EXHIBIT 10.e
ADC TELECOMMUNICATIONS, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
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Option
Number:
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Plan:
GSIP/1991
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This Nonqualified Stock Option
Agreement (the “Agreement”) is entered into effective
by and between ADC Telecommunications, Inc., a Minnesota
corporation, (the “Company”), and the above-identified
Optionee pursuant to the Company’s Global Stock Incentive
Plan (the “Plan”).
Effective the date written above,
the Optionee has been granted an option (the “Option”)
to purchase all or any part of an aggregate of shares of common
stock, par value US$.20 per share, of the Company (the
“Common Stock”) at the price of
US$ per share subject to the terms and
conditions set forth herein the Plan and Exhibits A and B to this
Agreement. This Option is not intended to be an incentive stock
option within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the
“Code”).
The total aggregate purchase price
for all of the shares purchasable under this Option is
US$.
Subject to the terms and
conditions of this Agreement, Exhibits A and B to this Agreement
and the Plan, this Option shall in all events terminate ten
(10) years after the date of grant (the “Expiration
Date”). The shares subject to this Option shall vest and may
be exercised in whole or in part by the Optionee according to the
following vesting schedule:
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Number of Option
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Vesting
Date
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Shares Vesting
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Expiration Date
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Subject to the provisions of the
Plan and Exhibits A and B, the Optionee must be actively employed
by the Company or any of its Affiliates on each Vesting Date for
vesting to occur. Termination of employment after a Vesting Date
may accelerate the Expiration Date (see terms of the Plan and
Exhibits A and B).
Optionee and the Company agree
that these Options are granted under and governed by the terms and
conditions of this Agreement, Exhibits A and B to this Agreement,
and the Plan. Each of these documents and a Prospectus related to
shares covered by the Plan has been provided to Optionee.
Optionee specifically acknowledges that Exhibit A to this
Agreement contains an agreement by Optionee not to solicit
employees of the Company or its Affiliates on behalf of any other
employer, a data privacy consent by Optionee and certain other
acknowledgements by Optionee. In addition, Optionee acknowledges
that Exhibit B includes country-specific terms which apply to
the Option.
Optionee acknowledges that this
Option is subject to the ongoing discretionary authority of the
Company to determine: (i) the permissible manner of exercise
of the Option (including but not limited to the authority of the
Company to require a mandatory cashless exercise); (ii) the
permissible timing of exercise of the Option; and (iii) any
other restrictions that the Company deems necessary and advisable,
including but not limited to restrictions pertaining to applicable
law. Optionee further acknowledges that in the event the Optionee
chooses to effect a simultaneous exercise and sale of all or a
portion of the shares that are subject to this Option, neither the
Company nor its third party stock option administrator will
guarantee any particular market price for the sale of the shares,
nor shall the Company or its third party administrator be
responsible for any failure to obtain any particular market price
due to delays in the exercise of this Option or any other
reason.
ADC TELECOMMUNICATIONS,
INC.
Jeffrey D. Pflaum, Vice President,
Corporate Secretary Date
& General Counsel
OPTIONEE
Date
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Government/Taxpayer
ID#______________________
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—
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THE OPTIONEE MUST PROMPTLY SIGN
AND RETURN THIS AGREEMENT TO THE COMPANY AT THE ADDRESS LISTED
BELOW. IF THIS AGREEMENT IS NOT SIGNED AND RETURNED WITHIN SIXTY
(60) DAYS FROM THE DATE OF MAILING THIS AGREEMENT, THIS OPTION
SHALL BE VOID AND HAVE NO FORCE OR EFFECT.
Postal Mail:
ADC
Attn: HR Stock Compensation, MS 56
P.O. Box 1101
Minneapolis, MN 55440-1101 USA
Express Mail:
ADC
Attn: HR Stock Compensation, MS 56
13625 Technology Drive
Eden Prairie, MN 55344 USA
For questions regarding this
Option, please contact ADC’s HR Stock Compensation Group as
follows:
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Email:
stockprograms@adc.com
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952-238-1525
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952-917-0576
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800-366-3889 ext. 70576
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1
EXHIBIT A
TO THE
ADC TELECOMMUNICATIONS, INC.
NONQUALIFIED STOCK OPTION AGREEMENT
This Exhibit A is part of
and incorporated by reference into the Nonqualified Stock Option
Agreement (the “Agreement”) issued by ADC
Telecommunications, Inc. (the “Company”) pursuant to
the Company’s Global Stock Incentive Plan (the
“Plan”).
Unless otherwise defined herein,
capitalized terms shall have the meaning given such term in the
Agreement.
2
1. Grant of
Option
Refer to the Agreement for a
description of the Option grants, including the total number of
shares of Common Stock covered by this Option, the exercise price
per share, and the schedule for vesting. This Option is not
intended to be an incentive stock option within the meaning of
Section 422 of the U.S. Internal Revenue Code.
