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EXHIBIT 10.43
INGRAM MICRO INC.
1998 EQUITY INCENTIVE PLAN
SECTION 1. PURPOSE. The purposes of the Ingram Micro Inc. 1998 Equity
Incentive Plan are to promote the interests of Ingram Micro Inc. and its
shareowners by (i) attracting and retaining exceptional directors, executive
personnel and other key employees of Micro and its Affiliates, as defined below;
(ii) motivating such employees and directors by means of performance-related
incentives to achieve longer-range performance goals; and (iii) enabling such
employees and directors to participate in the long- term growth and financial
success of Micro.
SECTION 2. DEFINITIONS. As used in the Plan, the following terms shall
have the meanings set forth below:
"AFFILIATE" means (i) any entity that is, directly or indirectly,
controlled by Micro and (ii) any other entity in which Micro has a significant
equity interest or which has a significant equity interest in Micro, in either
case as determined by the Committee.
"AWARD" means any Option, Stock Appreciation Right, Restricted Stock
Award, Performance Award or Other Stock-Based Award.
"AWARD AGREEMENT" means any written agreement, contract, or other
instrument or document evidencing any Award, which may, but need not, be
executed or acknowledged by a Participant.
"BOARD" means the Board of Directors of Micro.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMITTEE" means a committee of the Board designated by the Board to
administer the Plan and composed of not less than the minimum number of persons
from time to time required by Rule 16b-3, each of whom, to the extent necessary
to comply with Rule 16b-3 only, is a "Non-Employee Director" within the meaning
of Rule 16b-3. Until otherwise determined by the Board, the Human Resources
Committee or any successor or replacement thereof designated by the Board shall
be the Committee under the Plan.
"EMPLOYEE" means an employee of Micro or any Affiliate and any member of
the Board.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXECUTIVE OFFICER" means, at any time, an individual who is an
executive officer of Micro within the meaning of Exchange Act Rule 3b-7 or who
is an officer of Micro within the meaning of Exchange Act Rule 16a-1(f).
"FAIR MARKET VALUE" means with respect to the 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
Share shall be determined by the Committee in good faith taking into account as
appropriate recent sales of the Shares, recent valuations of the Shares, the
lack of liquidity of the Shares,
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the fact that the Shares may represent a minority interest and such other
factors as the Committee shall in its discretion deem relevant or appropriate.
"INCENTIVE STOCK OPTION" means a right to purchase Shares from Micro
that is granted under Section 6 of the Plan and that is intended to meet the
requirements of Section 422 of the Code or any successor provision thereto.
"MICRO" means Ingram Micro Inc., a Delaware corporation, together with
any successor thereto.
"NON-QUALIFIED STOCK OPTION" means a right to purchase Shares from Micro
that is granted under Section 6 of the Plan and that is not intended to be an
Incentive Stock Option.
"OPTION" means an Incentive Stock Option or a Non-Qualified Stock
Option.
"OTHER STOCK-BASED AWARD" means any right granted under Section 10 of
the Plan.
"PARTICIPANT" means any Employee selected by the Committee to receive an
Award under the Plan (and to the extent applicable, any heirs or legal
representatives thereof).
"PERFORMANCE AWARD" means any right granted under Section 9 of the Plan.
"PERSON" means any individual, corporation, limited liability company,
partnership, association, joint-stock company, trust, unincorporated
organization, government or political subdivision thereof or other entity.
"PLAN" means this Ingram Micro Inc. 1998 Equity Incentive Plan.
"RESTRICTED STOCK" means any Shares granted under Section 8 of the Plan.
"RESTRICTED STOCK UNIT" means any unit granted under Section 8 of the
Plan.
"RULE 16b-3" means Rule 16b-3 as promulgated and interpreted by the SEC
under the Exchange Act, or any successor rule or regulation thereto as in effect
from time to time.
"SEC" means the Securities and Exchange Commission or any successor
thereto.
"SHARES" means shares of Class A common stock, $.01 par value, of Micro
or such other securities as may be designated by the Committee from time to
time.
"STOCK APPRECIATION RIGHT" means any right granted under Section 7 of
the Plan.
"SUB-PLAN" means any sub-plan or sub-plans adopted by the Committee
under Section 14(q) hereof.
"SUBSTITUTE AWARDS" means Awards granted in assumption of, or in
substitution for, outstanding awards previously granted by a company acquired by
Micro or with which Micro combines.
SECTION 3. ADMINISTRATION.
