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Exhibit 10.15
BOARD REPRESENTATION AGREEMENT
AGREEMENT dated as of __________ among Ingram Micro Inc., a Delaware
corporation ("MICRO"), and each Person listed on the signature pages hereof.
WHEREAS, Micro believes it is in the best interest of Micro and its
stockholders to become a free standing corporation rather than a subsidiary of
Ingram Industries Inc. ("Industries"); and
WHEREAS, Micro believes that the proposed Split-Off (as defined
herein) from Industries will facilitate its ability to raise capital, including
its initial public offering, and will allow Micro to more effectively design
incentives for its employees, all to the benefit of Micro and its stockholders;
and
WHEREAS, the Family Stockholders (as defined herein) are willing to
relinquish certain rights in exchange for the bargained for provisions of this
Agreement (all of which are, and are intended to be, an inducement for the
Family Stockholders to effect the Split-Off); and
WHEREAS, the parties hereto desire to provide for certain rights and
obligations relating to the composition and qualifications of the board of
directors of Micro following the date hereof;
Accordingly, in consideration of the mutual promises herein contained
and other good and valuable consideration, the receipt, sufficiency and
mutuality of which are hereby acknowledged by each of the parties hereto, the
parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1 DEFINITIONS.
(a) The following terms, as used herein, have the following
meanings:
"APPROVING FAMILY STOCKHOLDERS" means the QTIP Marital Trust created
under the E. Bronson Ingram Revocable Trust Agreement dated January 4, 1995,
Martha R. Ingram, Orrin H. Ingram, II, John R. Ingram, David B. Ingram, Robin
B. Ingram Patton, the E. Bronson Ingram 1995 Charitable Remainder 5% Unitrust,
the Martha and Bronson Ingram Foundation, the Trust for Orrin Henry Ingram, II,
under Agreement with E. Bronson Ingram dated October 27, 1967, the Trust for
the Benefit of Orrin Henry Ingram, II, under Agreement with E. Bronson Ingram
dated June 14, 1968, the Trust for Orrin Henry Ingram, II, under Agreement with
Hortense B. Ingram dated December 22, 1975, The Orrin H. Ingram Irrevocable
Trust dated July 9, 1992, the Trust for the Benefit of Orrin H. Ingram
established by Martha R. Rivers under Agreement of Trust originally dated April
30, 1982, as amended, the Trust for John Rivers Ingram, under Agreement with E.
Bronson Ingram dated October 27, 1967, the Trust for John Rivers Ingram, under
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Agreement with Hortense B. Ingram dated December 22, 1975, The John R. Ingram
Irrevocable Trust dated July 9, 1992, the Trust for the Benefit of John R.
Ingram established by Martha R. Rivers under Agreement of Trust originally
dated April 30, 1982,The John and Stephanie Ingram Family 1996 Generation
Skipping Trust, the Trust for David B. Ingram, under Agreement with Hortense B.
Ingram dated December 22, 1975, The David B. Ingram Irrevocable Trust dated
July 9, 1992, the Trust for the Benefit of David B. Ingram established by
Martha R. Rivers under Agreement of Trust originally dated April 30, 1982, the
David and Sarah Ingram Family 1996 Generation Skipping Trust, the Trust for
Robin Bigelow Ingram, under Agreement with E. Bronson Ingram dated October 27,
1967, Trust for Robin Bigelow Ingram, under Agreement with Hortense B. Ingram
dated December 22, 1975, The Robin Ingram Patton Irrevocable Trust, dated July
9, 1992 and Trust for the Benefit of Robin B. Ingram established by Martha R.
Rivers under Agreement of Trust originally date April 30, 1982 and all
Permitted Transferees of each such Person.
"APPROVING VOTING POWER" means, as of any date, the number of votes
able to be cast pursuant to Section 2.5(d) by the Approving Family Stockholders
consistent with Exhibit A hereto.
"BOARD" means the board of directors of Micro.
"FAIR MARKET VALUE" means with respect to the Micro Common Shares, as
of any given date or dates, the reported closing price of a share of such
class of common stock on such exchange or market as is the principal trading
market for such class of common stock. If such class of common stock is not
traded on an exchange or principal trading market on such date, the fair market
value of a Micro Common Share shall be determined by the Board in good faith
taking into account as appropriate recent sales of the Micro Common Shares,
recent valuations of the Micro Common Shares, the lack of liquidity of the
Micro Common Shares, the fact that the Micro Common Shares may represent a
minority interest and such other factors as the Committee shall in its
discretion deem relevant or appropriate.
"FAMILY AGENT" means a Person appointed by a majority of the Approving
Voting Power of the Approving Family Stockholders from time to time as provided
in Section 3.13 of this Agreement.
"FAMILY STOCKHOLDERS" means the Persons listed on the signature pages
hereof (other than Micro) and all Permitted Transferees of each such Person.
"INDEPENDENT" means, with respect to any Person, a Person who shall
(i) not be an executive officer or other employee of Micro and (ii) not be a
member of the Ingram Family.
"INGRAM FAMILY" means Martha R. Ingram, her descendants (including
adopted persons and their descendants) and their respective spouses.
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"MICRO COMMON SHARES" means the shares of common stock of Micro,
including the Class B common stock and the Class A common stock, par value
$0.01 per share, of Micro.
"OUTSTANDING VOTING POWER" means, as of any date, the number of votes
able to be cast for the election of directors represented by all Micro Common
Shares outstanding on such date.
