plan (“Data”).
The Employee also understands that providing the Company with Data is necessary for the performance of the Plan and that his or her refusal to provide such Data would make it impossible for the Company to perform its contractual obligations and may affect the Employee’s ability to participate in the Plan. The Controller of personal data processing is Polycom, Inc., with registered offices at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America, and, pursuant to Legislative Decree no. 196/2003, its representative in Italy is Polycom (Italy) S.r.l.
B-10
The Employee understands 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. The Employee further understands that the Company and/or any Subsidiary will transfer Data among themselves as necessary for the purpose of implementing, administering or managing the Employee’s participation in the Plan, and that the Company and/or any Subsidiary may each further transfer Data to third parties assisting the Company in the implement, administration and management of the Plan, including any requisite transfer of Data to a broker or other third party with whom the Employee may elect to deposit any Shares acquired under the Plan. Such recipients may receive, possess, use, retain, and transfer Data in electronic or other form, for the purposes of implementing, administering, and managing the Employee’s participation in the Plan. The Employee understands 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.
The Employee understands 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 the Employee’s consent thereto as the processing is necessary to performance of contractual obligations related to implementation, administration, and management of the Plan. The Employee understands that, pursuant to Section 7 of the Legislative Decree no. 196/2003, he or she has the right to, including but not limited to, access, delete, update, correct, or terminate, for legitimate reason, the Data processing. Furthermore, the Employee is 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 the Employee’s local human resources representative.
Plan Document Acknowledgment
In accepting the grant of Restricted Stock Units, the Employee acknowledges that he or she has received a copy of the Plan and the Agreement and has reviewed the Plan and the Agreement, including this Appendix B, in their entirety and fully understands and accepts all provisions of the Plan and the Agreement, including this Appendix B.
The Employee further acknowledges that he or she has read and specifically and expressly approves the following sections of the Agreement: Section 7 on Forfeiture; Section 9 on Withholding Taxes; Section 25 on Acknowledgment; Section 10 on Rights as Stockholder; Section 13 on Grant is Not Transferable; Section 21 on Language; Section 28 on Notice of Governing Law and Venue; and the Data Privacy Notice and Consent section included in this Appendix B.
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XXXXXXXX X
Japan
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
There are no country-specific terms and conditions.
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XXXXXXXX X
Korea
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Exchange Control Requirements
If the Employee realizes US$500,000 or more from the sale of Shares, Korean exchange control laws require the Employee to repatriate the proceeds to Korea within 18 months of the sale.
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XXXXXXXX X
Mexico
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Labor Law Policy and Acknowledgment
In accepting the grant of Restricted Stock Units, the Employee expressly recognizes that Polycom, Inc. with registered offices at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America, is solely responsible for the administration of the Plan and that his or her participation in the Plan and acquisition of Shares do not constitute an employment relationship between the Employee and Polycom, Inc. since the Employee is participating in the Plan on a wholly commercial basis and his or her sole Employer is Poly-Com X.xx X.X. de C.V. Paseo de los Tamarindos #400-A 5o piso Suite:21 Bosques de law Xxxxx Xxxxxxxxxx, 00000 Xxxxxx D.F. Based on the foregoing, the Employee expressly recognizes that the Plan and the benefits that he or she may derive from participating in the Plan do not establish any rights between the Employee and the Employer, Poly-Com X.xx X.X. de C.V., and do not form part of the employment conditions and/or benefits provided by Poly-Com X.xx X.X. de C.V. and any modification of the Plan or its termination shall not constitute a change or impairment of the terms and conditions of the Employee’s employment.
The Employee further understands that his or her participation in the Plan is as a result of a unilateral and discretionary decision of Polycom, Inc.; therefore, Polycom, Inc. reserves the absolute right to amend and/or discontinue the Employee’s participation at any time without any liability to the Employee.
