Exhibit 10.4
INTEL CORPORATION
RESTRICTED STOCK UNIT AGREEMENT
UNDER THE 2004 EQUITY INCENTIVE PLAN
(FOR GRANTS UNDER THE ELTSOP PROGRAM)
1. TERMS OF RESTRICTED STOCK UNIT
This Restricted Stock Unit Agreement (this
"Agreement"), the Notice of Grant delivered herewith
(the "Notice of Grant") and the Intel Corporation 2004
Equity Incentive Plan (the "2004 Plan"), as such may be
amended from time to time, constitute the entire
understanding between you and Intel Corporation (the
"Corporation") regarding the Restricted Stock Units
("RSUs") identified in your Notice of Grant.
2. VESTING OF RSUs
Provided that you remain continuously employed by the
Corporation or a Subsidiary on a full time basis from
the Grant Date specified in the Notice of Grant through
each vesting date specified in the Notice of Grant, the
RSUs shall vest and be converted into the right to
receive the number of shares of the Corporation's
Common Stock, $.001 par value (the "Common Stock"),
specified on the Notice of Grant with respect to such
vesting date, except as otherwise provided in this
Agreement. If a vesting date falls on a weekend or any
other day on which the NASDAQ Stock Market ("NASDAQ")
is not open, affected RSUs shall vest on the next
following NASDAQ business day. The number of shares of
Common Stock into which RSUs convert as specified in
the Notice of Grant shall be adjusted for stock splits
and similar matters as specified in and pursuant to the
2004 Plan.
RSUs will vest to the extent provided in and in
accordance with the terms of the Notice of Grant and
this Agreement. If your status as an Employee
terminates for any reason except death, or Disablement
(defined below), prior to the vesting dates set forth
in your Notice of Grant, your unvested RSUs will be
cancelled.
3. CONVERSION INTO COMMON STOCK
Shares of Common Stock will be issued or become free of
restrictions as soon as practicable following vesting
of the RSUs, provided that you have satisfied your tax
withholding obligations as specified under Section 9 of
this Agreement and you have completed, signed and
returned any documents and taken any additional action
that the Corporation deems appropriate to enable it to
accomplish the delivery of the shares of Common Stock.
The shares of Common Stock will be issued in your name
or, in the event of your death or Disablement, to your
executor or personal representative, and may be
effected by recording shares on the stock records of
the Corporation or by crediting shares in an account
established on your
behalf with a brokerage firm or
other custodian, in each case as determined by the
Corporation. In no event will the Corporation be
obligated to issue a fractional share.
Notwithstanding the foregoing, (i) the Corporation
shall not be obligated to deliver any shares of the
Common Stock during any period when the Corporation
determines that the conversion of a RSU or the delivery
of shares hereunder would violate any laws of the
United States or your country of residence or
employment and/or may issue shares subject to any
restrictive legends that, as determined by the
Corporation's counsel, is necessary to comply with
securities or other regulatory requirements, and (ii)
the date on which shares are issued may include a delay
in order to provide the Corporation such time as it
determines appropriate to address tax withholding and
other administrative matters.
4. LEAVES OF ABSENCE
(a) Except as expressly provided otherwise in this Agreement, if
you take a personal leave of absence under the Intel Leave
Guidelines ("PLOA"), your RSUs will vest only to the extent and
during the times specified in this Section 4:
(1) If the duration of the PLOA is less than thirty (30) days:
a) The vesting date set forth in your Notice of Grant for
any RSUs that (but for this provision) would have vested
during the PLOA shall be deferred until the first day that
you return to work (i.e., the date that the PLOA is
terminated) or, if you return on a day that the NASDAQ
is not open, the next following NASDAQ business day; and
b) The vesting date set forth in your Notice of Grant for any
RSUs that are scheduled to vest following the date that the
PLOA is terminated shall not be affected by the PLOA.
(2) If the duration of the PLOA equals or exceeds thirty (30)
days, the vesting dates set forth in your Notice of Grant for any
RSUs that follow the commencement of the PLOA shall be deferred
beyond the dates set forth in the Notice of Grant by a period of
time equal to the duration of the PLOA.
(3) If you terminate employment with the Corporation during a
PLOA, then in addition to the effect on the vesting dates set
forth in clause (a)(1) and (a)(2) of this Section 4, any RSUs
that had not vested prior to the commencement of the PLOA
shall be cancelled as of the date of your termination of
employment, as applicable, except to the extent provided
otherwise in Sections 7 through 9 hereof.
(b) If you take an approved Leave of Absence other than a PLOA
under Intel Leave Guidelines, the vesting of RSUs shall be
unaffected by such absence and will vest in accordance with the
schedule set forth in the Notice of Grant.
