Exhibit 10.56
XXXXXX MICRO INC.
2003 EQUITY INCENTIVE PLAN
NON-QUALIFIED STOCK OPTION
AWARD AGREEMENT
SECTION 1. GRANT OF OPTION. As of [DATE], Xxxxxx Micro Inc. ("MICRO")
hereby grants to [LEGAL NAME] ("OPTIONEE") a non-qualified stock option (the
"OPTION") exercisable in whole or in part, to purchase, pursuant to the terms
hereof, X,XXX shares of Class A Common Stock, $.01 par value per share, of
Micro's common stock (the "COMMON STOCK"), at a price of $XX.XX per share
pursuant to and subject to the terms and conditions set forth in the Xxxxxx
Micro Inc. 2003 Equity Incentive Plan (the "PLAN"). Capitalized terms used and
not otherwise defined herein are used with the same meanings as in the Plan.
SECTION 2. NON-QUALIFIED STOCK OPTION. This Option is not intended to
qualify as an incentive stock option as that term is used in Section 422 of the
Code.
SECTION 3. TIME OF EXERCISE; EXPIRATION. (a) This Option shall become
exercisable set forth below:
Shares Vesting Date
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XXX DATE
XXX DATE
XXX DATE
(b) The Option may not be exercised after 5:00PM (PST) in Santa Ana,
California, on [DATE].
SECTION 4. MANNER OF EXERCISE. This Option shall be exercised by Optionee
(or other party entitled to exercise the Option under Section 6(b) of this Award
Agreement) by delivering written notice to the stock plan administrator stating
the number of shares of Common Stock being purchased and the address and Social
Insurance number of the purchaser, together with payment of the purchase price
for the shares of Common Stock being purchased in a manner permitted by Section
6(d) of the Plan and plus an amount sufficient to satisfy the tax withholding
requirement set forth in Section 14(e) of the Plan, if necessary.
SECTION 5. NONTRANSFERABILITY OF OPTION. This Option shall not be
transferable by Optionee otherwise than by will or by the laws of descent and
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distribution. The terms of this Option shall be binding on the executors,
administrators, heirs and Successors of Optionee.
SECTION 6. TERMINATION OF EMPLOYMENT (as defined under Section 11 of the
Plan).
(a) If your employment is terminated for any reason other than death,
Disability, Retirement or Cause your vested Non-Qualified Stock Options and
Stock Appreciation Rights will expire 90 days from your termination. Unless the
Committee otherwise provides, if your employment with us or any of our
Affiliates is terminated for any reason other than your death, Disability,
Retirement or Cause your Non-Qualified Stock Options and Stock Appreciation
Rights will expire 90 days (or, if later, on the 15th day following the end of
any Micro-imposed restrictions in effect during such 90 day period on your
ability to engage in transactions involving Shares (such 15th day, the "Extended
Date")) following such termination, or the date your Options or Stock
Appreciation Rights would otherwise expire by their terms, had it not been for
your termination date. Your Non-Qualified Stock Options or Stock Appreciation
Rights will be exercisable prior to the expiration date only if they would be
exercisable on the date of your termination of employment. Any time you spend in
the status of "leave without pay" extends the period otherwise required for
purposes of determining the extent to which any Award or portion has vested or
become exercisable or nonforfeitable.
(b) If your employment is terminated as a result of your death, your
vested Non-Qualified Stock Options and Stock Appreciation Rights will expire one
year from your date of death. Unless the Committee otherwise provides, if you
die while employed by us or any of our Affiliates, your estate will have the
right to exercise your vested Non-Qualified Stock Options and Stock Appreciation
Rights through the first anniversary of your death, but not later than the date
your Options or Rights would otherwise expire by their terms.
(c) If your employment is terminated as a result of your death, your
unvested Non-Qualified Stock Options and Stock Appreciation Rights will
immediately vest and will expire one year from your date of death. Unless the
Committee otherwise provides, if you die while employed by us or any of our
Affiliates, your unvested Non-Qualified Stock Options and Stock Appreciation
Rights will immediately vest. Your estate will have the right to exercise your
newly vested Non-Qualified Stock Options and Stock Appreciation Rights through
the first anniversary of your death, but not later than the date your Options or
Rights would otherwise expire by their terms.