Finally, the Employee hereby declares that he or she does not reserve to himself or herself any action or right to bring any claim against Polycom, Inc. for any compensation or damages regarding any provision of the Plan or the benefits derived under the Plan, and the Employee therefore grants a full and broad release to Polycom, Inc., its Subsidiaries, affiliates, branches, representation offices, its shareholders, officers, agents, or legal representatives with respect to any claim that may arise.
Política Laboral y Reconocimiento
Al aceptar el otorgamiento de las Acciones Restringidas, el Beneficiario expresamente reconoce que Polycom, Inc., con oficinas registradas en 0000 Xxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxx 00000, en los Estados Unidos de América, es el único responsable por la administración del Plan y que su participación en el Plan y la adquisición de Acciones no constituyen una relación de trabajo entre el Beneficiario y Polycom, Inc., ya que el Beneficiario participa en un marco totalmente
B-14
comercial y que su único patrón lo es Poly-Com X.xx X.X. de C.V. Paseo de los Tamarindos #400-A 5o piso Suite:21 Bosques de law Xxxxx Xxxxxxxxxx, 00000 Xxxxxx D.F. Derivado de lo anterior, el Beneficiario expresamente reconoce que el Plan y los beneficios que deriven de su participación en el Plan no establecen derecho alguno entre el Beneficiario y el patrón, by Poly-Com X.xx X.X. de C.V., y no xxxxxx parte de las condiciones de trabajo y/o prestaciones otorgadas por by Poly-Com X.xx X.X. de C.V. y cualquier modificación al Plan o su terminación no constituye un cambio o impedimento en los términos y condiciones de la relación de trabajo del Beneficiario.
Asimismo, el Beneficiario entiende que su participación en el Plan es resultado de una decisión unilateral y discrecional de Polycom, Inc.; por lo tanto, Polycom, Inc. se reserva el derecho absoluto de modificar y/o terminar la participación del Beneficiario en cualquier tiempo sin responsabilidad para con el mismo.
Finalmente, por medio del presente el Beneficiario manifiesta que no se reserva ninguna acción o derecho que ejercitar en contra de Polycom, Inc. por cualquier compensación o daño en relación con cualquier disposición del Plan o de los beneficios derivado del mismo y el Beneficiario por lo tanto, otorga el finiquito más amplio que en derecho proceda a Polycom, Inc., sus afiliadas, sucursales, oficinas de representación, sus accionistas, funcionarios, agentes o representantes legales, con respecto a cualquier demanda que pudiera surgir.
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XXXXXXXX X
Xxxxxxxxxxx
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Notification For Dutch Employees
The Employee has been granted Restricted Stock Units under the Plan, pursuant to which the Employee may acquire Shares of the Company.
Employees that are residents of the Netherlands should be aware of the Dutch xxxxxxx xxxxxxx rules, which may impact the sale of Shares issued pursuant to the Restricted Stock Units. In particular, the Employee may be prohibited from effecting certain share transactions if he or she has insider information regarding the Company.
Below is a discussion of the applicable restrictions. The Employee is advised to read the discussion carefully to determine whether the insider rules could apply to him or her. If it is uncertain whether the insider rules apply, we recommend that the Employee consult with his or her legal advisor. Please note that the Company cannot be held liable if an Employee violates the Dutch insider rules. The Employee is responsible for ensuring his or her compliance with these rules.
By entering into the Agreement and participating in the Plan, the Employee acknowledges having read and understood the Notification and acknowledges that it is his or her responsibility to comply with the Dutch xxxxxxx xxxxxxx rules, as discussed herein.
Prohibition Against Xxxxxxx Xxxxxxx
Dutch securities laws prohibit xxxxxxx xxxxxxx. 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 its Dutch Subsidiary who has inside information as described above.
Given the broad scope of the definition of inside information, certain employees of the Company working at its Dutch Subsidiary may have inside information and thus, would be prohibited from effectuating a transaction in securities in the Netherlands at a time when he or she had such inside information.
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XXXXXXXX X
Norway
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
There are no country-specific terms and conditions.
