NOTICE TO
U.S. TAX RESIDENTS:
VESTING OF THIS RESTRICTED STOCK
UNIT AWARD 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 UNDERLYING THIS RESTRICTED STOCK
UNIT AWARD THAT BECOME VESTED. ON SUCH DATE WHEN VESTING OCCURS AND
AS A CONDITION TO THE SHARES BEING RELEASED TO YOU, THE COMPANY
MUST COLLECT ALL REQUIRED INCOME, SOCIAL AND OTHER PAYROLL TAX
WITHHOLDING FROM YOU BASED UPON SUCH FAIR MARKET
VALUE.
NOTICE TO
NON-U.S. RESIDENTS:
YOU MAY HAVE ADDITIONAL TERMS AND
CONDITIONS FOR YOUR AWARD, WHICH ARE DESCRIBED IN EXHIBIT B TO THIS
AGREEMENT. IN ADDITION, IF YOU ARE A TAX RESIDENT OF A COUNTRY
OUTSIDE THE U.S., YOUR TAX CONSEQUENCES MAY BE DIFFERENT THAN
DESCRIBED ABOVE. AS A CONDITION TO THE SHARES BEING RELEASED TO
YOU, THE COMPANY MUST COLLECT ALL REQUIRED INCOME, SOCIAL AND OTHER
PAYROLL TAX WITHHOLDING THAT MAY BE DUE BY REASON OF THE GRANT OR
VESTING OF THIS AWARD.
ADC TELECOMMUNICATIONS,
INC.
THREE-YEAR PERFORMANCE BASED
RESTRICTED STOCK UNIT AWARD AGREEMENT
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RSU#:
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STOCK PROGRAM
ID#:
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SAP EMPLOYEE
ID#:
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To encourage
your continued employment with ADC Telecommunications, Inc. (the
“Company”) or its Affiliates, you have been granted
this restricted stock unit award (the “Award”) pursuant
to the Company’s 2008 Global Stock Incentive Plan (the
“Plan”). The Award represents the right to receive
shares of Common Stock of the Company 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:
(the “Grant
Date”)
2. Number of
Restricted Stock Units Subject to this Award:
(the “Target Award
Number”).
3. Vesting
Schedule: Subject to the
other terms and conditions of this Agreement and the Plan, the
Award will vest, in accordance with, and to the extent provided in,
Exhibit A, on
; 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.
Conversion of Restricted Stock Units and Issuance of
Shares. 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 shares of Common Stock (the
“Shares”) provided in Exhibit A. The Company will
transfer such Shares to you as soon as administratively
Version
Effective November 1, 2008
feasible
following any vesting of the Award and your satisfaction of any
required tax withholding obligations. No fractional shares shall be
issued under this Agreement. No Shares shall be issued upon vesting
of the Award unless such issuance complies with all relevant
provisions of law and the requirements of any stock exchange upon
which the Shares are then listed. 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. The Company reserves
the right to determine the manner in which the Shares are delivered
to you, including but not limited to delivery by direct
registration with the Company’s transfer agent or delivery to
a broker designated by the Company.
5.
Termination of Employment.
(a) For
all purposes of this Agreement, 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 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
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(ii)
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the
date, as determined by the Company, that your employer is no longer
an Affiliate of the Company.
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(b) Except
as provided in Sections 9(a), (b), (c) and
(d) 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
Compensation Committee of the Company’s Board of Directors
(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. In
consideration of your employment with the Company and/or 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:
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(a)
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Seek, encourage, solicit, or attempt
to solicit any employee of the Company to leave the Company for any
reason or in any way interfere with the relationship between any
such employee and the Company;
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(b)
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Induce or attempt to induce any
employee of the Company to accept employment with, work for, render
services or provide advice to or supply confidential business
information or trade secrets of the Company to any person or entity
other than the Company; or
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(c)
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Employ, or otherwise pay for
services rendered by, any employee of the Company in any other
business enterprise.
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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 Company employee where the
purpose or outcome of such action by you is to recruit, provide a
reference or otherwise assist a Company employee to leave the
Company 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 Company
employee initiates a discussion of this nature with you. In that
event, you agree to advise the Company 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.
Version
Effective November 1, 2008
2
7. Right to
Shares. You shall not
have any right in, to or with respect to any of the Shares
(including any voting rights, rights with respect to cash dividends
paid by the Company on shares of its Common Stock or any other
rights whatsoever) issuable under the Award until the Award is
settled by the issuance of such Shares to you.
(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 the
following information and notify the Company of any changes to the
same before any taxable event arises as a result of the Award: your
residence address, and, if applicable to you because of your
Retirement, the certification described in Section 10(d) regarding
your acceptance of employment with any Competitor of the Company
(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 Shares that are subject to this Award. 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:
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(i)
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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
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(ii)
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Share Withholding
: you may elect to have
the Company retain from the Shares issuable upon any vesting
(whether in whole or in part) of the Award 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.”
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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.
Version
Effective November 1, 2008
3
(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.
9. Transfer
of Award. Your rights
under the Award may only be transferred in accordance with the
terms of the Plan.
10.
Acceleration of Scheduled Vest Date.
(a) In the
event of a “Change in Control” of the Company both
prior to the Scheduled Vest Date and while you remain employed by
the Company or any of its Affiliates, then the Award shall become
immediately vested with respect to the number of Shares equal to
the Target Award Number on the effective date of such Change in
Control. For purposes of this Agreement, the following terms shall
have the following meanings:
(1)
“Change in Control” shall mean:
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(i)
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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 U.S. 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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