2. Duration and
Exercisability
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(a)
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This Option
shall vest and become exercisable in accordance with the schedule
set forth on the Agreement. This Option shall in all events
terminate ten (10) years after the date of grant, if not
earlier in the event of termination of employment.
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(b)
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Notwithstanding
the provisions contained in Section 2(a) above, but subject to the
other terms and conditions set forth herein, this Option shall
become fully vested and exercisable on the date of a “Change
in Control” (as hereinafter defined). For purposes of the
Agreement and this Exhibit A to the Agreement, the following
terms shall have the definitions set forth below:
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(i)
“Change in Control” shall mean:
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(A)
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a change in
control of the Company of a nature that would be required to be
reported in response to Item 6(e) of Schedule 14A of
Regulation 14A promulgated under the Securities Exchange Act
of 1934, as amended (the “Exchange Act”), whether or
not the Company is then subject to such reporting
requirement;
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(B)
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the public
announcement (which, for purposes of this definition, shall
include, without limitation, a report filed pursuant to Section
13(d) of the Exchange Act) by the Company or any
“person” (as such term is used in Sections 13(d) and
14(d) of the Exchange Act) that such person has become the
“beneficial owner” (as defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of
securities of the Company representing 20% or more of the combined
voting power of the Company’s then outstanding securities,
determined in accordance with Rule 13d-3, excluding, however,
any securities acquired directly from the Company (other than an
acquisition by virtue of the exercise of a conversion privilege
unless the security being so converted was itself acquired directly
from the Company); however, that for purposes of this clause the
term “person” shall not include the Company, any
subsidiary of the Company or any employee benefit plan of the
Company or of any subsidiary of the Company or any entity holding
shares of Common Stock organized, appointed or established for, or
pursuant to the terms of, any such plan;
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(C)
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the Continuing
Directors cease to constitute a majority of the Company’s
Board of Directors;
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(D)
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consummation of
a reorganization, merger or consolidation of, or a sale or other
disposition of all or substantially all of the assets of, the
Company (a “Business Combination”), in each case,
unless, following such Business Combination, (A) all or
substantially all of the persons who were the beneficial owners of
the Company’s outstanding voting securities immediately prior
to such Business Combination beneficially own voting securities of
the corporation resulting from such Business Combination having
more than 50% of the combined voting power of the outstanding
voting securities of such resulting Corporation and (B) at
least a majority of the members of the Board of Directors of the
corporation resulting from such Business Combination were
Continuing Directors at the time of the action of the Board of
Directors of the Company approving such Business
Combination;
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(E)
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approval by the
shareholders of the Company of a complete liquidation or
dissolution of the Company; or
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(F)
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the majority of
the Continuing Directors determine in their sole and absolute
discretion that there has been a change in control of the
Company.
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(G)
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The definition
of “Change in Control” is subject to changes as may be
determined by the Compensation Committee of the Company’s
Board of Directors as necessary to comply with the requirements of
Section 409A of the Internal Revenue Code, as added by the
American Jobs Creation Act.
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(ii)
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“Continuing Director” shall mean any
person who is a member of the Board of Directors of the Company,
while such person is a member of the Board of Directors, who is not
an Acquiring Person (as defined below) or an Affiliate or Associate
(as defined below) of an Acquiring Person, or a representative of
an Acquiring Person or of any such Affiliate or Associate, and who
(x) was a member of the Board of Directors on the date of this
Agreement as first written above or (y) subsequently becomes a
member of the Board of Directors, if such person’s initial
nomination for election or initial election to the Board of
Directors is recommended or approved by a majority of the
Continuing Directors. For purposes of this subparagraph (ii),
“Acquiring Person” shall mean any “person”
(as such term is used in Sections 13(d) and 14(d) of the Exchange
Act) who or which, together with all Affiliates and Associates of
such person, is the “beneficial owner” (as defined in
Rule 13d-3 promulgated under the Exchange Act), directly or
indirectly, of securities of the Company representing 20% or more
of the combined voting power of the Company’s then
outstanding securities, but shall not include the Company, any
subsidiary of the Company or any employee benefit plan of the
Company or of any subsidiary of the Company or any entity holding
shares of Common Stock organized, appointed or established for, or
pursuant to the terms of, any such plan; and
“Affiliate” and “Associate” shall have the
respective meanings ascribed to such terms in Rule 12b-2
promulgated under the Exchange Act.
