As filed with the Securities and Exchange Commission on May 15, 1998
Registration No. 333-_____________
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------
INGRAM MICRO INC.
(Exact name of issuer as specified in its charter)
Delaware 5045 62-1644402
(State or other jurisdiction (Primary Standard Industrial (I.R.S. Employer
of incorporation or Classification Code Number) Identification No.)
organization)
1600 E. St. Andrew Place
Santa Ana, CA 92705
(714) 566-1000
(Address of principal executive offices)
------------
INGRAM MICRO INC.
1998 EQUITY INCENTIVE PLAN
(Full title of the plan)
------------
James E. Anderson, Jr., Esq.
Senior Vice President and General Counsel
Ingram Micro Inc.
1600 E. St. Andrew Place
Santa Ana, CA 92705
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (714) 566-1000
Copy to:
Winthrop B. Conrad, Jr., Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, NY 10017
(212) 450-4000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================================
Proposed Proposed
Maximum Maximum Amount of
Title of Securities Amount to be Offering Price Aggregate Registration
to be Registered Registered (1) per Share (2) Offering Price (2) Fee
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock 15,000,000 shares $46.81 $702,150,000 $207,135
(par value $0.01 per
share)
==========================================================================================================================
(1) Plus an indeterminate number of additional shares which may be offered and
issued to prevent dilution resulting from stock splits, stock dividends
or similar transactions.
(2) Estimated pursuant to Rule 457(c) under the Securities Act of 1933, as
amended, solely for the purpose of computing the registration fee,
based upon the average of the high and low prices of the securities
being registered hereby on the New York Stock Exchange Composite
Transaction Tape on May 8, 1998.
</TABLE>
- ------------------------------------------------------------------------------
This Registration Statement Includes a Total of 24 Pages.
Exhibit Index on Page 8.
PART I
The following documents listed under this Part I and the documents
incorporated by reference under Item 3 of Part II to this Form S-8, taken
together, constitute a prospectus that meets the requirements of Section
10(a) of the Securities Act of 1933, as amended (the "1933 Act"), and are
incorporated herein by reference.
ITEM 1. PLAN INFORMATION
This information required to be provided to participants pursuant to
this Item is set forth in the Prospectus for the Ingram Micro Inc. 1998
Equity Incentive Plan, together with the Ingram Micro Inc. 1998 Equity
Incentive Plan, attached to the Prospectus as Exhibit A thereto.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
The written statement required to be provided to participants pursuant
to this Item is set forth in the Prospectus referenced in Item 1 above.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Ingram Micro Inc. (the "Registrant") hereby files this Registration
Statement with the Securities and Exchange Commission (the "Commission") on
Form S-8 to register 15,000,000 shares of the Registrant's Class A Common
Stock, par value $.01 per share ("Class A Common Stock"), for issuance
pursuant to the Registrant's 1998 Equity Incentive Plan (the "Plan") and
such indeterminate number of additional shares which may be offered and
issued to prevent dilution resulting from stock splits, stock dividends or
similar transactions pursuant to the Plan.
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed with the Commission pursuant to the
Securities and Exchange Act of 1934, as amended (the "1934 Act"),
(Commission 1934 Act File Number 001-12203) are incorporated by reference
herein:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended January 3, 1998.
(2) All other reports filed with the Commission by the Registrant
pursuant to Section 13(a), 13(c), 14 and 15(d) of the 1934 Act subsequent
to the date hereof and prior to the filing of a post-effective amendment
which indicates that all securities offered herein have been sold or which
deregisters all securities then remaining unsold.
(3) The description of the Registrant's Class A Common Stock
contained in the Registrant's 1934 Act registration statement on Form 8-A
dated September 19, 1996, filed with the Commission pursuant to Section 13
of the 1934 Act, including any amendment thereto or report filed for the
purpose of updating such description.
Any statement contained herein or made in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the
extent that a statement contained herein or in any other subsequently filed
document which is also incorporated or deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable, see Item 3(3) above.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
James E. Anderson, Jr., the Registrant's General Counsel, owns
directly and indirectly securities of the Registrant, and options to
purchase such securities, with a fair market value in excess of $50,000.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to section 102(b)(7) of the Delaware General
Corporation Law (the "DGCL"), which enables a corporation in its
certificate of incorporation to eliminate or limit the personal liability
of a director for violations of the director's fiduciary duty, except (i)
for breach of the director's duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to
section 174 of the DGCL (providing for liability of directors for unlawful
payment of dividends or unlawful stock purchases or redemptions) or (iv)
for any transaction from which a director derived an improper personal
benefit. The Registrant's certificate of incorporation eliminates the
liability of directors to the fullest extent permitted by Delaware Law.