(a) AUTHORITY OF COMMITTEE. The Plan shall be administered by the
Committee. Subject to the terms of the Plan, applicable law and contractual
restrictions affecting Micro, and in addition to other express powers and
authorizations conferred on the Committee by the Plan, the Committee shall have
full power and authority to: (i) designate Participants; (ii) determine the type
or types of Awards to be granted to an eligible Employee; (iii) determine the
number of Shares to be covered by, or with respect to which payments, rights, or
other matters are to be calculated in connection with, Awards; (iv) determine
the terms and conditions of any Award and Award Agreement; (v) determine
whether, to what extent, and under what circumstances Awards may be settled or
exercised in cash, Shares, other securities, other Awards or other property, or
canceled, forfeited, or suspended and
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the method or methods by which Awards may be settled, exercised, canceled,
forfeited, or suspended; (vi) determine whether, to what extent, and under what
circumstances cash, Shares, other securities, other Awards, other property, and
other amounts payable with respect to an Award shall be deferred either
automatically or at the election of the holder thereof or of the Committee;
(vii) interpret and administer the Plan and any instrument or agreement relating
to, or Award made under, the Plan; (viii) establish, amend, suspend, or waive
such rules and regulations and appoint such agents as it shall deem appropriate
for the proper administration of the Plan; (ix) make any other determination and
take any other action that the Committee deems necessary or desirable for the
administration of the Plan; and (x) adopt and administer one or more Sub-Plans.
Without limiting the foregoing, the Committee may impose such conditions with
respect to the exercise and/or settlement of any Awards, including without
limitation, any relating to the application of Federal or state securities laws
or the laws, rules or regulations of any jurisdiction outside the United States,
as it may deem necessary or advisable.
(b) COMMITTEE DISCRETION BINDING. Unless otherwise expressly provided in
the Plan, all designations, determinations, interpretations, and other decisions
under or with respect to the Plan or any Award shall be within the sole
discretion of the Committee, may be made at any time and shall be final,
conclusive and binding upon all Persons, including Micro, any Affiliate, any
Participant, any holder or beneficiary of any Award, any shareholder and any
Employee.
SECTION 4. SHARES AVAILABLE FOR AWARDS.
(a) SHARES AVAILABLE. Subject to adjustment as provided in Section 4(b)
and 4(c), the number of Shares with respect to which Awards may be granted under
the Plan and all Sub-Plans shall be 15,000,000. If, after the effective date of
the Plan, any Shares covered by an Award granted under the Plan or to which such
an Award relates, are forfeited, or if such an Award is settled for cash or
otherwise terminates or is canceled without the delivery of Shares, then the
Shares covered by such Award, or to which such Award relates, or the number of
Shares otherwise counted against the aggregate number of Shares with respect to
which Awards may be granted, to the extent of any such settlement, forfeiture,
termination or cancellation, shall, in the calendar year in which such
settlement, forfeiture, termination or cancellation occurs, again become Shares
with respect to which Awards may be granted unless any dividends have been paid
thereon prior to such settlement, forfeiture, termination or cancellation.
Notwithstanding the foregoing and subject to adjustment as provided in Section
4(b), no Employee of Micro may receive Awards under the Plan in any calendar
year that relate to more than 500,000 Shares.
(b) ADJUSTMENTS. In the event that the Committee determines that any
dividend or other distribution (whether in the form of cash, Shares, other
securities or other property), recapitalization, stock split, reverse stock
split, reorganization, reclassification, merger, consolidation, split-up,
spin-off, combination, repurchase, or exchange of Shares or other securities of
Micro, issuance of warrants or other rights to purchase Shares or other
securities of Micro, or other similar corporate transaction or event affects the
Shares such that an adjustment is determined by the Committee to be appropriate
in order to prevent dilution or enlargement of the benefits or potential
benefits intended to be made available under the Plan, then the Committee shall,
in such manner as it may deem equitable, adjust any or all of (i) the number of
Shares of Micro (or number and kind of other securities or property) with
respect to which Awards may thereafter be granted, (ii) the number of Shares or
other securities of Micro (or number and kind of other securities or property)
subject to outstanding Awards, and (iii) the grant or exercise price with
respect to any Award, or, if deemed appropriate, make provision for a cash
payment to the holder of an outstanding Award; provided, in each case, that
except to the extent deemed desirable by the Committee (A) with respect to
Awards of Incentive Stock Options no such adjustment shall be authorized to the
extent that such authority would cause the Plan to violate Section 422(b)(1) of
the Code, as from time to time amended, and (B) with respect to any Award no
such adjustment shall be authorized to the extent that such authority would be
inconsistent with the Plan's meeting the requirements of Section 162(m) of the
Code, as from time to time amended.
(c) SUBSTITUTE AWARDS. Any Shares underlying Substitute Awards shall
not, except in the case of Shares with respect to which Substitute Awards are
granted to Employees who are officers or directors of Micro for purposes of
Section 16 of the Exchange Act or any successor section thereto, be counted
against the Shares available for Awards under the Plan.
