INGRAM MICRO INC.
Exhibit
99.16
XXXXXX
MICRO INC.
2003
Equity Incentive Plan
Restricted
Stock Unit Award Agreement (“Award Agreement”)
For
Employees in France
(Time
Vested)
Section
1. Grant of Restricted Stock Unit
Award. As of [INSERT DATE OF
GRANT], Xxxxxx Micro Inc., a Delaware corporation
(“Micro”) hereby grants [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”), 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:
|
Number
Of Shares Awarded
|
Vesting
Date
(Date
that Restrictions Lapse)
|
Vesting
Period and/or
Other
Conditions
|
|
X,XXX
|
January
2, 2010
|
2/3
of the Restricted Stock Units granted will vest 24 months
from
the Effective Grant Date
|
|
X,XXX
|
January
2, 2011
|
1/3
of the Restricted Stock Units granted will vest 36 months
from
the Effective Grant Date
|
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. 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 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.
1
Section
7. Termination or Suspension of Employment or
Service.
(a) In
the
event Awardee voluntarily terminates his/her employment with Micro or an
Affiliate, Awardee’s unvested Restricted Stock 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 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) In
the
event of Awardee’s Disability, 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.
(e) Except
as
the Committee may otherwise determine, termination of Awardee’s employment or
service for any reason shall occur on the date such Awardee ceases to perform
services for Micro or any Affiliate without regard to whether such Awardee
continues thereafter to receive any compensatory payments therefrom or is paid
salary thereby in lieu of notice of termination or, with respect to a member
of
the Board who is not also an employee of Micro or any Affiliate, the date such
Awardee is no longer a member of the Board.
Section
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
minimum mandatory holding period applicable to shares underlying
French-qualified Awards under Section L. 000-000-0 of the French Commercial
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 Xxxxxxx, 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
2
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; (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.
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:
|
|
(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;
|
3
|
|
(5)
|
participating
in the Plan is voluntary;
|
|
(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
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;
|
|
(8)
|
in
the event Awardee is not an
employee of Micro or
Awardee is an employee of a subsidiary or Affiliate of Micro, the Restricted
Stock 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 and Awardee irrevocably
releases Micro and
the Employer from any such
claim that may arise; if, notwithstanding the foregoing, any such
claim is
found by a court of competent jurisdiction to have arisen, then,
by
signing this Award Agreement, Awardee shall be deemed irrevocably
to have
waived Awardee’s entitlement
to pursue such
claim;
|
|
|
(12)
|
notwithstanding
any terms or
conditions of the Plan to the contrary, in the event of involuntary
termination of Awardee’s employment,
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;
|
|
(13)
|
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;
|
|
(14)
|
Micro
is not providing any tax,
legal or financial advice, nor is Micro making any recommendations
regarding Awardee’s
participation in the
Plan or the
acquisition or the
sale of shares of Common Stock under the
Plan;
|
|
(15)
|
Awardee
is advised to
consult with personal
tax, legal and financial advisors regarding participation in the
Plan
before taking any action related to the
Plan;
|
|
(16)
|
Awardee
acknowledges
that this Award Agreement is
between Awardee
and Micro,
and that
the Employer
is not a party to
this Award Agreement;
and
|
|
(17)
|
Awardee
agrees to provide Micro
with any data requested if Awardee is a mobile employee to facilitate
the
proper withholding and reporting by Micro and/or the Employer, as
applicable.
|
4
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.
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.
5
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
19. 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
20. 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
21. 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
22. Code Section 409A
. The payment of the Restricted Stock Unit Awards under Section 5 is
intended to satisfy the short-term deferral exemption under Section
1.409A-1(b)(4) of the Department of Treasury
regulations. 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
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
23. Acknowledgment. “En
acceptant le présent document décrivant les termes et conditions mon attribution
des Actions de Récompense Xxxxxxxxx, 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
24. See attached Addendum A, if applicable, and if
applicable, is hereby incorporated by reference.
6
| XXXXXX MICRO INC. | |
|
Xxxx
Xxxxxxxx
Senior
Vice President, Human Resources
|
Accepted
and agreed as to the foregoing:
AWARDEE
_________________________
Name
_________________________
Date
7