X-00
XXXXXXXX X
Peru
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
There are no country-specific terms and conditions.
X-00
XXXXXXXX X
Xxxxxxxxx
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Securities Law Notice
The grant of Restricted Stock Units and the Shares issued pursuant to the Restricted Stock Units are being made on a private basis and are, therefore, exempt from registration in Singapore.
Disclosure by Directors
If the Employee is a director, associate director or shadow director of a Singapore Subsidiary of the Company, the Employee is subject to certain notification requirements under the Singapore Companies Act, regardless of whether the Employee is a Singapore resident or employed in Singapore. Among these requirements is an obligation to notify the Singapore Subsidiary in writing when the Employee receives an interest (e.g., Restricted Stock Units, Shares) in the Company or any related companies. The Employee should contact the Company to obtain a copy of the notification form. In addition, the Employee must notify the Singapore Subsidiary when the Employee sells Shares of the Company or any related company (including when the Employee sells Shares issued pursuant to the Restricted Stock Units). These notifications must be made within two days of acquiring or disposing of any interest in the Company or any related company. In addition, a notification must be made of the Employee’s interests in the Company or any related company within two days of becoming a director, associate director or shadow director.
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XXXXXXXX X
Spain
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Exchange Control Requirements
The Employee understands and agrees that to participate in the Plan, the Employee must comply with exchange control regulations in Spain that require that the acquisition and sale of Shares be declared for statistical purposes. If a Spanish financial institution executes the transaction, the institution will automatically make the declaration on the Employee’s behalf; otherwise, it is the Employee’s responsibility to make the declaration. In addition, the Employee must file a declaration of ownership of foreign securities each January.
Labor Law Acknowledgment
This provision supplements Section 25 of the Agreement:
In accepting the Restricted Stock Units, the Employee consents to participation in the Plan and acknowledges that he or she has received a copy of the Plan.
The Employee understands that the Company has unilaterally, gratuitously, and discretionally decided to grant Restricted Stock Units under the Plan to individuals who may be employees of the Company or its Subsidiaries throughout the world. The decision is a limited decision that is entered into upon the express assumption and condition that any grant will not bind the Company or any Subsidiary, other than to the extent set forth in this Agreement. Consequently, the Employee understands that the Restricted Stock Units are granted on the assumption and condition that the Restricted Stock Units and any Shares acquired upon vesting of the Restricted Stock Units are not a part of any employment contract (either with the Company or any Subsidiary) and shall not be considered a mandatory benefit, salary for any purposes (including severance compensation), or any other right whatsoever. Further, the Employee understands that he or she will not be entitled to continue vesting in any Restricted Stock Units once the Employee’s employment with the Company or any Subsidiary ceases. In addition, the Employee understands that this grant would not be made but for the assumptions and conditions referred to above; thus, the Employee acknowledges and freely accept that should any or all of the assumptions be mistaken or should any of the conditions not be met for any reason, then any grant of or right to the Restricted Stock Units shall be null and void.
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XXXXXXXX X
Sweden
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
There are no country-specific terms and conditions.
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XXXXXXXX X
Switzerland
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Securities Law Notice
The grant of Restricted Stock Units and the Shares issued pursuant to the Restricted Stock Units are being made on a private basis and are, therefore, not subject to registration in Switzerland.
X-00
XXXXXXXX X
Taiwan
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Exchange Control Requirements
The Employee may acquire and remit foreign currency (including proceeds from the sale of Shares) into and out of Taiwan up to US$5,000,000 per year. If the transaction amount is TWD$500,000 or more in a single transaction, the Employee must submit a foreign exchange transaction form and also provide supporting documentation to the satisfaction of the remitting bank.
If the transaction amount is US$500,000 or more, the Employee may be required to provide additional supporting documentation to the satisfaction of the remitting bank. The Employee should consult with his or her personal advisor to ensure compliance with applicable exchange control laws in Taiwan.