Reference is made to section 145 of the DGCL which provides that a
corporation may indemnify directors and officers as well as other employees
and agents against expenses (including attorney's fees), judgments, fines
and amounts paid in settlement in connection with specified actions, suits
or proceedings, whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) (a "derivative
action")) if they act in good faith and in a manner they reasonably believed
to be in or not opposed to the best interests of the corporation and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe their conduct was unlawful. A similar standard is applicable in
the case of derivative actions, except that indemnification only extends to
expenses (including attorney's fees) incurred in connection with defense or
settlement of such action, and the statute requires court approval before
there can be indemnification that may be granted by a corporation's
charter, by-laws, disinterested director vote, stockholder vote, agreement
or otherwise. The Registrant's certificate of incorporation provides for
indemnification of its directors, officers, employees and agents to the
fullest extent permitted by Delaware law.
In addition, the Registrant has purchased and maintains directors' and
officers' liability insurance.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit Number Exhibit
- -------------- -------
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
3, 1998).*
5.01 Opinion of General Counsel of the Registrant.
23.01 Consent of Independent Public Accountants - Price
Waterhouse LLP.
23.02 Consent of General Counsel of the Registrant (included in
opinion filed as Exhibit 5.01).
24.01 Powers of Attorney (included on the signature page of this
registration statement).
99.01 Form of the Ingram Micro Inc. 1998 Equity Incentive Plan.
- ------------
* Incorporated by reference.
ITEM 9. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement (or the
most recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
this Registration Statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
this Registration Statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3, Form S-8 or Form
F-3, and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference into this Registration Statement;
(2) That for the purpose of determining any liability under the
1933 Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933, each filing
of the Registrant's Annual Report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and where applicable, each
filing of the Plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers or controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the 1933 Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the 1933 Act and will be governed by the
final adjudication of such issue.
EXPERTS
The financial statements incorporated in this Form S-8 by reference
to the Annual Report on Form 10-K of Ingram Micro Inc. for the year ended
January 3, 1998, have been so incorporated in reliance on the report of
Price Waterhouse LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
LEGAL MATTERS
The validity of the Class A Common Stock offered hereunder has been
passed upon by the Registrant's General Counsel.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Santa Ana, State of
California, on this 15th day of May, 1998.
INGRAM MICRO INC.
By /s/ James E. Anderson, Jr.
---------------------------------
James E. Anderson, Jr.
Senior Vice President, Secretary
and General Counsel
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below, constitutes and appoints Jerre L. Stead, Michael J.
Grainger and James E. Anderson, Jr. and each of them, our true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, to do any and all acts and things and execute, in the name
of the undersigned, any and all instruments which said attorneys-in-fact
and agents may deem necessary or advisable in order to enable Ingram Micro
Inc. to comply with the Securities Act of 1933 and any requirements of the
Securities and Exchange Commission in respect thereof, in connection with
the filing with the Securities and Exchange Commission of the registration
statement on Form S-8 under the Securities Act of 1933, including
specifically but without limitation, power and authority to sign the name
of the undersigned to such registration statement, and any amendments to
such registration statement (including post-effective amendments), and to
file the same with all exhibits thereto and other documents in connection
therewith, with the Securities and Exchange Commission, to sign any and all
applications, registration statements, notices or other documents necessary
or advisable to comply with applicable state securities laws, and to file
the same, together with other documents in connection therewith with the
appropriate state securities authorities, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and to
perform each and every act and thing requisite or necessary to be done in
and about the premises, as fully and to all intents and purposes as the
undersigned might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, and any of them, or their
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
- --------- ----- ----
<S> <C> <C>
/s/ Jerre L. Stead Chief Executive Officer (Principal Executive Officer); May 15, 1998
- ------------------------------------------ Chairman of the Board
Jerre L. Stead
/s/ Michael J. Grainger Executive Vice President and Worldwide Chief Financial May 15, 1998
- ------------------------------------------ Officer (Principal Financial Officer and Principal
Michael J. Grainger Accounting Officer)
/s/ Martha R. Ingram Director May 15, 1998
- ------------------------------------------
Martha R. Ingram
/s/ John R. Ingram Director May 15, 1998
- ------------------------------------------
John R. Ingram
/s/ David B. Ingram Director May 15, 1998
- ------------------------------------------
David B. Ingram
/s/ Don H. Davis, Jr. Director May 15, 1998
- ------------------------------------------
Don H. Davis, Jr.
/s/ Philip M. Pfeffer Director May 15, 1998
- ------------------------------------------
Philip M. Pfeffer
/s/ J. Phillip Samper Director May 15, 1998
- ------------------------------------------
J. Phillip Samper
/s/ Joe B. Wyatt Director May 15, 1998
- ------------------------------------------
Joe B. Wyatt
</TABLE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Exhibit Numbered Page
- ------- ------- -------------
<S> <C> <C>
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 3, 1998).*
5.01 Opinion of the Registrant's General Counsel. 10
23.01 Consent of Independent Public Accountants - Price Waterhouse LLP. 12
23.02 Consent of the Registrant's General Counsel (included in his opinion 10
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. 1998 Equity Incentive Plan. 14
- ------------
* Incorporated by reference.
</TABLE>
EXHIBIT 5.01
GENERAL COUNSEL OPINION
Exhibit 5.01
[General Counsel Opinion]
May 13, 1998
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 15,000,000
shares (the "Shares") of the Company's Class A Common Stock, par value
$0.01 per share, issuable pursuant to the Company's 1998 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,
James E. Anderson, Jr.
