INGRAM MICRO INC.
EXHIBIT
99.4
XXXXXX MICRO INC.
Section 1. Grant of Restricted Stock Unit Award. As of [Insert Grant Date], Xxxxxx
Micro Inc., a Delaware corporation (“Micro”) hereby grants [Legal Name] (“Awardee”) a Restricted
Stock Unit Award (the “Restricted Stock Unit Award”). This Restricted Stock Unit 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 Unit Award. This Restricted Stock Unit 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 Unit Award shall
become vested as set forth below:
| Vesting Date | ||||
| Number Of Shares | (Date that | Vesting Period and/or | ||
| Awarded | Restrictions Lapse) | Other Conditions | ||
Section 4. Acceptance of Grant. This Restricted Stock Unit Award shall be awarded by
Micro to the Awardee. The Awardee may accept this Restricted Stock Unit Award (within 30 days of
grant) by signing and delivering this Award Agreement to the stock plan administrator.
Section 5. Nontransferability of Restricted Stock Unit Award. This Restricted Stock
Unit Award shall not be transferable by Awardee otherwise than
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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 6. Termination or Suspension of Employment or Service (as generally defined
under Section 11 of the Plan).
(a) In the event Awardee voluntarily terminates his/her employment with Micro or an Affiliate,
Awardee’s unvested Restricted Stock Unit 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 Unit Award will be cancelled (forfeited) on such
termination date.
(c) In the event of Awardee’s Disability or death, Awardee’s unvested Restricted Stock Unit
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) 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 Purchase and Sale of Shares. Micro shall not be obligated
to sell or 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.
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 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 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 Award to reduce or eliminate Awardee’s liability for
Tax-Related Items.
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Prior to a taxable event, Awardee shall pay or make adequate arrangements satisfactory to
Micro and/or the Employer to satisfy all withholding and payment on account obligations of Micro
and/or the Employer. In this regard, Awardee authorizes Micro and/or the Employer to withhold all
applicable Tax-Related Items legally payable by Awardee from Awardee’s wages or other cash
compensation paid to Awardee by Micro and/or the Employer or from proceeds of the sale of shares of
Common Stock. Alternatively, or in addition, if permissible under local law, Micro may (1) sell or
arrange for the sale of shares of Common Stock that Awardee acquires to meet the withholding
obligation for Tax-Related Items, and/or (2) withhold in shares of Common Stock, provided that
Micro only withholds the amount of shares of Common Stock necessary to satisfy the minimum
withholding amount. Finally, Awardee shall 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 Awardee’s 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 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 10. Nature of the Award. By accepting this Restricted Stock Unit Award,
Awardee acknowledges 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, unless otherwise provided in the Plan and this Award Agreement; | ||
| (2) | 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; | ||
| (3) | all decisions with respect to future Restricted Stock Unit 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; |
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| (6) | 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; | ||
| (7) | the Restricted Stock Unit Award is not part of normal or expected compensation or salary for any purposes, including, but not limited to, calculating any severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments 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, 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; | ||
| (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 Unit 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 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 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) | in the event of involuntary termination of Awardee’s employment for cause (“cause” shall mean Awardee’s commission of a felony, gross negligence, fraud or material failure to use his/her best efforts to perform his/her duties to Micro or an Affiliate, which material failure continues for a period of 30 days following written notice thereof from Micro or an Affiliate) (whether or not in breach of local labor laws), Awardee’s right to receive Restricted Stock Unit Award and vest in the Restricted Stock Unit Award under the Plan will terminate effective as of the date the Awardee is no longer actively employed and will not be extended by any notice period mandated under local law (e.g., active employment would not include a period of “garden leave” or similar period pursuant to local law); furthermore, in the event of involuntary termination of employment for cause (whether or not in breach of local labor laws), Awardee’s right to vest in the Restricted Stock Unit Award after termination of employment, if any, will be measured by the date of termination of Awardee’s active employment and will not be extended by any notice period mandated under local law; the Committee shall have the exclusive discretion to determine when Awardee is no longer actively employed for purposes of Awardee’s grant of Restricted Stock Unit Award. |
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.
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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, social insurance number or other identification number, salary, nationality, job title,
any shares of stock or directorships held in Micro, details of all options or any other entitlement
to shares of stock awarded, canceled, exercised, vested, unvested or outstanding in 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 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. 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 Unit Award until the date
of the issuance of the stock certificate for such shares.
Section 13. Governing Law. 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.
Section 14. Amendment. This Restricted Stock Unit Award may be amended as provided in
the Plan.
Section 15. Language. If the Awardee has received this or any other document related
to the Plan translated into a language other than English and if
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the translated version is different than the English version, the English version will
control.
Section 16. 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 17. 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 18.
See attached Addendum A, if applicable, which is hereby incorporated by
reference.
| XXXXXX MICRO INC. | ||
 |
||
| Xxxxxxx X. Xxxxx | ||
| SVP, Human Resources — WW |
Accepted and agreed as to the foregoing:
AWARDEE
AWARDEE
Name
Date
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Addendum A:
Section 18. Belgium Notice. You understand that if the Award Agreement is not specifically
accepted by signing and returning this agreement to Xxxxxxxx Xxxxxxxxxx, Manager, Stock Plan
Administration, at Xxxxxx Micro Inc., 0000 X. Xx. Xxxxxx Xxxxx, Xxxxx Xxx, XX 00000-0000 by
[Insert Date], your Award will be deemed rejected and forfeited. In this case, you will not be
entitled to retain any right to your Award. You acknowledge that you have been encouraged to
discuss this matter with your financial or tax advisor and that any acceptance is made knowingly.
You further acknowledge that if you do not accept the Award, you will not be entitled to any
payment or benefit in lieu of the Award.
You are required to report any security or bank account maintained outside of Belgium on your
annual tax return.
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Addendum A:
Section 18. Singapore Notice. If you are a director, associate director or shadow
director of a Singapore affiliate of Micro, you are subject to certain notification requirements
under the Singapore Companies Act. Among these requirements is an obligation to notify the
Singapore affiliate in writing when you receive an interest (e.g., options, shares) in Micro or any
related companies. Please contact Micro to obtain a copy of the notification form. You must also
notify the Singapore affiliate when you sell shares of Micro or any related company (including when
you sell shares acquired under the Plan). These notifications must be made within two days of
acquiring or disposing of any interest in Micro or any related company. In addition, a
notification must be made of your interests in Micro or any related company within two days of
becoming a director.
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