X-00
XXXXXXXX X
Xxxxxxxx
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Exchange Control Requirements
If and when the Employee sells the Shares issued pursuant to the Restricted Stock Units, the Employee will be required to immediately repatriate the cash proceeds to Thailand and to convert them to Thai Baht within three hundred sixty days of receipt. The Employee may also be subject to certain reporting obligations when he or she repatriates the cash proceeds. The Employee should consult with his or her personal advisor on the current repatriation requirements. The Company and the Employee’s employer will not be held responsible should the Employee fail to comply with the exchange control requirements.
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XXXXXXXX X
Xxxxxx Xxxx Xxxxxxxx
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
There are no country-specific terms and conditions.
X-00
XXXXXXXX X
Xxxxxx Xxxxxxx
Polycom, Inc. 2004 Equity Incentive Plan
Restricted Stock Unit Agreement for Non-U.S. Employees
Please refer to the Restricted Stock Unit Agreement for Employees in the United Kingdom.
B-26
POLYCOM, INC. 2004 EQUITY INCENTIVE PLAN
SUB-PLAN FOR ISRAELI PARTICIPANTS
1. Purpose. The Polycom, Inc. Sub-Plan For Israeli Participants (the “Sub-Plan”) is intended to (i) provide a method whereby Employees who are Israeli residents for tax purposes (including officers and directors who are Employees) of the Company and its Subsidiaries may be offered an opportunity to acquire Shares of the Company. Accordingly, the Company may, from time to time, grant Options or other Awards on the terms and conditions hereinafter established and subject to applicable Israeli tax laws, rules, and regulations, to such Israeli Participants as may be selected in the manner hereinafter provided. Except as otherwise indicated, defined terms shall have the same meaning as those set forth in the Polycom, Inc. 2004 Equity Incentive Plan (the “Plan”). The Plan and the Sub-Plan shall be read together. In any case of contradiction, whether explicit or implied, between the provisions of this Sub-Plan and the Plan, the provisions of this Sub-Plan shall govern.
2. Section 102 of the Income Tax Ordinance
(a) The provisions of Section 102 of the Israel Income Tax Ordinance (New Version) 1961, as amended by the Law Amending the Income Tax Ordinance (Number 132) 2002, effective January 1, 2003 (the “Ordinance”), and the Income Tax Rules (Tax Benefits in Stock Issuance to Employees) 5763-2003 (the “Rules”), shall apply with respect to certain Awards under the Sub-Plan.
(b) Options or Shares granted pursuant to Section 102 of the Ordinance shall be granted pursuant to either (i) Section 102(b)(2) thereof as capital gains track options or shares, pursuant to which income resulting from the sale of Shares derived from such Options is taxed as a capital gain (“102 Capital Gains Track Awards”), or (ii) Section 102(b)(1) thereof as ordinary income track options or shares, pursuant to which income resulting from the sale of Shares derived from such Options is taxed as ordinary income (“102 Ordinary Income Track Awards”; together with 102 Capital Gains Track Awards, “102 Trustee Awards”), or (iii) Section 102(c) thereof as options or shares that are not subject to a trust arrangement (“102 Non-Trustee Awards”) pursuant to which income resulting from the sale of Shares derived from such Options or Shares of Restricted Stock is taxed as ordinary income but not treated as a 102 Ordinary Income Track Option. Options granted and Shares issued pursuant to a 102 Trustee Award shall be held in trust for the benefit of such Employees by or in the name of a trustee approved for such purposes by the Israeli Income Tax Authority (the “Trustee”). The Trustee and each Participant receiving a 102 Trustee Award shall comply with the Ordinance and the Rules and with the Trust Agreement entered into between the Company and the Trustee.
Awards that do not contain such terms as will qualify them for the special tax treatment under Section 102 will be granted pursuant to Section 3(i) of the Ordinance, and are referred to herein as “3(i) Awards”.
