EXHIBIT 10.35
UTi WORLDWIDE INC.
AMENDED AND RESTATED
2004 NON-EMPLOYEE DIRECTORS SHARE INCENTIVE PLAN
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COMBINED ELECTIVE GRANT
AND
DEFERRAL ELECTION AGREEMENT
(FOR USE PURSUANT TO SECTION 6 OF THE PLAN)
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AGREEMENT, made this __ day of ________, 20__, by and between me, as a
participant in the UTi Worldwide Inc. Amended and Restated 2004 Non-Employee
Directors Share Incentive Plan (the "Plan"), and UTi Worldwide Inc. (the
"Company").
1. QUARTERLY COMPENSATION
(a) I hereby elect to receive ______% of my Quarterly Compensation in
Shares, as permitted by Section 6 of the Plan.
(b) I understand and acknowledge that this election to receive Shares in
lieu of Quarterly Compensation (a "Share Election") will take effect
on the first day of the next fiscal quarter after the date of this
election. This Share Election will supersede any prior Share Election
that I have made.
(c) I understand and acknowledge that any Share Election for which I have
made an irrevocable Deferral Election (as defined below) with respect
to the same portion of Quarterly Compensation will be ineffective.
(d) I understand and acknowledge that this Share Election will continue in
full force until either the effective date of a superseding written
Share Election made by me, or until I am no longer a director of the
Company, or until the Plan is terminated by appropriate corporate
action, whichever shall occur first.
2. DEFERRAL OF QUARTERLY COMPENSATION
(a) Deferral Election. I hereby elect to defer the receipt of ______% of
my Quarterly Compensation that would otherwise be due to me pursuant
to Sections 6(e) and 7(a) of the Plan. I recognize and agree that the
Company will establish an Account for me under the Plan, and will
credit that Account in accordance with Section 7 of the Plan with the
number of Deferred Share Units obtained when (i) my Quarterly
Compensation earned during the fiscal quarter subject to this Deferral
Election is divided by (ii) the Fair Market Value on the last day of
the fiscal quarter for which compensation has been deferred.
UTi Worldwide Inc.
Amended and Restated 2004 Non-Employee Directors Share Incentive Plan
Combined Elective Grant and Deferral Election Agreement
Page 2
(b) Revocability of Elections.
(i) Effect of Elections. I understand and acknowledge that the
election made in paragraph 2(a) hereof (the "Deferral Election")
shall be irrevocable with respect to compensation subject to this
Deferral Election, and that it shall continue in full force until
either the effective date of a superseding written Deferral
Election made by me, or until my role as a director of the
Company is terminated, or until the Plan is terminated by
appropriate corporate action, whichever shall occur first. I
further understand and acknowledge that the distribution election
made in paragraphs 2(e) and 2(f) hereof shall be effective
immediately with respect to compensation subject to this Deferral
Election and that I may change such distribution election under
paragraph 2(e) only in accordance with paragraph 2(b)(ii) below.
My elections in paragraphs 2(g) and 2(h) shall be revocable until
my death, at which time they become irrevocable.
(ii) Changing of Elections. I recognize that I may, by submitting an
effective superseding election, at any time and from time to time
file new elections under paragraph (2)(e) hereof. I understand
and acknowledge that a superceding election under paragraph
(2)(e) shall be effective on the first day of the thirteenth
(13th) month after I make such superseding election only if:
(1) I make such election at least one (1) year before the date
that the Shares would have been distributed (or begun to be
distributed) to me pursuant to my initial election pursuant
to paragraph 2(e) and
(2) Such election defers my receipt of Shares for at least five
(5) years from the date that the Shares would have been
distributed (or begun to be distributed) to me pursuant to
my initial election pursuant to paragraph 2(e).
(c) Effective Date of Election. I understand and acknowledge that this
Deferral Election will take effect on the next January 1st after the
date of this Deferral Election, and will be ineffective with respect
to any Quarterly Compensation earned after the date of this Deferral
Election but prior to such date. This Deferral Election will supersede
any prior Deferral Election made by me. Notwithstanding the foregoing,
I understand that this Deferral Election will be effective immediately
for this calendar year only with respect to Quarterly Compensation
that is earned by me in future fiscal quarters if I have recently
become an Eligible Director, so long as I sign and deliver this
Deferral Election to the Company within thirty (30) days after the
date that I became an Eligible Director.
(d) Nature of Distribution. I recognize that distributions in respect of
my Account will be made (i) in the form of one Share for each Deferred
Share Unit credited to my
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UTi Worldwide Inc.
Amended and Restated 2004 Non-Employee Directors Share Incentive Plan
Combined Elective Grant and Deferral Election Agreement
Page 3
Account by virtue of this Deferral Election, and (ii) a cash payment
with respect to each Share that I receive pursuant to paragraph
2(d)(i) hereof in an amount equal to the cash dividends declared and
paid on the Company's outstanding Shares between the date the Deferred
Share Unit in respect of such Share was credited to my Account and the
issuance of the Shares to me. Cash shall also be paid in lieu of
fractional Shares.
(e) Manner of Distributions Upon Cessation of My Continuous Service. I
hereby elect to commence receiving distributions from my Account
following the date that my membership on the board terminates (such
date being the cessation of my "Continuous Service") in the following
manner:
[ ] three (3) substantially equal installment distributions to
be made before the last day of each of the three (3)
calendar years following the cessation of my Continuous
Service.
