SCHEDULE TO EMPLOYEE RESTRICTED STOCK UNITS AGREEMENT Storage Technology Corporation 2004 Long Term Incentive Plan
Exhibit 10.5
SCHEDULE TO EMPLOYEE RESTRICTED STOCK UNITS AGREEMENT
Storage Technology Corporation
2004 Long Term Incentive Plan
| Award Recipient: | _______________________ | |
| Employee Number: | _______________________ |
| Date of Grant: |
_______________________ | |
| Restricted Stock Units Awarded: |
_______________________ | |
| Restricted Stock Units Plan : |
2004 Long Term Incentive Plan | |
| Grant Number: |
_______________________ | |
| Vesting Schedule: | [If performance-based vesting, include paragraph a] |
| [a] | All Restricted Stock Units will vest on _____________. The vesting of one-fourth of the shares will be accelerated on each of the first, second and third anniversaries of the Date of Grant (rounding up in the latter year(s) if applicable) if StorageTek meets predetermined Performance Criteria as described in the Employee Restricted Stock Units Agreement to which this Schedule is attached. |
[If tenure-based vesting, include paragraph b] |
| [b] |
# shares vest on vest date 1 |
The Restricted Stock Units are granted under the Storage Technology Corporation 2004 Long Term Incentive Plan, and are governed by the terms and conditions of the Employee Restricted Stock Units Agreement to which this Schedule is attached. The information set forth in this Schedule is incorporated into and made part of the attached Agreement by reference. Please read the Employee Restricted Stock Units Agreement carefully; your signature will be deemed to be acknowledgment that you have read and accept the terms and conditions of the Agreement in its entirety.
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STORAGE TECHNOLOGY CORPORATION 2004 LONG TERM INCENTIVE PLAN
EMPLOYEE RESTRICTED STOCK UNITS AGREEMENT
GRANT NUMBER:
__________
THIS AGREEMENT is made between Storage Technology Corporation (“StorageTek”) and «First_name» «Last_name» (“you”), effective as of ________________.
Pursuant to the 2004 Long Term Incentive Plan (the “Plan”), StorageTek has granted to you Restricted Stock Units (the “Units”). These Units have been granted by StorageTek as special one-time compensation and are not in lieu of salary or other compensation for your services.
In consideration of the foregoing and of the mutual covenants set forth herein, and other good and valuable consideration, StorageTek and you agree as follows:
1. Incorporation of Plan and Defined Terms. The Units are granted pursuant to the Plan, which by reference is made a part of this Agreement. Your acceptance of these Units is your agreement to comply with the terms and conditions of the Plan. Capitalized terms used in this Agreement and not otherwise defined will have the meanings set forth in the Plan. The Plan and related Prospectus are posted on the StorageTek intranet at the following site: xxxx://xxxxxxx.xxxxxxx.xxx/xxxxx. For paper copies of these documents, please contact Stock Administration, MS 4302, Xxx XxxxxxxXxx Xxxxx, Xxxxxxxxxx, XX 00000 or call 000.000.0000.
2. Decisions of the Committee. The Plan is administered by the Human Resources and Compensation Committee (the “Committee”) of the Board of Directors. Any decision, interpretation or other action made or taken in good faith by the Committee arising out of or in connection with the Plan or the Units will be final, binding and conclusive on StorageTek and you and any respective heir, executor, administrator, successor or assign.
3. Award of Shares. Upon vesting, the Units will be automatically converted into shares of common stock (the “Shares), par value $0.10 per share, of StorageTek. Each Unit will be converted into one share of common stock. The sale of any Shares underlying the Units is subject to StorageTek’s xxxxxxx xxxxxxx policy as more fully described in StorageTek’s policies and procedures.
4. Vesting Dates.
(i) Schedule. All Units will vest according to the terms on the attached Schedule. The vesting is subject to your continuous status as an Employee or Consultant of StorageTek or its subsidiaries through the vest date.
[If vesting is performance-based, include paragraph a]
[a] The Committee establishes the Performance Criteria that may be used for acceleration of one-fourth of the Units on the first, second and third anniversaries of the Date of Grant.
