INGRAM MICRO INC.
Exhibit
99.8
XXXXXX
MICRO INC.
2003
Equity Incentive Plan
NON-QUALIFIED
STOCK OPTION
AWARD
AGREEMENT
(Non-European
Union
Countries)
Section
1. Grant of Option. As of
______________, Xxxxxx Micro Inc., a Delaware Corporation
(“Micro”) hereby grants to [Legal Name]
(“Optionee”) a non-qualified stock
option (the
“Option”) exercisable in whole or in part, to purchase,
pursuant to the terms hereof, X,XXX shares of Class A Common
Stock, $.01 par value per share, of Micro’s common stock (the “Common
Stock”), at a price of $XX.XX per share pursuant to
and subject to the terms and conditions set forth in the Xxxxxx Micro Inc.
2003
Equity Incentive Plan (the “Plan”). Capitalized
terms used and not otherwise defined herein are used with the same meanings
as
in the Plan.
Section
2. Non-Qualified Stock
Option. This Option is not intended to
qualify as an incentive stock option as that term is used in Section 422 of
the
Code.
Section
3. Time of Exercise;
Expiration. (a) This Option
shall become exercisable set forth below:
Shares Vesting
Date
X,XXX [INSERT
VESTING DATE]
X,XXX [INSERT
VESTING DATE]
X,XXX [INSERT
VESTING DATE]
(b) The
Option may not be exercised after 5:00pm (PST) in Santa Ana,
California, on [INSERT OPTION EXPIRATION DATE].
Section
4. Manner of
Exercise. This Option shall be
exercised by Optionee (or other party entitled to exercise the Option under
Section 6 of this Award Agreement) by delivering written notice to the stock
plan administrator stating the number of shares of Common Stock being purchased
and the address and employee identification number or other identification
number of the purchaser, together with payment of the purchase price for the
shares of Common Stock being purchased in a manner permitted by Section 6 of
the
Plan except such payment may not be made in shares of Common Stock already
owned
by the Optionee and plus an amount sufficient to satisfy the tax withholding
requirement set forth in Section 14(e) of the Plan and this Award Agreement
if
necessary.
Section
5. Nontransferability of
Option. This Option shall not be
transferable by Optionee otherwise than by will or by the laws of descent and
distribution. The terms of this Option shall be binding on the
executors, administrators, heirs and Successors of Optionee.
Section
6. Termination of Employment.
(a) If
your employment is terminated for any reason other than death, Disability,
Retirement or Cause your vested Non-Qualified Stock Options and Stock
Appreciation Rights will expire 90 days from your
termination. Unless the Committee otherwise
provides, if your employment with us or any of our Affiliates is terminated
for
any reason other than your death, Disability, Retirement or Cause, your
Non-Qualified Stock Options and Stock Appreciation Rights will expire 90 days
(or, if later, on the 15th day following
the
end of any Micro-imposed restrictions in effect during such 90 day period on
your ability to engage in transactions involving Shares (such 15th day, the
“Extended
Date”)) following such termination, or the date your Options or Stock
Appreciation Rights would otherwise expire by their terms, had it not been
for
your termination date. Your Non-Qualified Stock Options or
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Stock
Appreciation Rights will be exercisable prior to the expiration date only if
they would be exercisable on the date of your termination of
employment. Any time you spend in the status of “leave without pay”
extends the period otherwise required for purposes of determining the extent
to
which any Award or portion has vested or become exercisable or
nonforfeitable.
(b) If
your
employment is terminated as a result of your death, your vested Non-Qualified
Stock Options and Stock Appreciation Rights will expire five years from your
date of death. Unless the Committee otherwise provides, if
you die while employed by us or any of our Affiliates, your estate will have
the
right to exercise your vested Non-Qualified Stock Options and Stock Appreciation
Rights through the fifth anniversary of your death, but not later than the
date
your Options or Rights would otherwise expire by their terms.
(c) If
your
employment is terminated as a result of your death, your unvested Non-Qualified
Stock Options and Stock Appreciation Rights will immediately vest and will
expire five years from your date of death. Unless the
Committee otherwise provides, if you die while employed by us or any of our
Affiliates, your unvested Non-Qualified Stock Options and Stock Appreciation
Rights will immediately vest. Your estate will have the right to
exercise your newly vested Non-Qualified Stock Options and Stock Appreciation
Rights through the fifth anniversary of your death, but not later than the
date
your Options or Rights would otherwise expire by their terms.
