Exhibit 10.55
XXXXXX MICRO INC.
2003 EQUITY INCENTIVE PLAN
INCENTIVE STOCK OPTION
AWARD AGREEMENT
SECTION 1. GRANT OF OPTION. As of [DATE], Xxxxxx Micro Inc. ("MICRO")
hereby grants to [LEGAL NAME] ("OPTIONEE") an incentive stock option (the
"OPTION") exercisable in whole or in part, to purchase, pursuant to the terms
hereof, X,XXX shares of Class A Common Stock, $.01 par value per share, of
Micro's common stock (the "COMMON STOCK"), at a price of $XX.XX per share
pursuant to and subject to the terms and conditions set forth in the Xxxxxx
Micro Inc. 2003 Equity Incentive Plan (the "PLAN"). Capitalized terms used and
not otherwise defined herein are used with the same meanings as in the Plan.
SECTION 2. INCENTIVE STOCK OPTION. This Option is intended to qualify as
an incentive stock option as that term is used in Section 422 of the Code.
SECTION 3. TIME OF EXERCISE; EXPIRATION. (a) This Option shall become
exercisable set forth below:
Shares Vesting Date
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XXX [DATE]
XXX [DATE]
XXX [DATE]
(b) The Option may not be exercised after 5:00PM (PST) in Santa Ana,
California, on [DATE].
SECTION 4. MANNER OF EXERCISE. This Option shall be exercised by Optionee
(or other party entitled to exercise the Option under Section 6(b) of this Award
Agreement) by delivering written notice to the stock plan administrator
designated by Micro stating the number of shares of Common Stock being purchased
and the address and social security number or global identification number of
the purchaser, together with payment of the purchase price for the shares of
Common Stock being purchased in a manner permitted by Section 6(d) of the Plan
and plus an amount sufficient to satisfy the tax withholding requirement set
forth in Section 14(e) of the Plan, if necessary.
SECTION 5. NONTRANSFERABILITY OF OPTION. This Option shall not be
transferable by Optionee otherwise than by will or by the laws of descent and
distribution. The terms of this Option shall be binding on the executors,
administrators, heirs and Successors of Optionee.
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SECTION 6. TERMINATION OF EMPLOYMENT (as defined under Section 11 of the
Plan).
(a) If your employment is terminated for any reason other than death,
Disability, Retirement or Cause, your vested Incentive Stock Options and related
Stock Appreciation Rights will expire 90 days from your termination. Unless the
Committee otherwise provides, if your employment with us or any of our
Affiliates is terminated for any reason other than your death, Disability,
Retirement or Cause, your Incentive Stock Options and any related Stock
Appreciation Rights will expire 90 days (or, if later, on the 15th day following
the end of any Micro-imposed restrictions in effect during such 90 day period on
your ability to engage in transactions involving Shares (such 15th day, the
"Extended Date" in which case such Options shall be deemed Non-Qualified Stock
Options)) following such termination or the date your Options or Stock
Appreciation Rights would otherwise expire by their terms had it not been for
your termination date. Your Incentive Stock Options and related Stock
Appreciation Rights will be exercisable prior to the expiration date only to the
extent exercisable on the date your employment terminates.
(b) If your employment is terminated as a result of your death, the
special incentive stock option tax treatment available for your vested Incentive
Stock Options will expire 90 days from your date of death. Unless the Committee
otherwise provides, if you die while employed by us or any of our Affiliates,
the special tax treatment available under U.S. tax laws for incentive stock
options will expire if your Incentive Stock Options which have become
exercisable prior to your death are not exercised within 90 days from your
death, but not later than the date your Options would otherwise expire by their
terms. Any of these vested Incentive Stock Options which have not been exercised
at the end of the 90-day period after your death will become Non-Qualified Stock
Options and may be exercised through the first anniversary of your death, but
not later than the date your Options would otherwise expire by their terms.
(c) If your employment is terminated as a result of your death, your
unvested Incentive Stock Options will immediately vest as Non-Qualified Stock
Options and will expire one year from your date of death. Unless the Committee
otherwise provides, if you die while employed by us or any of our Affiliates,
your unvested Incentive Stock Options will immediately vest as Non-Qualified
Stock Options. Any related unvested Stock Appreciation Rights also will
immediately vest at that time. Your estate will have the right to exercise these
newly vested Non-Qualified Stock Options and Stock Appreciation Rights through
the first anniversary of your death, but not later than the date your Options or
Rights would otherwise expire by their terms.