"PERMITTED TRANSFEREE" means, with respect to any Family Stockholder,
any of the other Family Stockholders or any of their respective spouses,
descendants (including adopted persons and their descendants), estates,
affiliates or any trust or other entities for the benefit of any of the
foregoing Persons and beneficiaries of the E. Bronson Ingram QTIP Marital Trust
upon the death of Martha R. Ingram, whether the transfer occurs voluntarily
during life or at death, whether by appointment, will or intestate descent or
distribution. Without limiting the generality of the foregoing, transfers from
the QTIP Marital Trust created under the E. Bronson Ingram Revocable Trust
Agreement dated January 4, 1995 to the Martha and Bronson Ingram Foundation,
the Ingram Charitable Fund or any of the other beneficiaries thereof shall be
deemed to be transfers to Permitted Transferees.
"PERSON" means an individual, corporation, partnership, limited
liability company, trust, association or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"SPLIT-OFF" means the contemplated distribution by Industries of all
the stock of Micro and Ingram Entertainment Inc. to certain stockholders of
Industries effected in accordance with Section 355 of the Internal Revenue Code
of 1986, as amended.
(b) Each of the following terms is defined in the Section set
forth opposite such term:
Term Section
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Approving Family Stockholder Notice . . . . . . . . . . . . . 2.5
Date of Confirmation . . . . . . . . . . . . . . . . . . . . 2.5
Family Directors . . . . . . . . . . . . . . . . . . . . . . 2.2
Independent Directors . . . . . . . . . . . . . . . . . . . . 2.2
Management Director . . . . . . . . . . . . . . . . . . . . . 2.2
Significant Actions . . . . . . . . . . . . . . . . . . . . . 2.5
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ARTICLE 2
BOARD COMPOSITION AND CORPORATE GOVERNANCE
SECTION 2.1 NUMBER OF DIRECTORS; TERM; QUORUM; VOTE. The bylaws of
Micro shall provide for a Board consisting of at least eight and no more than
nine members. The term of each director will be one year, commencing
immediately following the annual meeting of stockholders at which such director
is to be elected and ending at such time after the next annual meeting of
stockholders as his or her successor is elected and qualified or upon such
director's death, or earlier resignation or removal in accordance with this
Agreement or applicable law. Except as otherwise provided herein, the bylaws
of Micro shall provide that the vote of a majority of the entire Board of
directors shall be required for all actions of the Board.
SECTION 2.2 QUALIFICATIONS OF DIRECTORS; SUBSEQUENT NOMINATIONS OF
DIRECTORS .
(a) COMPOSITION AND QUALIFICATIONS OF THE BOARD. The Family
Stockholders agree to vote their shares of Micro Common Shares to cause the
Board, from and after the date of this Agreement and until their successors are
duly elected and qualified in accordance with law and the terms of this
Agreement, to consist of the chief executive officer of Micro, three
individuals named by the Family Stockholders and who may be Family
Stockholders, and four individuals who shall be Independent and who shall have
been approved by the Family Stockholders. All subsequent nominations of
persons for election to the Board contained in proxy soliciting material
distributed on behalf of Micro during the term of this Agreement will be made
by the Nominating Committee, and all persons proposed to fill vacancies on the
Board, shall in each case be consistent with the provisions of Micro's bylaws
which shall provide the following qualifications for directors:
(i) Three individuals who are designated by the Family
Stockholders and who need not be Independent and may be Family
Stockholders (the "Family Directors");
(ii) One individual who is designated by the chief executive
officer of Micro, who need not be Independent and who may be
the chief executive officer of Micro (the "Management
Director"); and
(iii) Four (in the case of a board consisting of eight directors) or
five (in the case of a board consisting of nine directors)
individuals, as the case may be from time to time, who shall
be Independent (the "Independent Directors").
(b) ADDITION OF NINTH DIRECTOR. After the election and
qualification of the eight directors as set forth in this Section 2.2 above,
the Board may be expanded to nine directors by the affirmative vote of a
majority of such eight directors. Such ninth director shall have the
qualifications of being nominated by a majority of the Nominating Committee and
shall be Independent. After the initial qualification and election of such
ninth director as set forth in this
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Section 2.2(b), any vacancy created by the death, resignation or removal of
such director shall be filled pursuant to Section 2.3 below.
SECTION 2.3 FILLING OF VACANCIES. The bylaws of Micro shall provide
that if, as a result of the death, resignation or removal of a director, a
vacancy is created on the Board, the vacancy shall be filled in the following
manner with individuals with the following qualifications: (a) if the vacancy
resulted from the death, resignation or removal of a Family Director, the
vacancy shall be filled by vote of a majority of the remaining Family
Directors; (b) if the vacancy resulted from the death, resignation or removal
of the Management Director, the vacancy shall be filled by a person qualifying
to be a Management Director as designated by the chief executive officer of
Micro; and (c) if the vacancy resulted from the death, resignation or removal
of an Independent Director, the vacancy shall be filled by a person qualifying
to be an Independent Director nominated by the Nominating Committee and
approved by a majority of the entire Board then in office. The bylaws of Micro
shall provide that if such vacancy on the Board also creates a vacancy on any
committee thereof, the Board will appoint such replacement director elected in
accordance with this Section 2.3 to fill the committee position or positions
held by his or her predecessor.
SECTION 2.4 COMMITTEES.