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(d) SOURCES OF SHARES DELIVERABLE UNDER AWARDS. Any Shares delivered
pursuant to an Award may consist, in whole or in part, of authorized and
unissued Shares or of treasury Shares.
SECTION 5. ELIGIBILITY. Any Employee, including any officer or
employee-director of Micro or any Affiliate, and any member of the Board, shall
be eligible to be designated a Participant.
SECTION 6. STOCK OPTIONS.
(a) GRANT. Subject to the provisions of the Plan and contractual
restrictions affecting Micro, the Committee shall have sole and complete
authority to determine the Employees to whom Options shall be granted, the
number of Shares to be covered by each Option, the option price therefor and the
conditions and limitations applicable to the exercise of the Option. The
Committee shall have the authority to grant Incentive Stock Options, or to grant
Non-Qualified Stock Options, or to grant both types of options. In the case of
Incentive Stock Options, the terms and conditions of such grants shall be
subject to and comply with such rules as may be prescribed by Section 422 of the
Code, as from time to time amended, and any regulations implementing such
statute.
(b) EXERCISE PRICE. The Committee in its sole discretion shall establish
the exercise price at the time each Option is granted.
(c) EXERCISE. Each Option shall be exercisable at such times and subject
to such terms and conditions as the Committee may, in its sole discretion,
specify in the applicable Award Agreement or thereafter.
(d) PAYMENT. No Shares shall be delivered pursuant to any exercise of an
Option until payment in full of the option price therefor is received by Micro.
Such payment may be made: (i) in cash; (ii) in Shares already owned by the
Participant (the value of such Shares shall be their Fair Market Value on the
date of exercise); (iii) by a combination of cash and Shares; (iv) if approved
by the Committee, in accordance with a cashless exercise program under which
either (A) if so instructed by the Participant, Shares may be issued directly to
the Participant's broker or dealer upon receipt of the purchase price in cash
from the broker or dealer, or (B) Shares may be issued by Micro to a
Participant's broker or dealer in consideration of such broker's or dealer's
irrevocable commitment to pay to Micro that portion of the proceeds from the
sale of such Shares that is equal to the exercise price of the Option(s)
relating to such Shares, or (v) in such other manner as permitted by the
Committee at the time of grant or thereafter.
SECTION 7. STOCK APPRECIATION RIGHTS.
(a) GRANT. Subject to the provisions of the Plan and contractual
restrictions affecting Micro, the Committee shall have sole and complete
authority to determine the Employees to whom Stock Appreciation Rights shall be
granted, the number of Shares to be covered by each Stock Appreciation Right
Award, the grant price thereof and the conditions and limitations applicable to
the exercise thereof. Stock Appreciation Rights may be granted in tandem with
another Award, in addition to another Award, or freestanding and unrelated to
another Award. Stock Appreciation Rights granted in tandem with or in addition
to an Award may be granted either at the same time as the Award or at a later
time. Stock Appreciation Rights shall not be exercisable earlier than six months
after grant and shall have a grant price as determined by the Committee on the
date of grant.
(b) EXERCISE AND PAYMENT. A Stock Appreciation Right shall entitle the
Participant to receive an amount equal to the excess of the Fair Market Value of
a Share on the date of exercise of the Stock Appreciation Right over the grant
price thereof. The Committee shall determine whether a Stock Appreciation Right
shall be settled in cash, Shares or a combination of cash and Shares.
(c) OTHER TERMS AND CONDITIONS. Subject to the terms of the Plan and any
applicable Award Agreement, the Committee shall determine, at or after the grant
of a Stock Appreciation Right, the term, methods of exercise, methods and form
of settlement, and any other terms and conditions of any Stock Appreciation
Right. Any such determination by the Committee may be changed by the Committee
from time to time and may govern the exercise of Stock Appreciation Rights
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granted or exercised prior to such determination as well as Stock Appreciation
Rights granted or exercised thereafter. The Committee may impose such conditions
or restrictions on the exercise of any Stock Appreciation Right as it shall deem
appropriate.
SECTION 8. RESTRICTED STOCK AND RESTRICTED STOCK UNITS
(a) GRANT. Subject to the provisions of the Plan and contractual
provisions affecting Micro, the Committee shall have sole and complete authority
to determine the Employees to whom Shares of Restricted Stock and Restricted
Stock Units shall be granted, the number of Shares of Restricted Stock and/or
the number of Restricted Stock Units to be granted to each Participant, the
duration of the period during which, and the conditions under which, the
Restricted Stock and Restricted Stock Units may be forfeited to Micro, and the
other terms and conditions of such Awards.
(b) PAYMENT. Each Restricted Stock Unit shall have a value equal to the
Fair Market Value of a Share. Restricted Stock Units shall be paid in cash,
Shares, other securities, or other property, as determined in the sole
discretion of the Committee, upon the lapse of the restrictions applicable
thereto, or otherwise in accordance with the applicable Award Agreement.