(d) If your employment is terminated as a result of your Disability, the
special incentive stock option tax treatment available for your vested Incentive
Stock Options will expire 90 days from your date of termination. Unless the
Committee otherwise provides, if you become disabled while employed by us or any
of our Affiliates (as determined by the Committee), the special tax treatment
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available under U.S. tax laws for incentive stock options will expire if your
Incentive Stock Options which have become exercisable prior to your Disability
are not exercised within 90 days from your date of termination, but not later
than the normal expiration date. Any of these vested Incentive Stock Options
which have not been exercised at the end of such 90-day period will become
Non-Qualified Stock Options and may be exercised through the first anniversary
of the last scheduled vesting date of the grant in which you received these
Incentive Stock Options, but not later than the date your Options would
otherwise expire by their terms.
(e) If your employment is terminated as a result of your Disability, your
unvested Incentive Stock Options will continue to vest as Non-Qualified Stock
Options while you remain disabled and will expire one year from the last vesting
date. Unless the Committee otherwise provides, if you become disabled (as
determined by the Committee) while employed by us or any of our Affiliates, your
unvested Incentive Stock Options will continue to vest in accordance with their
original schedule as Non-Qualified Stock Options while you remain disabled. Any
related unvested Stock Appreciation Rights also will continue to vest during
this period. You will have the right to exercise these newly vested
Non-Qualified Stock Options and Stock Appreciation Rights through the first
anniversary of the last vesting date, but not later than the date your Options
or Rights would otherwise expire by their terms.
(f) If your employment is terminated as a result of your Retirement, the
special incentive stock option tax treatment for your vested Incentive Stock
Options will expire 90 days from your date of termination. Unless the Committee
otherwise provides, if you retire while employed by us or any of our Affiliates,
the special tax treatment available under U.S. tax laws for incentive stock
options will expire if your Incentive Stock Options which have become
exercisable prior to your Retirement are not exercised within 90 days from your
Retirement date. Any of these vested Incentive Stock Options which have not been
exercised at the end of such 90-day period will become Non-Qualified Stock
Options and, along with any related Stock Appreciation Rights, may be exercised
through the fifth anniversary of your Retirement date, but not later than the
normal expiration date. Unless the Committee otherwise permits, the Committee
has determined that the term "Retirement" means that your employment has
terminated other than by reason of death, Disability or Cause and that all of
the following criteria have been satisfied at the time of termination: (1) you
are at least 50 years of age, (2) you have completed at least five years of
service with the Company and our Affiliates.
(g) If your employment is terminated for Cause. If your employment is
terminated for Cause, your Incentive Stock Options and Stock Appreciation Rights
will expire and terminate on the date of such termination.
(h) If you are employed outside the United States. Unless the Committee
otherwise provides, in the event of your termination of employment for any
reason other than death, Disability, Retirement or Cause, if you are employed
outside the United States, your right to exercise any Incentive Stock Option and
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related Stock Appreciation Rights shall terminate and such Options and related
Stock Appreciation Rights shall expire and lapse, on the earlier of (x) the 90th
day (or, if later, the Extended Date in which case such Options will be deemed a
Non-Qualified Stock Options) following the first to occur of (1) the time Micro
or its Affiliate (your employer) gives notice to you of your termination of
employment, or (2) you give notice to Micro or its Affiliate (your employer) to
terminate your employment, or (3) if no such notice is given, on the date your
employment with Micro or its Affiliate (your employer) 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. You 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. You shall not be entitled, and by 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.
SECTION 7. RESTRICTIONS ON PURCHASE AND SALE OF SHARES. Micro shall not be
obligated to sell or issue any shares of Common Stock pursuant to this Option
unless the shares are at that time effectively registered or exempt from
registration under the Securities Act of 1933, as amended.
SECTION 8. ADJUSTMENT. The number of shares of Common Stock subject to
this Option and the price per share of such shares may be adjusted by Micro from
time to time pursuant to the Plan.
SECTION 9. EXCESSIVE SHARES. In the event that the number of shares of
Common Stock subject to this Option exceeds any maximum number established under
the Code which may be treated as incentive stock options, this Option shall not
be treated as an incentive stock option to the extent of such excess number of
shares but shall otherwise remain in full force and effect.