(a) GENERAL. The bylaws of Micro shall provide for the
designation, qualification and composition of the Board committees as set forth
below and shall provide that all committees shall act by vote of the majority
of the entire number of directors which constitute the committee.
i. NOMINATING COMMITTEE. The Nominating Committee will
consist of three (3) directors, two of whom will be
Family Directors, and one of whom will be the
Management Director.
ii. EXECUTIVE COMMITTEE. The Executive Committee will
consist of three (3) directors, one of whom will be a
Family Director, one of whom will be the Management
Director and one of whom will be an Independent
Director.
iii. COMPENSATION COMMITTEE. The Compensation Committee
will consist of three (3) directors, one of whom will
be a Family Director, and two of whom will be
Independent Directors. The Compensation Committee
shall establish the compensation of all executive
officers of Micro and shall administer all stock
option, purchase and equity incentive plans.
iv. AUDIT COMMITTEE. The Audit Committee will consist of
at least three (3) directors. At least a majority of
the members of the Audit Committee will be
Independent Directors.
(b) SELECTION AND REMOVAL OF COMMITTEE MEMBERS. The bylaws
shall provide that the Nominating Committee shall name the directors to serve
on the Board committees and shall direct
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the Nominating Committee to follow the qualification requirements set forth in
Sections 2.2 and 2.4(a). A Committee member shall be subject to removal from
his or her position as a Committee member by the vote of a majority of the
members of the Nominating Committee.
SECTION 2.5 ACTIONS REQUIRING CONSENT OF APPROVING FAMILY
STOCKHOLDERS.
(a) SIGNIFICANT ACTIONS. In addition to any vote required by
applicable law, the bylaws shall provide that so long as this Agreement remains
effective, the following actions ("Significant Actions") will not be taken by
or on behalf of Micro without the written approval of Approving Family
Stockholders, acting in their sole discretion, holding at least a majority of
the Approving Voting Power held by all of the Approving Family Stockholders:
(i) any sale or other disposition or transfer of all or
substantially all of the assets of Micro (considered together with its
subsidiaries);
(ii) any merger, consolidation or share exchange involving
Micro, other than mergers effected for administrative reasons of
subsidiaries owned at least 90% by Micro which under applicable law
can be effected without stockholder approval;
(iii) any issuance (or transfer from treasury) of
additional equity, convertible securities, warrants or options with
respect to the capital stock of Micro, or any of its subsidiaries, or
the adoption of any additional equity plans by or on behalf of Micro
or any of its subsidiaries except for (A) options granted or stock
sold in the ordinary course of business pursuant to plans approved by
the Family Stockholders, and (B) the issuance of Micro Common Shares
valued at Fair Market Value in acquisitions as to which no approval is
required under subsection (iv) of this Section or as to which approval
has been obtained under subsection (iv) of this Section;
(iv) any acquisition by or on behalf of Micro or one of
its subsidiaries involving a total aggregate consideration in excess
of 10% of Micro's stockholders' equity calculated in accordance with
generally accepted accounting principles for the most recent quarter
for which financial information is available (after taking into
account the amount of any indebtedness for borrowed money to be
assumed or discharged by Micro or any of its subsidiaries and any
amounts required to be contributed, invested or borrowed by Micro or
any of its subsidiaries if such contribution, investment or borrowing
is reasonably contemplated by Micro to be necessary within 12 months
after the date of the acquisition);
(v) guaranteeing indebtedness of an entity other than a
subsidiary of Micro exceeding 5% of Micro's stockholders' equity
calculated in accordance with generally accepted accounting principles
for the most recent quarter for which financial information is
available;
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(vi) incurrence of indebtedness by Micro after the
consummation of the initial public offering of Micro Common Shares
(other than indebtedness incurred after the initial public offering of
Micro which renews or replaces a previously existing facility so long
as the aggregate amount of indebtedness is not increased) in a
transaction which could be reasonably expected to reduce Micro's
investment rating lower than one grade below the ratings of Micro by
Moody's Investors Service ("Moody's"), Fitch Investors Service, L.P.
("Fitch") or Standard & Poor's Rating Group ("Standard & Poor's")
immediately following the initial public offering, but in any event
incurrence of indebtedness by Micro after the consummation of the
initial public offering which could be reasonably expected to reduce
such investment rating lower than Baa by Moody's; BBB- by Fitch; or
BBB- by Standard & Poor's; and
(vii) any other transaction having substantially the same
effect as a transaction described in clauses (i) through (vi) of this
Section 2.5.
(b) NOTICES AND INFORMATION REQUIRED TO BE GIVEN. Micro shall
give notice to each of the Approving Family Stockholders of any potential,
proposed or contemplated Significant Action, along with all information that
Micro believes in good faith that an Approving Family Stockholder might
reasonably consider to be material in deciding whether or not to approve such
Significant Action (an "Approving Family Stockholder Notice"). An Approving
Family Stockholder Notice will be given by Micro to each of the Approving
Family Stockholders as soon as is practicable under the circumstances, but in
no event later than five (5) days prior to the date on which the Significant
Action is expected to occur. Micro shall be deemed to have given the required
Approving Family Stockholder Notice to each Approving Family Stockholder when
the Family Agent receives such Approving Family Stockholder Notice consistent
with the requirements of Sections 2.5 and 3.3 and a copy of such Approving
Family Stockholder Notice is delivered to Bass, Berry & Sims PLC, Attention:
Leigh Walton, by telecopy to (615) 742-6298 or by physical delivery to 2700
First American Center, Nashville, TN 37238-2700.