(c) DIVIDENDS AND DISTRIBUTIONS. Dividends and other distributions paid
on or in respect of any Shares of Restricted Stock may be paid directly to the
Participant, or may be reinvested in additional Shares of Restricted Stock or in
additional Restricted Stock Units, as determined by the Committee in its sole
discretion.
SECTION 9. PERFORMANCE AWARDS.
(a) GRANT. Subject to the provisions of the Plan and contractual
provisions affecting Micro, the Committee shall have sole and complete authority
to determine the Employees who shall receive a "Performance Award", which shall
consist of a right which is (i) denominated in cash or Shares, (ii) valued, as
determined by the Committee, in accordance with the achievement of such
performance goals during such performance periods as the Committee shall
establish, and (iii) payable at such time and in such form as the Committee
shall determine.
(b) TERMS AND CONDITIONS. Subject to the terms of the Plan, any
contractual provisions affecting Micro and any applicable Award Agreement, the
Committee shall determine the performance goals to be achieved during any
performance period, the length of any performance period, the amount of any
Performance Award and the amount and kind of any payment or transfer to be made
pursuant to any Performance Award.
(c) PAYMENT OF PERFORMANCE AWARDS. Performance Awards may be paid in a
lump sum or in installments following the close of the performance period or in
accordance with procedures established by the Committee, on a deferred basis.
SECTION 10. OTHER STOCK-BASED AWARDS. The Committee shall have authority
to grant to eligible Employees an "Other Stock-Based Award", which shall consist
of any right which is (i) not an Award described in Sections 6 through 9 above
and (ii) an Award of Shares or an Award denominated or payable in, valued in
whole or in part by reference to, or otherwise based on or related to, Shares
(including, without limitation, securities convertible into Shares), as deemed
by the Committee to be consistent with the purposes of the Plan; provided that
any such rights must comply with applicable law, and to the extent deemed
desirable by the Committee, with Rule 16b-3. Subject to the terms of the Plan,
any contractual provisions affecting Micro and any applicable Award Agreement,
the Committee shall determine the terms and conditions of any such Other
Stock-Based Award.
SECTION 11. TERMINATION OR SUSPENSION OF EMPLOYMENT OR SERVICE.
The following provisions shall apply in the event of the Participant's
termination of employment or service unless the Committee shall have provided
otherwise, either at the time of the grant of the Award or thereafter.
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(a) NON-QUALIFIED STOCK OPTIONS AND STOCK APPRECIATION RIGHTS. (i)
Termination of Employment or Service. (A) Except as the Committee may at any
time otherwise provide or as required to comply with applicable law, if the
Participant's employment or service with Micro or its Affiliates is terminated
for any reason other than death, disability, or retirement, the Participant's
right to exercise any Non-Qualified Stock Option or Stock Appreciation Right
shall terminate, and such Option or Stock Appreciation Right shall expire, on
the earlier of (x) the sixtieth day following such termination of employment or
service or (y) the date such Option or Stock Appreciation Right would have
expired had it not been for the termination of employment or services. The
Participant shall have the right to exercise such Option or Stock Appreciation
Right prior to such expiration to the extent it was exercisable at the date of
such termination of employment or service and shall not have been exercised.
(b) Notwithstanding any of the provisions of Section 11(a)(i)(A), in
respect of a Participant employed outside the United States, such Participant's
right to exercise any Non-Qualified Stock Option and Stock Appreciation Rights
shall terminate and such Option or Stock Appreciation Right shall expire and
lapse, on the earlier of (x) the sixtieth day following the first to occur of
the time (1) such Participant's employer gives notice to the Participant of
termination of Participant's employment, or (2) such Participant gives notice to
such Participant's employer to terminate Participant's employment, or (3) if no
such notice is given, on the date Participant's employment is terminated
(whichever the first to occur of (1), (2) or (3) collectively,
"Notice/Termination") or (y) the date such Option or Stock Appreciation Right
would have expired had it not been for the Notice/Termination. The Participant
shall have the right to exercise such Option or Stock Appreciation Right prior
to such expiration to the extent it was exercisable at the date of
Notice/Termination and shall not have been exercised. Any such Participant shall
not be entitled, and by applying for or accepting the grant of any Non-Qualified
Stock Option or Stock Appreciation Right, shall be deemed irrevocably to have
waived any entitlement, by way of compensation for loss of office or damages for
breach of contract or otherwise howsoever to any sum or other benefit to
compensate for the loss of any rights under the Plan.
