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
|
|
|
|
|
|
|
STOCK PROGRAM
ID#:
|
|
|
|
SAP EMPLOYEE
ID#:
|
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 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 the
additional terms and conditions set forth in Exhibits A and B 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:
, 200_ (the “Grant
Date”)
2. Number of
Restricted Stock Units Subject to this Award:
3. Vesting
Schedule: Subject to the
other terms and conditions of this Agreement and the Plan, the
Award will vest on the later of (a) three years from the Grant
Date or (b) January 9, 20___; provided that you have been
continuously employed since the Grant Date by the Company and its
Affiliates and the economic performance criteria set forth on
Exhibit A (the “Economic Performance Criteria”)
are met by the Company. 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, one share of Common Stock for each restricted
stock
Version
effective December 18, 2006
unit (the
“Shares”). The Company will transfer such Shares to you
as soon as administratively 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:
|
|
(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), (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. 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
2
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 9(c) 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 Stock Compensation Program 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
(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.”
|
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 not be sold, assigned, transferred, pledged or
disposed of in any way, except by will or by the laws of descent
and distribution.
9.
Acceleration of Scheduled Vest Date/Portional
Vesting.
(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 entire Award shall
become immediately vested 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:
|
|
(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;
|
3
|
|
(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” (as defined in Rule 13d-3
promulgated under the Exchange Act), directly or indirectly, of
securities of the Company representing twenty percent (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 &
|
|