(c) CONSENT DEEMED TO BE GIVEN. The approval of each Significant
Action required to be given by the Approving Family Stockholders consistent
with Section 2.5(a) will be deemed to have been given by the Approving Family
Stockholders if Micro does not receive communications from the Family Agent
withholding such approval within five (5) business days from the Date of
Confirmation. For purposes of this Section 2.5(c) "Date of Confirmation" means
the day Micro confirms the actual receipt of such Approving Family Stockholder
Notice by the Family Agent and Bass, Berry & Sims PLC consistent with the
requirements of Sections 2.5 and 3.3.
(d) APPROVING FAMILY STOCKHOLDER VOTING POWER. With respect to
any vote pursuant to Section 2.5, and as of any given date, each Approving
Family Stockholder shall be entitled to cast a number of votes equal to (i) the
Outstanding Voting Power of all Micro Common Shares owned of record by such
Approving Family Stockholder, plus (ii) any voting power attributed to such
Approving Family Stockholder under Exhibit A hereto.
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SECTION 2.6 OTHER CORPORATE GOVERNANCE PROVISIONS; LIABILITY
INSURANCE.
(a) GOVERNANCE BY BOARD. Micro will be managed by or under the
direction of its Board. The bylaws of Micro shall provide that each member of
the Board, and all committees of the Board, shall have at all times full access
to the books and records of Micro and all minutes of stockholder, Board and
committee meetings, proceedings and actions and that each member of the Board
shall have the right to add items to any agenda for a meeting of the Board. The
bylaws of Micro shall also provide that during the period of time between each
regularly scheduled meeting of the Board, management decisions requiring the
immediate attention of the Board may be made with the approval of a majority of
the members of the Executive Committee; provided, however, that the Executive
Committee will not have the authority to approve any of the following items,
all of which require the approval of the Board: (i) any action that would
require the approval of the holders of a majority of the Approving Voting Power
held by the Approving Family Stockholders under Section 2.5 above or that would
require approval of the holders of a majority of the Micro Common Shares under
applicable law or under the certificate of incorporation or bylaws of Micro
(provided, however, that subject to applicable law, the Board shall be entitled
to delegate to the Executive Committee the authority to negotiate and finalize
actions, the general terms of which have been approved by the Board); (ii) any
acquisition with a total aggregate consideration in excess of 2% of Micro's
stockholders' equity calculated in accordance with generally accepted
accounting principles for the most recent quarter for which financial
information is available (after taking into account the amount of any
indebtedness to be assumed or discharged by Micro or any of its subsidiaries
and any amounts required to be contributed, invested or borrowed by Micro or
any of its subsidiaries); (iii) any action outside of the ordinary course of
business of Micro; or (iv) any other action involving a material shift in
policy or business strategy for the Board.
(b) DIRECTORS' LIABILITY INSURANCE. Unless otherwise agreed by
the written consent of the Family Stockholders, Micro shall maintain, to the
extent commercially available at reasonable rates, for the benefit of the
directors adequate directors' liability insurance to cover the reasonably
anticipated risks associated with their positions. Micro shall enter into
contracts with directors which assure them of indemnification to the full
extent allowable by law both while they serve as directors and thereafter and
the Micro certificate of incorporation will include all applicable provisions
necessary to effect the maximum protection provided by Section 102(b)(7) of the
Delaware General Corporation Law.
SECTION 2.7 AGREEMENT TO VOTE; BEST EFFORTS.
(a) GENERALLY. Each party to this Agreement agrees (i) to use its
best efforts to take all actions necessary to cause the Family Directors, the
Management Director and the Independent Directors to be elected or appointed to
the Board, (ii) to act in a manner consistent with the intent of this Agreement
in nominating and electing persons to be directors and in filling any vacancy
in the membership of the Board, and (iii) to take such other necessary or
appropriate actions as may be required to give effect to the provisions of this
Agreement.
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(b) AMENDMENT OF CLASS A AND B SHARES. The provisions of the
certificate of incorporation of Micro relating to the Micro Common Shares will
not be altered without the consent of a majority of the Outstanding Voting
Power held by the Family Stockholders.
(c) AMENDMENT OF BYLAWS. The bylaws of Micro shall provide that,
during the term of this Agreement, (i) the stockholders may alter, amend,
restate or repeal such bylaws or any of them, or make new bylaws, only by the
affirmative vote of the holders of 75 % of the voting power of the then
outstanding Micro Common Shares and (ii) the Board may alter, amend, restate or
repeal such bylaws or any of them, or make new bylaws, only by the affirmative
vote of three-quarters (3/4) of the members of the entire Board.
(d) NO CONFLICTING PROVISIONS OF CERTIFICATE OF INCORPORATION OR
BYLAWS. Except as may be required by applicable law, during the term of this
Agreement, the parties hereto agree to use their best efforts to prevent any
provision of Micro's certificate of incorporation or bylaws from containing any
terms inconsistent with the provisions of this Agreement, and from being
amended, modified, supplemented, restated or repealed in a manner inconsistent
with the provisions of this Agreement.
SECTION 2.8 TERMINATION. This Agreement will terminate and be of no
further force or effect on the first date on which the Family Stockholders and
their Permitted Transferees together hold beneficially less than 25,000,000
Micro Common Shares (as such number is equitably adjusted to reflect stock
splits, stock dividends, recapitalizations or other transactions in the capital
stock of Micro).
