INGRAM MICRO INC.
Exhibit
99.12
XXXXXX
MICRO INC.
2003
Equity Incentive Plan
Restricted
Stock Unit Award Agreement (“Award Agreement”)
For
Employees in France
Under
The
2008 Long-Term Executive Incentive Award Program
Section
1. Grant of Restricted Stock Unit
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 Unit Award
(the “Restricted Stock Unit Award”). This Restricted
Stock Unit Award represents the right to receive 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”), the 2008 Executive Long-Term Performance Share Program
(the “2008 LTP”) and the Rules of the Xxxxxx Micro Inc. 2003 Equity Incentive
Plan for RSU Awards Granted to Employees in France (a copy of which has been
provided to you). Capitalized terms used and not otherwise defined
herein are used with the same meanings as in the Plan.
Section
2. Restricted Stock Unit
Award. This Restricted Stock Unit Award
is not intended to qualify as a U.S. incentive stock option award as that term
is used in Section 422 of the U.S. Code.
Section
3. Time of Exercise;
Expiration. This Restricted Stock Unit
Award shall become vested as set forth below:
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Number
Of Shares Awarded
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Vesting
Date
(Date
that Restrictions Lapse)
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Vesting
Period and/or
Other
Conditions
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· Actual
amount of Restricted Stock Units vesting under this Award Agreement
in
Common Stock will vary based on actual achievement set under Exhibit
A,
“Program Payout Matrix” under the 2008 Executive Long-Term Performance
Share Program (the “2008 LTP”).
· A
copy of the 0000 XXX is attached hereto and is hereby incorporated
by this
reference
· Actual
amount of Restricted Stock Units vesting in Common Stock shall range
from
ZERO (if achievement is below threshold set in the Program Payout
Matrix)
up to a maximum of _____.
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The
date that the Human Resources Committee of the Board of Directors
reviews
achievement of Program set under the Program Payout Matrix and approves
payment of awards under the 0000 XXX after the end of the 36-month
program
term under the 2008 LTP.
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All
terms and conditions as listed in the 2008 LTP, subject to such changes
therein as may be determined from time to time by the Committee that
could
otherwise be deemed to adversely affect the rights of Awardee
hereunder.
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Section
4. Acceptance of
Grant. This Restricted Stock Unit Award
shall be awarded by Micro to the Awardee. The Awardee may, but need
not, execute or acknowledge the Award Agreement.
Section
5. Time and Form of
Payment. Subject to satisfaction of tax
or similar obligations as provided for in Section 9, any vested Restricted
Stock
Unit Awards shall be paid by Micro in shares of Common
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Stock
(on
a one-to-one basis) within 30 days after the applicable vesting date (which
for
purposes of this Section 5 includes the date of any accelerated vesting under
Section 7 below); provided that such payment is intended to satisfy the
short-term deferral exemption under Section 1.409A-1(b)(4) of the Department
of
Treasury regulations and shall be made not later than 2-½ months after the end
of the year in which such vesting date occurs.
Section
6. Nontransferability of Restricted Stock Unit
Award. This Restricted Stock Unit 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 Unit
Award shall be binding on the executors, administrators, heirs and successors
of
Awardee.
Section
7. Termination or Suspension of Employment or
Service. The following provisions shall
apply in the event of Awardee’s termination of employment or service unless the
Committee shall have provided otherwise, either at the time of the grant of
the
Restricted Stock Unit Award or thereafter.
(a) Termination
for Cause or upon a Voluntary Termination. Except as the
Committee may at any time otherwise provide or as required to comply with
applicable law, if Awardee’s employment or service with Micro or its Affiliates
is terminated for Cause or the Awardee voluntarily terminates employment,
his/her Restricted Stock Unit Award shall immediately be terminated and he/she
shall not be entitled to receive any payment thereunder.
(b) Termination
of Employment or Service by Micro or its Affiliates in
General. Except as the Committee may at any time otherwise
provide or as required to comply with applicable law, if Awardee’s employment or
service with Micro or its Affiliates is terminated for any reason other than
Voluntary Termination, Death, Disability, Retirement or Cause, Awardee’s right
to receive a payment under his/her Restricted Stock Unit Award shall be reduced
from 100% of the payment that would be due if the Awardee remained employed
throughout the Measurement Period to a fraction thereof whose numerator shall
be
the number of full months elapsed from the beginning of the Measurement Period
or, if later, the date such Awardee became an Executive through the date of
such
termination and whose denominator shall be 36; provided, however that if the
numerator is less than 12, the Restricted Stock Unit Award shall immediately
be
terminated and the Awardee shall not be entitled to receive any payment
thereunder.
