NETAPP, INC. 1999 STOCK OPTION PLAN RESTRICTED STOCK UNITS AGREEMENT FOR NONEMPLOYEE DIRECTORS
Exhibit 10.17
NOTICE OF GRANT
NetApp, Inc. (the “Company”) hereby grants you (the “Participant”) an award of restricted stock
units (“RSUs”) under Article Six of the NetApp, Inc. 1999 Stock Option Plan (the “Plan”). Subject
to the provisions of the Terms and Conditions of Restricted Stock Units Agreement for Nonemployee
Directors (the “Terms and Conditions”), attached hereto as Appendix A and which constitute part of
this Agreement and of the Plan, the principal features of this award are as follows:
Participant:
«FIRST_NAME» «MIDDLE_NAME» «LAST_NAME»
«ADDRESS_LINE_1»
«ADDRESS_LINE_2»
«CITY», «STATE» «ZIP_CODE»
«COUNTRY»
«ADDRESS_LINE_1»
«ADDRESS_LINE_2»
«CITY», «STATE» «ZIP_CODE»
«COUNTRY»
Grant Date: «GRANT_DATE»
Grant Number: «NUM»
Number of Restricted Stock Units: [FOR INITIAL AWARDS: 9,166] OR [FOR ANNUAL AWARDS: 3,333]
Vesting of Restricted Stock Units: Except as otherwise provided in the Terms and
Conditions, the RSUs will vest according to the following schedule:
[FOR INITIAL AWARDS: 4,165 RSUs will vest on the first annual anniversary of the Grant Date, and
the remaining balance of 5,001 RSUs will vest in a series of three successive equal annual
installments of 1,667 RSUs on the next three annual anniversary dates thereafter, subject to the
Participant’s continuous service on the Board through each such date.] OR
[FOR ANNUAL AWARDS: The RSUs will vest on the day immediately preceding the date of the next Annual
Stockholders Meeting of the Company following the Grant Date, subject to the Participant’s
continuous service on the Board through such date.]
Unless otherwise defined herein or in the Terms and Conditions, capitalized terms used herein or in
the Terms and Conditions will have the defined meanings ascribed to them in the Plan.
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IMPORTANT:
Your signature below indicates your agreement and understanding that this award of RSUs is subject
to all of the terms and conditions contained in the Terms and Conditions and the Plan. For
example, important additional information on vesting and forfeiture of the RSUs is contained in
Paragraphs 3, 4 and 8 of the Terms and Conditions. PLEASE BE SURE TO READ ALL OF THE TERMS AND
CONDITIONS.
Your signature below also indicates your acknowledgement that you have received a copy of the
prospectus for the Plan. A copy of the Plan document also is available at no charge upon request
made to the Company’s Stock Administration department at ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ or Stock
Administration, ▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
Please be sure to retain a copy of your signed Agreement; you may obtain a paper copy of the
Agreement at any time and at no charge by requesting one from the Company’s Stock Administration
department (see contact information above).
DATED: , ______
By:
Title:
PARTICIPANT
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APPENDIX A
TERMS AND CONDITIONS OF RESTRICTED STOCK UNITS AGREEMENT
FOR NONEMPLOYEE DIRECTORS
1. Grant. The Company hereby grants to the Participant under Article Six of the Plan
the number of RSUs set forth on the first page of the Notice of Grant of this Agreement, subject to
all of the terms and conditions in this Agreement and the Plan.
2. Company’s Obligation to Pay. Each RSU awarded by this Agreement represents the
right to receive one share of Common Stock upon the terms and subject to the conditions set forth
in this Agreement and the Plan. Unless and until the RSUs have vested in the manner set forth in
this Agreement, the Participant will have no right to any payment of such RSUs. Prior to actual
payment of any vested RSUs, such RSUs will represent an unsecured obligation of the Company,
payable (if at all) only from the general assets of the Company.
3. Vesting Schedule. Except as provided in paragraph 4, and subject to paragraph 8,
the RSUs awarded by this Agreement will vest in accordance with the vesting schedule set forth on
the first page of the Notice of Grant of this Agreement. Notwithstanding the foregoing, any RSU
that is scheduled to vest on a certain date or upon the occurrence of a certain condition in
accordance with the provisions of this Agreement will not so vest unless the Participant has
continuously served as a Board member from the Grant Date until the date such vesting is to occur.