ARTICLE 3
MISCELLANEOUS
SECTION 3.1 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning or
construction of any provisions hereof.
SECTION 3.2 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Agreement supersedes all prior agreements and
understandings between the parties hereto with respect to the subject matter
hereof.
SECTION 3.3 NOTICES. Any notice, request, instruction or other
document to be given hereunder by any party hereto to another party hereto
shall be in writing (including telecopier or similar writing) and shall be
given to such party at its address set forth on the signature pages hereof, or
to such other address as the party to whom notice is to be given may provide in
a written notice to the party giving such notice, a copy of which written
notice shall be on file with the Secretary of Micro. Except as otherwise
provided herein, each such notice, request or other communication shall
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be effective (i) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified on the signature pages hereof and the appropriate
confirmation is received, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage prepaid
addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this Section 3.3.
SECTION 3.4 APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard
to the conflicts of law rules of such state.
SECTION 3.5 SEVERABILITY. The invalidity or unenforceability of any
provisions of this Agreement in any jurisdiction shall not affect the validity,
legality or enforceability of the remainder of this Agreement in such
jurisdiction or the validity, legality or enforceability of this Agreement,
including any such provision, in any other jurisdiction, it being intended that
all rights and obligations of the parties hereunder shall be enforceable to the
fullest extent permitted by law.
SECTION 3.6 SUCCESSORS, ASSIGNS, TRANSFEREES. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, successors and permitted assigns. Notwithstanding
the foregoing, neither this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof shall be assignable by any
party hereto; provided that each Family Stockholder agrees that, in connection
with any transfer by such Family Stockholder of Micro Common Shares after the
Split-Off to a Permitted Transferee (as defined herein), such Family
Stockholder shall assign its rights hereunder with respect to the shares so
transferred to the transferee of such Micro Common Shares. In such event, such
transferee shall execute and deliver to Micro an instrument or instruments
substantially in the form of Exhibit B hereto confirming that the transferee
has agreed to be bound, to the same extent and in the same manner as the
transferor, by the terms of this Agreement, a copy of which instrument shall be
maintained on file with the Secretary of Micro and shall include the address of
such transferee to which notices hereunder shall be sent. Neither this
Agreement nor any provision hereof shall be construed so as to confer any right
or benefit upon any Person other than the parties to this Agreement, those who
agree to be bound hereby and their respective successors and permitted assigns.
SECTION 3.7 AMENDMENTS: WAIVERS.
(a) No failure or delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
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(b) Neither this Agreement nor any term or provision hereof may be
amended or waived except by an instrument in writing signed, in the case of an
amendment, by each of the parties hereto and, in the case of waiver, by the
party against whom the enforcement of such waiver is sought.
SECTION 3.8 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be an original with the same effect
as if the signatures thereto and hereto were upon the same instrument.
SECTION 3.9 REMEDIES. The parties hereby acknowledge and agree that
in the event of any breach of this Agreement, the parties would be irreparably
harmed and could not be made whole by monetary damages. Each party hereto
accordingly agrees (i) not to assert by way of defense or otherwise that a
remedy at law would be adequate, and (ii) in addition to any other remedy to
which the parties may be entitled, that the remedy of specific performance of
this Agreement is appropriate in any action in court.
SECTION 3.10 CONSENT TO JURISDICTION. Each party hereto irrevocably
submits to the non-exclusive jurisdiction of any court of the State of Delaware
or any United States Federal Court sitting in the State of Delaware over any
suit, action or proceeding arising out of or relating to this Agreement. Each
party hereto waives any right it may have to assert the doctrine of forum non
conveniens or to object to venue to the extent any proceeding is brought in
accordance with this Section 3.10. Nothing in this paragraph shall affect or
limit any right to serve process in any manner permitted by law, to bring
proceedings in the courts of any jurisdiction or to enforce in any lawful
manner a judgment obtained in one jurisdiction in any other jurisdiction.
SECTION 3.11 RELIANCE ON CORPORATE RECORDS OF MICRO. For purposes of
this Agreement, Micro shall be entitled to determine the identity or existence
of one or more Family Stockholders, Approving Family Stockholders and their
Permitted Transferees by relying on the shareholder and other records of Micro.
SECTION 3.12 ACTIONS BY FAMILY STOCKHOLDERS. Except as otherwise
provided herein, all actions required to be taken hereunder by the Family
Stockholders shall be taken by the holders of a majority of the Outstanding
Voting Power held by the Family Stockholders.
SECTION 3.13 ACTIONS BY THE APPROVING FAMILY STOCKHOLDERS; FAMILY
AGENT.
(a) All actions required to be taken hereunder by the Approving Family
Stockholders shall be taken by the holders of a majority of the Approving
Voting Power held by the Approving Family Stockholders.
(b) The Approving Family Stockholders agree to appoint a Person to
serve as Family Agent on or before the date of the Split-Off, and to maintain a
Family Agent for the duration of this Agreement. The appointment of a Person
to serve as Family Agent shall become effective upon the receipt by Micro of a
written notice pursuant to Section 3.3 of such appointment by the holders of
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a majority of the Approving Voting Power held by the Approving Family
Stockholders. The Family Agent is authorized to report the decisions of the
Approving Family Stockholders, and Micro shall be entitled to rely on a written
statement from the Family Agent as to actions taken by the Approving Family
Stockholders.