The Company may grant only one type of 102 Trustee Award at any given time pursuant to this Plan, and shall file an election with the Israeli Tax Authorities regarding the type of 102 Trustee Award it chooses to grant (the “Election”). Once the Company has filed such Election, it
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may change the type of 102 Trustee Award that it chooses to grant only after the passage of at least 12 months from the end of the year in which the first grant was made in accordance with the previous Election. Until the Election is changed, all 102 Trustee Awards shall be issued either as 102 Capital Gain Stock Awards or as 102 Ordinary Income Stock Awards. To avoid doubt, such Election shall not prevent the Company from granting 102 Non-Trustee Awards or 3(i) Awards at any time.
No 102 Trustee Awards may be granted until 30 days after the requisite filings required by the Ordinance and the Rules have been made with the Israeli Income Tax Authority.
(c) With respect to 102 Trustee Awards, the Options or Shares issued upon exercise of the Option or pursuant to an Award, as the case may be, shall be held by the Trustee for the period prescribed in the Ordinance and Rules (the “Restricted Holding Period”). With respect to 102 Capital Gains Track Awards, the Restricted Holding Period shall be two years from the end of the tax year in which the Award was granted. With respect to 102 Ordinary Income Track Awards, the Restricted Holding Period shall be one year from the end of the tax year in which the Award was granted. After the Restricted Holding Period and subject to any further period under Sections 6(d) and (e), the Trustee may release the Options or Shares to the Participant only after (i) the receipt by the Trustee of an acknowledgment from the Israeli Income Tax Authority that the Participant has paid any applicable tax due pursuant to the Ordinance and the Rules, or (ii) the Trustee withholds any applicable tax due pursuant to the Ordinance and Rules.
(d) The Trustee shall not release any Options or Shares issued upon exercise of Options or otherwise pursuant to A 102 Trustee Award, as the case may be, prior to the full payment of the Participant’s tax liabilities. During the Restricted Holding Period, the Participant may neither require the Trustee to release to the Participant or sell to a third party such Options or Shares unless permitted to do so by applicable law. Notwithstanding the foregoing, the Trustee may, pursuant to a written request, release or transfer such Shares to a designated third party, provided that both of the following conditions have been fulfilled prior to such transfer: (i) payment has been rendered to the tax authorities of all taxes required to be paid upon the release and transfer of the Shares, and confirmation of such payment has been received by the Trustee and (ii) the Trustee has received written confirmation from the Company that all requirement for such release and transfer have been fulfilled according to the terms of the Company’s corporate documents, the Sub-Plan, the Plan, the Award Agreement and any applicable law. To avoid doubt such sale or release during the Restricted Holding Period will result in different tax ramifications under Section 102 of the Ordinance and the Rules and/or any other regulations or orders or procedures promulgated thereunder, which shall apply to and shall be borne solely by the Participant.
(e) In the event a share dividend (bonus shares) is declared on Shares acquired pursuant to a 102 Trustee Award, such dividend shares shall be subject to the provisions of Sections 2 and 6 and the Restricted Holding Period for such dividend shares shall be measured from the commencement of the holding period for the Award with respect to which the dividend applies.
(f) Upon receipt of a 102 Trustee Award, the Participant will sign an undertaking to release the Trustee from any liability in respect of any action or decision duly taken and bona fide executed in relation with the Plan, the Sub-Plan or any 102 Trustee Award granted to the Participant hereunder. In addition, the Participant will execute any and all documents which the Company or the Trustee may reasonably determine to be necessary in order to comply with the Ordinance and the Rules.
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(g) The Committee may determine that a Section 3(i) Award shall be held by the Trustee and subject to the provisions of this Section 2, mutatis mutandis. In such event, the Trustee shall hold such Options or Shares in trust for the benefit of the Participant, pursuant to the Committee’s determination and as shall be set forth in the Award Agreement. If determined by the Administrator, the Trustee shall be responsible for withholding any taxes for which a Participant may become liable.
