INGRAM MICRO INC. Amended and Restated 2003 Equity Incentive Plan Non-EU Restricted Stock Award Agreement (“Award Agreement”) (Time Vested)
EXHIBIT
99.12
XXXXXX MICRO INC.
Amended and Restated 2003 Equity Incentive Plan
Non-EU Restricted Stock Award Agreement (“Award Agreement”)
(Time Vested)
Non-EU 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. 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. Vesting. Subject to the provisions of this Award Agreement, this
Restricted Stock Award shall become vested, and the Restrictions shall lapse, as set forth below,
provided Awardee remains employed with Micro or any of its Affiliates (collectively, the
“Employer”) through the respective Vesting Date:
| Vesting Date | Restriction Period | |||
| Number Of Shares | (Date that Restrictions | and/or | ||
| Awarded | Lapse) | Other Conditions | ||
| X,XXX | December 31, 2011 | March 1, 2011 to December 31, 2011. See Section 8 below and Section 11 of the Plan. |
For purposes of this Award Agreement, “Restrictions” shall mean the restrictions on sale or other
transfer set forth in Section 3 and the exposure to forfeiture set forth in the schedule above.
Section 3. Nontransferability of Restricted Stock Award. This Restricted Stock Award
shall not be assigned, alienated, pledged, attached, sold or otherwise transferred by Awardee,
except 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 4. Termination or Suspension of Employment or Service. The following
provisions shall apply in the event of Awardee’s termination of employment, or with respect to a
member of the Board who is not an Employee, Awardee’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 Cause or any reason other than death,
Disability or Retirement. Except as the Committee may at any time otherwise provide or as
required to comply with applicable law, if Awardee’s employment with the Employer, or service with
Micro, as applicable, is terminated for Cause or any reason other than death, Disability or
Retirement (whether or not in breach of local labor laws), the unvested Restricted Stock Award
shall be cancelled (forfeited) on the Termination Date (as defined in Section 4(d) below) and
Awardee shall not be entitled to receive any payment thereunder.
(b) Disability or Death. Except as the Committee may at any time otherwise provide or
as required to comply with applicable law, if Awardee’s employment with the Employer, or service
with Micro, as applicable, is terminated due to Disability or death, the unvested Restricted Stock
Award will immediately vest as of the Termination Date (as defined in Section 4(d) below) or the
date of Awardee’s death. 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.
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(c) Retirement. Except as the Committee may at any time otherwise provide or as
required to comply with applicable law, if Awardee’s employment with the Employer, or service with
Micro, as applicable, is terminated due to Retirement, Awardee’s unvested Restricted Stock Award
will continue to vest in accordance with the vesting schedule set forth in Section 2 of 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 of the following criteria have been satisfied as of the
Termination Date (as defined in Section 4(d) below): either (1) Awardee is at least 65 years of age
and has completed at least five years of service with the Employer, or (2) Awardee is at least 55
years of age and has completed at least ten years of service with the Employer. However, if
Awardee’s employment or service with Micro or an Affiliate is terminated by reason of Retirement
within 12 months of his/her grant date, Awardee shall receive on each Vesting Date, as applicable,
a prorated payment under the Restricted Stock Award based on the number of full calendar months of
participation as an Awardee, from the grant date through the Termination Date, as the numerator,
and whose denominator shall be 12.
(d) Termination Date. Except as the Committee may otherwise determine, for purposes
hereof, (i) any termination of Awardee’s employment or service for any reason shall occur on the
date such Awardee ceases to be actively employed by the Employer 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, and (ii) with respect to a member of the Board who is not
also an Employee, any termination of Awardee’s service with Micro shall occur on the date such
Awardee 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 the Restricted Stock Award.
Section 5. Restrictions on Issuance and Sale of Shares of Common Stock. Micro shall
not be obligated to sell or issue any Shares pursuant to this Restricted Stock Award 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 grant of this Restricted Stock
Award as the Committee may from time to time establish for reasons of administrative convenience
but in any event within 30 days of the Vesting Date.