(c) A Family Agent shall serve in the agency capacity set forth in
this Agreement until (i) this Agreement terminates pursuant to Section 2.8 or
(ii) Micro receives notice from the holders of a majority of the Approving
Voting Power held by the Approving Family Stockholders that another Person has
been appointed as the Family Agent.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
INGRAM MICRO INC.
By:
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Name:
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Title:
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1600 East Saint Andrew Place
Santa Ana, California 92705
Telecopy: 714-566-7900
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Martha R. Ingram
120 Hillwood Drive
Nashville, TN 37215
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Orrin H. Ingram, II
1475 Moran Road
Franklin, TN 37069
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John R. Ingram
311 Jackson Boulevard
Nashville, TN 37205
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David B. Ingram
4417 Tyne Boulevard
Nashville, TN 37215
-------------------------------------
Robin B. Ingram Patton
1600 Chickering Road
Nashville, TN 37215
QTIP MARITAL TRUST CREATED UNDER
THE E. BRONSON INGRAM REVOCABLE
TRUST AGREEMENT DATED JANUARY 4, 1995
By: MARTHA R. INGRAM, ORRIN H.
INGRAM, JOHN R. INGRAM,
DAVID B. INGRAM AND ROBIN B.
INGRAM PATTON, as Co-Trustees
By:
----------------------------------
Name: Martha R. Ingram
Title: Co-Trustee
Address: 120 Hillwood Drive
Nashville, TN 37215
By:
----------------------------------
Name: Orrin H. Ingram
Title: Co-Trustee
Address: 1475 Moran Road
Franklin, TN 13706
By:
----------------------------------
Name: John R. Ingram
Title: Co-Trustee
Address: 311 Jackson Boulevard
Nashville, TN 37205
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By:
-----------------------------------
Name: David B. Ingram
Title: Co-Trustee
Address: 4417 Tyne Boulevard
Nashville, TN 37215
By:
-----------------------------------
Name: Robin B. Ingram Patton
Title: Co-Trustee
Address: 1600 Chickering Road
Nashville, TN 37215
E. BRONSON INGRAM 1995 CHARITABLE
REMAINDER 5% UNITRUST
By: MARTHA R. INGRAM, as Trustee
By:
-----------------------------------
Name: Martha R. Ingram
Title: Trustee
Address: 120 Hillwood Drive
Nashville, TN 37215
MARTHA AND BRONSON INGRAM
FOUNDATION
By: ORRIN H. INGRAM, JOHN R. INGRAM,
DAVID B. INGRAM, AND ROBIN
BIGELOW INGRAM PATTON,
as Co-Trustees
By:
-----------------------------------
Name: Orrin H. Ingram
Title: Co-Trustee
Address: 1475 Moran Road
Franklin, TN 37069
By:
-----------------------------------
Name: John R. Ingram
Title: Co-Trustee
Address: 311 Jackson Boulevard
Nashville, TN 37205
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By:
----------------------------------
Name: David B. Ingram
Title: Co-Trustee
Address: 4417 Tyne Boulevard
Nashville, TN 37215
By:
----------------------------------
Name: Robin Bigelow Ingram
Patton
Title: Co-Trustee
Address: 1600 Chickering Road
Nashville, TN 37215
E. BRONSON INGRAM 1994
CHARITABLE LEAD ANNUITY TRUST
By: ORRIN H. INGRAM, JOHN R. INGRAM,
DAVID B. INGRAM, AND ROBIN B.
INGRAM PATTON, as Co-Trustees
By:
----------------------------------
Name: Orrin H. Ingram
Title: Co-Trustee
Address: 1475 Moran Road
Franklin, TN 37069
By:
----------------------------------
Name: John R. Ingram
Title: Co-Trustee
Address: 311 Jackson Boulevard
Nashville, TN 37205
By:
----------------------------------
Name: David B. Ingram
Title: Co-Trustee
Address: 4417 Tyne Boulevard
Nashville, TN 37215
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By:
--------------------------------
Name: Robin B. Ingram Patton
Title: Co-Trustee
Address: 1600 Chickering Road
Nashville, TN 37215
TRUST FOR ORRIN HENRY INGRAM, II,
UNDER AGREEMENT WITH E. BRONSON
INGRAM DATED OCTOBER 27, 1967
By: SUNTRUST BANK, ATLANTA,
MARTHA R. INGRAM AND FREDERIC
B. INGRAM, AS CO-TRUSTEES
By:
--------------------------------
Name:
Title:
Address: Suntrust Bank, Atlanta
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
By:
--------------------------------
Name: Martha R. Ingram
Title: Co-Trustee
Address: 120 Hillwood Drive
Nashville, TN 37215
By:
--------------------------------
Name: Frederic B. Ingram
Title: Co-Trustee
Address: 813 Greenway Dr.