(d) If
your employment is terminated as a result of your Disability, your vested
Non-Qualified Stock Options and Stock Appreciation Rights will expire five
years
from your disability termination date. Unless the
Committee otherwise provides, if Optionee becomes disabled (as determined by
the
Committee) while providing service to Micro, Optionee will have the right to
exercise the Options which are vested through the fifth anniversary of the
last
scheduled vesting date of the grant in which Optionee received the Options,
but
not later than the date the Options would otherwise expire by their
terms.
(e) If
your employment is terminated as a result of your Disability, your unvested
Non-Qualified Stock Options and Stock Appreciation Rights will immediately
vest
and will expire five years from your disability termination
date. You will have the right to exercise your
newly vested Non-Qualified Stock Options and Stock Appreciation Rights through
the fifth anniversary of your disability termination date, but not later than
the date your Options or Rights would otherwise expire by their
terms.
(f) If
your employment is terminated due to Retirement, your vested Non-Qualified
Options and Stock Appreciation Rights will expire five years from your
retirement date. Unless the Committee otherwise provides, if
you retire from employment with us or any of our Affiliates, you will have
the
right to exercise your vested Non-Qualified Stock Options and Stock Appreciation
Rights through the fifth anniversary of your retirement date, but not later
than
the date your Options or Rights would otherwise expire by their
terms. Unless the Committee otherwise permits, the Committee has
determined that the term “Retirement” means that your employment has terminated
other than by reason of death, Disability or Cause and that all of the following
criteria have been satisfied at the time of termination: either (1) you are
at
least 65 years of age and have completed at least five years of service with
the
Company or an Affiliate, or (2) you are at least 55 years of age and have
completed at least ten years of service with the Company or an
Affiliate.
(g) If
your employment is terminated due to Retirement, your unvested Non-Qualified
Options and Stock Appreciation Rights will continue to vest and will expire
five
years from your retirement date. However, any
unvested Non-Qualified Options and Stock Appreciation Rights awarded in the
year
of retirement will be prorated based upon the number of full months completed
by
the retiree in the year of retirement divided by 12, and continue to
vest. Unless the Committee otherwise provides, if you retire
from employment with us or any of our Affiliates, you will have the right to
exercise your vested Non-Qualified Stock Options and Stock Appreciation Rights
through the fifth anniversary of your retirement date, but not later than the
date your Options or Rights would otherwise expire by their terms. Unless the
Committee otherwise permits, the Committee has determined that the term
“Retirement” means that your employment has terminated other than by reason of
death, Disability or Cause and that all of the following criteria have been
satisfied at the time of termination: either (1) you are at least 65 years
of
age and have completed at least five years of service with the Company or an
Affiliate, or (2) you are at least 55 years of age and have completed at least
ten years of service with the Company or an Affiliate.
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(h) If
your employment is terminated for Cause. If your employment
is terminated for Cause, your Non-Qualified Stock Options and Stock Appreciation
Rights will expire and terminate on the date of such termination.
(i) If
you are employed outside the United States. Unless the
Committee otherwise provides, in the event of your termination of employment
for
any reason other than death, Disability, Retirement or Cause, if you are
employed outside the United States, your right to exercise any Non-Qualified
Stock Option and Stock Appreciation Rights shall terminate, and such Option
or
Stock Appreciation Right shall expire and lapse, on the earlier of (x) the
90th
day (or if later, the Extended Date) following the first to occur of (1) the
time Micro or its Affiliate (your employer) gives notice to you of your
termination of employment, or (2) you give notice to Micro or its Affiliate
(your employer) to terminate your employment, or (3) if no such notice is given,
on the date your employment with Micro or its Affiliate (your employer) is
terminated (whichever the first to occur of (1), (2) or (3) collectively,
“Notice/Termination”) or (y) the date such Option or Stock Appreciation Right
would have expired had it not been for the Notice/Termination. You
shall have the right to exercise such Option or Stock Appreciation Right prior
to such expiration to the extent it was exercisable at the date of
Notice/Termination and shall not have been exercised. You shall not
be entitled and, by accepting the grant of any Non-Qualified Stock Option or
Stock Appreciation Right, shall be deemed irrevocably to have waived any
entitlement, by way of compensation for loss of office or damages for breach
of
contract or otherwise, to any sum or other benefit to compensate for the loss
of
any rights under the Plan.
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 Option unless the
shares are at that time effectively registered or exempt from registration
under
the Securities Act of 1933, as amended.
Section
8. Adjustment. The
number of shares of Common Stock subject to this Option and the price per share
of such shares may be adjusted by Micro from time to time pursuant to the
Plan.
Section
9. No Rights Until
Exercise. Optionee shall have no rights
hereunder as a shareholder with respect to any shares subject to this Option
until he or she becomes the registered holder of such shares.