SECTION 10. NO RIGHTS UNTIL EXERCISE. Optionee shall have no rights
hereunder as a shareholder with respect to any shares subject to this Option
until he or she becomes the registered holder of such shares.
SECTION 11. AMENDMENT. This Option may be amended as provided in the Plan.
SECTION 12. PLAN AND PROSPECTUS. This Option is subject to all the terms
of the Plan and the related prospectus, a copy of which has been received by the
Optionee.
SECTION 13. DISQUALIFYING DISPOSITIONS. If stock acquired by exercise of
this incentive stock option is disposed of within two years after the grant date
or within one year after the date of such exercise (as determined under Section
4 of
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this Award Agreement), the Optionee, immediately prior to the disposition, shall
promptly notify Micro in writing of the date and terms of the disposition and
shall provide such other information regarding the disposition as Micro may
reasonably require.
SECTION 14. SEVERABILITY. The provisions of this Award Agreement are
severable and if any one or more provisions are determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining provisions shall
nevertheless be binding and enforceable.
SECTION 15. ACKNOWLEDGEMENT.
(a) Nature of Grant.
In accepting the grant, you acknowledge that:
(i) the Plan is established voluntarily by Micro, it is discretionary
in nature and it may be modified, suspended or terminated by Micro
at any time, unless otherwise provided in the Plan and this Award
Agreement;
(ii) the grant of the Option is voluntary and occasional and does not
create any contractual or other right to receive future grants of
options, or benefits in lieu of options, even if options have been
granted repeatedly in the past;
(iii) all decisions with respect to future option grants, if any, will
be at the sole discretion of Micro;
(iv) your participation in the Plan shall not create a right to further
employment with your employer and shall not interfere with the
ability of your employer to terminate your employment relationship
at any time with or without cause;
(v) you are voluntarily participating in the Plan;
(vi) the Option is an extraordinary item that does not constitute
compensation of any kind for services of any kind rendered to
Micro or your employer, and which is outside the scope of your
employment contract, if any;
(vii) the Option is not part of normal or expected compensation or
salary for any purpose, including, but not limited to, calculating
any severance, resignation, termination, redundancy, end of
service payments, bonuses, long-service awards, pension or
retirement benefits or similar payments;
(viii) in the event that you are an employee of a subsidiary or Affiliate
of Micro, the option grant will not be interpreted to form an
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employment contract or relationship with Micro; and furthermore,
the option grant will not be interpreted to form an employment
contract with your employer or any subsidiary or Affiliate of
Micro;
(ix) the future value of the underlying shares is unknown and cannot be
predicted with certainty;
(x) if the underlying shares do not increase in value, the Option will
have no value;
(xi) if you exercise your Option and obtain shares, the value of those
shares acquired upon exercise may increase or decrease in value,
even below the Option price;
(xii) in consideration of the option grant, no claim or entitlement to
compensation or damages shall arise from termination of the
Options or diminution in value of the Option or shares purchased
through exercise of the Option resulting from termination of your
employment by Micro or your employer (for any reason whatsoever
and whether or not in breach of local labor laws) and you
irrevocably release Micro and your employer from any such claim
that may arise; if, notwithstanding the foregoing, any such claim
is found by a court of competent jurisdiction to have arisen,
then, by signing this Award Agreement, you shall be deemed
irrevocably to have waived your entitlement to pursue such claim;
and
(xiii) notwithstanding any terms or conditions of the Plan to the
contrary, in the event of involuntary termination of your
employment (whether or not in breach of local labor laws), your
right to receive options under the Plan, if any, will terminate
effective as of the date that you are no longer actively employed
and will not be extended by any notice period mandated under local
law (e.g., active employment would not include a period of "garden
leave" or similar period pursuant to local law); furthermore, in
the event of involuntary termination of employment (whether or not
in breach of local labor laws), your right to exercise the Option
after termination of employment, if any, will not be extended by
any notice period mandated under local law.
