Exhibit 99.2
NOTICE TO U.S. TAX
RESIDENTS:
VESTING OF THIS RESTRICTED
STOCK UNIT RIGHTS AWARD WILL BE A TAXABLE EVENT TO THE EXTENT YOU
ARE PAID CASH IN LIEU OF RESTRICTED STOCK UNITS UPON ANY
ACCELERATED VESTING. IN SUCH EVENT, THE COMPANY MUST WITHHOLD OR
COLLECT ALL REQUIRED INCOME, SOCIAL AND OTHER PAYROLL TAX
WITHHOLDING FROM YOU.
IN THE EVENT YOU ARE ISSUED
SHARES IN LIEU OF RESTRICTED STOCK UNITS UPON ANY ACCELERATED
VESTING OF THIS AWARD, SUCH VESTING WILL BE A TAXABLE EVENT AND
WILL RESULT IN THE RECOGNITION BY YOU OF ORDINARY INCOME IN AN
AMOUNT EQUAL TO THE FAIR MARKET VALUE OF THE SHARES ISSUED. ON SUCH
DATE WHEN SUCH ACCELERATED VESTING OCCURS AND AS A CONDITION TO THE
SHARES BEING RELEASED TO YOU, THE COMPANY MUST WITHHOLD OR COLLECT
ALL REQUIRED INCOME, SOCIAL AND OTHER PAYROLL TAX WITHHOLDING FROM
YOU BASED UPON SUCH FAIR MARKET VALUE.
ADC TELECOMMUNICATIONS, INC.
SUPERIOR PERFORMANCE LONG-TERM INCENTIVE
PROGRAM
TWO-YEAR PERFORMANCE BASED
RESTRICTED STOCK UNIT RIGHTS AWARD AGREEMENT
TO: RSUR#: EMPLOYEE
ID#:
To encourage your continued
employment with ADC Telecommunications, Inc. (the
“Company”) or its Affiliates and to provide an
incentive for superior business performance, you have been granted
this restricted stock unit rights award (the “Award”)
pursuant to the Company’s 2008 Global Stock Incentive Plan
(together with any successor plan, the “Plan”). The
Award represents the right to receive restricted stock units
subject to the fulfillment of the vesting conditions set forth in
this agreement and in Exhibit A to this agreement
(collectively, this “Agreement”).
The terms of the Award are as set
forth in this Agreement and in the Plan. The Plan is incorporated
into this Agreement by reference, which means that this Agreement
is limited by and subject to the express terms and provisions of
the Plan. In the event of a conflict between the terms of this
Agreement and the terms of the Plan, the terms of the Plan shall
control. Capitalized terms that are not defined in this Agreement
have the meanings given to them in the Plan. The terms of the Award
are:
1. Grant Date:
September 30, 2009 (the
“Grant Date”)
2. Target Dollar Amount
Subject to this Award:
(the “Target Dollar
Amount”).
3. Rights Vesting
Schedule: Subject to the
other terms and conditions of this Agreement and the Plan, this
rights Award will vest, and restricted stock units (which will be
subject to further vesting requirements) will be issued to you, in
accordance with and to the extent provided in Exhibit A, on
January 2, 2012; provided you have been continuously employed
since the Grant Date by the Company or its Affiliates. The day on
which your Award is scheduled to vest pursuant to this
Section 3 is referred to in this Agreement as the
“Scheduled Vest Date.”
4. Award of Restricted
Stock Units; Cash in Lieu of Units.
(a) Subject to the other terms of the Award,
upon the Scheduled Vest Date, you shall receive, in accordance with
the terms and provisions of the Plan and this Agreement, the number
of restricted stock units (the “Units”) provided in
Exhibit A. The Company will award such Units to you as soon as
administratively feasible following any vesting of the Award. The
Units will be governed by the terms of the Superior Performance
Long-Term Incentive Plan One-Year Time Based Restricted Stock Unit
Award Agreement in the form attached as Exhibit B to this
Agreement, which the Company will enter into with you as of the
Scheduled Vest Date. No fractional Units shall be issued under this
Agreement. No Units shall be issued upon vesting of the Award
unless such issuance complies with all relevant provisions of law.
You understand that your participation in the Plan is conditioned
on the Company obtaining all necessary orders, decisions, rulings
and approvals from the relevant governmental regulatory
authorities.