Section
10. Amendment. This
Option may be amended as provided in the Plan.
Section
11. Plan and
Prospectus. This Option is subject to
all the terms of the Plan and the related prospectus, a copy of which has been
received by the Optionee.
Section
12. Severability. The
provisions of this Award Agreement are severable and if any one or more
provisions are determined to be illegal or otherwise unenforceable, in whole
or
in part, the remaining provisions shall nevertheless be binding and
enforceable.
Section
13. Acknowledgement.
(a) Nature
of Grant.
In
accepting the grant, you acknowledge that:
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(i)
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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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(ii)
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the
grant of the Option is voluntary and occasional and does not create
any
contractual or other right to receive future grants of options, or
benefits in lieu of options, even if options have been granted repeatedly
in the past;
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(iii)
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all
decisions with respect to future option grants, if any, will be at
the
sole discretion of Micro;
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(iv)
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your
participation in the Plan shall not create a right to
further employment with your employer and shall not
interfere with the ability of your employer to terminate your employment
relationship at any time with or without
cause;
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(v) you
are voluntarily participating in the Plan;
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(vi)
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the
Option is an extraordinary item that does not constitute compensation
of
any kind for services of any kind rendered to Micro or your employer,
and
which is outside the scope of your employment contract, if
any;
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(vii)
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the
Option 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 your
employer;
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(viii)
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in
the event that you are an employee of a subsidiary or Affiliate of
Micro,
the option grant will not be interpreted to form an employment contract
or
relationship with Micro; and furthermore, the option grant will not
be
interpreted to form an employment contract with your employer or
any
subsidiary or Affiliate of Micro;
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(ix)
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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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(x) if
the underlying shares do not increase in value, the Option will have no
value;
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(xi)
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if
you exercise your Option and obtain shares, the value of those shares
acquired upon exercise may increase or decrease in value, even below
the
Option price;
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(xii)
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in
consideration of the option grant, no claim or entitlement to compensation
or damages shall arise from termination of the Options or diminution
in
value of the Option or shares purchased through exercise of the Option
resulting from termination of your employment by Micro or your employer
(for any reason whatsoever and whether or not in breach of local
labor
laws) and you irrevocably release Micro and your 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, you shall be deemed irrevocably to
have
waived your entitlement to pursue such
claim;
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(xiii)
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notwithstanding
any terms or
conditions of the Plan to the contrary, in the event of involuntary
termination of your employment (whether or not in breach of local
labor
laws), your right to receive/exercise
options under the Plan, if any,
will terminate effective as of the date that you are no longer actively
employed; Micro shall have the exclusive discretion to determine
when you
are no longer actively employed for purposes of the
Option;
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(xiv)
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the
vesting of any Option 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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(xv)
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Micro
is not providing any tax,
legal or financial advice, nor is Micro making any recommendations
regarding your participation in the Plan, the exercise of the Option
or
the purchase or sale of shares of Common Stock under the
Plan;
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(xvi)
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you
are 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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(xvii)
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you
acknowledge that this Award
Agreement is between you and Micro, and that your employer is not
a party to
this Award
Agreement; and
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(xviii)
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you
agree to provide Micro with
any data requested if you are a mobile employee to facilitate the
proper
withholding and reporting by Micro and/or your employer as
applicable.
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(b) Tax
Reporting and Payment Liability. Regardless of any action
Micro or your 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”), you acknowledge that the ultimate liability for all
Tax-Related Items legally due by you is and remains your responsibility and
that
Micro and/or your employer (1) make no representations or undertakings
regarding the treatment of any Tax-Related Items in connection with any aspect
of the Option grant, including the grant, vesting or exercise of the Option
and
the subsequent sale of shares; and (2) do not commit to structure the terms
of the grant or any aspect of the Option to reduce or eliminate your liability
for Tax-Related Items.
Prior
to the relevant taxable event,
you shall pay or make adequate arrangements satisfactory to Micro and/or your
employer to satisfy all Tax-Related Items withholding obligations of Micro
and/or your employer. In this regard, you authorize Micro and/or your
employer, at their sole discretion 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 your wages or other cash compensation paid
to
you by Micro and/or your employer; (2) withholding from proceeds of the sale
of
shares of Common Stock acquired upon exercise of the Option; (3) arranging
for
the sale of shares of Common Stock acquired upon exercise of the Option (on
your
behalf and at your 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 your Tax-Related Items is satisfied by
withholding a number of shares of Common Stock as described herein, you are
deemed to have been issued the full number of shares of Common Stock subject
to
the Option, 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 Option.
