INGRAM MICRO INC. Amended and Restated 2003 Equity Incentive Plan NON-EU NON- QUALIFIED STOCK OPTION AWARD AGREEMENT
Exhibit 99.11
XXXXXX MICRO INC.
Amended and Restated 2003 Equity Incentive Plan
Amended and Restated 2003 Equity Incentive Plan
NON-EU NON-QUALIFIED STOCK OPTION
AWARD AGREEMENT
AWARD AGREEMENT
Section 1. Grant of Option. As of [INSERT DATE OF GRANT], Xxxxxx Micro Inc., a Delaware
Corporation (“Micro”) hereby grants to [INSERT LEGAL NAME OF AWARDEE] (“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. Amended and Restated 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) Subject to the provisions in this
Award Agreement, this Option shall become exercisable as set forth below, provided Optionee remains
employed with Micro or any of its Affiliates (collectively, the “Employer”) through the respective
Vesting Date.
| Shares | Vesting Date | |
X,XXX
|
[INSERT VESTING DATE] | |
X,XXX
|
[INSERT VESTING DATE] | |
X,XXX
|
[INSERT VESTING DATE] |
(b) The Option may not be exercised after 1:00pm (PST) in Santa Ana, California, on [INSERT
OPTION EXPIRATION DATE] (the “Expiration Date”).
Section 4. Manner of Exercise. This Option shall be exercised by Optionee (or other
party entitled to exercise the Option under Section 6 of this Award Agreement) only by the
following manners: from time to time, on or prior to the Expiration Date of this Option, Optionee
may give notice of his or her election to purchase some or all of the Shares subject to vested
Options by means of (i) a written notice to the stock plan administrator or (ii) an electronic
notice to the stock plan administrator or other authorized representative of Micro (including a
third-party administrator or broker designated by Micro). Whether written or electronic, such
notice shall specify the number of Shares to be purchased pursuant to vested Options and shall be
in a form approved by the stock plan administrator. When Optionee gives notice of the exercise of
this Option, Optionee must also submit payment of the purchase price for the Shares being purchased
in a manner permitted by Section 6(f) of the Plan except such payment may not be made in Shares
already owned by the Optionee and plus an amount sufficient to satisfy any Tax-Related Items as
provided for in Section 13(c) of this Award Agreement.
Section 5. Nontransferability of Option. This Option shall not be assigned,
alienated, pledged, attached, sold or otherwise transferred by Optionee except by will or by the
laws of descent and distribution. The terms of this Option shall be binding on the executors,
administrators, heirs and successors of Optionee.
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Section 6. Termination of Employment or Service. The following provisions shall
apply in the event of Optionee’s termination of employment, or with respect to a member of the
Board who is not an Employee, Optionee’s termination of service as a member of the Board, as
applicable (hereinafter referred to as a termination of employment or service, respectively).
(a) Termination of Employment or Service for Any Reason other than Death, Disability,
Retirement or Cause. Unless the Committee otherwise provides, if Optionee’s employment with
the Employer, or service with Micro, as applicable, is terminated for any reason other than
Optionee’s death, Disability, Retirement or Cause, Optionee’s vested Options 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 Optionee’s ability to engage in transactions involving Shares
(such 15th day, the “Extended Date”)) from the Termination Date (as defined in Section
6(f) below), but not later than the Expiration Date. This Option will be exercisable prior to the
Expiration Date only if it was exercisable on the Termination Date.
(b) Death. Unless the Committee otherwise provides, if Optionee’s employment with the
Employer, or service with Micro, as applicable, is terminated due to Optionee’s death, Optionee’s
unvested Options will immediately vest. Optionee’s estate will have the right to exercise
Optionee’s vested Options through the fifth anniversary of Optionee’s death, but not later than the
Expiration Date.
(c) Disability, Unless the Committee otherwise provides, if Optionee’s employment
with the Employer, or service with Micro, as applicable, is terminated due to Optionee’s
Disability, Optionee’s unvested Options will immediately vest. Optionee or Optionee’s legal
representative will have the right to exercise vested Options through the fifth anniversary of the
Termination Date (as defined in Section 6(f) below), but not later than the Expiration Date. For
purposes hereof, “Disability” means “permanent and total disability” as defined in Section 22(e)(3)
of the Code or as determined by the Committee pursuant to applicable local law.
