INGRAM MICRO INC.
Exhibit 99.22
XXXXXX MICRO INC.
2003 Equity Incentive Plan
Restricted Stock Award Agreement (“Award Agreement”)
(Time Vested)
Restricted Stock Award Agreement (“Award Agreement”)
(Time Vested)
Section 1. Grant of Restricted Stock Award. As of [INSERT DATE OF GRANT], Xxxxxx Micro
Inc., a Delaware corporation (“Micro”) hereby grants [INSERT LEGAL NAME OF AWARDEE] (“Awardee”) a
Restricted Stock Award (the “Restricted Stock Award”). This Restricted Stock Award represents the
right to receive a total of up to X,XXX shares of Class A Common Stock, $.01 par value per share,
of Micro’s common stock (the “Common Stock”), subject to the fulfillment of the vesting conditions
set forth below and 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. Restricted Stock Award. This Restricted Stock Award is not intended to
qualify as an incentive stock option award as that term is used in Section 422 of the Code.
Section 3. Time of Exercise; Expiration. This Restricted Stock Award shall become
vested as set forth below:
| Vesting Date | Restriction Period | |||
| Number Of Shares | (Date that Restrictions | and/or | ||
| Awarded | Lapse) | Other Conditions | ||
Section 4. Acceptance of Grant . This Restricted Stock Award shall be awarded by Micro
to the Awardee. The Awardee may accept this Restricted Stock Award (within 30 days of grant) by
signing and returning this document to the stock plan administrator.
Section 5. Nontransferability of Restricted Stock Award . This Restricted Stock Award
shall not be transferable by Awardee otherwise than by will or by the laws of descent and
distribution. The terms of this Restricted Stock Award shall be binding on the executors,
administrators, heirs and successors of Awardee.
Section 6. Termination or Suspension of Employment or Service.
(a) In the event Awardee voluntarily terminates his/her employment with Micro or an Affiliate,
Awardee’s unvested Restricted Stock Award will be cancelled (forfeited) on such termination date.
(b) In the event Awardee’s employment with Micro or an Affiliate is terminated by Micro or an
Affiliate, Awardee’s unvested Restricted Stock Award will be cancelled (forfeited) on such
termination date.
(c) In the event of Awardee’s Disability or death, Awardee’s unvested Restricted Stock Award
will immediately vest as of the effective date of such Awardee’s Disability, as defined under the
Plan or on the date of Awardee’s death.
(d) In the event of Awardee’s Retirement, Awardee’s unvested Restricted Stock Award will
continue to vest in accordance with the vesting schedule under this Award Agreement. Unless the
Committee otherwise permits, the Committee has determined that the term “Retirement” means that
Awardee’s employment has terminated other than by reason of death, Disability or Cause and that all
the following criteria have been satisfied at the time of termination: either (1) Awardee is at
least 65 years of age and have completed at least five years of service with Micro or an Affiliate,
or (2) Awardee is at least 55 years of age and have completed at least ten years of service with
Micro or an Affiliate. However, the number of Restricted Stock Awards awarded in the year of
Retirement will be prorated based upon the number of full months of service completed by the
retiree during the
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calendar year of Retirement divided by 12, and the number of prorated Restricted Stock Awards
will continue to vest in accordance with the vesting schedule under this Award Agreement.
(e) Except as the Committee may otherwise determine, termination of Awardee’s employment or
service for any reason shall occur on the date such Awardee ceases to perform services for Micro or
any Affiliate without regard to whether such Awardee continues thereafter to receive any
compensatory payments therefrom or is paid salary thereby in lieu of notice of termination or, with
respect to a member of the Board who is not also an employee of Micro or any Affiliate, the date
such Awardee is no longer a member of the Board.
Section 7. Restrictions on Issuance and Sale of Shares of Common Stock. Micro shall
not be obligated to sell or issue any shares of Common Stock pursuant to this Restricted Stock
Award unless the shares are at that time effectively registered or exempt from registration under
the U.S. Securities Act of 1933, as amended, and, as applicable, local laws.
Section 8. Responsibility for Taxes. Regardless of any action Micro or Awardee’s
employer (the “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”), Awardee
acknowledges that the ultimate liability for all Tax-Related Items legally due by Awardee is and
remains Awardee’s responsibility and 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
Restricted Stock Award, including the grant and vesting of the Restricted Stock Award, the delivery
of shares of Common Stock, the subsequent sale of shares of Common Stock acquired pursuant to the
Restricted Stock Award and the receipt of any dividends or other distributions, if any; and (2) do
not commit to structure the terms of the grant or any aspect of the Restricted Stock Award to
reduce or eliminate Awardee’s liability for Tax-Related Items.