(b) Notwithstanding Section 4(a), the
Compensation Committee of the Company’s Board of Directors
(the “Committee”) may, in its sole discretion, elect to
make a restricted cash award in lieu of awarding Units upon the
Scheduled Vest Date. The Company will make such cash award to you
as soon as administratively feasible following such vesting of the
Award. The cash award will be governed by vesting requirements and
other terms of a Superior Performance Long-Term Incentive Plan
One-Year Time Based Restricted Cash Award Agreement, in a form to
be entered into by the Company with you as of the Scheduled Vest
Date. Such agreement shall contain vesting requirements and other
terms substantially similar to those in the form of Superior
Performance Long-Term Incentive Plan One-Year Time Based Restricted
Stock Unit Award Agreement attached as Exhibit B to this
Agreement.
(c) Subject to the other terms of the Award,
upon the vesting of a dollar amount pursuant to Sections 9(a),
(b) and (c) below, you shall receive, in accordance with
the terms and provisions of the Plan and this Agreement but in lieu
of awarding Units, a number of shares of Common Stock of the
Company equal to the whole number of such shares that could be
purchased by such dollar amount at the last sale price of the
shares of Common Stock of the Company as reported on The NASDAQ
Global Select Market (or such other stock market on which such
shares are then being traded) on the day the shares are awarded.
The Company will issue such shares to you as soon as
administratively feasible. No fractional shares shall be issued
under this paragraph (c). No shares shall be issued under this
paragraph (c) unless such issuance complies with all relevant
provisions of law.
(d) Notwithstanding Section 4(c), the
Committee may, in its sole discretion, elect to pay cash in lieu of
issuing shares upon the vesting of a dollar amount pursuant to
Sections 9(a), (b) and (c) below. The Company will pay
such cash to you as soon as administratively feasible following
such vesting of a dollar amount.
5. Termination of
Employment.
(a) For all purposes of this Agreement, the
term “Employment Termination Date” shall mean the
earlier of:
|
|
(i)
|
|
the date, as
determined by the Company, that you are 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
|
|
|
(ii)
|
|
the date, as
determined by the Company, that your employer is no longer an
Affiliate of the Company.
|
(b) Except as provided in
Sections 9(a), (b) and (c) below, if your Employment
Termination Date occurs before the Scheduled Vest Date, the entire
Award as of your Employment Termination Date shall be forfeited and
immediately cancelled.
(c) The Committee shall have the exclusive
discretion to determine the Employment Termination Date.
|
6.
|
|
Workforce
Protection. You understand
that the Company has an important business interest in preserving
and retaining its relationships with its employees and its
Affiliates’ employees (collectively, the “Covered
Employees”). In consideration of your employment with the
Company as well as the entry by the Company into this Agreement,
during the term of your employment and for one year thereafter, you
promise that you will not directly or indirectly or in cooperation
with others:
|
|
|
(a)
|
|
Seek, encourage,
solicit, or attempt to solicit any Covered Employee to leave his or
her employment for any reason or in any way interfere with his or
her employment relationship;
|
|
|
(b)
|
|
Induce or
attempt to induce any Covered Employee to accept employment with,
work for, render services or provide advice to or supply
confidential business information or trade secrets of the Company
or its Affiliates to any other person or entity; or
|
|
|
(c)
|
|
Employ, or
otherwise pay for services rendered by, any Covered Employee in any
other business enterprise.
|
As part of your obligations to the
Company and without limiting the foregoing, you specifically agree
that for the one year period after your employment with the Company
terminates, you will not interview, recommend for hire, identify or
provide any input to any third party in which you have an interest
as an employee, officer, consultant, director or owner about a
Covered Employee where the purpose or outcome of such action by you
is to recruit, provide a reference or otherwise assist a Covered
Employee to leave his or her employment and join the third party in
which you have an interest as described herein. You also
acknowledge that your promises as contained herein are not excused
in circumstances where the Covered Employee initiates a discussion
of this nature with you. In that event, you agree to advise the
Covered Employee of your obligations hereunder. You further agree
that during the one year period after you leave the Company, you
will inform any new employer you may have of your obligations under
this Agreement.
7. Tax
Withholding.
