JDS UNIPHASE CORPORATION 2003 EQUITY INCENTIVE PLAN NOTICE OF RESTRICTED STOCK UNIT AWARD
Exhibit 10.25
For Use in China
JDS UNIPHASE CORPORATION 2003 EQUITY INCENTIVE PLAN
NOTICE OF RESTRICTED STOCK UNIT AWARD
Grantees Name and Address: | Award Number: |
| ||||||
| Date of Award: |
| ||||||
| Type of Award: | Restricted Stock Units | ||||||
| Vesting Commencement Date: |
You (the Grantee) have been granted a restricted stock unit award (the Award), subject to the terms and conditions of this Notice of Restricted Stock Unit Award (the Notice), the JDS Uniphase Corporation 2003 Equity Incentive Plan, as amended from time to time (the Plan) and the Restricted Stock Unit Award Agreement (the Agreement) attached hereto, as follows. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Notice.
Total Number of Restricted Stock Units Awarded (the Units):
Vesting Schedule:
Subject to the Grantees Continuous Active Service and other provisions and limitations set forth in this Notice, the Agreement and the Plan, the Units will vest in accordance with the following schedule:
1/3rd of the Units subject to the Award shall vest on the first anniversary of the Vesting Commencement Date, and the remaining 2/3rds of the Units shall vest in equal 1/8th installments quarterly thereafter.
IN WITNESS WHEREOF, the Company and the Grantee have executed this Notice and agree that the Award is to be governed by the terms and conditions of this Notice, the Plan, and the Agreement.
JDS Uniphase Corporation, a Delaware corporation | ||
By: |
| |
Title: |
|
The Grantee acknowledges receipt of a copy of the Plan and the Agreement and represents that he or she is familiar with the terms and provisions thereof, and hereby accepts the Award subject to all of the terms and provisions hereof and thereof. The Grantee has reviewed this Notice, the Agreement and the Plan in their entirety, has had an opportunity to obtain the advice of counsel prior to executing this Notice and fully understands all provisions of this Notice, the Agreement and the Plan. The Grantee hereby agrees that all disputes arising out of or relating to this Notice, the Plan and the Agreement shall be resolved in accordance with Section 12 of the Agreement. The Grantee further agrees to notify the Company upon any change in the residence address indicated in this Notice.
Dated: | Signed: |
|
1
For Use in China
Award Number:
JDS UNIPHASE CORPORATION 2003 EQUITY INCENTIVE PLAN
RESTRICTED STOCK UNIT AWARD AGREEMENT
1. Issuance of Units. JDS Uniphase Corporation, a Delaware corporation (the Company), hereby issues to the Grantee (the Grantee) named in the Notice of Restricted Stock Unit Award (the Notice), the Total Number of Restricted Stock Units Awarded set forth in the Notice (the Units), subject to the Notice, this Restricted Stock Unit Award Agreement (the Agreement) and the terms and provisions of the Companys 2003 Equity Incentive Plan, as amended from time to time (the Plan), which is incorporated herein by reference. Unless otherwise defined herein, the terms defined in the Plan shall have the same defined meanings in this Agreement.
2. Transfer Restrictions. The Units may not be transferred in any manner other than by will or by the laws of descent and distribution. Notwithstanding the foregoing, the Grantee may designate a beneficiary of the Units in the event of the Grantees death on the beneficiary designation form attached hereto as Exhibit A. The terms of this Agreement shall be binding upon the executors, administrators, heirs, successors and transferees of the Grantee.
3. Vesting.
(a) For purposes of this Agreement and the Notice, the term vest shall mean, with respect to any Units, that such Units are no longer subject to forfeiture to the Company. If the Grantee would become vested in a fraction of a Unit, such Unit shall not vest until the Grantee becomes vested in the entire Unit.
(b) The Units shall commence vesting and shall vest pursuant to the schedule within the Notice, subject to and in accordance with the terms of the Notice, this Agreement and the Plan.