5. SUSPENSION OR TERMINATION OF RSU FOR MISCONDUCT
If at any time the Committee of the Board of Directors
of the Corporation established pursuant to the 2004
Plan (the "Committee"), including any Subcommittee or
"Authorized Officer" (as defined in Section 8(a)(v) of
the 2004 Plan) notifies the Corporation that they
reasonably believe that you have committed an act of
misconduct as described in Section 8(a)(v) of the 2004
Plan (embezzlement, fraud, dishonesty, nonpayment of
any obligation owed to the Corporation, breach of
fiduciary duty or deliberate disregard of Corporation
rules resulting in loss, damage or injury to the
Corporation, an unauthorized disclosure of any
Corporation trade secret or confidential information,
any conduct constituting unfair competition, inducing
any customer to breach a contract with the Corporation
or inducing any principal for whom the Corporation acts
as agent to terminate such agency relationship), the
vesting of your RSUs may be suspended pending a
determination of whether an act of misconduct has been
committed. If the Corporation determines that you have
committed an act of misconduct, all RSUs not vested as
of the date the Corporation was notified that you may
have committed an act of misconduct shall be cancelled
and neither you nor any beneficiary shall be entitled
to any claim with respect to the RSUs whatsoever. Any
determination by the Committee or an Authorized Officer
with respect to the foregoing shall be final,
conclusive, and binding on all interested parties.
6. TERMINATION OF EMPLOYMENT
Except as expressly provided otherwise in this
Agreement, if your employment by the Corporation
terminates for any reason, whether voluntarily or
involuntarily, other than on account of death, or
Disablement (defined below), all RSUs not then vested
shall be cancelled on the date of employment
termination, regardless of whether such employment
termination is as a result of a divestiture or
otherwise. For purposes of this Section 6, your
employment with any partnership, joint venture or
corporation not meeting the requirements of a
Subsidiary in which the Corporation or a Subsidiary is
a party shall be considered employment for purposes of
this provision if either (a) an the entity is
designated by the Committee as a Subsidiary for
purposes of this provision or (b) you are specifically
designated as an employee of a Subsidiary for purposes
of this provision.
7. DEATH
Except as expressly provided otherwise in this
Agreement, if you die while employed by the
Corporation, your RSUs will become one hundred percent
(100%) vested.
8. DISABILITY
Except as expressly provided otherwise in this
Agreement and upon your termination of employment as a
result of a determination of Disablement, your RSUs
will become one hundred percent (100%) vested.
For purposes of this Section 8, "Disablement" shall be
determined in accordance with the standards and
procedures of the then-current Long Term Disability
Plan maintained by the Corporation or the Subsidiary
that employs you, and in the event you are not a
participant in a then-current Long Term Disability Plan
maintained by the Corporation or the Subsidiary that
employs you, "Disablement" shall have the same meaning
as disablement is defined in the Intel Long Term
Disability Plan, which is generally a physical
condition arising from an illness or injury, which
renders an individual incapable of performing work in
any occupation, as determined by the Corporation.
9. TAX WITHHOLDING
RSUs are taxable upon vesting based on the market value
in accordance with the tax laws of the country where
you are resident or employed. RSUs are taxable in
accordance with the existing or future tax laws of the
country where you are resident or employed. If you are
an U.S. citizen or expatriate, you may also be subject
to U.S. tax laws.
To the extent required by applicable federal, state or
other law, you shall make arrangements satisfactory to
the Corporation or the Subsidiary that employs you for
the payment and satisfaction of any income tax, social
security tax, payroll tax, social taxes, applicable
national or local taxes, payment on account or other
tax related to withholding obligations that arise by
reason of granting of a RSU, vesting of a RSU or any
sale of shares of the Common Stock (whichever is
applicable).
The Corporation shall not be required to issue or lift
any restrictions on shares of the Common Stock pursuant
to your RSUs or to recognize any purported transfer of
shares of the Common Stock until such obligations are
satisfied.
Unless provided otherwise by the Committee, these
obligations will be satisfied by the Corporation
withholding a number of shares of Common Stock that
would otherwise be issued under the RSUs that the
Corporation determines has a Market Value sufficient to
meet the tax withholding obligations. In the event
that the Committee provides that these obligations will
not be satisfied under the method described in the
previous sentence, you authorize UBS Financial Services
Inc., or any successor plan administrator, to sell a
number of shares of Common Stock that are issued under
the RSUs, which the Corporation determines is
sufficient to generate an amount that meets the tax
withholding obligations plus additional
shares to
account for rounding and market fluctuations. The
shares may be sold as part of a block trade with other
participants of the 2004 Plan in which all participants
receive an average price. For this purpose, "Market
Value" will be calculated as the average of the highest
and lowest sales prices of the Common Stock as reported
by NASDAQ on the day your RSUs vest. The future value
of the underlying shares of Common Stock is unknown and
cannot be predicted with certainty.
