Exhibit 10.22
NETAPP, INC.
2021 EQUITY INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT (PERFORMANCE-BASED)
NOTICE OF RESTRICTED STOCK UNIT GRANT
Capitalized terms used but not otherwise defined in the Award Agreement (as defined below) shall have the meanings assigned to such terms in the NetApp, Inc. 2021 Equity Incentive Plan, as it may be amended or restated from time to time (the “Plan”). The Participant is being granted an award under this Notice of Restricted Stock Unit Grant (the “Notice of Grant”), the Terms and Conditions of Restricted Stock Unit Grant that govern the Restricted Stock Units granted to Participant under the Plan if Participant resides in one of the countries listed therein, attached hereto as Exhibit A, the Additional Terms and Conditions of Restricted Stock Unit Grant, attached hereto as Exhibit B and all other exhibits, appendices, and addenda attached hereto (the “Award Agreement”).
Participant Name:
Address:
The Participant has been granted an Award of Restricted Stock Units, subject to the terms and conditions of the Plan and this Award Agreement, as follows:
Grant Number: ______________________________
Date of Grant: ______________________________
Vesting Commencement Date: ______________________________
Target Number of Restricted Stock Units: ______________________________
Maximum Number of Restricted Stock Units: ______________________________
Vesting Schedule:
Subject to any acceleration provisions contained in the Plan, this Award Agreement or any other written agreement authorized by the Administrator between Participant and the Company (or any Parent or Subsidiary of the Company, as applicable) governing the terms of this Award, the Restricted Stock Units will be scheduled to vest according to the following vesting schedule:
General
The number of Restricted Stock Units that will become eligible for vesting as set forth below will depend upon the Company’s Billings Result Average (as defined below) for the Performance Period (as defined below) and will be determined in accordance with this Award Agreement.
The “Performance Period” will begin on the first day of the Company’s [ ] Fiscal Year (the “Commencement Date”) and end on the last day of the Company’s [ ] Fiscal Year (the “Anniversary Date”) with the Company’s Billings Result Percentage (as defined below) calculated for each of the Company’s [ ] Fiscal Year (the “[ ] Measurement Period”), [ ] Fiscal Year (the “[ ] Measurement Period”) and [ ] Fiscal Year (the “[ ] Measurement Period”) (each a “Measurement Period” and the last day of each of the Company’s [ ], [ ] and [ ] Fiscal Years, or, if earlier, the Period End Date (as defined below), a “Measurement Date”). Notwithstanding the foregoing, in the event of a Change in Control, or in the event Participant’s status as a Service Provider is terminated due to Participant’s death or Disability (a “Qualifying Termination”), the Measurement Period then in progress will be deemed to end upon the first to occur of the consummation of the Change in Control (the “Closing”) or the date of the Qualifying Termination for purposes of calculating the Company’s Billings Result Percentage for the applicable Measurement Period. The first to occur of the Anniversary Date, the Closing, or a Qualifying Termination, is referred to herein as the “Period End Date.”
If Participant’s status as a Service Provider terminates prior to the Period End Date due to his or her Retirement, Participant’s Restricted Stock Units will remain outstanding through the Period End Date and the number of Restricted Stock Units that become Eligible Restricted Stock Units (as defined below) will be measured as if Participant’s status as a Service Provider had not terminated.
If Participant ceases to be a Service Provider prior to the Period End Date for any reason (other than as a result of a Qualifying Termination or due to Participant’s Retirement), the Restricted Stock Units will terminate and be cancelled and Participant will have no further rights with respect to such Restricted Stock Units. Any Restricted Stock Units that do not become Eligible Restricted Stock Units as of the Period End Date will terminate and be cancelled and Participant will have no further rights with respect to such Restricted Stock Units.
Lastly, vesting is subject to Participant continuously remaining a Service Provider through the applicable vesting date, subject to the vesting acceleration provisions set forth below.