(ii) DEATH. Except as the Committee may at any time otherwise
provide or as required to comply with applicable law, if the
Participant's employment or service with Micro or its Affiliates is
terminated by reason of death all then non-exercisable Non-Qualified
Stock Options and Stock Appreciation Rights held by such Participant
shall be immediately exercisable and the Participant or his successor
shall have the right to exercise any Non-Qualified Stock Option or Stock
Appreciation Right during the one year period following such termination
of employment or service, but in no event shall such Option or Stock
Appreciation Right be exercisable later than the date the Option or
Stock Appreciation Right would have expired had it not been for the
termination of such employment or service.
(iii) DISABILITY. Except as the Committee may at any time otherwise
provide or as required to comply with applicable law, if the
Participant's employment or service with Micro or its Affiliates is
terminated by reason of disability, all then non-exercisable
Non-Qualified Stock Options and Stock Appreciation Rights held by such
Participant shall continue to vest pursuant to the vesting schedule in
effect on the date of disability and the Participant shall have the
right to exercise such Non-Qualified Stock Option or Stock Appreciation
Right through the one year period following the last vesting date, but
in no event shall such Option or Stock Appreciation Right be exercisable
later than the date the Option or Stock Appreciation Right would have
expired had it not been for the termination of such employment or
service. The meaning of the term "disability" shall be determined by the
Committee.
(iv) RETIREMENT. Except as the Committee may at any time otherwise
provide or as required to comply with applicable law, if the
Participant's employment or service with Micro or its Affiliates is
terminated by reason of retirement, the Participant shall have the right
to exercise any Non- Qualified Stock Option or Stock Appreciation Right
exercisable on the retirement date during the one year period following
such termination of employment or service, but in no event shall such
option be exercisable later than the date the Option or Stock
Appreciation Right would have expired had it not been for the
termination of such employment or service. The meaning of the term
"retirement" shall be determined by the Committee.
(v) ACCELERATION OR EXTENSION OF EXERCISABILITY. Notwithstanding the
foregoing, the Committee may, in its discretion, provide at any time (A)
that an Option or Stock Appreciation Right granted to a Participant may
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terminate at a date earlier than that set forth above, (B) that an
Option or Stock Appreciation Right granted to a Participant may
terminate at a date later than that set forth above, provided such date
shall not be beyond the date the Option or Stock Appreciation Right
would have expired had it not been for the termination of the
Participant's employment or service and (C) that an Option or Stock
Appreciation Right may become immediately exercisable when it finds that
such acceleration would be in the best interests of Micro.
(b) INCENTIVE STOCK OPTIONS AND RELATED STOCK APPRECIATION RIGHTS.
(i) TERMINATION OF EMPLOYMENT OR SERVICE. (A) Except as the
Committee may at any time otherwise provide or as required to comply
with applicable law, if the Participant's employment or service with
Micro or its Affiliates is terminated for any reason other than death,
disability, or retirement, the Participant's right to exercise any
Incentive Stock Option or related Stock Appreciation Right shall
terminate, and such Option or related Stock Appreciation Right shall
expire, on the earlier of (x) the ninetieth day following such
termination of employment or service or (y) the date such Option or
related Stock Appreciation Right would have expired had it not been for
the termination of employment or services. The Participant shall have
the right to exercise such Option or related Stock Appreciation Right
prior to such expiration to the extent it was exercisable at the date of
such termination of employment or service and shall not have been
exercised.
(B) Notwithstanding any of the provisions of Section 11(b)(i)(A),
in respect of a Participant employed outside the United States, such
Participant's right to exercise any Incentive Stock Option and
related Stock Appreciation Rights shall terminate and such Option
and related Stock Appreciation Right shall expire and lapse, on the
earlier of (x) the ninetieth day following Notice/Termination or (y)
the date such Option and related Stock Appreciation Right would have
expired had it not been for the Notice/Termination. The Participant
shall have the right to exercise such Option and related Stock
Appreciation Right prior to such expiration to the extent it was
exercisable at the date of Notice/Termination and shall not have
been exercised. Any such Participant shall not be entitled, and by
applying for or accepting the grant of any Incentive Stock Option,
whether or not in conjunction with a Stock Appreciation Right, shall
be deemed irrevocably to have waived any entitlement, by way of
compensation for loss of office or damages for breach of contract or
otherwise howsoever to any sum or other benefit to compensate for
the loss of any rights under the Plan.