You are ultimately liable and responsible for all taxes
owed by you in connection with your RSUs, regardless of
any action the Corporation takes or any transaction
pursuant to this Section 9 with respect to any tax
withholding obligations that arise in connection with
the RSUs. The Corporation makes no representation or
undertaking regarding the treatment of any tax
withholding in connection with the grant, issuance,
vesting or settlement of the RSUs or the subsequent
sale of any of the shares of Common Stock underlying
the RSUs that vest. The Corporation does not commit and
is under no obligation to structure the RSU program to
reduce or eliminate your tax liability.
10. RIGHTS AS A STOCKHOLDER
Until your RSUs have vested and shares of Common Stock
have been issued to you, your RSUs are not transferable
other than by last will and testament or the laws of
descent and distribution. Your RSUs may not be
otherwise transferred or assigned, pledged,
hypothecated or otherwise disposed of in any way,
whether by operation of law or otherwise, and may not
be subject to execution, attachment or similar process.
Any attempt to transfer, assign, hypothecate or
otherwise dispose of your RSUs other than as permitted
above, shall be void and unenforceable against the
Corporation.
You will have the rights of a stockholder only after
shares of the Common Stock have been issued to you
following vesting of your RSUs and satisfaction of all
other conditions to the issuance of those shares as set
forth in this Agreement. RSUs shall not entitle you to
any rights of a stockholder of Common Stock and there
are no voting or dividend rights with respect to your
RSUs. RSUs shall remain terminable pursuant to this
Agreement at all times until they vest and convert into
shares. As a condition to having the right to receive
shares of Common Stock pursuant to your RSUs, you
acknowledge that unvested RSUs shall have no value for
purposes of any aspect of your employment relationship
with the Corporation.
11. DISPUTES
Any question concerning the interpretation of this
Agreement, your Notice of Grant, the RSUs or the 2004
Plan, any adjustments required to be made thereunder,
and any controversy that may arise under the Standard
Terms, your Notice of Grant, the RSUs or the 2004 Plan
shall be determined by the Committee (including any
person(s) to whom the Committee has delegated its
authority) in its sole and absolute discretion. Such
decision by the Committee shall be final and binding
unless determined pursuant to Section 14(e) to have
been arbitrary and capricious.
12. AMENDMENTS
The 2004 Plan and RSUs may be amended or altered by the
Committee or the Board of Directors of the Corporation
to the extent provided in the 2004 Plan.
13. DATA PRIVACY
You explicitly and unambiguously consent to the
collection, use and transfer, in electronic or other
form, of your personal data as described in this
document by the Corporation for the exclusive purpose
of implementing, administering and managing your
participation in the 2004 Plan.
You hereby understand that the Corporation holds
certain personal information about you, including, but
not limited to, your name, home address and telephone
number, date of birth, social insurance number or other
identification number, salary, nationality, job title,
any shares of stock or directorships held in the
Corporation, details of all RSUs or any other
entitlement to shares of stock awarded, canceled,
exercised, vested, unvested or outstanding in your
favor, for the purpose of implementing, administering
and managing the 2004 Plan ("Data"). You hereby
understand that Data may be transferred to any third
parties assisting in the implementation, administration
and management of the 2004 Plan, that these recipients
may be located in your country or elsewhere, and that
the recipient's country may have different data privacy
laws and protections than your country. You hereby
understand that you may request a list with the names
and addresses of any potential recipients of the Data
by contacting your local human resources
representative. You authorize the recipients to
receive, possess, use, retain and transfer the Data, in
electronic or other form, for the purposes of
implementing, administering and managing your
participation in the 2004 Plan, including any requisite
transfer of such Data as may be required to a broker or
other third party with whom you may elect to deposit
any shares of Common Stock acquired under your RSUs.
You hereby understand that Data will be held only as
long as is necessary to implement, administer and
manage your participation in the 2004 Plan. You hereby
understand that you may, at any time, view Data,
request additional information about the storage and
processing of Data, require any necessary
amendments to
Data or refuse or withdraw the consents herein, in any
case without cost, by contacting in writing your local
human resources representative. You hereby understand,
however, that refusing or withdrawing your consent may
affect your ability to participate in the 2004 Plan.
For more information on the consequences of your
refusal to consent or withdrawal of consent, you hereby
understand that you may contact the human resources
representative responsible for your country at the
local or regional level.