Prior to a taxable event, Awardee shall pay or make adequate arrangements satisfactory to
Micro and/or the Employer to satisfy all Tax-Related Items withholding and payment on account
obligations of Micro and/or the Employer. In this regard, if permissible under local law, Awardee
authorizes Micro and/or the Employer, 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
Awardee’s wages or other cash compensation paid to Awardee by Micro and/or the Employer; (2)
withholding from proceeds of the sale of shares of Common Stock acquired pursuant to the Restricted
Stock Award; (3) arranging for the sale of shares of Common Stock acquired pursuant to the
Restricted Stock Award (on Awardee’s behalf and at Awardee’s discretion pursuant to this
authorization); or (4) withholding in shares of Common Stock, provided that Micro only withholds
the amount of shares of Common Stock necessary to satisfy the minimum withholding amount. If the
obligation for Awardee’s Tax-Related Items is satisfied by withholding a number of shares of Common
Stock as described herein, Awardee is deemed to have been issued the full number of shares of
Common Stock subject to the Restricted Stock Award, notwithstanding that a number of the shares of
Common Stock are held back solely for the purpose of paying the Tax-Related Items due as a result
of any aspect of this Restricted Stock Award.
Finally, Awardee will pay to Micro or the Employer any amount of Tax-Related Items that Micro
or the Employer may be required to withhold as a result of Awardee’s participation in the Plan or
Awardee’s acquisition of shares of Common Stock that cannot be satisfied by the means previously
described. Micro may refuse to deliver the shares of Common Stock if Awardee fails to comply with
his or her obligations in connection with the Tax-Related Items as described in this section.
Section 9. Adjustment. The number of shares of Common Stock subject to this
Restricted Stock Award and the price per share, if any, of such shares may be adjusted by Micro
from time to time pursuant to the Plan.
Section 10. Nature of the Award. By accepting this Restricted Stock Award, Awardee
acknowledges that:
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| (1) | 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, unless otherwise provided in the Plan and this Award Agreement; | ||
| (2) | the grant of the Restricted Stock Award is voluntary and occasional and does not create any contractual or other right to receive future grants of Restricted Stock Award, or benefits in lieu of Restricted Stock Awards, even if Restricted Stock Awards have been granted repeatedly in the past; | ||
| (3) | all decisions with respect to future Restricted Stock Award grants, if any, will be at the sole discretion of Micro; | ||
| (4) | participation in the Plan shall not create a right to further employment with the Employer and shall not interfere with the ability of the Employer to terminate Awardee’s employment relationship at any time with or without cause; | ||
| (5) | participating in the Plan is voluntary; | ||
| (6) | the Restricted Stock Award is an extraordinary item that does not constitute compensation of any kind for services of any kind rendered to Micro or the Employer, and which is outside the scope of Awardee’s employment contract, if any; | ||
| (7) | the Restricted Stock Award and the shares of Common Stock 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, end of service payments, bonuses, long-service awards, pension or 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 or the Employer; | ||
| (8) | in the event Awardee is not an employee of Micro or Awardee is an employee of a subsidiary or Affiliate of Micro, the Restricted Stock Award will not be interpreted to form an employment contract or relationship with Micro; and furthermore, the Restricted Stock Award will not be interpreted to form an employment contract with the Employer or any subsidiary or Affiliate of Micro; | ||
| (9) | the future value of the underlying shares of Common Stock is unknown and cannot be predicted with certainty; | ||
| (10) | if Awardee accepts the Restricted Stock Award and obtains shares of Common Stock, the value of those shares of Common Stock acquired may increase or decrease in value; and | ||
| (11) | in consideration of the grant of the Restricted Stock Award, no claim or entitlement to compensation or damages shall arise from termination of the Restricted Stock Award or diminution in value of the Restricted Stock Award or shares of Common Stock acquired under the Restricted Stock Award resulting from termination of Awardee’s employment by Micro or the Employer (for any reason whatsoever and whether or not in breach of local labor laws) and Awardee irrevocably releases Micro and the Employer from any such claim that may arise; if, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Award Agreement, Awardee shall be deemed irrevocably to have waived Awardee’s entitlement to pursue such claim; | ||
| (12) | notwithstanding any terms or conditions of the Plan to the contrary, in the event of involuntary termination of Awardee’s employment (whether or not in breach of local labor laws), Awardee’s |
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| right to receive Restricted Stock Awards under the Plan, if any, will terminate effective as of the date that Awardee is no longer actively employed; Micro shall have the exclusive discretion to determine when Awardee is no longer actively employed for purposes of the Restricted Stock Award; | |||
| (13) | the vesting of any Restricted Stock Award ceases upon termination of employment, or other cessation of eligibility to vest for any reason, except as may otherwise be explicitly provided in the Plan document or this Award Agreement; | ||
| (14) | Micro is not providing any tax, legal or financial advice, nor is Micro making any recommendations regarding Awardee’s participation in the Plan or the acquisition or the sale of shares of Common Stock under the Plan; | ||
| (15) | Awardee is advised to consult with personal tax, legal and financial advisors regarding participation in the Plan before taking any action related to the Plan; | ||
| (16) | Awardee acknowledges that this Award Agreement is between Awardee and Micro, and that the Employer is not a party to this Award Agreement; and | ||
| (17) | Awardee agrees to provide Micro with any data requested if Awardee is a mobile employee to facilitate the proper withholding and reporting by Micro and/or the Employer, as applicable. |
Section 11. Data Privacy. The Awardee explicitly and unambiguously consents to the
collection, use and transfer, in electronic or other form, of the Awardee’s personal data as
described in this document by and among, as applicable, Micro and Employer for the exclusive
purpose of implementing, administering and managing Awardee’s participation in the Plan.
