INGRAM MICRO INC.
EXHIBIT 99.3
XXXXXX MICRO INC.
Section 1. Grant of Restricted Stock Award. As of [Insert Grant Date], Xxxxxx Micro
Inc., a Delaware corporation (“Micro”) hereby grants [Legal Name] (“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. 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 Award. This Restricted Stock 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 Award shall become
vested as set forth below:
| Vesting Date | Restriction Period | |||
| Number Of Shares | (Date that Restrictions | and/or | ||
| Awarded | Lapse) | Other Conditions | ||
Section 4. Acceptance of Grant. This Restricted Stock Award shall be awarded by Micro
to the Awardee. The Awardee may accept this Restricted Stock Award (within 30 days of grant) by
delivering written notice to the stock plan administrator together with payment, by cash or check,
of the purchase price for the shares of Common Stock.
Section 5. Nontransferability of Restricted Stock Award. This Restricted Stock 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
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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 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 Award,
including the grant and vesting of the Restricted Stock Award, the subsequent sale of shares of
Common Stock acquired pursuant to the Restricted Stock Award and the receipt of any dividends, 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 purchase 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 Award and the price per share 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 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 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 Award, 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 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 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 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 Award will not be interpreted to form an employment contract or relationship with Micro; and furthermore, the Restricted Stock 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 Award and obtains shares of Common Stock, the value of those shares of Common Stock acquired may increase or decrease in value, even below the purchase price; | ||
| (11) | in consideration of the grant of the Restricted Stock Award, no claim or entitlement to compensation or damages shall arise from termination of the Restricted Stock Award or diminution in value of the Restricted Stock Award or shares of Common Stock purchased under the Restricted Stock 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; and | ||
| (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 Award and vest in the Restricted Stock 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., |
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| 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 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 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.
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 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,
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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 Award until the date of the
issuance of the stock certificate for such shares.
Section 13. Governing Law. This 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 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 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 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.
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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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