CISCO SYSTEMS, INC. RESTRICTED STOCK UNIT ASSUMPTION AGREEMENT
Exhibit 99.4
CISCO SYSTEMS, INC.
RESTRICTED STOCK UNIT ASSUMPTION AGREEMENT
Dear _______________:
As you know, on September 17, 2008, (the “Closing Date”) Cisco Systems, Inc. (“Cisco”) acquired PostPath, Inc. (“PostPath”) (the “Acquisition”) pursuant to the Agreement and Plan of Reorganization by and among Cisco Systems, Inc., Pamplona Acquisition Corp., and PostPath dated as of August 26, 2008 (the “Merger Agreement”). On the Closing Date you held one or more outstanding restricted stock unit awards to acquire shares of PostPath common stock granted to you under the 2008 Equity Incentive Plan of PostPath (the “Plan”). Pursuant to the Merger Agreement, on the Closing Date, Cisco assumed all obligations of PostPath under your outstanding restricted stock unit award (or restricted stock unit awards). This Restricted Stock Unit Assumption Agreement (the “Agreement”) evidences the terms of Cisco’s assumption of a restricted stock unit award (or restricted stock unit awards) to acquire PostPath common stock granted to you under the Plan (the “PostPath RSU(s)”), and documented by a restricted stock unit agreement (or restricted stock unit agreements) and any amendment(s) and/or restricted stock unit assumption agreements entered into by and between you and PostPath (the “RSU Agreement(s)”), including the necessary adjustments for assumption of the PostPath RSU(s) that are required by the Acquisition.
The table below summarizes your PostPath RSU(s) immediately before and after the Acquisition:
| POSTPATH RSU |
ASSUMED RSU | |||
| Grant Date |
No. of PostPath Shares |
No. of Cisco Shares | ||
The post-Acquisition adjustments are based on the exchange ratio of 0.2384067806 as determined in accordance with the terms of the Merger Agreement, and are intended to preserve immediately after the Acquisition the aggregate fair market value of the underlying shares immediately prior to the Acquisition. The number of shares of Cisco common stock subject to your assumed PostPath RSU(s) was determined by multiplying the Option Exchange Ratio by the number of shares remaining subject to your PostPath RSU(s) on the Closing Date and rounding the resulting product down to the next whole number of shares of Cisco common stock.
Unless the context otherwise requires, any references in either of the Plan and the RSU Agreement(s) to: (i) the “Company” or the “Corporation” means Cisco, (ii) “Stock,” “Common Stock” or “Shares” means shares of Cisco common stock, (iii) the “Board of Directors” or the “Board” means the Board of Directors of Cisco and (iv) the “Committee” means the Compensation and Management Development Committee of the Board of Directors of Cisco. All references in the RSU Agreement(s) and the Plan relating to your status as an employee or consultant of PostPath will now refer to your status as an employee of Cisco or any present or future Cisco subsidiary.
The vesting commencement date, vesting schedule and expiration date of your assumed PostPath RSU(s) remain the same as set forth in the RSU Agreement(s) (in this respect, please note that any discussion of terms (including vesting acceleration) in any employment offer letter (whether from Cisco, PostPath, or any other related employer) is explanatory in nature and will not result in duplication of benefits (including vesting) with respect to your assumed PostPath RSU(s)) but with the number of shares subject to each vesting installment adjusted to reflect the effect of the Acquisition. Vesting of your assumed PostPath RSU(s) will be suspended during all leaves of absence in accordance with Cisco’s policies. All other provisions which govern either the settlement or the termination of your assumed PostPath RSU(s) remain the same as set forth in the RSU Agreement(s), and the provisions of the RSU Agreement(s) will govern and control your rights under this Agreement to acquire shares of Cisco common stock, except as expressly modified by this Agreement, the Merger Agreement or otherwise in connection with the Acquisition. Upon termination of your employment with Cisco, or any present or future Cisco subsidiary, your assumed PostPath RSU(s) will immediately expire.
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Nothing in this Agreement or the RSU Agreement(s) interferes in any way with your right and your employer’s right, which rights are expressly reserved, to terminate your employment at any time for any reason. Future stock awards, if any, that you may receive from Cisco will be governed by the terms of the Cisco plan under which such stock awards are granted, and such terms may be different from the terms of your assumed PostPath RSU(s).