Beverly Hills, CA 90210
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TRUST FOR ORRIN HENRY INGRAM, II,
UNDER AGREEMENT WITH E. BRONSON INGRAM
DATED JUNE 14, 1968
By: SUNTRUST BANK, ATLANTA AND
MARTHA R. INGRAM, AS CO-TRUSTEES
By:
----------------------------------
Name:
Title:
Address: Suntrust Bank, Atlanta
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
By:
----------------------------------
Name: Martha R. Ingram
Title: Co-Trustee
Address: 120 Hillwood Drive
Nashville, TN 37215
TRUST FOR ORRIN HENRY INGRAM, II, UNDER
AGREEMENT WITH HORTENSE B. INGRAM
DATED DECEMBER 22, 1975
By: SUNTRUST BANK, ATLANTA,
Trustee
By:
----------------------------------
Name:
Title:
Address: Suntrust Bank, Atlanta
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
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THE ORRIN H. INGRAM IRREVOCABLE TRUST
DATED JULY 9, 1992
By: ROY E. CLAVERIE, as Trustee
By:
-------------------------------------
Name: Roy E. Claverie
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
TRUST FOR THE BENEFIT OF ORRIN H. INGRAM
ESTABLISHED BY MARTHA R. RIVERS UNDER
AN AGREEMENT OF TRUST ORIGINALLY
DATED APRIL 30, 1982, AS AMENDED
By: ROY E. CLAVERIE, as Trustee
By:
-------------------------------------
Name: Roy E. Claverie
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
TRUST FOR JOHN RIVERS INGRAM, UNDER
AGREEMENT WITH E. BRONSON INGRAM DATED
OCTOBER 27, 1967
By: SUNTRUST BANK, ATLANTA, MARTHA R.
INGRAM AND FREDERIC B. INGRAM, AS
CO-TRUSTEES
By:
-------------------------------------
Name:
-------------------------------
Title:
------------------------------
Address: Suntrust Bank, Atlanta
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
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By:
-------------------------------------
Name: Martha R.Ingram
Title: Co-Trustee
Address: 120 Hillwood Drive
Nashville, TN 37215
By:
-------------------------------------
Name: Frederic B. Ingram
Title: Co-Trustee
Address: 813 Greenway Dr.
Beverly Hills, CA 90210
TRUST FOR JOHN RIVERS INGRAM, UNDER
AGREEMENT WITH E. BRONSON INGRAM
DATED JUNE 14, 1968
By: SUNTRUST BANK, ATLANTA AND
MARTHA R. INGRAM, AS CO-TRUSTEES
By:
------------------------------------
Name:
-------------------------------
Title:
------------------------------
Address: Suntrust Bank, Atlanta
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
By:
------------------------------------
Name: Martha R.Ingram
Title: Co-Trustee
Address: 120 Hillwood Drive
Nashville, TN 37215
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TRUST FOR JOHN RIVERS INGRAM, UNDER
AGREEMENT WITH HORTENSE B. INGRAM
DATED DECEMBER 22, 1975
By: SUNTRUST BANK, ATLANTA, Trustee
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address: Suntrust Bank, Atlanta
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
THE JOHN R. INGRAM IRREVOCABLE TRUST
DATED JULY 9, 1992
By: ROY E. CLAVERIE, as Trustee
By:
-------------------------------------
Name: Roy E. Claverie
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
TRUST FOR THE BENEFIT OF JOHN R. INGRAM
ESTABLISHED BY MARTHA R. RIVERS UNDER
AN AGREEMENT OF TRUST ORIGINALLY
DATED APRIL 30, 1982, AS AMENDED
By: ROY E. CLAVERIE, as Trustee
By:
-------------------------------------
Name: Roy E. Claverie
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
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THE JOHN AND STEPHANIE INGRAM FAMILY
1996 GENERATION SKIPPING TRUST
By: WILLIAM S. JONES, as Trustee
By:
-------------------------------------
Name: William S. Jones
Title: Trustee
Address: c/o Ingram Industries Inc.
4400 Harding Road
Nashville, TN 37205
TRUST FOR DAVID B. INGRAM, UNDER
AGREEMENT WITH E. BRONSON INGRAM
DATED OCTOBER 27, 1967
By: SUNTRUST BANK, ATLANTA, MARTHA R.
INGRAM AND FREDERIC B. INGRAM, AS
CO-TRUSTEES
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address: Suntrust Bank, Atlanta
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
By:
-------------------------------------
Name: Martha R. Ingram
Title: Co-Trustee
Address: 120 Hillwood Drive
Nashville, TN 37215
By:
-------------------------------------
Name: Frederic B. Ingram
Title: Co-Trustee
Address: 813 Greenway Dr.
Beverly Hills, CA 90210
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TRUST FOR DAVID B. INGRAM, UNDER
AGREEMENT WITH E. BRONSON INGRAM
DATED JUNE 14, 1968
By: SUNTRUST BANK, ATLANTA AND MARTHA
R. INGRAM, AS CO-TRUSTEES
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address: Suntrust Bank, Atlanta
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
By:
-------------------------------------
Name: Martha R. Ingram
Title: Co-Trustee
Address: 120 Hillwood Drive
Nashville, TN 37215
TRUST FOR DAVID B. INGRAM, UNDER
AGREEMENT WITH HORTENSE B. INGRAM
DATED DECEMBER 22, 1975
By: SUNTRUST BANK, ATLANTA, Trustee
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address: Suntrust Bank, Atlanta
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
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THE DAVID B. INGRAM IRREVOCABLE
TRUST DATED JULY 9, 1992
By: ROY E. CLAVERIE, as Trustee
By:
-------------------------------------
Name: ROY E. CLAVERIE
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
TRUST FOR THE BENEFIT OF DAVID B.
INGRAM ESTABLISHED BY MARTHA R.