[If goals set at grant, include sentence a1]
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[a1]
The Performance Criteria for the vesting of the Units are as follows:
________________________________________________________________________
________________________________________________________________________
[If goals are to be set annually, include sentence a2]
[a2] The Committee will set an annual performance goal at the beginning of each year for the portion of the Units that may be accelerated in that year. The Performance Criteria for accelerated vesting may include any one or more of the following: net order dollars, net profit dollars, net profit growth, net revenue dollars, revenue growth, total shareholder return, cash flow, earnings or earnings per share, growth in earnings or earnings per share, return on equity, stock price, return on equity or average stockholders’ equity, total stockholder return, return on capital, return on assets or net assets, return on investment, revenue, income or net income, operating income or net operating income, operating profit or net operating profit, operating margin, return on operating revenue, market share, overhead or other expense reduction, credit rating, strategic plan development and implementation, succession plan development and implementation, customer satisfaction indicators, and/or employee metrics.
These criteria may be measured on an absolute basis or relative to a peer group or index and can be measured at the corporate or business unit level. The Committee is authorized to make adjustments in the method of calculating attainment of Performance Criteria in recognition of: (a) extraordinary or non-recurring items, (b) changes in tax laws, (c) changes in generally accepted accounting principles or changes in accounting policies, (d) charges related to restructured or discontinued operations, (e) restatement of prior period financial results, and (f) any other unusual, non-recurring gain or loss that is separately identified and quantified in StorageTek’s financial statements.
(ii) Death or Disability. If you die or become disabled as set forth in the Plan, prior to the vesting date, your Units will become one hundred percent (100%) vested and the vesting restrictions will lapse.
(iii) Retirement. If upon a voluntary termination, you have provided five years of service to StorageTek or its subsidiaries, with no break in such service of longer than one year, and are at least 55 years of age (“Retirement”), your Units will become one hundred percent vested and the vesting restrictions will lapse.
5. Termination of Service.
(i) Forfeiture. If you cease to provide continuous status as an Employee or Consultant of StorageTek or its subsidiaries for any reason, except death or disability, as set forth in the Plan, or Retirement, prior to the vesting dates defined in this Agreement, you will forfeit all unvested Units.
(ii) Termination Date. For purposes of the Units, your termination date is the earlier of the date notice of termination is provided or the actual termination date.
6. Tax Obligation. In addition to paying the Purchase Price, you must also pay StorageTek or any designated subsidiary any amount StorageTek or any of its subsidiaries is required to collect for tax withholding. In its sole discretion, StorageTek may allow or require you to pay all or a portion of the tax withholding by means of: (a) payroll deduction; (b) direct payment; or (c) withholding from Shares otherwise issuable to you, Shares having a value equal to or less than the minimum statutory tax withholding rates.
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7. Release of Shares. Once the vesting restrictions have lapsed and the tax obligation has been satisfied, StorageTek will issue the Shares to you or your executor or personal representative, as the case may be, free of any restrictive legends, unless, in the opinion of counsel, a restrictive legend is necessary to comply with securities or other regulatory requirements. In its sole discretion, StorageTek may elect to deliver the Shares to you, either directly in certificate form or electronically to a brokerage account established for your benefit at a financial/brokerage firm selected by StorageTek. You agree to complete and sign any documents and take any additional action that StorageTek may request to enable it to accomplish the delivery of the Shares on your behalf.
8. Other Agreement You agree that the terms of this Agreement and the Plan will govern these Units and you specifically waive and disclaim any acquired rights in, or entitlement claims to, the Units under any other agreement or pursuant to any applicable law.
9. Change in Control. In the event of a Change in Control, the Units will become vested and no longer subject to forfeiture.
10. Non-Transferability of Units. Until the Units have vested and Shares have been delivered to you, the Units are not transferable other than (a) by last will and testament or the laws of descent and distribution, or (b) pursuant to a qualified domestic relations order. The Units will not be otherwise transferred or assigned, pledged, hypothecated or otherwise disposed of in any way, whether by operation of law or otherwise, and will not be subject to execution, attachment or similar process. Upon any attempt to transfer, assign, hypothecate or otherwise dispose of the Units other than as permitted above, the Units will immediately terminate and become null and void.