14. THE 2004 PLAN AND OTHER TERMS; OTHER MATTERS
(a) Certain capitalized terms used in this Agreement are defined
in the 2004 Plan. Any prior agreements, commitments or
negotiations concerning the RSUs are superseded by this Agreement
and your Notice of Grant.
The grant of RSUs to an employee in any one year,
or at any time, does not obligate the Corporation
or any Subsidiary to make a grant in any future
year or in any given amount and should not create
an expectation that the Corporation or any
Subsidiary might make a grant in any future year
or in any given amount.
(b) To the extent that the grant of RSUs refers to the Common
Stock of Intel Corporation, and as required by the laws of your
country of residence or employment, only authorized but unissued
shares thereof shall be utilized for delivery upon vesting in
accord with the terms hereof.
(c) Notwithstanding any other provision of this Agreement, if any
changes in the financial or tax accounting rules applicable to the
RSUs covered by this Agreement shall occur which, in the sole
judgment of the Committee, may have an adverse effect on the
reported earnings, assets or liabilities of the Corporation, the
Committee may, in its sole discretion, modify this Agreement or
cancel and cause a forfeiture with respect to any unvested RSUs at
the time of such determination.
(d) Nothing contained in this Agreement creates or implies an
employment contract or term of employment upon which you may rely.
(e) Because this Agreement relates to terms and conditions under
which you may be issued shares of Common Stock of Intel
Corporation, a Delaware corporation, an essential term of this
Agreement is that it shall be governed by the laws of the State of
Delaware, without regard to choice of law principles of Delaware or
other jurisdictions. Any action, suit, or proceeding relating to
this Agreement or the RSUs granted hereunder shall be brought in
the state or federal courts of competent jurisdiction in the State
of California.
(f) Notwithstanding anything to the contrary in this Agreement or
the applicable Notice of Grant, your RSUs are subject to reduction
by the Corporation if you
change your employment classification
from a full-time employee to a part-time employee.
(g) RSUs are not part of your employment contract (if any) with
the Corporation, your salary, your normal or expected compensation,
or other remuneration for any purposes, including for purposes of
computing severance pay or other termination compensation or
indemnity.
(h) In consideration of the grant of RSUs, no claim or entitlement
to compensation or damages shall arise from termination of your
RSUs or diminution in value of the RSUs or Common Stock acquired
through vested RSUs resulting from termination of your active
employment by the Corporation (for any reason whatsoever and
whether or not in breach of local labor laws) and you hereby
release the Corporation from any such claim that may arise; if,
notwithstanding the foregoing, any such claim is found by a court
of competent jurisdiction to have arisen, then you shall be deemed
irrevocably to have waived your entitlement to pursue such claim.
(i) Notwithstanding any terms or conditions of the 2004 Plan to
the contrary, in the event of involuntary termination of your
employment (whether or not in breach of local labor laws), your
right to receive the RSUs and vest in RSUs under the 2004 Plan, if
any, will terminate effective as of the date that you are no longer
actively employed and will not be extended by any notice period
mandated under local law (e.g., active employment would not include
a period of "garden leave" or similar period pursuant to local
law); furthermore, in the event of involuntary termination of
employment (whether or not in breach of local labor laws), your
right to sell shares of Common Stock that converted from vested
RSUs after termination of employment, if any, will be measured by
the date of termination of your active employment and will not be
extended by any notice period mandated under local law.
(j) Notwithstanding any provision of these Standard Terms, the
Notice of Grant or the 2004 Plan to the contrary, if, at the time
of your termination of employment with the Corporation, you are a
"specified employee" as defined in Section 409A of the Internal
Revenue Code ("Code"), and one or more of the payments or benefits
received or to be received by you pursuant to the RSUs would
constitute deferred compensation subject to Section 409A, no such
payment or benefit will be provided under the RSUs until the
earliest of (A) the date which is six (6) months after your
"separation from service" for any reason, other than death or
"disability" (as such terms are used in Section 409A(a)(2) of the
Code), (B) the date of your death or "disability" (as such term is
used in Section 409A(a)(2)(C) of the Code) or (C) the effective
date of a "change in the ownership or effective control" of the
Corporation (as such term is used in Section 409A(a)(2)(A)(v) of
the Code). The provisions of this Section 13(e) shall only apply
to the extent required to avoid your incurrence of any penalty tax
or interest under Section 409A of the Code or any regulations or
Treasury guidance promulgated thereunder. In addition, if any
provision of the RSUs would cause you to incur any
penalty tax or
interest under Section 409A of the Code or any regulations or
Treasury guidance promulgated thereunder, the Corporation may
reform such provision to maintain to the maximum extent practicable
the original intent of the applicable provision without violating
the provisions of Section 409A of the Code.