INDEX TO EXHIBITS
Exhibit Sequentially
Number Exhibit Numbered Page
- ---------- ------- -------------
4.01 Certificate of Incorporation of the Registrant. (Incorporated *
herein by reference to Exhibit 1.01 to the Registrant's 1933
Act Registration Statement on Form S-1, File No. 333-09453).*
4.02 Amended and Restated Bylaws of the Registrant. (Incorporated *
herein by reference to Exhibit 3.02 to the Registrant's Form
10-K for the fiscal year ended January 1, 2000).*
5.01 Opinion of General Counsel of the Registrant. 10
23.01 Consent of Independent Accountants. 12
23.02 Consent of General Counsel of the Registrant (included in 10
opinion filed as Exhibit 5.01).
24.01 Powers of Attorney (included on the signature page of this 7
registration statement).
99.01 Form of the Ingram Micro Inc. 2000 Equity Incentive Plan. 14
- ---------------
* Incorporated by reference.
8
EXHIBIT 5.01
OPINION OF GENERAL COUNSEL OF THE REGISTRANT
9
Exhibit 5.01
[Opinion of General Counsel of the Registrant]
June 21, 2000
Ingram Micro Inc.
1600 E. St. Andrew Place
Santa Ana, CA 92705
Ladies and Gentlemen:
I am the General Counsel of Ingram Micro Inc., a Delaware corporation
(the "Company"), and am delivering this opinion in connection with the
Company's Registration Statement on Form S-8 (the "Registration Statement")
filed with the Securities and Exchange Commission pursuant to the Securities
Act of 1933, as amended, for the registration of 20,000,000 shares (the
"Shares") of the Company's Class A Common Stock, par value $0.01 per share,
issuable pursuant to the Company's 2000 Equity Incentive Plan (the "Plan").
I have examined originals or copies of such documents, corporate
records and other instruments as I have deemed necessary for the purposes of
rendering this opinion.
On the basis of the foregoing, I am of the opinion that the Shares
have been duly authorized and, when and to the extent issued pursuant to the
Plan upon receipt by the Company of the option exercise prices therefor, will
be validly issued, fully paid and non-assessable.
I am licensed to practice law in the States of California, Tennessee
and Texas, and the foregoing opinion is limited to the laws of such states, the
federal laws of the United States of America and the General Corporation Law of
the State of Delaware.
I consent to the filing of this opinion as Exhibit 5.01 to the Registration
Statement.
Very truly yours,
/s/ James E. Anderson, Jr.
--------------------------------
James E. Anderson, Jr.
Senior Vice President, Secretary
and General Counsel
10
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
11
Exhibit 23.01
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 17, 2000, except as to the
second paragraph of Note 5, which is as of March 8, 2000 relating to the
financial statements, which appears in the 1999 Annual Report to Shareowners of
Ingram Micro Inc., which is incorporated by reference in Ingram Micro Inc.'s
Annual Report on Form 10-K for the year ended January 1, 2000. We also consent
to the incorporation by reference of our report dated February 17, 2000, except
as to the second paragraph of Note 5, which is as of March 8, 2000 relating to
the financial statement schedule, which appears in such Annual Report on Form
10-K. We also consent to the reference to us under the heading "Experts" in
such Registration Statement.
/s/ PricewaterhouseCoopers LLP
- ------------------------------
PricewaterhouseCoopers LLP
Costa Mesa, California
June 16, 2000
12
EXHIBIT 99.01
INGRAM MICRO INC.
2000 EQUITY INCENTIVE PLAN
13
Exhibit 99.01
INGRAM MICRO INC.
2000 Equity Incentive Plan
SECTION 1. Purpose. The purposes of the Ingram Micro Inc. 2000 Equity
Incentive Plan are to promote the interests of Ingram Micro Inc. and its
shareowners by (i) attracting and retaining exceptional members of the Board,
executive personnel and other key employees of Micro and its Affiliates, as
defined below; (ii) motivating such employees and Board members by means of
performance-related incentives to achieve longer-range performance goals; and
(iii) enabling such employees and Board members 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 United States 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.
"Disability" shall have the meaning determined from time to time by the
Committee.
"Employee" means an employee of Micro or any Affiliate and any member of
the Board.
"Exchange Act" means the United States 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 as reported in the Wall Street Journal or such other publication
selected by the Committee. 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, 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.
14
"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. 2000 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.