For purposes of this Award Agreement, “Retirement” will mean the voluntary termination of employment by the Participant either (a) on or after reaching sixty-two (62) years of age or (b) on or after reaching fifty-five (55) years of age following a minimum of ten (10) years of continuous service to the Company or any of its Parent or Subsidiaries.
Performance Matrix
The number of Restricted Stock Units that become eligible to vest (the “Eligible Restricted Stock Units”) will depend upon the Company’s Billings Result Average calculated as of the Period End Date as described herein. The number of Eligible Restricted Stock Units will be determined by the Compensation Committee of the Board (the “Compensation Committee”)
in its sole discretion within fifty-five (55) days of the Period End Date.
“Billings” means the total obtained by adding net revenues as reported on the Company’s Condensed Consolidated Statements of Operations for the applicable Measurement Period to the change in total deferred revenue and financed unearned services revenue as reported on the Company’s Condensed Consolidated Statements of Cash Flows for the same Measurement Period on a constant AOP currency to exclude the impact of FX.
“Billings Result” means the value of all Billings for the applicable Fiscal Year in the applicable Measurement Period. Notwithstanding the foregoing, in the event of a Closing or a Qualifying Termination that occurs prior to the Anniversary Date, the Measurement Period then in effect will be shortened and the Billings Result for the applicable Measurement Period will mean the value of all Billings for the number of completed fiscal months in the applicable Fiscal Year as of the Measurement Date, or, if on such Measurement Date, there are no completed fiscal months in the applicable Fiscal Year, the Billings Result for the applicable Measurement Period will mean the value of all Billings for the most recently completed Fiscal Year. The Billings Result will be determined by the Compensation Committee in its sole discretion within fifty-five (55) days of the applicable Measurement Date except in the event of a Closing, in which case the Billings Result for any Measurement Period will be calculated no later than the Closing.
The “Billings Result Average” means the average of the Billings Result Percentage for each of the completed Measurement Periods, with the result expressed as a percentage and rounded to the nearest hundredth.
“Billing Result Calculation” for an applicable Measurement Period means the quotient obtained by dividing the Billings Result for an applicable Measurement Period by the Billings Target for the same Measurement Period, with the result expressed as a percentage and rounded to the nearest hundredth.
“Billings Target” means, for the [ ] Measurement Period, the Billings target based on the operations plan approved by the Board or the Compensation Committee and communicated to Participant, or, for the [ ] Measurement Period and the [ ] Measurement Period, the Billings target as approved by the Board or the Compensation Committee as soon as practicable following the commencement of the applicable Fiscal Year (with respect to the [ ] Measurement Period or the [ ] Measurement Period). For purposes of clarification, if the Billings targets for the [ ] Measurement Period or the [ ] Measurement Period are determined on a quarterly or semi-annual basis and not on an annual basis, the Billings target for the [ ] Measurement Period or the [ ] Measurement Period, as applicable, will be the sum of all Billings targets for the [ ] Measurement Period or the [ ] Measurement Period, as applicable. Notwithstanding the foregoing, in the event of a Closing or a Qualifying Termination that occurs prior to the Anniversary Date, the Billings Target for the shortened Measurement Period will be pro-rated based on the number of completed fiscal months in the applicable Fiscal Year as of the Measurement Date, or, if on such Measurement Date, there are no completed fiscal months in the applicable Fiscal Year, the Billings Target for the applicable Measurement Period will mean the Billings Target for the most recently completed Fiscal Year. Billings Targets may be adjusted for Company acquisitions based on the materiality of their impact (>[ ]% Annualized Revenue Run-Rate or purchase price of >$[ ]) at the Administrator’s discretion. On each Measurement Date, the Billings Result Calculation will be
converted into a “Billings Result Percentage” in accordance with the table below:
[INSERT TABLE]
Following the determination of the Billings Result Average, the number of Restricted Stock Units that become Eligible Restricted Stock Units will equal the product obtained by multiplying the Billings Result Average by the Target Number of Restricted Stock Units, with any partial Shares rounded down to the nearest whole Share and any fractional Shares forfeited for no consideration. In no event may more than 100% of the Maximum Number of Restricted Stock Units be Eligible Restricted Stock Units.