(a) Regardless of any action the Company or
your employer (the “Employer”) takes with respect to
any or all income tax, social insurance, payroll tax or other
tax-related withholding (“Tax-Related Items”), you
acknowledge that the ultimate liability for all Tax-Related Items
legally due by you is and remains your responsibility and that
Company and/or your Employer: (1) make no representations or
undertakings regarding the treatment of any Tax-Related Items in
connection with any aspect of the Award, including the grant,
vesting or issuance of shares, the subsequent sale of shares
acquired pursuant to such vesting and the receipt of any dividends
or dividend equivalents (if any); and (2) do not commit to
structure the terms of the Award or any aspect of the Award to
reduce or eliminate your liability for Tax-Related Items. As a
condition and term of this Award, no election under Section 83(b)
of the United States Internal Revenue Code may be made by you with
respect to this Award.
(b) Prior to any taxable event arising as a
result of the Award, you must make such arrangements as the Company
or its Affiliates may permit or require for the satisfaction of tax
withholding obligations (including U.S. federal, state and local
taxes and any non-U.S. taxes or social contributions) that the
Company determines are or may be required in connection with such
event (the “Tax Withholding Obligation”). In connection
with fulfilling your Tax Withholding Obligation, you must provide
to the Company your residence address and notify the Company of any
changes to the same before any taxable event arises as a result of
the Award (the “Tax Withholding Information”). In the
event you fail to timely and accurately meet your obligations
regarding the provision and maintenance of Tax Withholding
Information, then the Company may, in its sole discretion, cancel
your right to receive any of the Units that are subject to this
Award (or cash or shares in lieu of such Units). The Tax
Withholding Information should be sent to ADC’s Global
Rewards – Stock Group address listed on the last
page of this Agreement. If permitted by the Company, you may
satisfy your Tax Withholding Obligation in one of the following two
ways:
|
|
i.
|
|
Direct
Payment : you may elect to
satisfy your Tax Withholding Obligation by delivering to the
Company, no later than three (3) U.S. business days after any
vesting (whether in whole or in part) of the Award, a wire transfer
or certified or cashier’s check payable to the Company in
U.S. dollars equal to the amount of the Tax Withholding Obligation,
as determined by the Company. This is referred to as a “Cash
Payment Election”; or
|
|
|
ii.
|
|
Share
Withholding : you may
elect to have the Company retain from the shares issuable upon any
vesting described in Section 4(c) that number of shares having a
Fair Market Value upon such vesting that is sufficient to satisfy
your Tax Withholding Obligation. This is referred to as a
“Share Withhold Election.”
|
The
Company reserves the right to specify from time-to-time which of
the foregoing two elections will be available and to specify the
time and manner for making an election. If no election is made by
you or if you make a Cash Payment Election and fail to deliver the
required funds to the Company on a timely basis, then the Company
may, in its sole discretion, require a Share Withhold Election.
Your acceptance of this Award constitutes your consent and
authorization for the Company to take such action as may be
necessary to effectuate either such election.
(c) The Company may refuse to issue any
shares to you until you satisfy any Tax Withholding
Obligation.
(d) If your Tax Withholding Obligation is
not satisfied by the means described above, you authorize your
Employer to withhold all such obligations from your wages or other
cash compensation paid to you by your Employer.
8. Transfer of
Award. Your rights under
the Award may only be transferred in accordance with the terms of
the Plan.
9. Acceleration of
Scheduled Vest Date.
(a) In the event of a “Change in
Control” of the Company both prior to Scheduled Vest Date and
while you remain employed by the Company or any of its Affiliates,
then the prorated portion of this Award that will vest on the
effective date of such Change in Control, if any, will be
calculated based on the following formula: (1) a fraction the
numerator of which is the number of calendar days you were actively
employed following the Grant Date and through the effective date of
such Change in Control and the denominator of which is 1,189
multiplied by (2) such dollar amount, if any, as the Committee
shall determine, in its sole discretion. For example, if you were
actively employed for 200 days during the vesting period, and
if the Committee determines that this Award had a dollar amount of
$100, then you would become vested in $16.82 (i.e., (200/1,189) x
100 = 16.82). On the effective date of the Change in
Control, the portion of your Award that does not vest will be
forfeited and immediately cancelled. For purposes of this
Agreement, the following terms shall have the following
meanings:
|
|
(1)
|
|
“Change in
Control” shall mean:
|
|
|
(i)
|
|
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 U.S. Securities Exchange Act
of 1934, as amended (the “Exchange Act”), whether or
not the Company is then subject to such reporting
requirement;
|
|
|
(ii)
|
|
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”
|