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(c)
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This Option
shall not be assignable or transferable except to a designated
beneficiary (under procedures established by the Company) or by the
laws of descent and distribution in the case of the death of
Optionee, and except that for U.S. resident employees, upon written
notice to the Company, U.S. resident employees may transfer this
Option during his or her lifetime to any “family
member” (as such term is used on Form S-8 under the
Securities Act of 1933) of Optionee provided that (i) there is
no consideration for such transfer or such transfer is effected
pursuant to a domestic relations order in settlement of marital
property rights, and (ii) this Option held by such transferees
shall continue to be subject to the same terms and conditions
(including restrictions on subsequent transfers) as were applicable
to this Option immediately prior to such transfer. This Option may
not be pledged, alienated, attached or otherwise encumbered, and
any purported pledge, alienation, attachment or encumbrance thereof
shall be void and unenforceable against the Company or any
Affiliate of the Company.
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(d)
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This Option may
be exercised, during the lifetime of Optionee, only by Optionee, a
permitted transferee pursuant to a transfer permitted by Section
2(c) above, or, if permissible under applicable law, by
Optionee’s or such transferee’s guardian or legal
representative.
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3. Effect of Termination
of Employment
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(a)
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For all
purposes of the Agreement and this Exhibit A, the term
“Employment Termination Date” shall mean the earlier
of:
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(i)
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the date, as
determined by the Company, that Optionee is no longer actively
employed by the Company or an Affiliate of the Company, and in the
case of an involuntarily termination, such date shall 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);
or
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(ii)
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the date, as
determined by the Company, that Optionee’s employer is no
longer an Affiliate of the Company.
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(b)
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In the event
the Optionee ceases to be an employee of the Company or any of its
Affiliates for any reason other than death, Optionee shall have the
right to exercise the Option at any time within one year after the
Employment Termination Date to the extent of the number of vested
shares Optionee was entitled to purchase under the Option on the
Employment Termination Date, subject to the condition that no
Option shall be exercisable after the Expiration Date.
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(c)
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In the event
the Optionee dies while an employee of the Company or any of its
Affiliates or within three months after the Employment Termination
Date, this Option may be exercised at any time within two years
after his or her death by the executors or administrators of
Optionee, or by any person or persons to whom the Option is
transferred by the prior designation of a beneficiary or the
applicable laws of descent and distribution, to the extent of the
number of vested shares Optionee was entitled to purchase under the
Option on the date of death, subject to the condition that no
Option shall be exercisable after the Expiration Date.
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(d)
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No further
vesting of this Option shall occur after the Employment Termination
Date, and this Option shall be exercisable in accordance with this
Section 3 following the Employment Termination Date only to
the extent that it is exercisable on the Employment Termination
Date, pursuant to the vesting schedule set forth in the Agreement
and Section 2 hereof.
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4. Manner of
Exercise
The Option can be exercised only
by Optionee or other proper party within the option period by
notice to the Company or the Company’s third-party stock
option administrator (UBS PaineWebber Inc. as of the date of this
grant) in a form specified by the Company or such third-party stock
option administrator, or in such other manner as the Company may
specify from time-to-time. The Company shall have the right to
specify all conditions of the manner of exercise, and such
conditions may vary by country and may be subject to change from
time to time.
5. Adjustments
If Optionee exercises all or any
portion of the Option subsequent to any change in the number or
character of the Common Stock (through stock dividend,
recapitalization, stock split, reverse stock split, reorganization,
merger, consolidation, split-up, spin-off, combination, repurchase
or exchange of shares of Common Stock or other securities of the
Company, issuance of warrants or other rights to purchase shares of
Common Stock or other securities of the Company or other similar
corporate transaction or event affecting the Common Stock such that
an adjustment is determined by the Committee to be appropriate in
order to prevent dilution or enlargement of the Option), Optionee
shall then receive for the aggregate price paid by him or her on
such exercise of the Option, the number and type of securities or
other consideration which he would have received if such Option had
been exercised prior to the event changing the number or character
of outstanding shares.
6. Responsibility for
Taxes
Regardless of any action taken by
the Company or Optionee’s employer (the
“Employer”) with respect to any or all income tax,
social insurance, payroll tax, payment on account or other
tax-related withholding (“Tax-Related Items”), Optionee
acknowledges that the ultimate liability for all Tax-Related Items
is and remains Optionee’s responsibility and that the Company
and/or the Employer (i) make no representations or
undertakings regarding the treatment of any Tax-Related Items in
connection with any aspect of the Option grant, including the
grant, vesting or exercise of the Option, the subsequent sale of
shares acquired pursuant to such exercise and the receipt of any
dividends; and (ii) do not commit to structure the terms of
the grant or any aspect of the Option to reduce or eliminate
Optionee’s liability for Tax-Related Items.
Prior to exercise of the Option,
Optionee shall pay or make adequate arrangements satisfactory to
the Company and/or the Employer to satisfy all withholding and
payment on account obligations of the Company and/or the Employer.