(ii) DEATH, DISABILITY OR RETIREMENT. Except as the Committee may at
any time otherwise provide or as required to comply with applicable law,
if the Participant's employment or service with Micro or its Affiliates
is terminated by reason of death, disability or retirement, the
Participant or his successor (if employment or service is terminated by
death) shall have the right to exercise any exercisable Incentive Stock
Option or related Stock Appreciation Right during the 90 day period
following such termination of employment or service, but in no event
shall such option be exercisable later than the date the Incentive Stock
Option would have expired had it not been for the termination of such
employment or services. To the extent such Incentive Stock Option or
related Stock Appreciation Right is not exercised prior to the
termination of such 90 day period, the unexercised balance of such
Option automatically will be deemed a Non-Qualified Stock Option, and
such Option and related Stock Appreciation Right will vest and be
exercisable as provided in Section 11(a)(ii), (iii) or (iv), hereof, as
the case may be, but in no event shall such Option or related Stock
Appreciation Right be exercisable later than the date the Option or
related Stock Appreciation Right would have expired had it not been for
the termination of such employment or service, provided that in the
event that the Participant dies in such 90-day period the Option will
continue to be an Incentive Stock Option to the extent provided by
Section 421 or Section 422 of the Code, or any successor provision, and
any regulations promulgated thereunder.
(iii) ACCELERATION OR EXTENSION OF EXERCISABILITY. Notwithstanding
the foregoing, the Committee may, in its discretion, provide at any time
(A) that an Option and related Stock Appreciation Right granted to a
Participant may terminate at a date earlier than that set forth above,
(B) that an Option and related Stock Appreciation Right granted to a
Participant may terminate at a date later than that set forth above,
provided such date shall not be beyond the date the Option and related
Stock Appreciation Right would have expired had
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it not been for the termination of the Participant's employment or
service and (C) that an Option and related Stock Appreciation Right may
become immediately exercisable when it finds that such acceleration
would be in the best interests of Micro.
(c) RESTRICTED STOCK.
(i) Except as otherwise determined by the Committee at the time of
grant or as required to comply with applicable law, upon termination of
employment or service for any reason during the restriction period, all
shares of Restricted Stock still subject to restriction shall be
forfeited by the Participant and reacquired by Micro at the price (if
any) paid by the Participant for such Restricted Stock; provided that,
except as the Committee may at any time otherwise provide, in the event
of Participant's retirement, disability, or death such Restricted Stock
shall be subject to forfeiture and/or vesting as provided in Section
11(a)(ii), (iii) and (iv) hereof, as the case may be. In cases of
special circumstances, the Committee may, in its sole discretion, when
it finds that a waiver would be in the best interests of Micro, waive in
whole or in part any or all remaining restrictions with respect to such
Participant's shares of Restricted Stock. Any time spent by a
Participant in the status of "leave without pay" shall extend the period
otherwise required for purposes of determining the extent to which any
Award or portion thereof has vested or otherwise become exercisable or
nonforfeitable.
(ii) In the case of a Participant employed outside the United
States, except to the extent (if any) provided in the Plan in the case
of termination of such Participant's employment by reason of death,
disability or retirement, any rights of such Participant relating to
Restricted Stock and Restricted Stock Units or Performance Awards or
Other Stock Based- Awards shall lapse and no longer be capable of
exercise at the time when such Participant's employer gives notice to
the Participant or, at the time when the Participant gives notice to
such Participant's employer to terminate his employment or, if no such
notice is given, at the time when his employment is terminated. Any such
Participant shall not be entitled, and by applying for or accepting any
such Award or accepting the same he shall be deemed irrevocably to have
waived any entitlement, by way of compensation for loss of office or
damages for breach of contract or otherwise howsoever to any sum or
other benefit to compensate for the loss of any rights under the Plan.
(d) Except as the Committee may otherwise determine, for purposes hereof
any termination of a Participant's employment or service for any reason shall
occur on the date Participant ceases to perform services for Micro or any
Affiliate without regard to whether Participant 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 Participant is no longer a
member of the Board.
SECTION 12. MERGER. In the event of a merger of Micro with or into
another corporation, each outstanding Award may be assumed or an equivalent
award may be substituted by such successor corporation or a parent or subsidiary
of such successor corporation. If, in such event, an Award is not assumed or
substituted, the Award shall terminate as of the date of the closing of the
merger. For the purposes of this paragraph, the Award shall be considered
assumed if, following the merger, the Award confers the right to purchase or
receive, for each Share subject to the Award immediately prior to the merger,
the consideration (whether stock, cash, or other securities or property)
received in the merger by holders of Common Stock for each Share held on the
effective date of the transaction (and if the holders are offered a choice of
consideration, the type of consideration chosen by the holders of a majority of
the outstanding Shares). If such consideration received in the merger is not
solely common stock of the successor corporation or its parent, the Committee
may, with the consent of the successor corporation, provide for the
consideration to be received upon the exercise of the Award, for each Share
subject to the Award, to be solely common stock of the successor corporation or
its parent equal in fair market value to the per share consideration received by
holders of Common Stock in the merger.
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SECTION 13. AMENDMENT AND TERMINATION.