4. Termination of Continuous Active Service. Except in the event of the Grantees change in status from an Employee to a Consultant, in which case vesting of the Units shall continue only to the extent determined by the Administrator, vesting of the Units shall cease upon the date of termination of the Grantees Continuous Active Service for any reason, including death or Disability. In the event the Grantees Continuous Active Service is terminated for any reason, including death or Disability, any unvested Units held by the Grantee immediately following such termination of Continuous Active Service shall be deemed reconveyed to the Company and the Company shall thereafter be the legal and beneficial owner of the unvested Units and shall have all rights and interest in or related thereto without further action by the Grantee.
5. Conversion of Units and Issuance of Shares. Upon each vesting date, one share of Common Stock shall be issuable for each Unit that vests on such date (the Shares), subject to the terms and provisions of the Plan and this Agreement. Thereafter, subject to Section 7, below,
1
For Use in China
the Company will transfer such Shares to the Grantee upon satisfaction of any required tax or other withholding obligations. Any fractional Unit remaining after the Award is fully vested shall be discarded and shall not be converted into a fractional Share.
6. Right to Shares. The Grantee shall not have any right in, to or with respect to any of the Shares (including any voting rights or rights with respect to dividends paid on the Common Stock) issuable under the Award until the Award is settled by the issuance of such Shares to the Grantee.
7. Immediate Sale of Shares. By accepting the Award, the Grantee acknowledges and agrees that the immediate sale of the Shares issued upon the vesting of each Award is required unless the Company, in its sole discretion, determines otherwise. Such Shares will be transferred to a brokerage firm designated by the Company (the Brokerage Firm). The Brokerage Firm, on the Grantees behalf, may thereafter immediately sell the Shares at the prevailing market price, subject to applicable withholding and fees and any process for the sale set forth by the Company, and deliver the remainder to the Company or its designee, which would then remit such amount to a designated account for payment to the Grantee. As a result of the immediate sale of Shares as set forth in this Addendum, no Shares would be delivered to the Grantee, and the Grantee would not have any resulting rights as a shareholder of the Company.
8. Certain Conditions of the Award.
(a) Compliance with Local Law. Local Law refers to the laws, rules and regulations of the country of which the Grantee is a resident. The Grantee agrees that the Grantee will not acquire shares of Common Stock pursuant to the Award or transfer, assign, sell or otherwise deal with such shares except in compliance with Local Law.
(b) Employment Conditions. In accepting the Award, the Grantee acknowledges that:
(i) Any notice period mandated under Local Law shall not be treated as Continuous Active Service for the purpose of determining the vesting of the Units; and the Grantees right to receive Shares in settlement of the Units after termination of service, if any, will be measured by the date of termination of the Grantees Continuous Active Service and will not be extended by any notice period mandated under Local Law. Subject to the foregoing and the provisions of the Plan, the Company, in its sole discretion, shall determine whether the Grantees Continuous Active Service has terminated and the effective date of such termination.
(ii) The Plan is established voluntarily by the Company. It is discretionary in nature and it may be modified, amended, suspended or terminated by the Company at any time, unless otherwise provided in the Plan and this Agreement.
(iii) All decisions with respect to future Award grants, if any, will be at the sole discretion of the Company.
(iv) The Grantees participation in the Plan shall not create a right to further Continuous Active Service with the Company (or any Related Entity).
2
For Use in China
(v) The Grantee is voluntarily participating in the Plan.
(vi) The Award is an extraordinary item that does not constitute compensation of any kind for service of any kind rendered to the Company (or any Related Entity), and which is outside the scope of the Grantees employment contract, if any.
(vii) The Award is not part of normal or expected compensation or salary for any purpose, including, but not limited to, calculating any severance payments, resignation, termination, redundancy, end-of-service payments, bonuses, long-service awards, pension or retirement benefits or similar payments. This applies to any payment even in those jurisdictions requiring such payments upon termination of employment.
(viii) In the event that the Grantee is not an employee of the Company, the Award grant will not be interpreted to form an employment contract or relationship with the Company; and furthermore the Award grant will not be interpreted to form an employment contract with any Related Entity.
(ix) The future value of the underlying Shares is unknown and cannot be predicted with certainty. If the Grantee obtains Shares upon settlement of the Units, the value of those Shares may increase or decrease.