In this regard, Optionee authorizes the Company and/or the Employer
to withhold all applicable Tax-Related Items legally payable by
Optionee from Optionee’s wages or other cash compensation
paid to Optionee by the Company and/or the Employer or from
proceeds of the sale of the shares. Alternatively, or in addition,
if permissible under local law, the Company may (i) sell or
arrange for the sale of shares that Optionee acquires to meet the
withholding obligation for Tax-Related Items, and/or
(ii) withhold in shares, provided that the Company only
withholds the amount of shares necessary to satisfy the minimum
withholding amount. Finally, Optionee shall pay to the Company or
the Employer any amount of Tax-Related Items that the Company or
the Employer may be required to withhold as a result of
Optionee’s participation in the Plan or Optionee’s
purchase of shares that cannot be satisfied by the means previously
described. The Company may refuse to honor the exercise and refuse
to deliver the shares if Optionee fails to comply with his or her
obligations in connection with the Tax-Related Items as described
in this section.
7. Non-solicitation
Agreement and Confidential Information
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(a)
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In
consideration of the grant of the Option, the Optionee shall not,
directly or indirectly, during the period the Optionee is employed
by the Company or its Affiliates and for a period of one year after
the Employment Termination Date: (i) induce or attempt to induce
any other employee to leave the employ of the Company or any of its
Affiliates, or in any way interfere adversely with the relationship
between any such employee and the Company or any of its Affiliates;
(ii) induce or attempt to induce any other employee of the
Company or any of its Affiliates to work for, render services or
provide advice to or supply confidential business information or
trade secrets of the Company or its Affiliates to any person or
entity other than the Company or its Affiliates; or
(iii) employ, or otherwise pay for services rendered by, any
other employee of the Company or any of its Affiliates in any other
business enterprise.
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(b)
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In further
consideration of the grant of the Option, the Optionee specifically
acknowledges and agrees that Optionee is bound to protect the
Company’s confidential information which includes but is not
limited to proprietary information, confidential data and any other
representation of Company knowledge, whether verbal, printed,
written or electronically recorded or transmitted. This includes
confidential information concerning any technologies, concepts,
engineering, sales and financial details, customer names and
information, pricing, business strategies and other related or
similar confidential data. Optionee acknowledges that the
obligation to protect the Company’s confidential information
continues after Optionee leaves the Company, regardless of the
reason. Optionee agrees to refrain from giving future employers any
confidential information belonging to the Company. This obligation
to preserve confidential information exists independently of and in
addition to any obligation to which the Optionee is subject under
the terms of the Company’s Invention, Copyright and Trade
Secret Agreement, or other similar document.
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(c)
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The Optionee
acknowledges that breach of this Section 7 would be highly
injurious to the Company, and the Company reserves its rights to
pursue all available remedies, including but not limited to
equitable and injunctive relief and damages. The Optionee
specifically agrees that the Company shall be entitled to obtain
temporary and permanent injunctive relief from a court of law to
enforce the provisions of this Section 7, and that such relief
may be granted without the necessity of proving actual damages and
without necessity of posting any bond. This provision with respect
to injunctive relief shall not, however, diminish the right of the
Company to claim and recover damages or to seek and obtain any
other relief available to it. The Optionee further acknowledges
that this Section 7 shall be enforceable by the Company even
if no portion of the Option becomes vested and
exercisable.
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8. Data Privacy
Consent
Optionee hereby explicitly
consents to the collection, use and transfer, in electronic or
other form, of his or her personal data as described in this
document by and among, as applicable, the Company and its
Affiliates for the exclusive purpose of implementing, administering
and managing Optionee’s participation in the Plan.
Optionee understands that the
Company and its Affiliates hold certain personal information about
Optionee, including, but not limited to, Optionee’s 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 Company or
its Affiliates, details of all options or any other entitlement to
shares of stock awarded, cancelled, exercised, vested, unvested or
outstanding in Optionee’s favor, for the purpose of
implementing, administering and managing the Plan
(“Data”). Optionee understands that Data may be
transferred to any third parties assisting in the implementation,
administration and management of the Plan, that these recipients
may be located in Optionee’s country or elsewhere, and that
the recipient’s country may have different data privacy laws
and protections than Optionee’s country. Optionee understands
that Optionee may request a list with the names and addresses of
any potential recipients of the Data by contacting ADC’s HR
Stock Compensation Group. Optionee authorizes the recipients to
receive, possess, use, retain and transfer the Data, in electronic
or other form, for the purposes of implementing, administering and
managing Optionee’s participation in the Plan, including any
requisite transfer of such Data as may be required to a broker or
other third party with whom Optionee may elect to deposit any
shares of stock acquired upon exercise of the Option. Optionee
understands that Data will be held only as long as is necessary to
implement, administer and manage Optionee’s participation in
the Plan and that Optionee may, at any time, view Data, request
additional information about the storage and processing