(a) AMENDMENTS TO THE PLAN. The Board may terminate or discontinue the
Plan at any time and the Board or the Committee may amend or alter the Plan or
any portion thereof at any time; provided that no such amendment, alteration,
discontinuation or termination shall be made without shareholder approval if
such approval is necessary to comply with any tax or regulatory requirement,
including for these purposes any approval requirement which is a prerequisite
for exemptive relief from Section 16(b) of the Exchange Act, for which or with
which the Board or the Committee deems it necessary or desirable to qualify or
comply.
(b) AMENDMENTS TO AWARDS. Subject to the terms of the Plan and
applicable law, the Committee may waive any conditions or rights under, amend
any terms of, or alter, suspend, discontinue, cancel or terminate, any Award
theretofore granted, prospectively or retroactively; provided that any such
waiver, amendment, alteration, suspension, discontinuance, cancellation or
termination that would adversely affect the rights of any Participant or any
holder or beneficiary of any Award theretofore granted shall not to that extent
be effective without the consent of the affected Participant, holder or
beneficiary.
(c) CANCELLATION. Any provision of this Plan or any Award Agreement to
the contrary notwithstanding, the Committee may cause any Award granted
hereunder to be canceled in consideration of a cash payment or alternative Award
made to the holder of such canceled Award equal in value to the Fair Market
Value of such canceled Award.
SECTION 14. GENERAL PROVISIONS.
(a) DIVIDEND EQUIVALENTS. In the sole and complete discretion of the
Committee, an Award, whether made as an Other Stock-Based Award under Section 10
or as an Award granted pursuant to Sections 6 through 9 hereof, may provide the
Participant with dividends or dividend equivalents, payable in cash, Shares,
other securities or other property on a current or deferred basis.
(b) NONTRANSFERABILITY. (i) Except as provided in subsection (ii) below,
no Award shall be assigned, alienated, pledged, attached, sold or otherwise
transferred or encumbered by a Participant, except by will or the laws of
descent and distribution.
(ii) Notwithstanding subsection (i) above, the Committee may
determine that an Award may be transferred by a Participant to one or
more members of the Participant's immediate family, to a partnership of
which the only partners are members of the Participant's immediate
family, or to a trust established by the Participant for the benefit of
one or more members of the Participant's immediate family. For this
purpose, immediate family means the Participant's spouse, parents,
children, grandchildren and the spouses of such parents, children and
grandchildren. A transferee described in this subsection (ii) may not
further transfer an Award. An Award transferred pursuant to this
subsection shall remain subject to the provisions of the Plan,
including, but not limited to, the provisions of Section 11 relating to
the effect on the Award of the death, retirement or termination of
employment of the Participant, and shall be subject to such other rules
as the Committee shall determine.
(c) NO RIGHTS TO AWARDS. No Employee, Participant or other Person shall
have any claim to be granted any Award, and there is no obligation for
uniformity of treatment of Employees, Participants, or holders or beneficiaries
of Awards. The terms and conditions of Awards need not be the same with respect
to each recipient.
(d) SHARE CERTIFICATES. All certificates for Shares or other securities
of Micro or any Affiliate delivered under the Plan pursuant to any Award or the
exercise thereof shall be subject to such stop transfer orders and other
restrictions as the Committee may deem advisable under the Plan or the rules,
regulations and other requirements of the SEC or any stock exchange upon which
such Shares or other securities are then listed and any applicable Federal,
state or foreign laws or rules or regulations, and the Committee may cause a
legend or legends to be put on any such certificates to make appropriate
reference to such restrictions.
(e) WITHHOLDING. A Participant may be required to pay to Micro or any
Affiliate, and Micro or any Affiliate shall have the right and is hereby
authorized to withhold from any Award, from any payment due or transfer made
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under any Award or under the Plan or from any compensation or other amount owing
to a Participant the amount (in cash, Shares, other securities, other Awards or
other property) of any applicable withholding taxes in respect of an Award, its
exercise, or any payment or transfer under an Award or under the Plan and to
take such other action as may be necessary in the opinion of Micro to satisfy
all obligations for the payment of such taxes. The Committee may provide for
additional cash payments to holders of Awards to defray or offset any tax
arising from any such grant, lapse, vesting, or exercise of any Award.
(f) AWARD AGREEMENTS. Each Award hereunder shall be evidenced by an
Award Agreement which shall be delivered to the Participant and shall specify
the terms and conditions of the Award and any rules applicable thereto.
(g) NO LIMIT ON OTHER COMPENSATION ARRANGEMENTS. Nothing contained in
the Plan shall prevent Micro or any Affiliate from adopting or continuing in
effect other compensation arrangements, which may, but need not, provide for the
grant of options, restricted stock, Shares and other types of Awards provided
for hereunder (subject to shareholder approval if such approval is required),
and such arrangements may be either generally applicable or applicable only in
specific cases.
