Exhibit 10.1
PERFORMANCE SHARE
AGREEMENT
This Performance Share
Agreement (“Agreement”) is made as of the
day of
,
20 (the “Grant Date”), between
Qwest Communications International Inc., a Delaware corporation
(the “Company”), and
(the “Grantee”).
WHEREAS, pursuant to
the Qwest Communications International Inc. Equity Incentive Plan
(the “Plan”), the Company desires to grant an Award to
the Grantee subject to the terms and conditions herein.
NOW THEREFORE, in
connection with the mutual covenants hereinafter set forth and for
other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged, the parties hereto agree as
follows:
1.
DEFINITIONS;
CONFLICTS.
Capitalized terms used and not otherwise
defined herein shall have the meanings given thereto in the
Plan. The terms and provisions of the Plan are incorporated
herein by reference.
2.
GRANT
OF PERFORMANCE SHARES.
(a)
Performance
Shares. The Company hereby grants to the Grantee
Performance Shares
on the date first written above (the “Grant
Date”). Except as provided below, the Performance
Shares will be unvested and forfeitable.
(b)
Performance Period
. The
“Performance Period” begins on
,
and ends on the earlier of
(i)
or (ii) the closing date of a Change in Control.
(c)
Vesting of Performance
Shares. Except as provided in paragraph
3(c) below, the Performance Shares will vest on the last day
of the Performance Period provided that the Grantee remains
employed with the Company for the entire Performance
Period.
(d)
Performance
Payout. As soon as practicable after the end of the
Performance Period, the Company will calculate the percentage, if
any, of the Performance Shares to be paid out pursuant to the
formula set forth in Exhibit 1, hereto.
(e)
Settlement in Shares or
Cash .
The amount payable to the Grantee for the Grantee’s vested
Performance Shares, as adjusted as described in the formula set
forth in Exhibit 1, may be paid either in shares of
Common Stock par value $0.01 per share, of the Company
(“Common Stock”), in cash based on the fair market
value of the Common Stock, (determined based on the closing price
for the Common Stock on the last day of the Performance Period, as
reported on the New York Stock Exchange), as elected by Grantee in
writing except that cash shall be
distributed in lieu of any fractional share of
Common Stock or if no election is made. Each
Performance Share is equal to one share of Common Stock. An
election to be paid in Common Stock is subject to Qwest’s
Insider Trading Policy.
(f)
Payment Date
. Settlement
pursuant to paragraph 2(e) will occur within five business
days after the end of the Performance Period.
3.
TERMINATION OF EMPLOYMENT
DURING PERFORMANCE PERIOD.
(a)
Resignation or
Retirement. In the event Grantee resigns or retires
his or her employment with the Company during the Performance
Period all Performance Shares and rights thereto will be forfeited
and canceled immediately upon such termination of employment and
the Grantee will have no further rights under this Agreement with
respect to such Performance Shares.
(b)
Involuntary
Termination of
Employment With or Without Cause . In the event the
Grantee’s employment with the Company is involuntarily
terminated during the Performance Period without Cause (as defined
by any employment agreement between Company and Grantee, or if
there is no employment agreement, as defined by the Plan) or during
or after the Performance Period for Cause, all Performance Shares
and rights thereto will be forfeited and canceled immediately upon
such termination of employment and the Grantee will have no further
rights under this Agreement with respect to such Performance
Shares.
(c)
Termination Because Grantee
Dies or Becomes Disabled . In the event the Grantee’s
employment with the Company is terminated during the Performance
Period due to the Grantee’s death or Disability, the
Grantee’s Performance Shares shall immediately
vest. The Company will determine the total amount, if any, to
be paid to the Grantee for such vested Performance Shares at the
end of the Performance Period as set forth in paragraph
2(d) of this Agreement. The amount paid to Grantee will
be prorated based on the ratio of the number of months the Grantee
was employed during the Performance Period to the total number of
months in the Performance Period. Partial months or
employment will be counted as full months for the purposes of this
paragraph. Payment for the vested Performance Shares will be
made as provided in paragraphs 2(e) and (f).
(d)
Termination of Employment
After Performance Period. In the event the Grantee’s employment
with the Company is terminated after the end of the Performance
Period for any reason other than for Cause, but before payment has
been made, the Performance Shares shall be payable as provided
herein as if such termination had not occurred.
4.
ADJUSTMENT OF PERFORMANCE
SHARES.
Upon the occurrence of
an event described in Article IV of the Plan, the number of
Performance Shares granted herein shall be adjusted in accordance
with Article IV.
2
5.
IMPACT
OF CHANGE IN CONTROL ON PERFORMANCE SHARES.
Upon the closing of a
Change in Control, as defined in Section 5.4(ii) of the
Plan, Grantee’s Performance Shares will immediately vest,
provided that the Grantee has been continuously employed by the
Company throughout the Performance Period. The determination
of the amount to be paid, if any, for the vested Performance Shares
will be made as of the closing date of the Change in Control
pursuant to paragraph 2(d), and payment of the vested Performance
Shares will be made as provided in paragraphs 2(e) and
(f).
6.
FORFEITURE OF PERFORMANCE
SHARES.
(a)
Performance for Competitors.
Notwithstanding any other provision of this
Agreement, Grantee shall immediately forfeit all Performance Shares
(whether or not vested) and all rights under this Agreement if,
prior to the payment of the Performance Shares, Grantee accepts
employment with a Competitor (as defined herein) or Grantee owns
more than 2% of the common stock of, or is employed by, advises,
represents or assists in any other way any Competitor and if the
Company, in its sole discretion, determines that such actions by
Grantee are, or could be, detrimental to the Company. For the
purposes of this Agreement, “Competitor” means a person
or entity that competes with, or intends to compete with the
Company with respect to any product sold or service performed by
the Company in any state or country in which the Company sells such
products or performs such services, and if the Company, in its sole
discretion, determines that such actions by Grantee are detrimental
to the Company. Notwithstanding the foregoing, if Grantee is
an attorney, Grantee may, subject to the applicable rules of
ethics and the nondisclosure provisions herein, perform services
solely in his or her capacity as an outside attorney on behalf of
any person or entity, even if such person or entity competes with
the Company or sells goods or services similar to those the Company
sells.
(b)
Non-solicitation of Employees.
Notwithstanding any other provision of this
Agreement, Grantee shall immediately forfeit all Performance Shares
(whether or not vested) and all rights under this Agreem
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