4. Acceleration of Vesting.
a. Death or Permanent Disability. If the Participant ceases to serve as a Board
member by reason of death or Permanent Disability prior to the vesting of the RSUs awarded by this
Agreement, then one hundred percent (100%) of such RSUs will immediately become vested and
nonforfeitable.
b. Corporate Transaction or a Change of Control. In the event of any Corporate
Transaction or a Change of Control effected during the Participant’s period of Board service, any
RSUs awarded by this Agreement that are not then vested will immediately become vested and
nonforfeitable.
5. Payment after Vesting. Subject to paragraphs 7, 9 and 19, any RSUs that vest in
accordance with paragraph 3 or 4 will be paid to the Participant in whole shares of Common Stock as
soon as administratively practicable after the date of vesting, but in all cases no later than the
date that is sixty (60) days after the date of vesting.
6. Payment after Death. Any distribution or delivery to be made to the Participant
under this Agreement will, if the Participant is then deceased, be made to the Participant’s
beneficiary designated in accordance with the procedures specified by the Company, or if no
effective beneficiary
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designation is on file with the Company or the Participant is not survived by his or her designated
beneficiary, to the administrator or executor of the Participant’s estate on behalf of the estate.
Any such transferee must furnish the Company with (a) written notice of his or her status as
transferee, and (b) evidence satisfactory to the Company to establish the validity of the transfer
and compliance with any laws or regulations pertaining to such transfer.
7. Deferral. The Participant may elect to defer the issuance of any shares of Common
Stock that are otherwise deliverable with respect to any vested RSUs awarded by this Agreement upon
such terms and conditions as may be determined by the Board or its authorized designee (the
“Administrator”), subject to the Administrator’s determination that such right of deferral or any
term thereof complies with applicable laws or regulations in effect from time to time, including,
but not limited to, Section 409A (as defined in paragraph 19). In the event of the Administrator’s
determination otherwise, the Administrator may, in its discretion, deny the Participant such right
of deferral altogether, modify the terms of the deferral and/or add such requirements as it deems
necessary or advisable to comply with applicable law and regulations. If the Participant elects to
defer the proceeds of any vested RSUs awarded by this Agreement in accordance with this
paragraph 7, payment of the deferred vested RSUs will be made in accordance with the terms of his
or her deferral election.
8. Forfeiture. Notwithstanding any contrary provision of this Agreement, the balance
of the RSUs awarded by this Agreement that have not vested pursuant to paragraphs 3 and 4 at the
time of the Participant’s cessation of service on the Board for any or no reason automatically will
be forfeited at no cost to the Company and the Participant will have no further rights hereunder.
9. Withholding of Taxes. If any tax withholding is required, when shares of Common
Stock are issued as payment for any vested RSUs the Company will withhold a portion of the shares
that have an aggregate Fair Market Value sufficient to pay the income (including federal, state,
foreign and local taxes), employment, social insurance, payroll tax, and any other applicable taxes
which the Company determines is required to be withheld with respect to the shares so issuable (the
“Withholding Taxes”), unless the Company, in its sole discretion, either requires or otherwise
permits the Participant to make alternate arrangements satisfactory to the Company for the payment
of such Withholding Taxes in advance of the arising of any such withholding obligations. The
number of shares of Common Stock withheld pursuant to the prior sentence will be rounded up to the
nearest whole share, with no refund for any value of the shares withheld in excess of the tax
obligation as a result of such rounding. Notwithstanding any contrary provision of this Agreement,
no shares of Common Stock will be issued hereunder unless and until satisfactory arrangements (as
determined by the Company) have been made by the Participant with respect to the payment of any
Withholding Taxes due. In addition and to the maximum extent permitted by law, the Company has the
right to retain without notice from any amounts payable to the Participant, cash having a
sufficient value to satisfy any Withholding Taxes due that the Company determines cannot be
satisfied through the withholding of otherwise deliverable shares of Common Stock hereunder. By
accepting this award of RSUs, the Participant expressly consents to the withholding of shares of
Common Stock and to any additional cash withholding as provided for in this paragraph 9. The
Participant acknowledges that the
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ultimate liability for any Withholding Taxes legally due by the Participant is and remains the
Participant’s sole responsibility and that the Company (i) makes no representations or undertakings
regarding the treatment of any Withholding Taxes in connection with any aspect of the RSUs; and
(ii) does not commit to structure the terms of the award or any aspect of the RSUs to reduce or
eliminate the Participant’s liability for any Withholding Taxes.
10. Rights as Stockholder. Neither the Participant nor any person claiming under or
through the Participant will have any of the rights or privileges of a stockholder of the Company
in respect of any shares of Common Stock deliverable hereunder unless and until certificates
representing such shares (which may be in book entry form) will have been issued, recorded on the
records of the Company or its transfer agents or registrars, and delivered to the Participant
(including through electronic delivery to a brokerage account).
