Exhibit 99.3
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.
ADC TELECOMMUNICATIONS, INC.
SUPERIOR PERFORMANCE LONG-TERM INCENTIVE PROGRAM
THREE-YEAR TIME BASED
RESTRICTED STOCK UNIT AWARD AGREEMENT
TO: RSU#: 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 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 (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 (hereinafter “Grant
Date”)
2. Number of Restricted Stock Units Subject to this
Award:
(hereinafter “Award
Number”)
3. Vesting Schedule: Subject to the other terms and conditions of this
Agreement and the Plan, the Award will vest on January 2, 2013
provided that you have been continuously employed since the Grant
Date by the Company and 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 (or such other vesting date as is as provided
in Sections 10(a), (b) and (c) below), 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 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 10(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 Compensation Committee of the
Company’s Board of Directors (the “Committee”)
shall have the exclusive discretion to determine the Employment
Termination Date.
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6.
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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:
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(a)
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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;
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(b)
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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
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(c)
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Employ, or
otherwise pay for services rendered by, any Covered Employee 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
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. 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.
8. 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 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.
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 on the effective date of such Change in Control a
prorated portion of this Award shall become immediately vested
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) the Award Number. For example, if you were actively
employed for 300 days, and if this Award covers 100 units,
then you would become vested in 25 restricted stock units (i.e.,
(300/1,189) x 100 = 25.2). On the effective
date of such Change in Control, the portion of your Award that does
not ve