(d) Retirement. Unless the Committee otherwise provides, if Optionee’s employment with
the Employer, or service with Micro, as applicable, is terminated due to Optionee’s Retirement,
Optionee’s unvested Options will continue to vest in accordance with the vesting schedule set forth
in Section 3 of this Award Agreement. However, any unvested Options awarded in the year of
retirement will be prorated based upon the number of full months completed by the retiree in the
year of retirement divided by 12, and continue to vest in accordance with the vesting schedule set
forth in Section 3 of this Award Agreement. Optionee will have the right to exercise any vested
Options through the fifth anniversary of Optionee’s Termination Date (as defined in Section 6(f)
below), but not later than the Expiration Date. Unless the Committee otherwise permits, the
Committee has determined that the term “Retirement” means that Optionee’s employment has terminated
other than by reason of death, Disability or Cause and that all of the following criteria have been
satisfied as of the Termination Date (as defined in Section 6(f) below): either (1) Optionee is at
least 65 years of age and has completed at least five years of service with the Employer, or (2)
Optionee is at least 55 years of age and has completed at least ten years of service with the
Employer.
(e) Termination of Employment or Service for Cause. Unless the Committee otherwise
provides, if Optionee’s employment with the Employer, or service with Micro, as applicable, is
terminated for Cause, this Option will expire and terminate on the Termination Date (as defined in
Section 6(f) below), regardless of whether it is vested or unvested on the Termination Date.
(f) Termination Date. Unless the Committee otherwise provides, for purposes hereof,
(i) any termination of Optionee’s employment for any reason shall occur on the date such Optionee
ceases to be actively employed by the Employer without regard to whether such Optionee continues
thereafter to receive any compensatory payments therefrom or is paid salary thereby in lieu of
notice of termination, and (ii), with respect to a member of the Board who is not also an Employee,
any termination of Optionee’s service with Micro shall occur on the date such Optionee ceases to be
a member of the Board; in each case, such date shall be known as the “Termination Date”. The
Termination Date 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);
Micro shall have the exclusive discretion to determine the Termination Date for purposes of this
Option.
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Section 7. Restrictions on Issuance and Sale of Shares. Micro shall not be obligated
to sell or issue any Shares pursuant to this Option prior to the fulfillment of all of the
following conditions:
(a) The admission of such Shares to listing on all stock exchanges on which the Common Stock
is then listed;
(b) The completion of any registration or other qualification of such Shares under any state
or federal law or under rulings or regulations of the U.S. Securities and Exchange Commission or of
any other governmental regulatory body, which the Committee shall, in its absolute discretion, deem
necessary or advisable;
(c) The obtaining of any approval or other clearance from any state or federal governmental
agency which the Committee shall, in its absolute discretion, determine to be necessary or
advisable;
(d) The receipt by Micro of full payment for such Shares, including payment of any applicable
withholding tax; and
(e) The lapse of such reasonable period of time following the exercise of the Option as the
Committee may from time to time establish for reasons of administrative convenience.