Finally,
you will pay to Micro or your
employer any amount of Tax-Related Items that Micro or your employer may be
required to withhold as a result of your participation in the Plan or your
purchase of shares of Common Stock that cannot be satisfied by the means
previously described. Micro may refuse to honor the exercise and
refuse to deliver the shares of Common Stock if you fail to comply with his
or
her obligations in connection with the Tax-Related Items as described in this
section.
(c) Data
Privacy Consent. You hereby explicitly
and unambiguously consent to the collection, use and transfer, in electronic
or
other form, of your personal data as described in this document by and among,
as
applicable, your employer and Micro for the exclusive purpose of implementing,
administering and managing your participation in the
Plan.
You
understand that Micro and your employer hold certain personal information about
you, including, but not limited to, your name, home address and telephone
number, date of birth, employee identification number or other identification
number, salary, nationality, job title, any shares of stock or directorships
held in Micro, details of all options or any other entitlement to shares of
Common Stock awarded, canceled, exercised, vested, unvested or outstanding
in
your favor, for the purpose of implementing, administering and managing the
Plan
(“Data”). You understand 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 your country or elsewhere, and
that the recipient’s country may have different data privacy laws and
protections than your country. You understand that you may request a
list with the names and addresses of any potential recipients of the Data by
contacting your local human resources representative. You authorize
the recipients to receive, possess, use, retain and transfer the Data, in
electronic or other form, for the purposes of implementing, administering and
managing your participation in the Plan, including any requisite transfer of
such Data as may be required to a broker or other third party with whom you
may
elect to deposit any shares of Common Stock acquired upon exercise of the
Option. You understand that Data will be held only as long as is
necessary to implement, administer and manage your participation in the Plan
as
determined by Micro. You understand that you may, at
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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 your local
human resources representative. You understand, however, that
refusing or withdrawing your consent may adversely affect your ability to
participate in the Plan. For more information on the consequences of
your refusal to consent or withdrawal of consent, you understand that you may
contact your local human resources representative.
(d) 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 you and Micro
with respect to the subject matter hereof, and may not be modified adversely
to
your interest except by means of a writing signed by you and Micro.
(e) Governing
Law and Venue. The option grant and this Award Agreement is
governed by and construed according to the laws of the State of Delaware 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.
(f) Binding
Agreement; Interpretation. By accepting the grant of this
Option evidenced hereby, you and Micro agree that this Option is granted under
and governed by the terms and conditions of the Plan and this Award
Agreement. You have reviewed the related prospectus and this Award
Agreement in their entirety, have had an opportunity to obtain the advice of
counsel prior to accepting the Option and fully understand all provisions of
the
related prospectus and Award Agreement. You agree to accept as
binding, conclusive and final all decisions or interpretations of the Committee
upon any questions relating to the Plan and Award Agreement.
(g) Language. You
acknowledge that you may be executing part or all of the Award Agreement in
English and agree to be bound accordingly. If you have 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.
(h) Electronic
Delivery. Micro may, in its sole discretion, decide to
deliver any documents related to the Option granted hereunder, or future options
that may be granted under the Plan, by electronic means or request your consent
to participate in the Plan by electronic means. You hereby consent to
receive such documents by electronic delivery and, if
requested, agree to participate in the Plan through an
on-line or electronic system established and maintained by Micro or another
third party designated by Micro.
Section
14. Section 409A. This Award
Agreement and the Option are intended to be exempt from the provisions of
Section 409A of the Code and Department of Treasury regulations and other
interpretive guidance issued thereunder, as providing for an option to purchase
service recipient stock as described in Section 1.409A-1(b)(5)(i)(A) of the
Department of Treasury regulations. Notwithstanding any provision of
this Award Agreement or the Plan to the contrary, in the event that the
Committee determines that the Option may be subject to Section 409A of the
Code,
the Committee may adopt such amendments this Award Agreement or the Plan or
adopt other policies and procedures (including amendments, policies and
procedures with retroactive effect), or take any other actions, that the
Committee determines are necessary or appropriate to (a) exempt the Option
from
Section 409A of the Code and/or preserve the intended tax treatment of the
benefits provided with respect to the Option, or (b) comply with the
requirements of Section 409A of the Code and related Department of Treasury
guidance and thereby avoid the application of penalty taxes under Section 409A
of the Code.
Section
15. See attached Addendum A, if applicable, and if
applicable, is hereby incorporated by reference.
Section
16.
In order to exercise this Option, you must sign and return
a
copy of this Award Agreement. It will not be possible to exercise
this option until the signed Award Agreement has been returned to
Micro.
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| 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:
OPTIONEE
______________________________
Name
______________________________
Date
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