11. No Impairment of Rights. This Agreement shall in no way affect the right of the
Company to adjust, reclassify, reorganize or otherwise change its capital or business structure or
to merge, consolidate, dissolve, liquidate or sell or transfer all or any part of its business or
assets.
12. No Effect on Service. Subject to any subsequent employment or service contract
that may be entered into with the Participant or applicable laws, the terms of the Participant’s
service to the Company, whether as a Board member or otherwise, will be determined from time to
time by the Company, or the Parent or Subsidiary employing the Participant, as the case may be, and
the Company or the employing Parent or Subsidiary, as the case may be, will have the right, which
is hereby expressly reserved, to terminate or change the terms of service as a Board member or
employment of the Participant at any time and for any reason whatsoever, with or without good
cause, subject to the provisions of applicable law. The transactions contemplated hereunder and
the vesting schedule set forth on the first page of the Notice of Grant of this Agreement do not
constitute any express or implied promise of continued service as a Board member or employment for
any period of time.
13. Address for Notices. Any notice to be given or delivered to the Company under the
terms of this Agreement must be in writing and addressed to the Company at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attn: Stock Administration, or at such other address as the Company may
hereafter designate in writing.
14. Award is not Transferable. Except to the limited extent provided in this
Agreement, this award of RSUs and any rights and privileges conferred hereby may not be
transferred, assigned, pledged or hypothecated in any way (whether by operation of law or
otherwise) and may not be subject to sale under execution, attachment or similar process. Upon any
attempt to transfer, assign, pledge, hypothecate or otherwise dispose of this award, or any right
or privilege conferred hereby, or upon any attempted sale under any execution, attachment or
similar process, the award and any rights and privileges conferred hereby immediately will become
null and void.
15. Binding Agreement. Subject to the limitation on the transferability of this award
contained herein, this Agreement will be binding upon and inure to the benefit of the heirs,
legatees, legal representatives, successors and assigns of the parties hereto.
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16. Additional Conditions to Issuance of Stock. If at any time the Company
determines, in its discretion, that the listing, registration or qualification of the shares of
Common Stock upon any securities exchange or under any state or federal law, or the consent or
approval of any governmental regulatory authority is necessary or desirable as a condition to the
issuance of any shares of Common Stock pursuant to this award, such issuance will not occur unless
and until such listing, registration, qualification, consent or approval has been effected or
obtained free of any conditions not acceptable to the Company. Where the Company determines that
the delivery of the payment of any such shares of Common Stock will violate federal securities laws
or other applicable laws, the Company will defer delivery until the earliest date at which the
Company reasonably anticipates that the delivery of such shares will no longer cause such
violation. The Company will make all reasonable efforts to meet the requirements of any such state
or federal law or securities exchange and to obtain any such consent or approval of any such
governmental authority.
17. Plan Governs. This Agreement is subject to all terms and provisions of the Plan.
In the event of a conflict between one or more provisions of this Agreement and one or more
provisions of the Plan, the provisions of the Plan will govern.
18. Administrator Authority. The Administrator will have the power to interpret this
Agreement. All actions taken and all interpretations and determinations made by the Administrator
in good faith in connection with this Agreement will be final and binding upon the Participant, the
Company and all other interested persons. The Administrator will not be personally liable for any
action, determination or interpretation made in good faith with respect to this Agreement.
19. Section 409A. Notwithstanding anything in the Plan or this Agreement to the
contrary, if the vesting or issuance of the balance, or some lesser portion of the balance, of the
RSUs awarded by this Agreement is accelerated in connection with Participant’s cessation of service
on the Board (provided that such cessation is a “separation from service” within the meaning of
Section 409A, as determined by the Company), other than due to death, and if (a) the Participant is
a “specified employee” within the meaning of Section 409A at the time of such cessation of service
on the Board and (b) the payment of such accelerated RSUs will result in the imposition of
additional tax under Section 409A if paid to the Participant on or within the six (6) month period
following the Participant’s cessation of service on the Board, then the payment of such accelerated
RSUs will not be made until the date that is six (6) months and one (1) day following the date of
the Participant’s cessation of service on the Board, unless the Participant dies following such
cessation of service, in which case, such RSUs will be paid in accordance with paragraph 6 as soon
as administratively practicable following his or her death. It is the intent of this Agreement to
comply with the requirements of Section 409A so that none of the RSUs awarded by this Agreement or
shares of Common Stock issuable thereunder will be subject to the additional tax imposed under
Section 409A, and any ambiguities herein will be interpreted to so comply. For purposes of this
Agreement, “Section 409A” means Section 409A of the Internal Revenue Code of 1986, as amended, and
any proposed, temporary or final Treasury Regulations and Internal Revenue Service guidance
thereunder, as each may be amended from time to time.