Section 8. Adjustment. The number of Shares 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 Issuance. 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, Optionee acknowledges, understands and
agrees that:
| (i) | the Plan is established voluntarily by Micro, it is discretionary in nature and it may be modified, amended, suspended or terminated by Micro at any time; | ||
| (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) | Optionee’s participation in the Plan shall not create a right to further employment or service with Micro or the Employer and shall not interfere with the ability of Micro or the Employer to terminate Optionee’s employment or service relationship at any time; | ||
| (v) | Optionee is voluntarily participating in the Plan; |
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| (vi) | the Option and the Shares acquired under the Plan are extraordinary items that do not constitute compensation of any kind for services of any kind rendered to Micro or the Employer, and which is outside the scope of Optionee’s employment contract, if any; | ||
| (vii) | the Option and the Shares acquired under the Plan are not intended to replace any pension rights or compensation; | ||
| (viii) | the Option and the Shares acquired under the Plan are not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculating any severance, resignation, termination, redundancy, dismissal, end of service payments, bonuses, long-service awards, pension, welfare or retirement benefits or similar payments, and in no event should be considered as compensation for, or relating in any way to, past services to Micro, the Employer or any subsidiary or Affiliate of Micro; | ||
| (ix) | the Option grant and Optionee’s participation in the Plan will not be interpreted to form an employment or service contract or relationship with Micro, the Employer or any subsidiary or Affiliate of Micro; | ||
| (x) | the future value of the underlying Shares is unknown and cannot be predicted with certainty; | ||
| (xi) | if the underlying Shares do not increase in value, the Option will have no value; | ||
| (xii) | no claim or entitlement to compensation or damages shall arise from forfeiture of the Option resulting from the termination of Optionee’s employment with the Employer or the termination of Optionee’s service with Micro, as applicable (for any reason whatsoever and whether or not in breach of local labor laws), and in consideration of the grant of the Option to which Optionee may otherwise be entitled, Optionee irrevocably agrees never to institute any claim against Micro or the Employer, and agrees to waive his or her ability, if any, to bring any such claim, and agrees to release Micro and the Employer from any such claim; if, notwithstanding the foregoing, any such claim is allowed by a court of competent jurisdiction, then by participating in the Plan, Optionee shall be deemed irrevocably to have agreed not to pursue such claim and agree to execute any and all documents necessary to request dismissal or withdrawal of such claims; | ||
| (xiii) | the vesting of any Option ceases upon the Termination Date or other cessation of eligibility to vest for any reason, except as may otherwise be explicitly provided in the Plan or Section 6 of this Award Agreement; | ||
| (xiv) | Optionee acknowledges that this Award Agreement is between Optionee and Micro, and that the Employer is not a party to this Award Agreement; | ||
| (xv) | Optionee agrees to provide Micro with any data requested if Optionee is a mobile employee to facilitate the proper withholding and reporting by Micro and/or the Employer as applicable; and | ||
| (xvi) | Optionee acknowledges that the Plan and this Award Agreement are intended to conform to the extent necessary with all provisions of the U.S. Securities Act of 1933, as amended, and the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), and any and all regulations and rules promulgated by the U.S. Securities and Exchange Commission thereunder, and state securities laws and regulations. Notwithstanding anything herein to the contrary, the Plan shall be administered, and the Option is granted and may be exercised, only in such a manner as to conform to such laws, rules and regulations. To the extent permitted by applicable law, the Plan and this |
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| Award Agreement shall be deemed amended to the extent necessary to conform to such laws, rules and regulations. |
(b) No Advice Regarding Grant. Micro is not providing any tax, legal or financial
advice, nor is Micro making any recommendations regarding Optionee’s participation in the Plan or
the acquisition or the sale of the underlying Shares. Optionee is hereby advised to consult with
personal tax, legal and financial advisors regarding participation in the Plan before taking any
action related to the Plan.
(c) Tax Reporting and Payment Liability. Regardless of any action Micro or the
Employer takes with respect to any or all income tax, social insurance, payroll tax, payment on
account or other tax-related items related to Optionee’s participation in the Plan and legally
applicable to Optionee or deemed by Micro or the Employer to be an appropriate charge to Optionee
even if technically due by Micro or the Employer (“Tax-Related Items”), Optionee acknowledges that
the ultimate liability for all Tax-Related Items is and remains Optionee’s responsibility and may
exceed the amount actually withheld by Micro or the Employer. Optionee further acknowledges that
Micro and/or the 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, but not limited
to, the grant, vesting or exercise of the Option, the subsequent sale of Shares acquired pursuant
to such exercise and the receipt of any dividends; and (2) do not commit to and are under no
obligation to structure the terms of the grant or any aspect of the Option to reduce or eliminate
Optionee’s liability for Tax-Related Items or achieve any particular tax result. Further, if
Optionee has become subject to tax in more than one jurisdiction between the date of grant and the
date of any relevant taxable or tax withholding event, as applicable, Optionee acknowledges that
Micro and/or the Employer (or former employer, as applicable) may be required to withhold or
account for Tax-Related Items in more than one jurisdiction.