9. Taxes.
(a) In General. Regardless of any action taken by the Company or any Related Entity with respect to any or all income tax, social insurance, payroll tax, payment on account or other tax-related withholding obligations in connection with the Award (the Tax Obligations), the Grantee acknowledges that the ultimate liability for all Tax Obligations legally due by the Grantee is and remains the Grantees responsibility and that the Company and any Related Entity (a) make no representations or undertakings regarding the treatment of any Tax Obligations in connection with any aspect of the Award, including the grant, vesting or settlement of the Units, the subsequent sale of Shares acquired pursuant to such settlement, or the receipt of any dividends and (b) do not commit and are under no obligation to structure the terms of the grant or any other aspect of the Award to reduce or eliminate the Grantees liability for Tax Obligations. The Grantee shall pay or make adequate arrangements satisfactory to the Company to satisfy all Tax Obligations of the Company and any Related Entity at the time such Tax Obligations arise. In this regard, the Grantee hereby authorizes withholding of all applicable Tax Obligations from payroll and any other amounts payable to the Grantee, and otherwise agrees to make adequate provision for withholding of all applicable Tax Obligations, if any, by the Company and each Related Entity which arise in connection with the Award. The Company shall have no obligation to process the settlement of the Award or to deliver shares until the Tax Obligations as described in this Section have been satisfied by the Grantee.
(b) Withholding in Shares. Subject to applicable law, including Local Law, the Company shall require the Grantee to satisfy the Tax Obligations by deducting from the shares of Common Stock otherwise deliverable to the Grantee in settlement of the Units a number of whole shares having a Fair Market Value, as determined by the Company as of the date on which the Tax Obligations arise, not in excess of the amount of such Tax Obligations determined by the applicable minimum statutory withholding rates.
3
For Use in China
(c) Payment of Withholding Taxes. Prior to any event in connection with the Award (e.g., vesting) that the Company determines may result in any tax withholding obligation, whether U.S., federal, state or local, or according to Local Law, including any Tax Obligation, the Grantee must arrange for the satisfaction of the minimum amount of such Tax Obligation in a manner acceptable to the Company.
(i) Assignment of Sale Proceeds. Subject to compliance with applicable law, including Local Law, and the Companys Insider Trading Policy, the Company may, in its discretion, require the Grantee to satisfy all or any portion of the Tax Obligations in accordance with the procedures, instructions and forms approved and established by the Company providing for the assignment and delivery to the Company the proceeds of a sale with respect to some or all of the Shares being acquired upon settlement of Units. The Grantee may also be required to deliver to the Company the proceeds of a sale for some or all of the Shares acquired upon settlement of the Units according to the procedures set forth in clauses (ii) and (iii) below.
(ii) By Sale of Shares. Unless the Grantee determines (or is required) to satisfy the Tax Obligation by some other means in accordance with clause (ii) below, the Grantees acceptance of this Award constitutes the Grantees instruction and authorization to the Company and any brokerage firm determined acceptable to the Company for such purpose to sell on the Grantees behalf a whole number of Shares from those Shares issuable to the Grantee as the Company determines to be appropriate to generate cash proceeds sufficient to satisfy the minimum applicable Tax Obligations. Such Shares will be sold on the day such Tax Obligations arise (e.g., a vesting date) or as soon thereafter as practicable. The Grantee will be responsible for all brokers fees and other costs of sale, and the Grantee agrees to indemnify and hold the Company harmless from any losses, costs, damages, or expenses relating to any such sale. To the extent the proceeds of such sale exceed the Grantees minimum Tax Obligations, the Company agrees to pay such excess in cash to the Grantee. The Grantee acknowledges that the Company or its designee is under no obligation to arrange for such sale at any particular price, and that the proceeds of any such sale may not be sufficient to satisfy the Grantees minimum Tax Obligations. Accordingly, the Grantee agrees to pay to the Company or any Affiliate as soon as practicable, including through additional payroll withholding, any amount of the Tax Obligations that are not satisfied by the sale of Shares described above.