20. Captions. Captions provided herein are for convenience only and are not to serve
as a
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basis for interpretation or construction of this Agreement.
21. Agreement Severable. In the event that any provision in this Agreement is held
invalid or unenforceable, such provision will be severable from, and such invalidity or
unenforceability will not be construed to have any effect on, the remaining provisions of this
Agreement.
22. Labor Law. By accepting this award of RSUs, the Participant acknowledges that:
(a) the grant of the award is a one-time benefit which does not create any contractual or other
right to receive future grants of RSUs, or benefits in lieu of RSUs; (b) subject to the terms of
the Plan, all determinations with respect to any future grants, including, but not limited to, the
times when the RSUs will be granted, the number of shares of Common Stock issuable pursuant to each
award of RSUs and the time or times when RSUs will vest, will be at the sole discretion of the
Company; (c) the Participant’s participation in the Plan is voluntary; (d) this award is an
extraordinary item of compensation which is outside the scope of any subsequent employment or
service contract with the Company; (e) this award is not part of the Participant’s normal or
expected compensation for purposes of calculating any severance, resignation, redundancy,
end-of-service payments, bonuses, long-service awards, pension or retirement benefits or similar
payments; (f) the vesting of this award will cease upon the Participant’s cessation of service as a
Board member for any reason; (g) the future value of the underlying shares of Common Stock is
unknown and cannot be predicted with certainty; (h) this award has been granted to the Participant
in the Participant’s status as a non-employee Board member; (i) any claims resulting from this
award will be enforceable, if at all, against the Company; and (j) there will be no additional
obligations for any Parent or Subsidiary employing the Participant as a result of this award.
23. Disclosure of Participant Information. By accepting this award of RSUs, the
Participant consents to the collection, use and transfer of personal data as described in this
paragraph. The Participant understands that the Company and/or its Parent and Subsidiaries hold
certain personal information about him or her, including his or her name, home address and
telephone number, date of birth, social security or identity number, salary, nationality, job
title, any shares of stock or directorships held in the Company, details of all awards of RSUs or
any other entitlement to shares of Common Stock awarded, canceled, exercised, vested, unvested or
outstanding in his or her favor, for the purpose of managing and administering the Plan (“Data”).
The Participant further understands that the Company and/or its Parent or Subsidiaries will
transfer Data among themselves as necessary for the purpose of implementation, administration and
management of his or her participation in the Plan, and that the Company and/or its Parent or
Subsidiaries may each further transfer Data to any third parties assisting the Company in the
implementation, administration and management of the Plan. The Participant authorizes the Company
and/or its Parent or Subsidiaries to receive, possess, use, retain and transfer the Data in
electronic or other form, for the purposes of implementing, administering and managing his or her
participation in the Plan, including any requisite transfer to a broker or other third party with
whom he or she may elect to deposit any shares of Common Stock acquired from this award of RSUs of
such Data as may be required for the administration of the Plan and/or the subsequent holding of
the shares of Common Stock on his or her behalf. The Participant understands that he or she may,
at any time, view the Data, require any necessary amendments to the Data or withdraw the consent
herein in writing by contacting the Company’s Human Resources and/or Stock Administration
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department.
24. Amendment, Suspension or Termination of the Plan. By accepting this award of
RSUs, the Participant expressly warrants that he or she has received, read and understood the
prospectus for the Plan. The Participant understands that the Plan is discretionary in nature and
may be amended, suspended or terminated by the Company at any time.
25. Modifications to the Agreement. This Agreement constitutes the entire
understanding of the parties on the subjects covered. The Participant expressly warrants the he or
she is not accepting this Agreement in reliance on any promises, representations or inducements
other than those contained herein. Modifications to this Agreement can be made only in an express
written contract executed by a duly authorized officer of the Company. Notwithstanding anything to
the contrary in the Plan or this Agreement, the Company reserves the right to amend this Agreement
as it deems necessary or advisable, in its sole discretion and without the consent of the
Participant, to comply with Section 409A or to otherwise avoid imposition of any additional tax or
income recognition under Section 409A prior to the actual payment of shares of Common Stock
pursuant to this award of RSUs.
26. Governing Law. The interpretation, performance and enforcement of this Agreement
will be governed by, and construed in accordance with, the laws of the State of California, without
regard to principles of conflict of laws.
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