"Retirement" shall have the meaning determined from time to time by the
Committee.
"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 United States 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) of the Plan.
"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: designate Participants; determine the type or types of Awards to
be granted to an eligible Employee; 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; determine the terms and conditions of
any Award and Award Agreement; 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 the method or methods by which Awards may be settled, exercised,
canceled, forfeited, or suspended; determine whether, to what extent, and under
what circumstances cash, Shares, other securities, other Awards, other
property, and other amounts payable with
15
respect to an Award shall be deferred either automatically or at the election
of the holder thereof or of the Committee; interpret and administer the Plan
and any instrument or agreement relating to, or Award made under, the Plan;
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;
make any other determination and take any other action that the Committee deems
necessary or desirable for the administration of the Plan; and adopt and
administer one or more Sub-Plans. The Committee may, in its sole discretion,
delegate to one or more Executive Officers the power to make Awards under the
plan provided that at the time of such grant no recipient of such Awards shall
be an Executive Officer. 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 20,000,000. 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 2,000,000 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
the number of Shares of Micro (or number and kind of other securities or
property) with respect to which Awards may thereafter be granted, the number of
Shares or other securities of Micro (or number and kind of other securities or
property) subject to outstanding Awards, and 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 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 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.
16
(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: in cash; in Shares already owned by a Participant
(the value of such Shares shall be their Fair Market Value on the date of
exercise); by a combination of cash and Shares; if approved by the Committee,
in accordance with a cashless exercise program under which either, if so
instructed by a Participant, Shares may be issued directly to such
Participant's broker or dealer upon receipt of the purchase price in cash from
the broker or dealer, or Shares may be issued by Micro to such 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 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 have a grant price as determined by the
Committee on the date of grant.
(b) Exercise and Payment. A Stock Appreciation Right shall entitle a
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 granted or exercised prior to such determination as well as
Stock Appreciation Rights
17
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 a
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 denominated in cash or Shares, 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 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 not an Award described in Sections 6 through 9
above and which is 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 a 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.
(a) Non-Qualified Stock Options and Stock Appreciation Rights.
18
(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 a Participant's
employment or service with Micro or its Affiliates is terminated for
any reason other than death, Disability, or Retirement, a
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. A
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. 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 such
Award or portion thereof has vested or otherwise become exercisable
or nonforfeitable.
(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 such
Participant's employer gives notice to a Participant of termination
of Participant's employment, or such Participant gives notice to such
Participant's employer to terminate Participant's employment, or 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. A 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 a 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 a 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 a 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
such 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. If a Participant dies while under a
Disability, such Participant's rights with respect to such Option or Stock
Appreciation Right shall be determined under Clause (ii) above.
(iv) Retirement. Except as the Committee may at any time otherwise
provide or as required to comply with applicable law, if a Participant's
employment or service with Micro or its Affiliates is terminated by reason
of Retirement, a 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
19
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 that
an Option or Stock Appreciation Right granted to a Participant may vest at
a date earlier than that set forth above, 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 a Participant's employment or service, and 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 a Participant's
employment or service with Micro or its Affiliates is terminated for
any reason other than death, Disability, or Retirement, a
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. A 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. A
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 a Participant's employment or service with Micro or its Affiliates is
terminated by reason of death, Disability or Retirement, a 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 a Participant dies in such 90-day period
the Option
20
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
that an Option and related Stock Appreciation Right granted to a
Participant may vest at a date earlier than that set forth above, 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 it not been for the termination of such
Participant's employment or service, and 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 a Participant and reacquired by Micro at the price (if any) paid by a
Participant for such Restricted Stock; provided that, except as the
Committee may at any time otherwise provide, in the event of such
Participant's Disability or death such Restricted Stock shall be subject
to forfeiture and/or vesting as provided in Section 11(a)(ii) and (iii)
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 such 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
date of Notice/Termination. 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 such Participant ceases to perform services for Micro or any
Affiliate without regard to whether such 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
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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.
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
a 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 a Participant's immediate family, to a partnership of which the
only partners are members of a Participant's immediate family, or to a
trust established by a Participant for the benefit of one or more members
of a Participant's immediate family. For this purpose, immediate family
means a 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. A
trust described in this subsection (ii) may not be amended to benefit any
Person other than a member of a Participant's immediate family. 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 a 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
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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
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 a 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 a 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
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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.
(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 16, 2000,
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
February 15, 2010. 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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