(d) If your employment is terminated as a result of your Disability,
your vested Non-Qualified Stock Options and Stock Appreciation Rights will
expire one year from the last vesting date. Unless the Committee otherwise
provides, if you
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become disabled (as determined by the Committee) while employed by us or any of
our Affiliates, you will have the right to exercise your vested Non-Qualified
Stock Options and Stock Appreciation Rights through the first anniversary of the
last scheduled vesting date of the grant in which you received these
Non-Qualified Stock Options or Stock Appreciation Rights, but not later than the
date your Options or Rights would otherwise expire by their terms.
(e) If your employment is terminated as a result of your Disability, your
unvested Non-Qualified Stock Options and Stock Appreciation Rights will continue
to vest while you remain disabled and will expire one year from the last vesting
date. Unless the Committee otherwise provides, if you become disabled (as
determined by the Committee) while employed by us or any of our Affiliates, your
unvested Non-Qualified Stock Options and Stock Appreciation Rights will continue
to vest in accordance with their original schedule while you remain disabled.
You will have the right to exercise your newly vested Non-Qualified Stock
Options and Stock Appreciation Rights through the first anniversary of the last
vesting date, but not later than the date your Options or Rights would otherwise
expire by their terms.
(f) If your employment is terminated due to Retirement, your vested
Non-Qualified Options and Stock Appreciation Rights will expire five years from
your retirement date. Unless the Committee otherwise provides, if you retire
from employment with us or any of our Affiliates, you will have the right to
exercise your vested Non-Qualified Stock Options and Stock Appreciation Rights
through the fifth anniversary of your retirement date, but not later than the
date your Options or Rights would otherwise expire by their terms. Unless the
Committee otherwise permits, the Committee has determined that the term
"Retirement" means that your employment has terminated other than by reason of
death, Disability or Cause and that all of the following criteria have been
satisfied at the time of termination: (1) you are at least 50 years of age, (2)
you have completed at least five years of service with the Company and our
Affiliates.
(g) If your employment is terminated for Cause. If your employment is
terminated for Cause, your Non-Qualified Stock Options and Stock Appreciation
Rights will expire and terminate on the date of such termination.
(h) If you are employed outside the United States. Unless the Committee
otherwise provides, in the event of your termination of employment for any
reason other than death, Disability, Retirement or Cause, if you are employed
outside the United States, your right to exercise any Non-Qualified Stock Option
and Stock Appreciation Rights shall terminate, and such Option or Stock
Appreciation Right shall expire and lapse, on the earlier of (x) the 90th day
(or if later, the Extended Date) following the first to occur of (1) the time
Micro or its Affiliate (your employer) gives notice to you of your termination
of employment, or (2) you give notice to Micro or its Affiliate (your employer)
to terminate your employment, or
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(3) if no such notice is given, on the date
your employment with Micro or its Affiliate (your employer) is terminated
(whichever the first to occur of (1), (2) or (3) collectively,
"Notice/Termination") or (y) the date such Option or Stock Appreciation Right
would have expired had it not been for the Notice/Termination. You shall have
the right to exercise such Option or Stock Appreciation Right prior to such
expiration to the extent it was exercisable at the date of Notice/Termination
and shall not have been exercised. You shall not be entitled and, by accepting
the grant of any Non-Qualified Stock Option or Stock Appreciation Right, shall
be deemed irrevocably to have waived any entitlement, by way of compensation for
loss of office or damages for breach of contract or otherwise, to any sum or
other benefit to compensate for the loss of any rights under the Plan.
SECTION 7. RESTRICTIONS ON PURCHASE AND SALE OF SHARES. Micro shall not be
obligated to sell or issue any shares of Common Stock pursuant to this Option
unless the shares are at that time effectively registered or exempt from
registration under the Securities Act of 1933, as amended.
SECTION 8. ADJUSTMENT. The number of shares of Common Stock subject to
this Option and the price per share of such shares may be adjusted by Micro from
time to time pursuant to the Plan.
