EXHIBIT 10.45
XXXXXX MICRO INC.
2001 EXECUTIVE RETENTION PLAN
AWARD AGREEMENT
This Award Agreement sets forth the terms and conditions of an Award
granted pursuant to the Xxxxxx Micro Inc. 2001 Executive Retention Plan (the
"Plan") to Xxxxx X. Xxxxxx ("Participant"). Capitalized terms not otherwise
defined in this Award Agreement shall have the meanings provided in the Plan.
SECTION 1. DATE OF AWARD. The date of the Award is April 10, 2001.
SECTION 2. REQUIRED PERFORMANCE.
(a) In the event that Participant is employed by Ingram or one of its
Affiliates on March 1, 2006, and has been continuously employed by Ingram and or
one or more of its Affiliates throughout such period, Participant shall be
entitled to a lump sum cash retention payment in the amount specified in Section
3 below.
(b) Participant shall not be entitled to receive any payment under this
Award Agreement if his employment with Ingram and its Affiliates terminates at
any time prior to March 1, 2006 as a result of Participant's resignation for any
reason other than his Disability.
(c) Participant shall not be entitled to receive any payment under this
Award Agreement if his employment with Ingram or any of its Affiliates is
terminated by Ingram or any of its Affiliates at any time prior to March 1, 2006
for: (1) Cause, or (2) Participant's refusal to accept a transfer of his
principal office location to Xxxxxx'x then corporate headquarters or any of its
then regional headquarters.
(d) Unless payment is precluded as specified under Sections 2(b) or (c)
above, if Participant's employment with Ingram and its Affiliates is terminated
prior to March 1, 2006 and such termination is: (1) initiated by Ingram or any
of its Affiliates, or (2) the result of Participant's death or Disability,
Participant shall be entitled to receive a prorated portion of the target
payment amount specified in Section 3 below calculated by multiplying such
target payment by a fraction, the numerator of which is the number of days
elapsed from and including the date of the Award and ending on the date of such
termination and the denominator of which is 1,786. A change in Participant's
duties or a change in Participant's employer to another entity among Ingram and
its Affiliates shall not be deemed a termination of employment initiated by
Ingram or any of its Affiliates.
(e) As used herein, the term "Cause" means the occurrence of any one or
more of the following:
(1) A demonstrably willful and deliberate act by Participant
(other than as a result of incapacity due to physical or
mental illness) which is committed in bad faith, without
reasonable belief that such action or inaction is in the
best interests of Ingram, and which act or inaction is
not remedied within 15 business days of written notice
from Ingram,
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(2) Participant's gross negligence in the performance of
Participant's employment duties with Ingram or any of
its Affiliates, or
(3) Participant's conviction for committing an act of fraud,
embezzlement, theft, or any other act constituting a
felony involving moral turpitude.
Notwithstanding the foregoing, Participant shall not be deemed to have
been terminated for the reason set forth in clause (1) or (2) of this definition
unless and until there shall have been delivered to Participant a copy of a
resolution duly adopted by the affirmative vote (which cannot be delegated) of
not less than three-quarters of the entire membership of the Board at a meeting
of the Board called and held for such purpose (and after reasonable notice to
Participant and an opportunity for Participant, together with Participant's
counsel, to be heard before the Board), finding that, in the good faith opinion
of the Board, Participant is guilty of conduct set forth above in such clauses
(1) or (2) of this definition and specifying the particulars thereof in detail.
SECTION 3. TARGET PAYMENT. The target payment is One Million Seven
Hundred Thousand Dollars (U.S.$1,700,000).
SECTION 4. AMENDMENTS. This Award may be amended as provided in the
Plan.
SECTION 5. PLAN. This Award is subject to all the terms of the Plan, a
copy of which has been received by Participant.
SECTION 6. ACKNOWLEDGEMENTS.
(a) GENERAL. By accepting the grant of the Award evidenced hereby,
Participant acknowledges that: (1) the Plan is discretionary in nature and may
be amended, suspended or terminated by Ingram at any time, (2) the grant of the
Award is a one-time benefit which does not create any contractual or other right
to receive future Awards, or benefits in lieu of Awards, (3) all determinations
with respect to any such future Awards, including, but not limited to, the times
when Awards shall be granted and the terms thereof, will be at the sole
discretion of Ingram, (4) Participant's participation in the Plan shall not
create a right to further employment with Ingram or any of its Affiliates and
shall not interfere with the ability of Ingram or any of its Affiliates to
change the terms of Participant's employment or the nature or responsibilities
of his position, or terminate Participant's employment relationship at any time
with or without cause, (5) Participant's participation in the Plan is voluntary,
(6) the value of the Award is an extraordinary item of compensation which is
outside the scope of Participant's employment contract, if any, and (7) the
Award is not part of normal or expected compensation for purposes of calculating
any termination, severance, resignation, redundancy, end of service payments,
bonuses, long-service awards, pension or retirement benefits or similar
payments.