Vesting
Eligible Restricted Stock Units will be scheduled to vest in accordance with the following schedule, subject to Participant’s continuous status as a Service Provider through the applicable vesting date: 100% of the Eligible Restricted Stock Units will vest on the Anniversary Date (subject to the following three paragraphs). In the event Participant’s continuous status as a Service Provider terminates for any or no reason before the Anniversary Date, the Eligible Restricted Stock Units and Participant’s right to acquire Shares thereunder will immediately terminate and such Eligible Restricted Stock Units will immediately be forfeited and cancelled (subject to the following three paragraphs).
Qualifying Termination
In the event of a Qualifying Termination that occurs prior to the Anniversary Date, the number of Eligible Restricted Stock Units that will vest on the new Period End Date will be pro-rated by multiplying the calculated number of Eligible Restricted Stock Units by a fraction with a numerator equal to (i) the number of completed calendar months that have elapsed between the Commencement Date and the Period End Date and (ii) a denominator equal to thirty-six (36), with the result rounded down to the nearest whole Eligible Restricted Stock Unit, and any remaining Eligible Restricted Stock Units will immediately be forfeited and cancelled.
Leave of Absence
Notwithstanding the provisions of Section 12 of the Award Agreement, if, during the Performance Period, Participant is on an authorized leave of absence from the Company, or the Parent or Subsidiary employing Participant, and such leave extends for six (6) or more months, then the number of Eligible Restricted Stock Units that will vest on the Period End Date will be pro-rated by multiplying the calculated number of Eligible Restricted Stock Units by a fraction with a numerator equal to (i) the number of completed calendar months that the Participant has been actively providing service during the Performance Period (that is, the number of completed calendar months in the Performance Period where the individual was not on an approved leave of absence) and (ii) a denominator equal to thirty-six (36), with the result rounded down to the nearest whole Eligible Restricted Stock Unit, and any remaining Eligible Restricted Stock Units will immediately be forfeited and cancelled.
Retirement
If Participant’s status as a Service Provider terminates due to his or her Retirement, the number of Eligible Restricted Stock Units that will vest on the Anniversary Date (or if earlier, upon a Closing) will be pro-rated by multiplying the calculated number of Eligible Restricted Stock Units by a fraction with a numerator equal to (i) the number of completed calendar months that have elapsed between the Commencement Date and the date Participant’s status as a Service Provider is terminated due to his or her Retirement and (ii) a denominator equal to thirty-six (36), with the result rounded down to the nearest whole Eligible Restricted Stock Unit, and any remaining Eligible Restricted Stock Units will immediately be forfeited and cancelled.
Change in Control / Involuntary Termination
In the event of a Change in Control that occurs prior to the Anniversary Date, the Eligible Restricted Stock Units will be scheduled to vest as to 100% of the Eligible Restricted Stock Units on the Anniversary Date, subject to Participant continuously remaining a Service Provider through such date and the Billings Result Percentage calculated as of the Period End Date.
Notwithstanding the foregoing, in the event of an Involuntary Termination on or following a Change in Control, 100% of the Eligible Restricted Stock Units will vest on the date of the Involuntary Termination and the Billings Result Percentage will be calculated as of the Period End Date.
For purposes of this Award Agreement, an “Involuntary Termination” means that Participant is terminated as a result of either (i) a termination of Participant’s employment by the Company without Cause (as defined in the Company’s form of Change of Control Severance Agreement filed as an exhibit with the SEC on Form 8-K on May 22, 2019, or any successor agreement (the “Severance Agreement”)) or (ii) Participant resigns from such employment for Good Reason (as defined in the Severance Agreement).
For purposes of clarification, the acceleration set forth in this Award Agreement is meant to be in lieu of, and not in addition to, any acceleration provisions set forth in any Severance Agreement Participant may have with the Company.
Unless otherwise defined herein or in Appendix A or Appendix B, capitalized terms herein or in Appendix A or Appendix B will have the defined meanings ascribed to them in the Plan.