[ ] a lump sum distribution of ______ Shares as soon as
practicable following the cessation of my Continuous Service
and, with respect to the remaining Shares, in ____
substantially equal annual installments (not to exceed ten
(10)) on each January 1 following such distribution until
such Shares are distributed.
(f) Manner of Distributions Upon A Change in Control. I hereby elect to
commence receiving distributions from my Account in the event of a
Change in Control that is a permissible distribution event under Code
Section 409A(a)(2)(A)(v) (as certified by the Board) in the following
manner:
[ ] a lump sum distribution to be made as soon as
administratively practicable after the Change in Control.
[ ] a lump sum distribution of ______ Shares as soon as
practicable following the cessation of my Continuous
Service, and, with respect to the remaining Shares, in ____
substantially equal annual installments (not to exceed 10)
on each January 1st following such distribution until such
Shares are distributed.
(g) Form of Payment to Beneficiary. In the event of my death before
collecting all of my Account, any remaining portion of my Account
shall be distributed to my beneficiary or beneficiaries named below in
the following manner--
[ ] in a single lump sum to be distributed as soon as
administratively practicable following my death.
[ ] in accordance with the payment schedule selected in
paragraphs 2(e) and 2(f) hereof (with payments made as
though I survived to collect all benefits, and as though I
terminated service on the date of my death if payments had
not already begun).
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UTi Worldwide Inc.
Amended and Restated 2004 Non-Employee Directors Share Incentive Plan
Combined Elective Grant and Deferral Election Agreement
Page 4
(h) Designation of Beneficiary. In the event of my death before I have
collected all of my Account, I hereby direct that my beneficiaries
shall be as follows:
(i) Primary Beneficiary. I hereby designate the person(s) named below
to be my primary beneficiary and to receive the balance of any
unpaid portion of my Account.
Name of Social Security Percentage of
Primary Beneficiary Number Mailing Address Death Benefit
------------------- --------------- --------------- -------------
%
%
(ii) Contingent Beneficiary. In the event that a primary beneficiary
or beneficiaries named above are not living at the time of my
death, I hereby designate the following person(s) to be my
contingent beneficiary for purposes of the Plan with respect to
any Shares not otherwise previously issued to a primary
beneficiary pursuant to paragraph 2(i)(i) above.
Name of Social Security Percentage of
Contingent Beneficiary Number Mailing Address Death Benefit
---------------------- --------------- --------------- -------------
%
%
3. SATISFACTION OF COMMITMENTS. The parties recognize and agree that the
Company will have fully honored and discharged its obligations under this
Agreement and the Plan if the Company distributes my Account in accordance
with the provisions hereof.
4. CHANGE IN U.S. TAX LAWS. The parties recognize and agree that the Company
will take any actions that it considers reasonably necessary or proper to
assure that any changes in the U.S. federal tax laws will not accelerate
the date of my income taxation to a date before I receive distributions of
Shares or cash pursuant to my elections in this Agreement. If such taxation
will occur on an accelerated basis and I have not executed such documents,
if any, that the Company considers reasonably necessary or proper to avoid
immediate taxation, then the Company shall distribute Shares and cash to me
having a value equal to the income I recognize.
5. DEFINED TERMS. The parties agree that any term in this Agreement that
begins with initial capital letters shall have the special meaning defined
in the Plan unless the context clearly requires otherwise.
6. TAXES. By signing this Agreement, I recognize and agree that I am solely
responsible for the satisfaction of any federal, state, or local taxes that
may arise under the Plan (including any taxes arising under Sections 409A
or 4999 of the Code), and that neither the Company nor
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UTi Worldwide Inc.
Amended and Restated 2004 Non-Employee Directors Share Incentive Plan
Combined Elective Grant and Deferral Election Agreement
Page 5
any of its employees, officers, directors, or service providers has any
right or obligation to provide me with tax planning advice, or to structure
the terms of the Plan or any payments to me in a manner that mitigates my
tax liability. The Company shall not have any obligation to pay, mitigate,
or protect me from any such tax liabilities. Nevertheless, if the Company
reasonably determines that my receipt of payments or benefits pursuant to
Section 7(d) of the Plan upon cessation of my Continuous Service and my
election in paragraph 2(e) hereof would cause me to incur liability for
additional tax under Section 409A of the Code, then the Company may in its
discretion suspend such payments or benefits until the end of the six-month
period following termination of my service with the Company (the "409A
Suspension Period"). As soon as reasonably practical after the end of the
409A Suspension Period, the Company shall make a lump sum payment to me, in
cash, in an amount equal to any payments and benefits that the Company does
not make during the 409A Suspension Period. Thereafter, I shall receive any
remaining payments and benefits due pursuant to Section 7(d) of the Plan
and my election in paragraphs 2(e) and 2(f) hereof in accordance with the
terms of such provisions (as if there had not been any suspension
beforehand).
[signature page follows]
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UTi Worldwide Inc.
Amended and Restated 2004 Non-Employee Directors Share Incentive Plan
Combined Elective Grant and Deferral Election Agreement
Page 6
WITNESSED BY: PARTICIPANT
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UTi WORLDWIDE INC.
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Name:
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Title:
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