(iii) By Check, Wire Transfer or Other Means. At any time not less than five (5) business days before any Tax Obligations arise (e.g., a vesting date), the Grantee may elect to satisfy the Grantees Tax Obligations by delivering to the Company an amount that the Company determines is sufficient to satisfy the Tax Obligations by (x) wire transfer to such account as the Company may direct, (y) delivery of a certified check payable to the Company, or (z) such other means as specified from time to time by the Administrator.
(d) Right to Retain Shares. The Company may refuse to issue any Shares to the Grantee until the Grantee satisfies the Tax Obligations. To the maximum extent permitted by law, the Company has the right to retain without notice from Shares issuable under the Award or from salary or other amounts payable to the Grantee, Shares or cash having a value sufficient to satisfy the Tax Obligations.
4
For Use in China
10. Entire Agreement: Governing Law. The Notice, the Plan and this Agreement constitute the entire agreement of the parties with respect to the subject matter hereof and supersede in their entirety all prior undertakings and agreements of the Company and the Grantee with respect to the subject matter hereof, and may not be modified adversely to the Grantees interest except by means of a writing signed by the Company and the Grantee. These agreements are to be construed in accordance with and governed by the internal laws of the State of California without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties. Should any provision of the Notice or this Agreement be determined by a court of law to be illegal or unenforceable, the other provisions shall nevertheless remain effective and shall remain enforceable. Notwithstanding any provision of this Agreement or the Plan to the contrary, the Administrator may amend this Agreement, either retroactively or prospectively, without the consent of the Grantee, if the Administrator determines in its discretion that such amendment is required or advisable for this Agreement and the Award to satisfy or comply with or meet the requirements of U.S., federal, state or local, or other requirements in accordance with Local Law.
11. Headings. The captions used in this Agreement are inserted for convenience and shall not be deemed a part of this Agreement for construction or interpretation.
12. Dispute Resolution. The provisions of this Section 12 shall be the exclusive means of resolving disputes arising out of or relating to the Notice, the Plan and this Agreement. The Company, the Grantee, and the Grantees assignees (the parties) shall attempt in good faith to resolve any disputes arising out of or relating to the Notice, the Plan and this Agreement by negotiation between individuals who have authority to settle the controversy. Negotiations shall be commenced by either party by notice of a written statement of the partys position and the name and title of the individual who will represent the party. Within thirty (30) days of the written notification, the parties shall meet at a mutually acceptable time and place, and thereafter as often as they reasonably deem necessary, to resolve the dispute. If the dispute has not been resolved by negotiation, the parties agree that any suit, action, or proceeding arising out of or relating to the Notice, the Plan or this Agreement shall be brought in the United States District Court for the Northern District of California (or should such court lack jurisdiction to hear such action, suit or proceeding, in a California state court in the County of San Mateo) and that the parties shall submit to the jurisdiction of such court. The parties irrevocably waive, to the fullest extent permitted by law, any objection the party may have to the laying of venue for any such suit, action or proceeding brought in such court. THE PARTIES ALSO EXPRESSLY WAIVE ANY RIGHT THEY HAVE OR MAY HAVE TO A JURY TRIAL OF ANY SUCH SUIT, ACTION OR PROCEEDING. If any one or more provisions of this Section 12 shall for any reason be held invalid or unenforceable, it is the specific intent of the parties that such provisions shall be modified to the minimum extent necessary to make it or its application valid and enforceable.
5
For Use in China
13. Notices. Any notice required or permitted hereunder shall be given in writing and shall be deemed effectively given upon personal delivery, upon deposit for delivery by an internationally recognized express mail courier service or upon deposit in the United States mail by certified mail (if the parties are within the United States), with postage and fees prepaid, addressed to the other party at its address as shown in these instruments, or to such other address as such party may designate in writing from time to time to the other party.