(h) NO RIGHT TO EMPLOYMENT. The grant of an Award shall not be construed
as giving a Participant the right to be retained in the employ or service of
Micro or any Affiliate. Further, Micro or an Affiliate may at any time dismiss a
Participant from employment or service, free from any liability or any claim
under the Plan, unless otherwise expressly provided in the Plan or in any Award
Agreement.
(i) RIGHTS AS A STOCKHOLDER. Subject to the provisions of the applicable
Award, no Participant or holder or beneficiary of any Award shall have any
rights as a stockholder with respect to any Shares to be issued under the Plan
until he or she has become the holder of such Shares. Notwithstanding the
foregoing, in connection with each grant of Restricted Stock hereunder, the
applicable Award shall specify if and to what extent the Participant shall not
be entitled to the rights of a stockholder in respect of such Restricted Stock.
(j) GOVERNING LAW. The validity, construction, and effect of the Plan
and any rules and regulations relating to the Plan and any Award Agreement shall
be determined in accordance with the laws of the State of Delaware.
(k) SEVERABILITY. If any provision of the Plan or any Award is or
becomes or is deemed to be invalid, illegal, or unenforceable in any
jurisdiction or as to any Person or Award, or would disqualify the Plan or any
Award under any law deemed applicable by the Committee, such provision shall be
construed or deemed amended to conform to the applicable laws, or if it cannot
be construed or deemed amended without, in the determination of the Committee,
materially altering the intent of the Plan or the Award, such provision shall be
stricken as to such jurisdiction, Person or Award and the remainder of the Plan
and any such Award shall remain in full force and effect.
(l) OTHER LAWS. The Committee may refuse to issue or transfer any Shares
or other consideration under an Award if, acting in its sole discretion, it
determines that the issuance or transfer of such Shares or such other
consideration might violate any applicable law or regulation, whether domestic
or foreign, or entitle Micro to recover the same under Section 16(b) of the
Exchange Act, and any payment tendered to Micro by a Participant in connection
therewith shall be promptly refunded to the relevant Participant, holder or
beneficiary. Without limiting the generality of the foregoing, no Award granted
hereunder shall be construed as an offer to sell securities of Micro, and no
such offer shall be outstanding, unless and until the Committee in its sole
discretion has determined that any such offer, if made, would be in compliance
with all applicable requirements of the Federal securities laws and any other
laws, whether domestic or foreign, to which such offer, if made, would be
subject.
(m) NO TRUST OR FUND CREATED. Neither the Plan nor any Award shall
create or be construed to create a trust or separate fund of any kind or a
fiduciary relationship between Micro or any Affiliate and a Participant or any
other Person. To the extent that any Person acquires a right to receive payments
from Micro or any Affiliate pursuant to an Award, such right shall be no greater
than the right of any unsecured general creditor of Micro or any Affiliate.
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(n) NO FRACTIONAL SHARES. No fractional Shares shall be issued or
delivered pursuant to the Plan or any Award, and the Committee shall determine
whether cash or other securities or other property shall be paid or transferred
in lieu of any fractional Shares or whether such fractional Shares or any rights
thereto shall be canceled, terminated, or otherwise eliminated.
(o) TRANSFER RESTRICTIONS. Shares acquired hereunder may not be sold,
assigned, transferred, pledged or otherwise disposed of, except as provided in
the Plan or the applicable Award Agreement.
(p) HEADINGS. Headings are given to the Sections and subsections of the
Plan solely as a convenience to facilitate reference. Such headings shall not be
deemed in any way material or relevant to the construction or interpretation of
the Plan or any provision thereof.
(q) SUB-PLANS. Subject to the terms hereof, the Committee may from time
to time adopt one or more Sub-Plans and grant Awards thereunder as it shall deem
necessary or appropriate in its sole discretion in order that Awards may comply
with the laws, rules or regulations of any jurisdiction; provided, however, that
neither the terms of any Sub-Plan nor Awards thereunder shall be inconsistent
with the Plan.
SECTION 15. TERM OF THE PLAN.
(a) EFFECTIVE DATE. The Plan shall be effective as of February 1, 1998,
subject to approval by the shareowners of Micro. Awards may be granted hereunder
prior to such shareowner approval subject in all cases, however, to such
approval.
(b) EXPIRATION DATE. No Award shall be granted under the Plan after
January 31, 2008. Unless otherwise expressly provided in the Plan or in an
applicable Award Agreement, any Award granted hereunder may, and the authority
of the Board or the Committee to amend, alter, adjust, suspend, discontinue, or
terminate any such Award or to waive any conditions or rights under any such
Award shall, continue after the authority for grant of new Awards hereunder has
been exhausted.
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