(c) Death. In
the event of Awardee’s death, Awardee’s unvested Restricted Stock Unit Award
will immediately vest and become transferable to Awardee’s heirs as of the
effective date of Awardee’s death. The Company shall issue the
underlying shares to the Awardee’s heirs, at their request, within six months
following the death. If Awardee’s heirs do not request the issuance
of the underlying shares within six months of Awardee’s death, the Restricted
Stock Unit Award will be forfeited.
(d) Disability. Except
as the Committee may at any time otherwise provide or as required to comply
with
applicable law, if Awardee’s employment or service with Micro or its Affiliates
is terminated by reason of Disability, for purposes of determining the payment
he/she is entitled to receive under the Restricted Stock Unit Award, he/she
shall be treated as continuing to be employed through the end of the Measurement
Period with payout based upon the results at the end of the Measurement
Period.
(e) Effective
Time of Termination. Except as the Committee may otherwise
determine, for purposes hereof any 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.
Section
8. Restrictions on Issuance and Sale of Shares of
Common Stock. Micro shall not be
obligated to issue any shares of Common Stock pursuant to this Restricted Stock
Unit 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. The sale or transfer of the shares issued
pursuant to the Awards held by the French Participants must not occur prior
to
the relevant anniversary of the Vesting Date specified by the Committee and
in
no case prior to the second anniversary of each Vesting Date or such other
period as is required to comply with the
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minimum
mandatory holding period applicable to shares underlying French-qualified Awards
under Section L. 000-000-0 of the French Commercial Code, the French Tax Code
or
the French Social Security Code, as amended. Notwithstanding the
above, the Awardee’s heirs, in case of the Awardee’s death, or the Awardee in
case of the Awardee’s Disability (as defined under the French RSU Plan), are not
subject to this restriction on the sale of shares. In addition, the
underlying shares cannot be sold during certain “Closed Periods” as provided for
by Section L. 000-000-0 of the French Commercial Code, as amended, so long
as
those Closed Periods are applicable to shares underlying French-qualified
awards, as interpreted by the French administrative guideline, to the extent
applicable. These restrictions apply even if the Awardee is no longer
an employee or a corporate officer of the French Entity.
If
the
Awardee qualifies as a managing director under French law (“mandataires
sociaux,” (i.e., Président du Conseil d’Administration, Directeur
Général, Directeur Général Délégué, Membre du Directoire, Gérant de Sociétés par
actions), the Awardee is required to hold 20% of the shares of Common Stock
issued upon the vesting of the Restricted Stock Unit Award in a nominative
account under the procedure implemented by Micro and not to sell or transfer
the
shares of Common Stock until he or she ceases to serve as a managing director,
as long as this restriction is a requirement under French law and unless law
or
regulations provide for a lower percentage (in which case these requirements
apply to the lower percentage of shares held).
Section
9. 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
Unit
Award, including the grant and vesting of the Restricted Stock Unit Award,
the
delivery of shares of Common Stock, the subsequent sale of shares of Common
Stock acquired pursuant to the Restricted Stock Unit 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 Unit 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, within legal limits; (2) withholding
from proceeds of the sale of shares of Common Stock acquired pursuant to the
Restricted Stock Unit Award; (3) arranging for the sale of shares of Common
Stock acquired pursuant to the Restricted Stock Unit 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 Unit 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 Unit
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. Awardee
acknowledges and agrees that should the amount of withholding for Tax-Related
Items be in excess of the actual tax due, Micro and/or the Employer will refund
the excess amount to him or her as soon as administratively practicable and
without any interest. 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.