14. No Effect on Terms of Service. The Units subject to the Award shall vest, if at all, only during the period of the Grantees Continuous Active Service (not through the act of being hired, being granted the Award or acquiring Shares hereunder) and the Award has been granted as an inducement for the Grantee to remain in such Continuous Active Service and as an incentive for increased efforts on behalf of the Company and its Affiliates by the Grantee during the period of his or her Continuous Active Service. Nothing in the Notice, the Agreement, or the Plan shall confer upon the Grantee any right with respect to future restricted stock unit grants or continuation of Grantees Continuous Active Service (even if Awards have been granted repeatedly in the past), nor shall it interfere in any way with the Grantees right or the right of the Grantees employer to terminate Grantees Continuous Active Service at any time, with or without cause, and with or without notice. Unless the Grantee has a written employment agreement with the Company to the contrary, Grantees status is at will. The Grantee shall not have and waives any and all rights to compensation or damages as a result of the termination of the Grantees employment with the Company or the Grantees employer for any reason whatsoever, insofar as those rights result or may result from (i) the loss or diminution in value of such rights or entitlements or claimed rights or entitlements under the Plan, or (ii) the Grantees ceasing to be entitled to any purchase rights or shares or any other rights under the Plan. If, notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen then, by signing this Agreement, the Grantee shall be deemed irrevocably to have waived the Grantees entitlement to pursue such a claim.
15. Data Privacy Consent. The Grantee hereby explicitly and unambiguously consents to the collection, use and transfer, in electronic or other form, of the Grantees personal data as described in this document by and among the Company and each Related Entity for the exclusive purpose of implementing, administering and managing the Grantees participation in the Plan.
(a) The Grantee understands that the Company (or any Related Entity) holds certain personal information about the Grantee, including, but not limited to, the Grantees name, home address and telephone number, date of birth, social insurance number or other identification number, salary, nationality, job title, any shares or directorships held in the Company, details of all Awards or any other entitlement to shares awarded, canceled, exercised, vested, unvested or outstanding in the Grantees favor, for the purpose of implementing, administering and managing the Plan (Data). The Grantee understands that Data may be transferred to any third parties assisting in the implementation, administration and management of the Plan, that these recipients may be located in the Grantees country or elsewhere, and that the recipients country may have different data privacy laws and protections than the Grantees country. The Grantee understands that he or she may request a list with the names and addresses of any potential recipients of the Data by contacting the Grantees local human resources representative. The Grantee authorizes the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing,
6
For Use in China
administering and managing the Grantees participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom the Grantee may elect to deposit any shares acquired upon settlement of the Units. The Grantee understands that Data will be held only as long as is necessary to implement, administer and manage the Grantees participation in the Plan. The Grantee understands that he or she may, at any time, view Data, request additional information about the storage and processing of Data, require any necessary amendments to Data or refuse or withdraw the consents herein, in any case without cost, by contacting in writing the Grantees local human resources representative. The Grantee understands, however, that refusing or withdrawing the Grantees consent may affect the Grantees ability to participate in the Plan. For more information on the consequences of the Grantees refusal to consent or withdrawal of consent, the Grantee understands that he or she may contact the Grantees local human resources representative.
16. Electronic Documents. The Plan documents, including this Agreement, may be delivered and executed electronically.
17. Documents in English. The Plan documents, including this Agreement, are in English, and if the Grantee requires a translation of the documents into a language other than English, Grantee will be responsible for arranging for accurate translations. If the documents are translated into a language other than English and if the translated versions are different front the English versions, the English versions will take precedence.
17. Special Administration in China. The vesting of the Award and the Grantees ability to receive funds upon the sale of Shares shall be contingent upon the Company or its Affiliate obtaining approval from SAFE for the related foreign exchange transaction and the establishment of a SAFE-approved bank account. The receipt of funds by the Grantee from such sale of the Shares and the conversion of those funds to the local currency must be approved by SAFE. In order to comply with the SAFE regulations, the proceeds from the sale of the Shares must be repatriated into China through a SAFE-approved bank account set up and monitored by the Company or its Affiliate.