Awardee hereby understands that Micro and the Employer hold certain personal information about
the Awardee, including, but not limited to, Awardee’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 restricted stock or any
other entitlement to shares of stock awarded, canceled, exercised, vested, unvested or outstanding
in the Awardee’s favor, for the purpose of implementing, administering and managing the Plan
(“Data”). Awardee hereby understands 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 Awardee’s country or elsewhere, and that the recipient’s country may have different data
privacy laws and protections than Awardee’s country. Awardee hereby understands that Awardee may
request a list with the names and addresses of any potential recipients of the Data by contacting
Awardee’s local human resources representative. Awardee authorizes the recipients to receive,
possess, use, retain and transfer the Data, in electronic or other form, for the purposes of
implementing, administering and managing the Awardee’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
Awardee may elect to deposit any shares of Common Stock acquired upon vesting of the Restricted
Stock Award. Awardee hereby understands that Data will be held only as long as is necessary to
implement, administer and manage the Awardee’s participation in the Plan as determined by Micro.
Awardee hereby understands that Awardee 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 Awardee’s local
human resources representative. Awardee hereby understands, however, that refusing or withdrawing
the Awardee’s consent may affect the Awardee’s ability to participate in the Plan. For more
information on the consequences of Awardee’s refusal to consent or withdrawal of consent, Awardee
understands that he or she may contact his or her human resources representative responsible for
Awardee’s country at the local or regional level.
Section 12. No Rights Until Issuance. Awardee shall have no rights hereunder as a
shareholder with respect to any shares subject to this Restricted Stock Award until the date of the
issuance of the stock certificate for such shares.
Section 13. 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 the
Awardee and Micro with respect to the
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subject matter hereof, and may not be modified adversely to the Awardee’s interest except by
means of a writing signed by the Awardee and Micro.
Section 14. Governing Law and Venue. The grant of this Restricted Stock Award and
this Award Agreement shall be governed by and construed according to the laws of the State of
Delaware 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 where this grant
is made and/or to be performed, and the parties to this Award Agreement consent to the exclusive
jurisdiction of such courts.
Section 15. Amendment. This Restricted Stock Award may be amended as provided in the
Plan.
Section 16. Plan and Prospectus. This Restricted Stock Award is subject to all the
terms of the Plan and the related prospectus, a copy of which has been received by the Awardee.
Section 17. Binding Agreement; Interpretation. By accepting the grant of this
Restricted Stock Award evidenced hereby, the Awardee and Micro agree that this Restricted Stock
Award is granted under and governed by the terms and conditions of the Plan and this Award
Agreement. The Awardee has reviewed the related prospectus and this Award Agreement in their
entirety, has had an opportunity to obtain the advice of counsel prior to accepting the Restricted
Stock Award and fully understands all provisions of the related prospectus and Award Agreement.
The Awardee 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.
Section 18. Language. Awardee acknowledges that Awardee may be executing part or all
of the Award Agreement in English and agrees to be bound accordingly. If the Awardee has 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.
Section 19. Electronic Delivery. Micro may, in its sole discretion, decide to deliver
any documents related to the Restricted Stock Award granted under (and participation in) the Plan
or future awards that may be granted under the Plan by electronic means or to request the Awardee’s
consent to participate in the Plan by electronic means. The Awardee hereby consents to receive
such documents by electronic delivery and, if requested, to 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 20. 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 21. Section 409A . This Award Agreement and the Restricted Stock Award 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 the transfer of
restricted property as described in Section 1.409A-1(b)(6) of the Department of Treasury
regulations. Notwithstanding any provision of this Award Agreement or the Plan to the contrary, in
the event that the Committee determines that the Restricted Stock Award 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 Restricted Stock Award from Section 409A of the Code and/or preserve the intended
tax treatment of the benefits provided with respect to the Restricted Stock Award, 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.
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Section 22. See attached Addendum A, if applicable, and if applicable, is hereby incorporated
by reference.
| XXXXXX MICRO INC. |
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| Xxxx Xxxxxxxx | ||||
| Senior Vice President, Human Resources | ||||
Accepted and agreed as to the foregoing:
AWARDEE
AWARDEE
Name
Date
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