Section 6. Responsibility for Taxes. 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 Awardee’s participation in the Plan and legally applicable to
Awardee or deemed by Micro or the Employer to be an appropriate charge to Awardee even if
technically due by Micro or the Employer (“Tax-Related Items”), Awardee acknowledges that the
ultimate liability for all Tax-Related Items is and remains Awardee’s responsibility and may exceed
the amount actually withheld by Micro or the Employer. Awardee further acknowledges that Micro
and/or the Employer (1) make no representations or undertakings regarding the treatment of any
Tax-Related Items
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in connection with any aspect of the Restricted Stock Award, including, but not limited to,
the grant or vesting of the Restricted Stock Award, the lapse of any Restrictions applicable to the
Restricted Stock Award, the subsequent sale of Shares acquired pursuant to the Restricted Stock
Award and the receipt of any dividends or other distributions, if any; and (2) do not commit to and
are under no obligation 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 or achieve any particular
tax result. Further, if Awardee 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,
Awardee 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, Awardee will pay or
make adequate arrangements satisfactory to Micro and/or the Employer to satisfy all Tax-Related
Items. In this regard, Awardee 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 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 acquired pursuant to
the Restricted Stock Award, either through a voluntary sale or mandatory sale arranged by Micro (on
Awardee’s behalf pursuant to this authorization); or (3) withholding in Shares acquired pursuant to
the Restricted Stock Award. 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, Awardee is deemed to have vested in the full
number of Shares subject to the Restricted Stock Award, 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 Awardee’s participation in the Plan.
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 or account for as a result of Awardee’s participation
in the Plan or Awardee’s acquisition of Shares that cannot be satisfied by the means previously
described. Micro may refuse to deliver the Shares or the proceeds of the sale of Shares if Awardee
fails to comply with his or her obligations in connection with the Tax-Related Items.
Section 7. Adjustment. The number of Shares subject to this Restricted Stock Award
may be adjusted by Micro from time to time pursuant to Section 12 of the Plan.
Section 8. Nature of the Award. By accepting this Restricted Stock Award, Awardee
acknowledges, understands and agrees that:
(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;
(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
or service with Micro and shall not interfere with the ability of Micro or the Employer to
terminate Awardee’s employment or service relationship at any time;
(5) participating in the Plan is voluntary;
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(6) the Restricted Stock Award and the Shares subject to the Restricted Stock Award 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 Awardee’s employment contract,
if any;
(7) the Restricted Stock Award and the Shares subject to the Restricted Stock Award are not
intended to replace any pension rights or compensation;
(8) the Restricted Stock Award and the Shares subject to the Restricted Stock Award 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;
(9) the Restricted Stock Award and Awardee’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;
(10) the future value of the underlying Shares is unknown and cannot be predicted with
certainty;
(11) no claim or entitlement to compensation or damages shall arise from forfeiture of the
Restricted Stock Award resulting from the termination of Awardee’s employment with the Employer or
the termination of Awardee’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 Restricted
Stock Award to which Awardee is otherwise not entitled, Awardee 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, Awardee 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;
(12) the vesting of any Restricted Stock Award 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 this Award Agreement;
(13) Awardee acknowledges that this Award Agreement is between Awardee and Micro, and that the
Employer is not a party to this Award Agreement;
(14) 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; and
(15) Awardee 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 Restricted Stock Award is granted, 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
Award Agreement shall be deemed amended to the extent necessary to conform to such laws, rules and
regulations.
Section 9. No Advice Regarding Grant. 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 the underlying Shares. Awardee 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.
Section 10. Data Privacy. Awardee explicitly and unambiguously consents to the
collection, use and transfer, in electronic or other form, of Awardee’s personal data as described
in this Award Agreement and any other Restricted Stock Award grant materials by and among, as
applicable, the Employer, Micro and its
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subsidiaries and Affiliates for the exclusive purpose of implementing, administering and
managing Awardee’s participation in the Plan.
Awardee hereby understands that Micro and the Employer may hold certain personal information
about 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 Awardee’s favor, for the exclusive purpose of implementing, administering and
managing the Plan (“Data”). Awardee 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 the United States or elsewhere, and that the recipient’s country
(e.g., the United States) 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 sole purpose of implementing, administering and
managing 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
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 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 Awardee’s consent may affect 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 11. 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
certificates representing such Shares (which may be in book entry or electronic form) are issued,
recorded on the records of Micro or its broker, transfer agent or registrar, and delivered to
(including through electronic delivery to a brokerage account) Awardee. The Shares so delivered
shall no longer be subject to the Restrictions hereunder.
Section 12. 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 Awardee
and Micro with respect to the subject matter hereof, and may not be modified adversely to Awardee’s
interest except by means of a writing signed by Awardee and Micro.
Section 13. 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, 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 Restricted Stock Award, this Award Agreement or
the Plan may be brought only in the state or federal courts located in Orange County, California,
U.S.A., and no other courts, 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.
Section 14. Amendment. This Restricted Stock Award may be amended as provided in the
Plan.
Section 15. 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 Awardee.
Section 16. Binding Agreement; Interpretation. By accepting the grant of this
Restricted Stock Award evidenced hereby, 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.