Senior Vice President, Secretary
and General Counsel
EXHIBIT 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS--PRICE WATERHOUSE LLP
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, 1998,
which appears on page 25 of the 1997 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 3, 1998. We
also consent to the incorporation by reference of our report on 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.
PRICE WATERHOUSE LLP
Costa Mesa, California
May 13, 1998
EXHIBIT 99.01
INGRAM MICRO INC.
1998 EQUITY INCENTIVE PLAN
Exhibit 99.01
INGRAM MICRO INC.
1998 Equity Incentive Plan
Section 1. Purpose. The purposes of the Ingram Micro Inc. 1998 Equity
Incentive Plan are to promote the interests of Ingram Micro Inc. and its
shareowners by (i) attracting and retaining exceptional directors,
executive personnel and other key employees of Micro and its Affiliates, as
defined below; (ii) motivating such employees and directors by means of
performance-related incentives to achieve longer-range performance goals;
and (iii) enabling such employees and directors 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 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.
"Employee" means an employee of Micro or any Affiliate and any member
of the Board.
"Exchange Act" means the 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. 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.
"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. 1998 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.
"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 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) hereof.
"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: (i) designate
Participants; (ii) determine the type or types of Awards to be granted to
an eligible Employee; (iii) 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; (iv) determine the terms and
conditions of any Award and Award Agreement; (v) 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;
(vi) determine whether, to what extent, and under what circumstances cash,
Shares, other securities, other Awards, other property, and other amounts
payable with respect to an Award shall be deferred either automatically or
at the election of the holder thereof or of the Committee; (vii) interpret
and administer the Plan and any instrument or agreement relating to, or
Award made under, the Plan; (viii) 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; (ix) make any other
determination and take any other action that the Committee deems necessary
or desirable for the administration of the Plan; and (x) adopt and
administer one or more Sub-Plans. 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 15,000,000. 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 500,000 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 (i) the number of Shares of Micro (or number and kind
of other securities or property) with respect to which Awards may
thereafter be granted, (ii) the number of Shares or other securities of
Micro (or number and kind of other securities or property) subject to
outstanding Awards, and (iii) 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 (A) 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 (B) 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.
(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: (i) in cash; (ii) in Shares already
owned by the Participant (the value of such Shares shall be their Fair
Market Value on the date of exercise); (iii) by a combination of cash and
Shares; (iv) if approved by the Committee, in accordance with a cashless
exercise program under which either (A) if so instructed by the
Participant, Shares may be issued directly to the Participant's broker or
dealer upon receipt of the purchase price in cash from the broker or
dealer, or (B) Shares may be issued by Micro to a 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 (v) 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 not be exercisable earlier than six months after grant and 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
the 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 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 the 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 (i) denominated in cash or
Shares, (ii) 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 (iii) 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 (i) not an Award described in
Sections 6 through 9 above and (ii) 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 the 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.
(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 the Participant's employment or service with Micro or
its Affiliates is terminated for any reason other than death, disability,
or retirement, the 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. The 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.
(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 (1) such Participant's employer
gives notice to the Participant of termination of Participant's employment,
or (2) such Participant gives notice to such Participant's employer to
terminate Participant's employment, or (3) 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. The 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 the 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 the 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 the 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
the 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. The meaning of the term "disability" shall
be determined by the Committee.
(iv) Retirement. Except as the Committee may at any time otherwise
provide or as required to comply with applicable law, if the Participant's
employment or service with Micro or its Affiliates is terminated by reason
of retirement, the 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 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 (A)
that an Option or Stock Appreciation Right granted to a Participant may
terminate at a date earlier than that set forth above, (B) 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 the Participant's employment or
service and (C) 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 the Participant's employment or service with Micro or
its Affiliates is terminated for any reason other than death, disability,
or retirement, the 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. The
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. The 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 the Participant's employment or service with Micro or its
Affiliates is terminated by reason of death, disability or retirement, the
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 the Participant dies in such 90-day period the
Option 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
(A) that an Option and related Stock Appreciation Right granted to a
Participant may terminate at a date earlier than that set forth above, (B)
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 the Participant's employment or service and (C) 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 the Participant and reacquired by Micro at the price (if any) paid by
the Participant for such Restricted Stock; provided that, except as the
Committee may at any time otherwise provide, in the event of Participant's
retirement, disability, or death such Restricted Stock shall be subject to
forfeiture and/or vesting as provided in Section 11(a)(ii), (iii) and (iv)
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 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 time when
such Participant's employer gives notice to the Participant or, at the time
when the Participant gives notice to such Participant's employer to
terminate his employment or, if no such notice is given, at the time when
his employment is terminated. 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 Participant ceases to perform services for
Micro or any Affiliate without regard to whether 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 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 the 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 the Participant's immediate family, to a partnership of which
the only partners are members of the Participant's immediate family, or to
a trust established by the Participant for the benefit of one or more
members of the Participant's immediate family. For this purpose, immediate
family means the 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. 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 the 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 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 the 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
the 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 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 1,
1998, 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
January 31, 2008. 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.