(b) TAX REPORTING AND PAYMENT LIABILITY. Ingram will review from time to
time its requirements and obligations regarding tax, social insurance and any
other payroll tax ("TAX-RELATED ITEMS") withholding and reporting in connection
with the Award. These requirements may change from time to time as laws or
interpretations change. Regardless of Xxxxxx'x actions in this regard,
Participant hereby acknowledges and agrees that the ultimate liability for any
and all tax-related items is and remains his responsibility and liability and
that Ingram: (1) makes no representations or undertakings regarding treatment of
any tax-related items in connection with any aspect of his participation in the
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Plan, and (2) has no obligation to structure the terms of the Award or any
aspect of his participation in the Plan to reduce or eliminate his liability
regarding tax-related items.
(c) DATA PRIVACY CONSENT. As a condition of the grant of the Award,
Participant consents to the collection, use, processing and transfer of personal
data as described in this paragraph. Participant understands that Ingram and its
Affiliates hold certain personal information about him, including his name, home
address and telephone number, date of birth, social security number or
identification number, salary, nationality, job title, any shares of Ingram
stock or Ingram directorships held, details of all options or any other
entitlement to shares awarded, canceled, exercised, vested, unvested or
outstanding in his favor, for the purpose of managing and administering the Plan
("DATA"). Participant further understands that Ingram and/or its Affiliates will
transfer Data amongst themselves as necessary for the purpose of implementation,
administration and management of his participation in the Plan, and that Ingram
and/or any of its Affiliates may each further transfer Data to any third parties
assisting Ingram in the implementation, administration and management of the
Plan. Participant understands that these recipients may be located in the
European Economic Area, or elsewhere, such as the United States. Participant
authorizes them to receive, possess, use, retain and transfer the Data, in
electronic or other form, for the purposes of implementing, administering and
managing Participant's participation in the Plan. Participant understands that
he may, at any time, review Data, require any necessary amendments to it or
withdraw the consents herein in writing by contacting his local Human Resources
Department representative. Withdrawal of consent may, however, affect his
ability to realize benefits from the Award.
SECTION 7. GENERAL.
(a) NOTICES. Any notice required to be delivered hereunder shall be in
writing and shall be addressed
if to Ingram, to:
Xxxxxx Micro Inc.
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
if to Participant, to Participant's last known address as reflected in
Xxxxxx'x books and records
or such other address as such party may hereafter specify for the purpose by
written notice to the other party hereto. Any such notice shall be deemed
received on the date of receipt by the recipient thereof if received prior to
5p.m. in the place of receipt and such day is a business day in the place of
receipt. Otherwise, any such notice shall be deemed not to have been received
until the next succeeding business day in the place of receipt.
(b) LEGAL FEES AND EXPENSES. Ingram shall pay all legal fees, costs of
litigation, prejudgment interest, and other expenses which are reasonably
incurred by Participant as a result of (1) Xxxxxx'x improper refusal to pay the
amounts payable in accordance herewith, (2) Ingram contesting the validity,
enforceability, or interpretation of this Agreement, (3)
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any conflict between the parties pertaining to this Agreement, or (4)
Participant's pursuing in good faith any claim under Section 7 (i) hereof.
(c) ARBITRATION. Participant shall have the right and option to elect
(in lieu of litigation) to have any dispute or controversy arising under or in
connection with this Agreement settled by arbitration, conducted before a panel
of three arbitrators sitting in a location selected by Participant within 50
miles from the location of Participant's principal place of employment with
Ingram, in accordance with the rules of the American Arbitration Association
then in effect. Participant's election to arbitrate, as herein provided, and the
decision of the arbitrators in that proceeding, shall be binding on Ingram and
Participant. Judgement may be entered on the award of the arbitrator in any
court having jurisdiction. All expenses of such arbitration shall be borne by
Ingram to the extent they would have been borne by Ingram as provided in Section
7(b) hereof if such dispute or controversy had been resolved by litigation.
(d) UNFUNDED AGREEMENT. The obligations of Ingram under this Agreement
represent an unsecured, unfunded promise to pay benefits to Participant and/or
Participant's beneficiaries, and shall not entitle Participant or such
beneficiaries to a preferential claim to any asset of Ingram.
(e) NO SET-OFF. Xxxxxx'x obligations to make all payments and honor all
commitments under this Agreement shall be absolute and unconditional and shall
not be affected by any circumstances including, without limitation, any set-off,
counterclaim, recoupment, defense or other right which Ingram or any Affiliate
may have against Participant.
(f) ENTIRE AGREEMENT. This Agreement represents the entire agreement
between the Participant and Ingram and its Affiliates with respect to the Award,
and supersedes all prior discussions, negotiations, and agreements concerning
such rights.
(g) GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without reference to
principles of conflict of laws.
(h) COUNTERPARTS. This Agreement may be signed in several counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were on the same instrument.
(i) CLAIM REVIEW PROCEDURE. If Participant is denied benefits under this
Agreement, Participant may request, in writing, a review of the denial by Ingram
or its designee within 60 days of receiving written notice of the denial. Ingram
shall respond in writing to a written request for review within 90 days of
receipt of such request. Neither the claim procedure set forth in this Section
7(i) nor Participant's failure to adhere to such procedure shall derogate from
Participant's right to enforce this Agreement through legal action, including
arbitration as provided in Section 7(c).
PARTICIPANT XXXXXX MICRO INC.
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
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Title: Chairman & CEO
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