3. Administration.
(a) The Sub-Plan shall be administered by the Committee in accordance with Section 3 of the Plan.
(b) The Board of Directors may, at any time, amend, alter, suspend or terminate the Sub-Plan; provided, however, that any such action shall not impair any Award theretofore granted under the Sub-Plan.
4. Participants. Awards may be granted under the Plan and the Sub-Plan for the benefit of Employees, Directors and Consultants of the Company; provided, however, that Options may not be granted pursuant to Section 102 of the Ordinance to (a) Consultants, or (b) to Employees or Directors who are “Controlling Shareholders”, as defined in the Ordinance. A “Controlling Shareholder” means an individual who if prior to the Award or as a result of receipt of an Award or the exercise of the Option or acquisition of Shares under an Award, holds or would hold, directly or indirectly in his or her name or with a relative (as defined in the Ordinance): (i) 10% of the outstanding shares of the Company, (ii) 10% of the voting power of the Company, (iii) the right to hold or purchase 10% of the outstanding equity or voting power of the Company, (iv) the right to obtain 10% of the “profit” of the Company as defined in the Ordinance, or (v) the right to appoint a Director.
Receipt of an Award under this Sub-Plan or any other incentive plan maintained by the Company shall not, for that reason, preclude a Participant from receiving an Award under the Sub-Plan.
5. Shares of Common Stock reserved under the Sub-Plan. The total number of Shares available under this Sub-Plan is set forth in Section 4 of the Plan.
6. Terms and Conditions of Awards. Award Agreements executed granted pursuant to the Plan and this Sub-Plan shall be in such form and on such terms as the Committee shall, from time to time, approve, but subject, nevertheless, to the following terms and conditions:
(a) The Award Agreement shall state the total number of Options or Shares to which it relates and no fractional shares shall be issued. The Award Agreement shall indicate whether the Award is a 102 Trustee Award, a 102 Non-Trustee Award or a 3(i) Award; and, if the grant is a 102 Trustee Award, whether it is a 102 Capital Gains Track Award or a 102 Ordinary Income Track Award.
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(b) Where applicable, the Exercise Price per Share of an Option, or the purchase price per Share, as the case may be, shall be such amount as may be determined by the Committee and such price shall be set forth in the Award Agreement between the Company and the Participant.
(c) Notwithstanding any other provisions of the Plan, the Trustee shall hold the Shares or Option, issued or granted, as the case may be, pursuant to a 102 Trustee Award in favor of a Participant or his or her successors or heirs during the Restricted Holding Period or such longer period as may be required for the full exercise of the Option or vesting of rights in the Shares as provided under the Award Agreement.
(d) Subject to subparagraph (c) above, an Option shall state the time or times at which it may be exercised in whole or in part and such terms shall be incorporated into and be made a part of the Award Agreement relating to such Option between the Company and the Participant.
(e) Subject to subparagraph (c) above, Shares acquired pursuant to an Award Agreement shall not be sold, transferred, or otherwise disposed of and shall not be pledged or otherwise hypothecated, except as provided in this Sub-Plan and restrictions against disposition shall lapse and the Participant’s interest therein shall vest as the Committee shall determine; such terms shall be incorporated into and made part of the Award Agreement between the Company and the Participant.
(f) The provisions of this Paragraph 6 and the provisions of any Award Agreement between the Company and an Employee relating to the time of exercise, the restrictions against disposition and the vesting of the Employee’s interest shall be applied according to their terms or according to such other terms and conditions, or at such other time and dates, as the Committee may from time to time establish.
(g) Unless otherwise expressly provided in an Award Agreement, the Participant shall have no rights of a stockholder with respect to Shares to be acquired by the purchase or exercise of an Option until a certificate or certificates representing such Shares are issued to the Participant or the Trustee for the Participant’s benefit as the case may be. Upon issuance of a certificate or certificates, the Participant shall have the rights of a holder of Shares.