Participant acknowledges and agrees that by either (a) clicking the “ACCEPT” button corresponding to this grant through the grant acceptance page on E*TRADE at any time before the Vesting Commencement Date or (b) doing nothing (in which case the grant will be automatically accepted on your behalf forty five (45) days following the Date of Grant), it will act as Participant’s electronic signature to the Award Agreement and Participant acknowledges and agrees that this Award of Restricted Stock Units is granted under and governed by the terms and conditions of the Plan and this Award Agreement, including the Terms and Conditions of Restricted Stock Unit Grant, attached hereto as Exhibit A, the Additional Terms and Conditions of Restricted Stock Unit Grant, attached hereto as Exhibit B and all other exhibits, appendices and addenda attached hereto, all of which are made a part of this document. Participant acknowledges and agrees that Participant may also decline this Award of Restricted Stock Units by clicking the “DECLINE” button corresponding to this grant through the grant acceptance page on E*TRADE
at any time before the Vesting Commencement Date in which case Participant will forfeit this Award of Restricted Stock Units and all of Participant’s rights and benefits thereunder will terminate. Participant acknowledges receipt of a copy of the Plan. Participant has reviewed the Plan and this Award Agreement in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Award Agreement and fully understands all provisions of the Plan and this Award Agreement. Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions relating to the Plan or this Award Agreement.
Participant should retain a copy of Participant’s electronically signed Award Agreement; Participant may obtain a paper copy at any time and at the Company’s expense by requesting one from Stock Administration at stockadmin@netapp.com. If Participant would prefer not to electronically sign this Award Agreement, Participant may accept this Award Agreement by signing a paper copy of the Award Agreement and delivering it to Stock Administration at 3060 Olsen Drive, San Jose, CA 95128. A copy of the Plan is available upon request made to Stock Administration.
EXHIBIT A
NETAPP, INC.
2021 EQUITY INCENTIVE PLAN
RESTRICTED STOCK UNIT AGREEMENT (PERFORMANCE-BASED)
TERMS AND CONDITIONS OF RESTRICTED STOCK UNIT GRANT
Participant understands that the Company and the Service Recipient may hold certain personal information about Participant, including, but not limited to, Participant’s name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any Shares or directorships held in the Company, details of all Restricted Stock Units or any other entitlement to Shares or cash payments awarded, canceled, exercised, vested, unvested or outstanding in Participant’s favor (“Data”), for the exclusive purpose of implementing, administering and managing the Plan.
Participant understands that Data may be transferred to a stock plan service provider, as may be selected by the Company in the future, assisting the Company with the implementation, administration and management of the Plan. Participant understands that the recipients of the Data may be located in the United States or elsewhere, and that the recipients’ country of operation (e.g., the United States) may have different data privacy laws and protections than Participant’s country. Participant understands that if he or she resides outside the United States, he or she may request a list with the names and addresses of any potential recipients of the Data by contacting his or her local human resources representative. Participant authorizes the Company, any stock plan service provider selected by the Company and any other possible recipients which may assist the Company (presently or in the future) with implementing, administering and managing the Plan to receive, possess, use, retain and transfer the Data, in electronic or other form, for the sole purpose of implementing, administering and managing his or her participation in the Plan. Participant understands that Data will be held only as long as is necessary to implement, administer and manage Participant’s participation in the Plan. Participant understands if he or she resides outside the United States, he or she 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 his or her local human resources representative. Further, Participant understands that he or she is providing the consents herein on a purely voluntary basis. If Participant does not consent, or if Participant later seeks to revoke his or her consent, his or her status as a Service Provider and career with the Service Recipient will not be adversely affected. The only adverse consequence of refusing or withdrawing Participant’s consent is that the Company would not be able to grant Participant Restricted Stock Units or other equity awards or administer or maintain such awards. Therefore, Participant understands that refusing or withdrawing his or her consent may affect Participant’s ability to participate in the Plan. For more information on the consequences of Participant’s refusal to consent or withdrawal of consent, Participant understands that he or she may contact his or her local human resources representative.