Senior Executive New Hire Stock
Unit
2002 Plan
DELL INC.
Stock Unit Agreement
Dell Inc., a
Delaware corporation (the “Company”), is pleased to
grant you units representing the right to receive shares of the
Company’s common stock (the “Shares”), subject to
the terms and conditions described below. The number of units that
are awarded to you (the “Units”) is stated in step one
of the Stock Plan Administrator’s online grant acceptance
process (“Grant Summary”). Each Unit represents the
right to receive one Share. As a material inducement to the Company
to grant you this award, you agree to the following terms and
conditions. You agree that you are not otherwise entitled to this
award, that the Company is providing you this award in
consideration for your promises and agreements below, and that the
Company would not grant you this award absent those promises and
agreements. This Stock Unit Agreement, the Grant Summary, and the
Company’s Amended and Restated 2002 Long-Term Incentive Plan
(the “Plan”) set forth the terms of your Units
identified in your Grant Summary.
1.
Vesting — The
Company will issue you one Share for each vested Unit to be
delivered on the applicable vesting date or as soon as
administratively practicable thereafter. The Units will vest, and
you will receive Shares, in accordance with the schedule in your
Grant Summary.
2.
Expiration — If
your Employment (as defined below) is terminated by you for any
reason or by your Employer for Serious Misconduct (as defined
below), any Units that have not vested as described above will
expire at that time.
If your
Employment is terminated by reason of your death or Permanent
Disability (as defined in the Plan described below), all Units will
vest immediately and automatically upon such termination of
Employment.
If your
Employment is terminated for any other reason, all Units will vest
immediately and automatically upon such termination of Employment
and the Shares will be distributed to you in accordance with the
original vesting schedule.
As used herein,
the term “Employment” means your regular full-time or
part-time employment with the Company or any of its Subsidiaries,
and the term “Employer” means the Company (if you are
employed by the Company) or the Subsidiary of the Company that
employs you. As used herein, the term “Serious
Misconduct” means (a) your act or omission that results
in you being charged with a criminal offense involving moral
turpitude, dishonesty or breach of trust; (b) conduct by you
which constitutes a felony under applicable law, (c) your plea
of guilty or nolo contendere with respect to a felony under
applicable law; (d) conduct by you that constitutes gross
neglect; (e) your insubordination or refusal to implement
directives of your manager; (f) your breach of a fiduciary
duty to Dell or its shareholders; (g) your chronic absenteeism
other than due to a disability; (h) Dell’s Senior
Management’s determination that you violated Dell’s
Code of Conduct or committed other acts of misconduct; or
(i) Dell’s Senior Management’s determination that
you have engaged in conduct that constitutes a violation or
potential violation of state or federal law relating to the
workplace environment (including, without limitation, laws relating
to sexual harassment or age, sex, or other prohibited
discrimination).
3. Rights
as a Stockholder — You will have no rights as a stockholder
with respect to Shares that may be received by you pursuant to this
Agreement until those Shares are issued and registered in your name
on the books of the Company’s transfer agent. You will have
no rights to receive dividend equivalent payments with respect to
Shares that may be received by you pursuant to this Agreement.
Units granted to you will be satisfied wholly through the issuance
and delivery of Shares.
4.
Agreement With Respect to Taxes — You must pay any taxes that are required
to be withheld by the Company or your Employer. You may pay such
amounts in cash or make other arrangements satisfactory to the
Company or your Employer for the payment of such amounts. You agree
the Company or your Employer, at its sole discretion and to the
fullest extent permitted by law, shall have the right to demand
that you pay such amounts in cash, deduct such amounts from any
payments of any kind otherwise due to you, or withhold from Shares
to which you would otherwise be entitled the number of Shares
having an aggregate market value at that time equal to the amount
you owe. In the event the Company, in its sole discretion,
determines that your tax obligations will not be satisfied under
the methods described in this paragraph, you authorize the Company
or the Company’s Stock Plan Administrator, currently UBS
Financial Services Inc., to sell a number of Shares that are issued
under the Units, which the Company determines as having at least
the market value sufficient to meet the tax withholding obligations
plus additional Shares to account for rounding and market
fluctuations and pay such tax withholding to the Company. The
shares may be sold as part of a block trade with other participants
and all participants receive an average price.
5. Leaves
of Absence — If
you take a leave of absence from active Employment that has been
approved by the Company or your Employer or is one to which you are
legally entitled regardless of such approval, the following
provisions will apply:
A. Vesting
During Leave —
Notwithstanding the vesting schedule set forth above, no Units will
vest during a leave of absence other than an approved employee
medical, FMLA or military leave. Notwithstanding the preceding,
vesting shall not be deferred for any approved leave of absence of
less than 30 days. The vesting that would have otherwise
occurred during a leave of absence other than an approved employee
medical, FMLA or military leave will be deferred by the number of
days you are on a leave of absence. For example, if your Units are
scheduled to vest on August 1, 2007 through August 1,
2011, and you are on a 40 day leave of absence, the dates on which
the vesting occurs will be deferred to September 10, 2007
through September 10, 2011.
6. Return
of Share Value — By accepting this award, you agree that
if the Company determines that you engaged in “Conduct
Detrimental to the Company” (as defined below) during your
Employment or during the one-year period following the termination
of your Employment, you shall be required, upon demand, to return
to the Company, in the form of a cash payment, certain share value
(“Returnable Share Value”). For purposes of this
provision, “Returnable Share Value” means a cash amount
equal to the gross value of the Shares that were issued to you
pursuant to this Agreement, determined as of the date such Shares
were issued to you and using the Fair Market Value (as defined in
the Plan) of Dell stock on that date. You understand and agree that
the repayment of the Returnable Share Value is in addition to and
separate from any other relief available to the Company due to your
Conduct Detrimental to the Company.
For purposes of
this Agreement, you will be considered to have engaged in
“Conduct Detrimental to the Company” if:
(1) you
engage in Serious Misconduct (whether or not such Serious
Misconduct is discovered by the Company prior to the termination of
your Employment);
(2) you
breach your obligations to the Company with respect to confidential
and proprietary information or trade secrets or breach any
agreement between you and Dell relating to confidential and
proprietary information or trade secrets;
(3) you
compete with the Company (as described below); or
(4) you
solicit the Company’s employees (as described
below).
For purposes of
this provision, you shall be deemed to “compete” with
the Company if you, directly or indirectly:
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