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.
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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 17. Language. Awardee acknowledges that Awardee may be executing part or all
of the Award Agreement in English and agrees to be bound accordingly. If Awardee 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.
Section 18. 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. Awardee
hereby consents to receive such documents by electronic delivery and agrees to participate in the
Plan through an on-line or electronic system established and maintained by Micro or a third party
designated by Micro.
Section 19. 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 20. Code Section 409A. To the extent applicable, this Award Agreement shall
incorporate the terms and conditions required by Section 409A of the Code and be interpreted in
accordance with Section 409A of the Code and Department of Treasury regulations and other
interpretive guidance issued thereunder. 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 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.
Section 21. Addendum A. Notwithstanding any provisions in this Award Agreement, the
grant of the Restricted Stock Award shall be subject to any special terms and conditions set forth
in the Addendum A to this Award Agreement for Awardee’s country. Moreover, if Awardee 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 Awardee, 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 22. Imposition of Other Requirements. Micro reserves the right to impose
other requirements on Awardee’s participation in the Plan, on the Restricted Stock Award and on any
Shares acquired under the Plan, to the extent Micro determines it is necessary or advisable in
order to comply with local law or facilitate the administration of the Plan, and to require Awardee
to sign any additional agreements or undertakings that may be necessary to accomplish the
foregoing.
Section 23. Limitations Applicable to Section 16 Persons. Notwithstanding any other
provision of the Plan or this Award Agreement, if Awardee is subject to Section 16 of the Exchange
Act, the Plan, the Restricted Stock Award 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.
Section 24. Section 83(b). This Section 24 only applies to Awardees who are U.S.
taxpayers. Awardee understands that Section 83(a) of the Code taxes as ordinary income the
difference between the amount, if any, paid for the Shares and the Fair Market Value of such Shares
at the time the Restrictions on such Shares lapse. Awardee understands that, notwithstanding the
preceding sentence, Awardee may elect to be taxed at the time of the date of grant of the
Restricted Stock Award, rather than at the time the Restrictions lapse, by filing an election under
Section 83(b) of the Code (an “83(b) Election”) with the U.S. Internal Revenue Service within 30
days of the date of
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grant. In the event Awardee files an 83(b) Election, Awardee shall provide Micro a copy thereof
prior to the expiration of such 30 day period. Awardee understands that in the event an 83(b)
Election is filed with the U.S. Internal Revenue Service within such time period, Awardee will
recognize ordinary income in an amount equal to the difference between the amount, if any, paid for
the Shares and the Fair Market Value of such Shares as of the date of grant. Awardee further
understands that an additional copy of such 83(b) Election form should be filed with his or her
federal income tax return for the calendar year in which the date of this Award Agreement falls.
Awardee acknowledges that the foregoing is only a summary of the effect of United States federal
income taxation with respect to the Restricted Stock Award hereunder, and does not purport to be
complete. AWARDEE FURTHER ACKNOWLEDGES THAT MICRO IS NOT RESPONSIBLE FOR FILING AWARDEE’S 83(b)
ELECTION, AND MICRO HAS DIRECTED AWARDEE TO SEEK INDEPENDENT ADVICE REGARDING THE APPLICABLE
PROVISIONS OF THE U.S. INTERNAL REVENUE CODE, THE INCOME TAX LAWS OF ANY MUNICIPALITY, STATE OR
FOREIGN COUNTRY IN WHICH AWARDEE MAY RESIDE, AND THE TAX CONSEQUENCES OF AWARDEE’S DEATH.
AWARDEE HEREBY ASSUMES ALL RESPONSIBILITY FOR FILING AWARDEE’S 83(b) ELECTION AND PAYING ANY
TAXES RESULTING FROM SUCH ELECTION OR FROM FAILURE TO FILE THE ELECTION AND PAYING TAXES RESULTING
FROM THE LAPSE OF THE RESTRICTIONS ON THE UNVESTED SHARES.
AWARDEE UNDERSTANDS THAT AWARDEE MAY SUFFER ADVERSE TAX CONSEQUENCES AS A RESULT OF AWARDEE’S
PURCHASE OR DISPOSITION OF THE SHARES AND AWARDEE REPRESENTS THAT AWARDEE IS NOT RELYING ON MICRO
FOR ANY TAX ADVICE.
XXXXXX MICRO INC.
Xxxx Xxxxxxxx
Executive Vice President, Human Resources
Executive Vice President, Human Resources
Accepted and agreed as to the foregoing:
AWARDEE
AWARDEE
Name |
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Date |
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