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Section
10. Adjustment. The
number of shares of Common Stock subject to this Restricted Stock Unit 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
11. Nature of the
Award. By accepting this Restricted
Stock Unit Award, Awardee acknowledges that:
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(1)
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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;
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(2)
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the
grant of the Restricted Stock Unit Award is voluntary and occasional
and
does not create any contractual or other right to receive future
grants of
Restricted Stock Unit Award, or benefits in lieu of Restricted Stock
Unit
Awards, even if Restricted Stock Unit Awards have been granted repeatedly
in the past;
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(3)
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all
decisions with respect to future Restricted Stock Unit Award grants,
if
any, will be at the sole discretion of
Micro;
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(4)
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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;
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(5)
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participating
in the Plan is voluntary;
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(6)
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the
Restricted
Stock Unit 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;
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(7)
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the
Restricted
Stock Unit 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,
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;
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(8)
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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 Unit Award
will not be interpreted to form an employment contract or relationship
with Micro; and furthermore, the Restricted Stock Unit Award will
not be
interpreted to form an employment contract with the Employer or
any subsidiary or
Affiliate of
Micro;
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(9)
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the
future value of the underlying
shares of Common Stock is unknown and cannot be predicted with
certainty;
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(10)
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if
Awardee accepts the Restricted
Stock Unit Award and obtains shares of Common Stock, the value of
those
shares of Common Stock acquired may increase or decrease in value;
and
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(11)
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in
consideration of the grant of
the Restricted Stock Unit Award, no claim or entitlement to compensation
or damages shall arise from termination of the Restricted Stock Unit
Award
or diminution in value of the Restricted Stock Unit Award or shares
of
Common Stock acquired under the Restricted Stock Unit Award resulting
from termination
of Awardee’s employment by
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Micro
or the Employer 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;
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(12)
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notwithstanding
any terms or
conditions of the Plan to the contrary, in the event of involuntary
termination of Awardee’s employment,
Awardee’s
right
to receive Restricted
Stock Units
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 Unit
Award;
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(13)
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the
vesting of any Restricted
Stock Unit
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;
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(14)
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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;
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(15)
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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;
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(16)
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Awardee
acknowledges
that this Award Agreement is
between Awardee
and Micro,
and that
the Employer
is not a party to
this Award Agreement;
and
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(17)
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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.
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Section
12. 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 units 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 Unit
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.
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Section
13. No Rights Until
Issuance. Awardee shall have no rights
hereunder as a shareholder with respect to any shares subject to this Restricted
Stock Unit Award until the date of the issuance of the stock certificate for
such shares.
Section
14. 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 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
15. Governing Law and
Venue. The grant of this Restricted
Stock Unit 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 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
16. Amendment. This
Restricted Stock Unit Award may be amended as provided in the Plan.
Section
17. Plan and
Prospectus. This Restricted Stock Unit
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
18. Binding Agreement;
Interpretation. By accepting the grant
of this Restricted Stock Unit Award evidenced hereby, the Awardee and Micro
agree that this Restricted Stock Unit 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 Unit 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
16. 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
17. Electronic
Delivery. Micro may, in its sole
discretion, decide to deliver any documents related to the Restricted Stock
Unit
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
18. 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
19. Code Section
409A. The payment of the Restricted
Stock Unit Awards under Section 5 is intended to satisfy the short-term deferral
exemption under Treasury Regulation Section
1.409A-1(b)(4). Notwithstanding any provision of this Award Agreement
or the Plan to the contrary, in the event that following the date of grant,
the
Committee determines that it may be necessary or appropriate to do so, the
Committee may adopt such amendments to 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
6
determines
are necessary or appropriate to (a) exempt the Restricted Stock Unit Award
from
Section 409A of the Code and/or preserve the intended tax treatment of the
benefits provided with respect to the Restricted Stock Unit 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.
Section
20. Acknowledgment. “En
acceptant le présent document décrivant les termes et conditions mon attribution
des Actions de Récompense Gratuites, je confirme ainsi avoir lu et compris les
documents relatifs à cette attribution (le Plan U.S. tel qu’xxxxxx par le Plan
pour la France et ce Contrat de Récompense) qui m’ont été communiqués en langue
anglaise. J’en accepte les termes en connaissance de
cause.”
“By
accepting this document providing for the terms and conditions of the Restricted
Stock Unit Award grant, I confirm having read and understood the documents
relating to this grant (the U.S. Plan, as amended, the French RSU Plan and
this
Award Agreement) which were provided to me in English. I accept the
terms of those documents accordingly.”
Section
21. 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
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Accepted
and agreed as to the foregoing:
AWARDEE
_________________________
Name
_________________________
Date
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