END OF AGREEMENT
7
For Use in China
EXHIBIT A
JDS Uniphase Corporation
Restricted Stock Unit Beneficiary Designation
In the event of my death prior to the settlement of my currently outstanding or subsequently issued restricted stock units (the Units) under any existing or subsequently adopted equity incentive plan of JDS Uniphase Corporation or its successor in interest (the Company) (whether adopted by the Company or assumed by the Company in connection with a merger, acquisition or other similar transaction) or issued to me by the Company outside of any such equity plan, and in lieu of disposing of my interest,1 if any, in the Units at the time of my death by my will or the laws of intestate succession, I hereby designate the following persons as Primary Beneficiary(ies) and Contingent Beneficiary(ies) of my interest in the Units:
Primary Beneficiary(ies) (Select only one of the three alternatives)
¨ (a) Individuals and/or Charities | % Share | |||||
1) | Name |
| ||||
Address |
| |||||
2) | Name |
| ||||
Address |
| |||||
3) | Name |
| ||||
Address |
| |||||
4) | Name |
| ||||
Address |
| |||||
¨ (b) Residuary Testamentary Trust | ||||||
In trust, to the trustee of the trust named as the beneficiary of the residue of my probate estate. |
1 | A married grantee whose Units are community property may dispose only of his or her own interest in the Units. In such cases, the grantees spouse may (a) consent to the grantees designation by signing the Spousal Consent or (b) designate the grantee or any other person(s) as the beneficiary(ies) of his or her interest in the Units on a separate Beneficiary Designation. |
8
For Use in China
¨ (c) Living Trust |
| (or any successor), as Trustee of the | |
(print name of present trustee) |
| Trust, dated |
| ||
(print name of trust) | (fill in date trust was established) |
Contingent Beneficiary(ies) (Select only one of the three alternatives)
¨ (a) Individuals and/or Charities | % Share | |||||
1) | Name |
| ||||
Address |
| |||||
2) | Name |
| ||||
Address |
| |||||
3) | Name |
| ||||
Address |
| |||||
4) | Name |
| ||||
Address |
| |||||
¨ (b) Residuary Testamentary Trust | ||||||
In trust, to the trustee of the trust named as the beneficiary of the residue of my probate estate. |
¨ (c) Living Trust |
| (or any successor), as Trustee of the | |
(print name of present trustee) |
| Trust, dated |
| ||
(print name of trust) | (fill in date trust was established) |
9
For Use in China
Should all the individual Primary Beneficiary(ies) fail to survive me or if the trust named as the Primary Beneficiary does not exist at my death (or no will of mine containing a residuary trust is admitted to probate within six months of my death), the Contingent Beneficiary(ies) shall be entitled to my interest in the Units for the shares indicated. Should any individual beneficiary fail to survive me or a charity named as a beneficiary no longer exist at my death, such beneficiarys share shall be divided among the remaining named Primary or Contingent Beneficiaries, as appropriate, in proportion to the percentage shares I have allocated to them. In the event that no Individual Primary Beneficiary(ies) or Contingent Beneficiary(ies) survives me, no trust (excluding a residuary testamentary trust) or charity named as a Primary Beneficiary or Contingent Beneficiary exists at my death, and no will of mine containing a residuary trust is admitted to probate within six months of my death, then my interest in the Units shall be disposed of by my will or the laws of intestate succession, as applicable.
This Beneficiary Designation is effective until I file another such designation with JDS Uniphase Corporation. Any previous Beneficiary Designations are hereby revoked.
Submitted by: | Accepted by: | |||||
¨ Grantee ¨ Grantees Spouse | JDS Uniphase Corporation | |||||
| By: |
| ||||
(Signature) | ||||||
Its: |
| |||||
Date: | Date: |
Spousal Consent for Units that are Community Property (necessary if separate beneficiary designation is not filed by Spouse):
I hereby consent to this Beneficiary Designation and agree that this designation of beneficiaries provided herein shall apply to my community property interest in the Units. This consent does not apply to any subsequent Beneficiary Designation which may be filed by my spouse. This consent may be revoked by me at any time, whether by filing a Beneficiary Designation disposing of my interest in the Units or by filing a written notice of revocation with the Company.
|
(Signature of Spouse) |
Date: |
10
For Use in China
Spousal Consent for Units that are not Community Property (necessary if beneficiary is other than Spouse):
I hereby consent to this Beneficiary Designation. This consent does not apply to any subsequent Beneficiary Designation which may be filed by my spouse.
|
(Signature of Spouse) |
Date: |
11