SECTION 9. NO RIGHTS UNTIL EXERCISE. Optionee shall have no rights
hereunder as a shareholder with respect to any shares subject to this Option
until he or she becomes the registered holder of such shares.
SECTION 10. AMENDMENT. This Option may be amended as provided in the Plan.
SECTION 11. PLAN AND PROSPECTUS. This Option is subject to all the terms
of the Plan and the related prospectus, a copy of which has been received by the
Optionee.
SECTION 12. SEVERABILITY. The provisions of this Award Agreement are
severable and if any one or more provisions are determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining provisions shall
nevertheless be binding and enforceable.
SECTION 13. ACKNOWLEDGEMENT.
(a) Nature of Grant.
In accepting the grant, you acknowledge that:
(i) the Plan is established voluntarily by Micro, it is discretionary
in nature and it may be modified, suspended or terminated by Micro
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at any time, unless otherwise provided in the Plan and this Award
Agreement;
(ii) the grant of the Option is voluntary and occasional and does not
create any contractual or other right to receive future grants of
options, or benefits in lieu of options, even if options have been
granted repeatedly in the past;
(iii) all decisions with respect to future option grants, if any, will
be at the sole discretion of Micro;
(iv) your participation in the Plan shall not create a right to further
employment with your employer and shall not interfere with the
ability of your employer to terminate your employment relationship
at any time with or without cause;
(v) you are voluntarily participating in the Plan;
(vi) the Option is an extraordinary item that does not constitute
compensation of any kind for services of any kind rendered to
Micro or your employer, and which is outside the scope of your
employment contract, if any;
(vii) the Option is not part of normal or expected compensation or
salary for any purpose, including, but not limited to, calculating
any severance, resignation, termination, redundancy, end of
service payments, bonuses, long-service awards, pension or
retirement benefits or similar payments;
(viii) in the event that you are an employee of a subsidiary or Affiliate
of Micro, the option grant will not be interpreted to form an
employment contract or relationship with Micro; and furthermore,
the option grant will not be interpreted to form an employment
contract with your employer or any subsidiary or Affiliate of
Micro;
(ix) the future value of the underlying shares is unknown and cannot be
predicted with certainty;
(x) if the underlying shares do not increase in value, the Option will
have no value;
(xi) if you exercise your Option and obtain shares, the value of those
shares acquired upon exercise may increase or decrease in value,
even below the Option price;
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(xii) in consideration of the option grant, no claim or entitlement to
compensation or damages shall arise from termination of the
Options or diminution in value of the Option or shares purchased
through exercise of the Option resulting from termination of your
employment by Micro or your employer (for any reason whatsoever
and whether or not in breach of local labor laws) and you
irrevocably release Micro and your employer from any such claim
that may arise; if, notwithstanding the foregoing, any such claim
is found by a court of competent jurisdiction to have arisen,
then, by signing this Award Agreement, you shall be deemed
irrevocably to have waived your entitlement to pursue such claim;
and
(xiii) notwithstanding any terms or conditions of the Plan to the
contrary, in the event of involuntary termination of your
employment (whether or not in breach of local labor laws), your
right to receive options under the Plan, if any, will terminate
effective as of the date that you are no longer actively employed
and will not be extended by any notice period mandated under local
law (e.g., active employment would not include a period of "garden
leave" or similar period pursuant to local law); furthermore, in
the event of involuntary termination of employment (whether or not
in breach of local labor laws), your right to exercise the Option
after termination of employment, if any, will not be extended by
any notice period mandated under local law.
(b) Tax Reporting and Payment Liability. Regardless of any action Micro or
your employer takes with respect to any or all income tax, social insurance,
payroll tax, payment on account or other tax-related withholding ("Tax-Related
Items"), you acknowledge that the ultimate liability for all Tax-Related Items
legally due by you is and remains your responsibility and that Micro and/or your
employer (1) make no representations or undertakings regarding the treatment of
any Tax-Related Items in connection with any aspect of the Option grant,
including the grant, vesting or exercise of the Option and the subsequent sale
of shares; and (2) do not commit to structure the terms of the grant or any
aspect of the Option to reduce or eliminate your liability for Tax-Related
Items.