11. No Right to Future Grants; Extraordinary Item of Compensation. You acknowledge:
(i) that the Plan is discretionary in nature;
(ii) that the Units are a one-time benefit that do not create any contractual or other right to receive future grants of restricted stock units, or benefits in lieu of restricted stock units;
(iii) that all determinations with respect to such future grants, if any, including, but not limited to, the times when restricted stock units will be granted, the size of the grant, and the vesting schedule, will be at the sole discretion of StorageTek;
(iv) that your participation in the Plan is voluntary;
(v) that the value of the Shares is an extraordinary item of compensation;
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(vi) that the Units are not part of normal or expected compensation for purposes of calculating any severance, resignation, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits, or similar payments.
12. Data Privacy. You consent to the transfer of your personal data by StorageTek both within and outside of your country of residence to StorageTek, its subsidiaries and any agent thereof in connection with the administration of the Plan and you waive any notification, registration or related rights or requirements regarding such transfer required by any applicable law. You further waive any data privacy rights you may have with respect to such information and authorize StorageTek and its subsidiaries to store and transmit such information in electronic form.
13. Protection of Confidential Information. In addition to any confidentiality covenant set forth in any other agreement between you and StorageTek or its subsidiaries and any remedy hereunder, you agree that during and after your employment with StorageTek or its subsidiaries, you will not publish, disclose, disseminate or use, or authorize anyone else to publish, disclose, disseminate or use any StorageTek, affiliated companies’ and third party’s private, confidential, proprietary, restricted or secret information that you may have in any way acquired, learned, developed or created by reason of your employment with StorageTek or affiliated companies.
15. Compliance with Securities Laws. Under no circumstances will any Shares or other assets be issued or delivered to you unless and until, in the opinion of counsel for StorageTek or its successors, there shall have been compliance with all applicable requirements of the federal and state securities laws, listing requirements of any securities exchange on which stock of the same class as the Shares is then listed, and all other requirements of law or of any regulatory bodies having jurisdiction over the issuance and delivery of the Shares or other assets.
16. Change in Financial or Tax Accounting Treatment. Notwithstanding any other provision of this Agreement, if any changes in the financial or tax accounting rules applicable to the Units covered by this Agreement shall occur which, in the sole judgment of the Committee, may have an adverse effect on the reported earnings, assets or liabilities of StorageTek, the Committee may, in its sole discretion, modify this Agreement or cancel and cause a forfeiture with respect to any unvested Units at the time of such determination.
17. Miscellaneous.
(i) Rights as a Stockholder. You will have no rights of a stockholder with respect to the Units and there are no voting or dividend rights with respect to the Units. Once the Units have vested and Shares have been issued to you, you will have all the rights of a stockholder with respect to the Shares issued, including the right to vote all of the Shares and receive cash dividends or other distributions paid or made with respect to the Shares.
(ii) Employment. Nothing contained in this Agreement creates or implies an employment contract or term of employment or any promise of specific treatment upon which you may rely.
(iii) Governing Law. This Agreement will be construed and enforced in accordance with the laws of the State of Colorado without giving effect to the principles of conflicts of laws.
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(iv) Severability. The provisions of this Agreement are severable and if any one or more provisions may be determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions, and any partially unenforceable provision to the extent enforceable in any jurisdiction, will nevertheless be binding and enforceable.
(v) Binding Effect. The provisions of this Agreement will be binding upon the parties hereto, their successors and assigns, including, without limitation, your estate and the executors, administrators or trustees of your estate; any person or entity to which these Restricted Stock Units were transferred pursuant to a qualified domestic relations order; and any receiver, trustee in bankruptcy or representative of your creditors.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth in the Schedule.
| Storage Technology Corporation By:_______________________________ Corporate Officer Title |
NAME OF EMPLOYEE _________________________________ Employee Name Address 1 Address 2 Address 3 |
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