Please sign and date this Agreement, as soon as possible, and return a signed original as soon as possible to ________________ at PostPath.
Until an original of your fully executed Acknowledgment (below) is received by Cisco’s Stock Administration Department your Cisco account will not be activated and your assumed PostPath RSU(s) will not be exercisable. If you have any questions regarding this Agreement or your assumed PostPath RSU(s), please contact ____________ at __________________.
| CISCO SYSTEMS, INC. | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Xxxx Xxxxxxxx | ||
| Corporate Secretary | ||
ACKNOWLEDGMENT
The undersigned acknowledges receipt of the foregoing Restricted Stock Unit Assumption Agreement and understands and agrees that all rights and liabilities with respect to the assumed PostPath RSU(s) listed on the table above are hereby assumed by Cisco and are as set forth in the RSU Agreement(s) for such assumed PostPath RSU(s), the Plan (as applicable) and this Restricted Stock Unit Assumption Agreement and agrees to the terms as set forth in such Restricted Stock Unit Assumption Agreement.
| DATED: __________________, 2008 | _________________________________________________________ | |
| ___________________- Optionee | ||
| Address: ___________________________________ | ||
| _________________________________________________________ | ||
| Cisco ID No.: _____________________ | ||
ATTACHMENTS
Exhibit A – Form S-8 Prospectus
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CISCO SYSTEMS, INC.
STOCK UNITS ASSUMPTION AGREEMENT
FOR NON-U.S. EMPLOYEES
Dear ____________:
As you know, on September 17, 2008, (the “Closing Date”) Cisco Systems, Inc. (“Cisco”) acquired PostPath, Inc. (“PostPath”) (the “Acquisition”) pursuant to the Agreement and Plan of Reorganization by and among Cisco Systems, Inc., Pamplona Acquisition Corp., and PostPath dated as of August 26, 2008 (the “Merger Agreement”). On the Closing Date, you held one or more outstanding awards of Stock Units (“Stock Units”) to acquire Shares of PostPath common stock granted to you under the 2008 Equity Incentive Plan of PostPath (the “Plan”). Pursuant to the Merger Agreement, on the Closing Date, Cisco assumed all obligations of PostPath under your outstanding Stock Units. This Stock Units Assumption Agreement (the “Agreement”) evidences the terms of Cisco’s assumption of a Stock Unit (or Stock Units) to acquire PostPath common stock granted to you under the Plan (the “PostPath Stock Unit(s)”), and documented by a Stock Units Agreement (or “Stock Unit Agreements”) and any amendment(s) and/or Stock Units Assumption Agreements entered into by and between you and PostPath (the “Stock Unit Agreement(s)”), including the necessary adjustments for assumption of the PostPath Stock Unit(s) that are required by the Acquisition.
The table below summarizes your PostPath Stock Units(s) immediately before and after the Acquisition:
| PostPath STOCK UNITS |
ASSUMED STOCK UNITS | |||
| Grant Date |
No. of PostPath Stock Units |
No. of Cisco Stock Units | ||
The post-Acquisition adjustments are based on the Stock Unit Exchange Ratio of 0.2384067806, as determined in accordance with the terms of the Merger Agreement, and are intended to preserve immediately after the Acquisition the aggregate fair market value of the underlying shares immediately prior to the Acquisition. The number of shares of Cisco common stock subject to your assumed PostPath Stock Unit(s) was determined by multiplying the Stock Unit Exchange Ratio by the number of Shares remaining subject to your PostPath Stock Unit(s) on the Closing Date and rounding the resulting product down to the next whole number of shares of Cisco common stock.
Unless the context otherwise requires, any references in either the Plan and the Stock Unit(s) Agreement(s) to: (i) the “Company” or the “Corporation” means Cisco, (ii) “Stock,” “Common Stock” or “Shares” means shares of Cisco common stock, (iii) the “Board of Directors” or the “Board” means the Board of Directors of Cisco and (iv) the “Committee” means the Compensation and Management Development Committee of the Board of Directors of Cisco. All references in the Stock Units Agreement(s) and the Plan relating to your status as an employee or consultant of PostPath will now refer to your status as an employee of Cisco or any present or future Cisco subsidiary.