Prior to any relevant taxable or tax withholding event, as applicable, Optionee will pay or
make adequate arrangements satisfactory to Micro and/or the Employer to satisfy all Tax-Related
Items. In this regard, Optionee authorizes Micro and/or the Employer, or their respective agents,
at their sole discretion and pursuant to such procedures as they may specify from time to time, to
satisfy the obligations with regard to all applicable Tax-Related Items legally payable by one or a
combination of the following: (1) withholding from Optionee’s wages or other cash compensation paid
to Optionee by Micro and/or the Employer; (2) withholding from proceeds of the sale of Shares
acquired upon exercise of the Option, either through a voluntary sale or through a mandatory sale
arranged by Micro (on Optionee’s behalf pursuant to this authorization); or (3) withholding in
Shares to be issued upon exercise of the Option. To avoid negative accounting treatment, Micro may
withhold or account for Tax-Related Items by considering applicable minimum statutory withholding
amounts or other applicable withholding rates. If the obligation for Tax-Related Items is
satisfied by withholding in Shares as described herein, for tax purposes, Optionee is deemed to
have been issued the full number of Shares subject to the Option, notwithstanding that a number of
the Shares are held back solely for the purpose of paying the Tax-Related Items due as a result of
any aspect of Optionee’s participation in the Plan.
Finally, Optionee will pay to Micro or the Employer any amount of Tax-Related Items that Micro
or the Employer may be required to withhold or account for as a result of Optionee’s participation
in the Plan that cannot be satisfied by the means previously described. Micro may refuse to honor
the exercise and refuse to issue or deliver the Shares or the proceeds of the sale of Shares, if
Optionee fails to comply with his or her obligations in connection with the Tax-Related Items.
(d) Data Privacy Consent. Optionee explicitly and unambiguously consents to the
collection, use and transfer, in electronic or other form, of Optionee’s personal data as described
in this Award Agreement and any other Option grant materials by and among, as applicable, the
Employer, Micro and its subsidiaries and Affiliates for the exclusive purpose of implementing,
administering and managing Optionee’s participation in the Plan.
Optionee hereby understands that Micro and the Employer may hold certain personal information
about Optionee, including, but not limited to, Optionee’s name, home address and telephone number,
date of birth, employee identification 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,
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canceled, exercised, vested, unvested or outstanding in
Optionee’s favor, for the exclusive purpose of
implementing, administering and managing the Plan (“Data”). Optionee hereby understands that
Data may be transferred to any third parties assisting Micro with the implementation,
administration and management of the Plan, that these recipients may be located in Optionee’s
country or elsewhere, and that the recipient’s country may have different data privacy laws and
protections than Optionee’s country. Optionee hereby understands that Optionee may request a list
with the names and addresses of any potential recipients of the Data by contacting Optionee’s local
human resources representative. Optionee authorizes the recipients to receive, possess, use,
retain and transfer the Data, in electronic or other form, for the sole purpose of implementing,
administering and managing Optionee’s participation in the Plan, including any requisite transfer
of such Data as may be required to a broker or other third party with whom Optionee may elect to
deposit any Shares acquired upon exercise of the Option. Optionee hereby understands that Data
will be held only as long as is necessary to implement, administer and manage Optionee’s
participation in the Plan as determined by Micro. Optionee hereby understands that he or she 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 Optionee’s local human resources representative. Optionee
hereby understands, however, that refusing or withdrawing Optionee’s consent may adversely affect
Optionee’s ability to participate in the Plan. For more information on the consequences of
Optionee’s refusal to consent or withdrawal of consent, Optionee understands that he or she may
contact his or her human resources representative responsible for Optionee’s country at the local
or regional level.
(e) Entire Agreement. The Plan is incorporated herein by reference. The Plan and
this Award Agreement constitute the entire agreement of the parties with respect to the subject
matter hereof and supersede in their entirety all prior undertakings and agreements between
Optionee and Micro with respect to the subject matter hereof, and may not be modified adversely to
Optionee’s interest except by means of a writing signed by Optionee and Micro.