RIVERS UNDER AN AGREEMENT OF TRUST
ORIGINALLY DATED APRIL 30, 1982, AS
AMENDED
By: ROY E. CLAVERIE, as Trustee
By:
-------------------------------------
Name: Roy E. Claverie
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
DAVID AND SARAH INGRAM FAMILY 1996
GENERATION SKIPPING TRUST
By: THOMAS H. LUNN, AS TRUSTEE
By:
-------------------------------------
Name: Thomas H. Lunn
Title: Trustee
Address: 509 Sugartree Lane
Franklin, TN 37064
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TRUST FOR ROBIN BIGELOW INGRAM, UNDER
AGREEMENT WITH E. BRONSON INGRAM
DATED OCTOBER 27, 1967
By: SUNTRUST BANK, ATLANTA MARTHA R.
INGRAM AND FREDERIC B. INGRAM, AS
CO-TRUSTEES
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address: Suntrust Bank, Atlanta
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
By:
-------------------------------------
Name: Martha R. Ingram
Title: Co-Trustee
Address: 120 Hillwood Drive
Nashville, TN 37215
By:
-------------------------------------
Name: Frederic B. Ingram
Title: Co-Trustee
Address: 813 Greenway Dr.
Beverly Hills, CA 90210
TRUST FOR ROBIN BIGELOW INGRAM, UNDER
AGREEMENT WITH E. BRONSON INGRAM
DATED JUNE 14, 1968
By: SUNTRUST BANK, ATLANTA AND
MARTHA R. INGRAM, AS CO-TRUSTEES
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address: Suntrust Bank, Atlanta
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
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By:
-------------------------------------
Name: Martha R. Ingram
Title: Co-Trustee
Address: 120 Hillwood Drive
Nashville, TN 37215
TRUST FOR ROBIN BIGELOW INGRAM, UNDER
AGREEMENT WITH HORTENSE B. INGRAM
DATED DECEMBER 22, 1975
By: SUNTRUST BANK, ATLANTA, Trustee
By:
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address: Suntrust Bank, Atlanta
Attn: Thomas A. Shanks, Jr.
Trust Company Tower
25 Park Place, 2nd Floor
Atlanta, GA 30303
THE ROBIN INGRAM PATTON IRREVOCABLE
TRUST DATED JULY 9, 1992
By: ROY E. CLAVERIE, as Trustee
By:
-------------------------------------
Name: Roy E. Claverie
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
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TRUST FOR THE BENEFIT OF ROBIN B.
INGRAM ESTABLISHED BY MARTHA R.
RIVERS UNDER AN AGREEMENT OF TRUST
ORIGINALLY DATED APRIL 30, 1982, AS
AMENDED
By: ROY E. CLAVERIE, as Trustee
By:
-------------------------------------
Name: Roy E. Claverie
Title: Trustee
Address: 6107 Hickory Valley Road
Nashville, TN 37205
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EXHIBIT A
ATTRIBUTION OF APPROVING VOTING POWER
1. With respect to any vote pursuant to Section 2.5, and as of any given
date, Martha R. Ingram shall be attributed and entitled to cast a number of
votes equal to the Outstanding Voting Power of all Micro Common Shares owned by
the Trust for John Rivers Ingram, under an Agreement with E. Bronson Ingram
dated June 14, 1968, plus the Outstanding Voting Power of all Micro Common
Shares owned by the Trust for David B. Ingram, under an Agreement with E.
Bronson Ingram dated October 27, 1967, plus the Outstanding Voting Powerof all
Micro Common Shares owned by the Trust for the Benefit of David Bronson Ingram,
dated June 14, 1968, plus the Outstanding Voting Power of all Micro Common
Shares owned by the Trust for Robin Bigelow Ingram, under an Agreement with E.
Bronson Ingram dated June 14, 1968.
2. With respect to any vote pursuant to Section 2.5, and as of any given
date, Orrin H. Ingram, II shall be attributed and entitled to cast a number of
votes equal to twenty-five percent (25%) of the Outstanding Voting Power of all
Micro Common Shares owned by the E. Bronson Ingram 1994 Charitable Lead Annuity
Trust.
3. With respect to any vote pursuant to Section 2.5, and as of any given
date, John R. Ingram shall be attributed and entitled to cast a number of
votes equal to twenty-five percent (25%) of the Outstanding Voting Power of all
Micro Common Shares owned by the E. Bronson Ingram 1994 Charitable Lead Annuity
Trust.
4. With respect to any vote pursuant to Section 2.5, and as of any given
date, David B. Ingram shall be attributed and entitled to cast a number of
votes equal to twenty-five percent (25%) of the Outstanding Voting Power of all
Micro Common Shares owned by the E. Bronson Ingram 1994 Charitable Lead Annuity
Trust.
5. With respect to any vote pursuant to Section 2.5, and as of any given
date, Robin B. Ingram Patton shall be attributed and entitled to cast a number
of votes equal to twenty-five percent (25%) of the Outstanding Voting Power of
all Micro Common Shares owned by the E. Bronson Ingram 1994 Charitable Lead
Annuity Trust.
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EXHIBIT B
FORM OF AGREEMENT TO BE BOUND
[DATE]
To the Parties to the Board Representation Agreement
Dated as of _______, ____
Ladies and Gentlemen:
Reference is made to the Board Representation Agreement (THE
"AGREEMENT") dated as of __________ among Ingram Micro Inc. and the Persons
listed on the signature pages thereof.
In consideration of the transfer to the undersigned of Micro Common
Shares (as defined in the Agreement), the undersigned hereby confirms and
agrees to be bound by all of the provisions of the Agreement applicable to the
transferor.
This letter shall be construed and enforced in accordance with the
laws of the State of Delaware without regard to the conflicts of law rules of
such state.
Very truly yours,
-------------------------------------
Permitted Transferee