(h) Each 102 Trustee Award shall be subject to the relevant terms of Section 102 of the Ordinance, which shall be deemed an integral part of the 102 Trustee Award and which shall prevail over any term contained in the Plan, the Sub-Plan or Award Agreement which is not consistent therewith. Any provision of the Ordinance and any approvals by the Income Tax Authority not expressly specified in this Sub-Plan or in the Award Agreement which are necessary to receive or maintain any tax benefit pursuant to Section 102 shall be binding on the Participant. The Trustee and the Participant granted a 102 Trustee Award shall comply with the Ordinance and the terms and conditions of the Trust Agreement entered into between the Company and the Trustee. For avoidance of doubt, it is reiterated that compliance with the Ordinance specifically includes compliance with the Rules.
7. Transferability. Options are not assignable or transferable, except by will or the laws of descent and distribution and, Options, during a Participant’s lifetime, may be exercised only by the Participant.
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8. Restrictions on Issuing Shares. The exercise of each Option or issuance of Shares shall be subject to the condition that if at any time the Company shall determine in its discretion that the satisfaction of withholding tax or other withholding liabilities, or that the listing, registration, or qualification of any shares otherwise deliverable upon such exercise upon any securities exchange or under any national, state or federal law, or that the consent or approval of any regulatory body, is necessary or desirable as a condition of, or in connection with, such exercise in the delivery or purchase of shares pursuant thereto, then in any such event, such exercise shall not be effective unless such withholding, listing, registration, qualification, consent or approval shall have been effected or obtained free of any conditions not acceptable to the Company.
9. Term of Plan.
(a) Unless sooner terminated by the Board, this Sub-Plan shall terminate ten (10) years after the Plan has been adopted by the Board, and no Award shall be granted pursuant to this Sub-Plan after that date.
(b) The Board of Directors may, at any time and from time to time, terminate or amend this Sub Plan in any respect, including changing its Election concerning the type of Award to be granted under Section 102 of the Ordinance from an Election to grant 102 Capital Gains Track Awards to an Election to grant 102 Ordinary Income Track Awards. In no event may any action of the Company alter or impair the rights of a Participant, without such Participant’s consent, under any Option previously granted to such Participant.
10. Obligation to Exercise Option. The granting of an Option shall impose no obligation on the option holder to exercise such option.
11. Effectiveness of the Sub-Plan. This Sub-Plan shall become effective on the date of its adoption by the Board of Directors or Committee, but subject, nevertheless, to such approvals as may be required by any public authorities, including but not limited to the Israeli Income Tax Authority.
12. Tax Consequences.
(a) Any tax consequences arising from the grant, exercise or purchase of any Option or Shares, or from any other event or act (of the Company, and/or its affiliates, and the Trustee or the Participant), hereunder, other than those taxes or mandatory payment that the Company or its Subsidiary is required to pay as an employer of the Participant, shall be borne solely by the Participant. The Company and/or its Subsidiaries, and/or the Trustee shall withhold taxes according to the requirements under the applicable laws, rules, and regulations, including withholding taxes at source. The Company or any of its affiliates and the Trustee may make such provisions and take such steps as it may deem necessary or appropriate for the withholding of all taxes required by law to be withheld with respect to Options granted under the Plan and the exercise thereof, including, but not limited, to (i) deducting the amount so required to be withheld from any other amount then or thereafter payable to a Participant, and/or (ii) requiring a Participant to pay to the Company or any of its affiliates the amount so required to be withheld as a condition of the issuance, delivery, distribution or release of any Shares. In addition, the Participant will be required to pay any amount which exceeds the tax to be withheld and transferred to the tax authorities, pursuant to applicable Israeli tax rules and regulations.
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(b) With respect to 102 Non-Trustee Awards, if the Participant ceases to be employed by the Company or a Subsidiary, the Participant shall extend to the Company and/or its Subsidiary a security or guarantee for the payment of tax due at the time of sale of Shares, all in accordance with the provisions of Section 102 of the Ordinance and the Rules.
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