(b) Tax Reporting and Payment Liability. Regardless of any action Micro or
your employer takes with respect to any or all income tax, social insurance,
payroll tax, payment on account or other tax-related withholding ("Tax-Related
Items"), you acknowledge that the ultimate liability for all Tax-Related Items
legally due by you is and remains your responsibility and that Micro and/or your
employer (1) make no representations or undertakings regarding the treatment of
any Tax-Related Items in connection with any aspect of the Option grant,
including the grant, vesting or exercise of the Option and the subsequent sale
of
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shares; and (2) do not commit to structure the terms of the grant or any aspect
of the Option to reduce or eliminate your liability for Tax-Related Items.
Prior to the exercise of the Option, you shall pay or make adequate
arrangements satisfactory to Micro or your employer to satisfy all withholding
and payment on account obligations of Micro or your employer. In this regard,
you authorize Micro or your employer to withhold all applicable Tax-Related
Items legally payable by you from your wages or other cash compensation paid to
you by Micro and/or your employer or from proceeds of the sale of the shares.
Alternatively, or in addition, if permissible under local law, Micro or your
employer may withhold in shares, provided that Micro or your employer only
withholds the amount of shares necessary to satisfy the minimum withholding
amount. Finally, you shall pay to Micro or your employer any amount of
Tax-Related Items that Micro or your employer may be required to withhold as a
result of your participation in the Plan or your purchase of shares that cannot
be satisfied by the means previously described. Micro or your employer may
refuse to honor the exercise and refuse to deliver the shares if you fail to
comply with your obligations in connection with the Tax-Related Items as
described in this section.
(c) Data Privacy Consent. You hereby explicitly and unambiguously consent
to the collection, use and transfer, in electronic or other form, of your
personal data as described in this document by and among, as applicable, your
employer and Micro for the exclusive purpose of implementing, administering and
managing your participation in the Plan.
You understand that Micro and your employer hold certain personal
information about you, including, but not limited to, your name, home address
and telephone number, date of birth, social insurance number or other
identification number, salary, nationality, job title, any shares of stock or
directorships held in Micro, details of all options or any other entitlement to
shares of stock awarded, canceled, exercised, vested, unvested or outstanding in
your favor, for the purpose of implementing, administering and managing the Plan
("Data"). You understand that Data may be transferred to any third parties
assisting in the implementation, administration and management of the Plan, that
these recipients may be located in your country or elsewhere, and that the
recipient's country may have different data privacy laws and protections than
your country. You understand that you may request a list with the names and
addresses of any potential recipients of the Data by contacting your local human
resources representative. You authorize the recipients to receive, possess, use,
retain and transfer the Data, in electronic or other form, for the purposes of
implementing, administering and managing your participation in the Plan,
including any requisite transfer of such Data as may be required to a broker or
other third party with whom you may elect to deposit any shares of stock
acquired upon exercise of the Option. You understand that Data will be held only
as long as is necessary to implement, administer and manage your participation
in the Plan as determined by Micro. You understand that you may, at any time,
view Data, request additional information about the storage and processing of
Data, require any necessary amendments to Data or refuse or withdraw the
consents herein, in any case without cost, by contacting in writing
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your local human resources representative. You understand, however, that
refusing or withdrawing your consent may adversely affect your ability to
participate in the Plan. For more information on the consequences of your
refusal to consent or withdrawal of consent, you understand that you may contact
your local human resources representative.
(d) Governing Law. The option grant is governed by and subject to, the
laws of the state of Delaware, as provided in the Plan.
(e) Language. If you have received this or any other document related to
the Plan translated into a language other than English and if the translated
version is different than the English version, the English version will control.
(f) Electronic Delivery. Micro may, in its sole discretion, decide to
deliver any documents related to the Option granted hereunder, or future options
that may be granted under the Plan, by electronic means or request your consent
to participate in the Plan by electronic means. You hereby consent to receive
such documents by electronic delivery and, if requested, agree to participate in
the Plan through an on-line or electronic system established and maintained by
Micro or another third party designated by Micro.
SECTION 15. ACCEPTANCE OF OPTION. IN ORDER TO EXERCISE THIS OPTION, YOU
MUST SIGN AND RETURN A COPY OF THIS AWARD AGREEMENT. IT WILL NOT BE POSSIBLE TO
EXERCISE THIS OPTION UNTIL THE SIGNED AWARD AGREEMENT HAS BEEN RETURNED TO
MICRO.
XXXXXX MICRO INC.
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Accepted and agreed as to the foregoing:
OPTIONEE
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Name
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Date
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