(f) Governing Law and Venue. The Option grant and this Award Agreement is governed by
and construed according to the laws of the State of Delaware, U.S.A., without regard to its
principles of conflicts of laws as provided in the Plan. Any proceeding arising out of or relating
to this Award Agreement or the Plan may be brought only in the state or federal courts located in
Orange County, California, U.S.A., where this grant is made and/or to be performed, and the parties
to this Award Agreement hereby submit to and consent to the exclusive jurisdiction of such courts.
(g) Binding Agreement; Interpretation. By accepting the grant of this Option
evidenced hereby, Optionee and Micro agree that this Option is granted under and governed by the
terms and conditions of the Plan and this Award Agreement. Optionee has reviewed the related
prospectus and this Award Agreement in their entirety, have had an opportunity to obtain the advice
of counsel prior to accepting the Option and fully understand all provisions of the related
prospectus and Award Agreement. Optionee agrees to accept as binding, conclusive and final all
decisions or interpretations of the Committee upon any questions relating to the Plan and Award
Agreement.
(h) Language. Optionee acknowledges that Optionee may be executing part or all of the
Award Agreement in English and agrees to be bound accordingly. If Optionee has received this 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.
(i) Electronic Delivery. Micro may, in its sole discretion, decide to deliver any
documents related to current or future participation in the Plan by electronic means. Optionee
hereby consents to receive such documents by electronic delivery and agree to participate in the
Plan through an on-line or electronic system established and maintained by Micro or another third
party designated by Micro.
Section 14. Section 409A. This Award Agreement and the Option are intended to be exempt from
the provisions of Section 409A of the Code and Department of Treasury regulations and other
interpretive guidance issued thereunder, as providing for an option to purchase service recipient
stock as described in Section 1.409A-1(b)(5)(i)(A) of the Department of Treasury regulations.
Notwithstanding any provision of this Award Agreement
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or the Plan to the contrary, in the event
that the Committee determines that the Option may be subject to Section 409A of the Code, the
Committee may adopt such amendments this Award Agreement or the Plan or adopt other policies
and procedures (including amendments, policies and procedures with retroactive effect), or
take any other actions, that the Committee determines are necessary or appropriate to (a) exempt
the Option from Section 409A of the Code and/or preserve the intended tax treatment of the benefits
provided with respect to the Option, or (b) comply with the requirements of Section 409A of the
Code and related Department of Treasury guidance and thereby avoid the application of penalty taxes
under Section 409A of the Code.
Section 15. Addendum A. Notwithstanding any provisions in this Award Agreement, the grant of
the Option shall be subject to any special terms and conditions set forth in the Addendum A to this
Award Agreement for Optionee’s country. Moreover, if Optionee relocates to another country for
which there is an Addendum A, the special terms and conditions of the Addendum A for such country
will apply to Optionee to the extent Micro 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 Addendum A constitutes part of this Award Agreement.
Section 16. Imposition of Other Requirements. The Company reserves the right to impose other
requirements on the Option and the Shares purchased upon exercise of the Option, to the extent
Micro determines it is necessary or advisable in order to comply with local laws or facilitate the
administration of the Plan, and to require Optionee to sign any additional agreements or
undertakings that may be necessary to accomplish the foregoing.
Section 17. Limitations Applicable to Section 16 Persons. Notwithstanding any other
provision of the Plan or this Award Agreement, if Optionee is subject to Section 16 of the Exchange
Act, the Plan, the Option and this Award Agreement shall be subject to any additional limitations
set forth in any applicable exemptive rule under Section 16 of the Exchange Act (including any
amendment to Rule 16b-3 of the Exchange Act) that are requirements for the application of such
exemptive rule. To the extent permitted by applicable law, this Award Agreement shall be deemed
amended to the extent necessary to conform to such applicable exemptive rule.
XXXXXX MICRO INC.
Xxxx Xxxxxxxx
Executive Vice President, Human Resources
Executive Vice President, Human Resources
Accepted and agreed as to the foregoing:
OPTIONEE
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