Prior to the exercise of the Option, you shall pay or make adequate
arrangements satisfactory to Micro or your employer to satisfy all withholding
and payment on account obligations of Micro or your employer. In this regard,
you authorize Micro or your employer to withhold all applicable Tax-Related
Items legally payable by you from your wages or other cash compensation paid to
you by Micro and/or your employer or from proceeds of the sale of the shares.
Alternatively, or in addition, if permissible under local law, Micro or your
employer may withhold in shares, provided that Micro or your employer only
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withholds the amount of shares necessary to satisfy the minimum withholding
amount. Finally, you shall pay to Micro or your employer any amount of
Tax-Related Items that Micro or your employer may be required to withhold as a
result of your participation in the Plan or your purchase of shares that cannot
be satisfied by the means previously described. Micro or your employer may
refuse to honor the exercise and refuse to deliver the shares if you fail to
comply with your obligations in connection with the Tax-Related Items as
described in this section.
(c) Data Privacy Consent. YOU HEREBY EXPLICITLY AND UNAMBIGUOUSLY CONSENT
TO THE COLLECTION, USE AND TRANSFER, IN ELECTRONIC OR OTHER FORM, OF YOUR
PERSONAL DATA AS DESCRIBED IN THIS DOCUMENT BY AND AMONG, AS APPLICABLE, YOUR
EMPLOYER AND MICRO FOR THE EXCLUSIVE PURPOSE OF IMPLEMENTING, ADMINISTERING AND
MANAGING YOUR PARTICIPATION IN THE PLAN.
YOU UNDERSTAND THAT MICRO AND YOUR EMPLOYER HOLD CERTAIN PERSONAL
INFORMATION ABOUT YOU, INCLUDING, BUT NOT LIMITED TO, YOUR NAME, HOME ADDRESS
AND TELEPHONE NUMBER, DATE OF BIRTH, SOCIAL INSURANCE NUMBER OR OTHER
IDENTIFICATION NUMBER, SALARY, NATIONALITY, JOB TITLE, ANY SHARES OF STOCK OR
DIRECTORSHIPS HELD IN MICRO, DETAILS OF ALL OPTIONS OR ANY OTHER ENTITLEMENT TO
SHARES OF STOCK AWARDED, CANCELED, EXERCISED, VESTED, UNVESTED OR OUTSTANDING IN
YOUR FAVOR, FOR THE PURPOSE OF IMPLEMENTING, ADMINISTERING AND MANAGING THE PLAN
("DATA"). YOU UNDERSTAND THAT DATA MAY BE TRANSFERRED TO ANY THIRD PARTIES
ASSISTING IN THE IMPLEMENTATION, ADMINISTRATION AND MANAGEMENT OF THE PLAN, THAT
THESE RECIPIENTS MAY BE LOCATED IN YOUR COUNTRY OR ELSEWHERE, AND THAT THE
RECIPIENT'S COUNTRY MAY HAVE DIFFERENT DATA PRIVACY LAWS AND PROTECTIONS THAN
YOUR COUNTRY. YOU UNDERSTAND THAT YOU MAY REQUEST A LIST WITH THE NAMES AND
ADDRESSES OF ANY POTENTIAL RECIPIENTS OF THE DATA BY CONTACTING YOUR LOCAL HUMAN
RESOURCES REPRESENTATIVE. YOU AUTHORIZE THE RECIPIENTS TO RECEIVE, POSSESS, USE,
RETAIN AND TRANSFER THE DATA, IN ELECTRONIC OR OTHER FORM, FOR THE PURPOSES OF
IMPLEMENTING, ADMINISTERING AND MANAGING YOUR PARTICIPATION IN THE PLAN,
INCLUDING ANY REQUISITE TRANSFER OF SUCH DATA AS MAY BE REQUIRED TO A BROKER OR
OTHER THIRD PARTY WITH WHOM YOU MAY ELECT TO DEPOSIT ANY SHARES OF STOCK
ACQUIRED UPON EXERCISE OF THE OPTION. YOU UNDERSTAND THAT DATA WILL BE HELD ONLY
AS LONG AS IS NECESSARY TO IMPLEMENT, ADMINISTER AND MANAGE YOUR PARTICIPATION
IN THE PLAN AS DETERMINED BY MICRO. YOU UNDERSTAND THAT YOU MAY, AT ANY TIME,
VIEW DATA, REQUEST ADDITIONAL INFORMATION ABOUT THE STORAGE AND PROCESSING OF
DATA, REQUIRE ANY NECESSARY AMENDMENTS TO DATA OR REFUSE OR WITHDRAW THE
CONSENTS HEREIN, IN ANY CASE WITHOUT COST, BY CONTACTING IN WRITING YOUR LOCAL
HUMAN RESOURCES REPRESENTATIVE. YOU UNDERSTAND, HOWEVER, THAT REFUSING OR
WITHDRAWING YOUR CONSENT MAY ADVERSELY AFFECT YOUR ABILITY TO PARTICIPATE IN THE
PLAN. FOR MORE INFORMATION ON THE CONSEQUENCES OF YOUR REFUSAL TO CONSENT OR
WITHDRAWAL OF CONSENT, YOU UNDERSTAND THAT YOU MAY CONTACT YOUR LOCAL HUMAN
RESOURCES REPRESENTATIVE.
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(d) Governing Law. The option grant is governed by and subject to, the
laws of the state of Delaware, as provided in the Plan.
(e) Language. If you have received this or any other document related to
the Plan translated into a language other than English and if the translated
version is different than the English version, the English version will control.
(f) Electronic Delivery. Micro may, in its sole discretion, decide to
deliver any documents related to the Option granted hereunder, or future options
that may be granted under the Plan, by electronic means or request your consent
to participate in the Plan by electronic means. You hereby consent to receive
such documents by electronic delivery and, if requested, agree to participate in
the Plan through an on-line or electronic system established and maintained by
Micro or another third party designated by Micro.
SECTION 14. Reserved
SECTION 15. IN ORDER TO EXERCISE THIS OPTION, YOU MUST SIGN AND RETURN A
COPY OF THIS AWARD AGREEMENT. IT WILL NOT BE POSSIBLE TO EXERCISE THIS OPTION
UNTIL THE SIGNED AWARD AGREEMENT HAS BEEN RETURNED TO MICRO.
XXXXXX MICRO INC.
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Accepted and agreed as to the foregoing:
OPTIONEE
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Name
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Date
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ADDENDUM A:
SECTION 14. BELGIUM NOTICE. You understand that if the Award Agreement is not
specifically accepted by signing and returning this agreement to Xxxxxxxx
Xxxxxxxxxx, Manager, Stock Plan Administration, at Xxxxxx Micro Inc., 0000 X.
Xx. Xxxxxx Xxxxx, Xxxxx Xxx, XX 00000-0000 by [INSERT DATE THAT IS 120 DAYS
AFTER GRANT DOCUMENTS ARE SENT TO BELGIUM EMPLOYEES], your Option will be deemed
rejected and forfeited. In this case, you will not be entitled to retain any
right to your Option. You acknowledge that you have been encouraged to discuss
this matter with your financial or tax advisor and that any acceptance is made
knowingly. You further acknowledge that if you do not accept the Option, you
will not be entitled to any payment or benefit in lieu of the Option.
ADDENDUM A:
SECTION 14. SINGAPORE NOTICE. If you are a director, associate director
or shadow director of a Singapore affiliate of Micro, you are subject to certain
notification requirements under the Singapore Companies Act. Among these
requirements is an obligation to notify the Singapore affiliate in writing when
you receive an interest (e.g., options, shares) in Micro or any related
companies. Please contact Micro to obtain a copy of the notification form. You
must also notify the Singapore affiliate when you sell shares of Micro or any
related company (including when you sell shares acquired under the Plan). These
notifications must be made within two days of acquiring or disposing of any
interest in Micro or any related company. In addition, a notification must be
made of your interests in Micro or any related company within two days of
becoming a director.