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The vesting commencement date, vesting schedule and expiration date of your assumed PostPath Stock Unit(s) remain the same as set forth in the Stock Units Agreement(s), (in this respect, please note that any discussion of terms (including vesting acceleration) in any employment offer letter (whether from Cisco, PostPath, or any other related employer) is explanatory in nature and will not result in duplication of benefits (including vesting) with respect to your assumed PostPath Stock Unit(s)) but with the number of shares subject to each vesting installment adjusted to reflect the effect of the Acquisition. Vesting of your assumed PostPath Stock Unit(s) will be suspended during all leaves of absence in accordance with Cisco’s policies. All other provisions which govern either the settlement or the termination of your assumed PostPath Stock Unit(s) remain the same as set forth in the Stock Unit Agreement(s), and the provisions of the Stock Unit Agreement(s) will govern and control your rights under this Agreement to acquire shares of Cisco common stock, except as expressly modified by this Agreement, the Merger Agreement or otherwise in connection with the Acquisition.
Upon termination of your active employment with Cisco or any present or future Cisco subsidiary, all unvested Stock Units shall be immediately forfeited without consideration.
Nothing in this Agreement or the Stock Unit(s) Agreement(s) interferes in any way with your right and your employer’s (the “Employer’s”) right, which rights are expressly reserved, to terminate your employment at any time for any reason and whether or not in breach of local labor laws. Future stock units, if any, you may receive from Cisco will be governed by the terms of the Cisco plan under which such stock units are granted, and such terms may be different from the terms of your assumed PostPath Stock Unit(s), including, but not limited to, the vesting schedule.
The following are additional terms and conditions of your Stock Units:
Stock Units shall be automatically settled in Shares upon vesting of such Stock Units, provided that Cisco shall have no obligation to issue Shares pursuant to this Agreement unless and until you have satisfied any applicable “Tax-Related Items” withholding obligations, as described below, and such issuance otherwise complies with all applicable law.
Prior to vesting of the assumed PostPath Stock Unit(s) (or adjustment and conversion of the assumed PostPath Stock Unit(s) if the adjustment and conversion is a taxable event in your country), you authorize Cisco and/or the Employer to meet the obligation for income tax, social insurance contributions, payroll tax, payment on account or other tax-related withholding (“Tax-Related Items”) in relation to your assumed PostPath Stock Unit(s) by withholding all applicable Tax-Related Items from your wages or other cash compensation paid to you by Cisco and/or the Employer or from proceeds of the sale of the Shares. Alternatively, or in addition, if permissible under local law, Cisco may (1) sell or arrange for the sale of Shares that you acquire to meet the withholding obligation for Tax-Related Items, and/or (2) withhold in Shares, provided that Cisco withholds only the amount of Shares necessary to satisfy the minimum withholding amount. If the obligation for Tax-Related Items is satisfied by withholding Shares as described herein, you shall be deemed to have been issued the full number of Shares subject to this Agreement, notwithstanding that a number of Shares are held back solely for the purpose of paying the Tax-Related Items due. Finally, you must pay to Cisco or the Employer any amount of Tax-Related
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Items that Cisco or the Employer may be required to withhold as a result of your participation in the Plan or your acquisition of Shares that cannot be satisfied by the means previously described. Cisco may refuse to convert your assumed PostPath Stock Unit(s) and/or refuse to deliver the Shares if you fail to comply with your obligations in connection with the Tax-Related Items as described in this Paragraph.
Regardless of any action Cisco or the Employer takes with respect to any or all Tax-Related Items, you acknowledge that the ultimate liability for all Tax-Related Items is and remains your responsibility and that Cisco and/or the Employer (1) make no representations or undertakings regarding the treatment of any Tax-Related Items in connection with any aspect of the PostPath Stock Unit(s), including the grant, vesting, conversion into stock units over Cisco Stock or vesting of the PostPath Stock Unit(s), any acceleration of vesting, the subsequent sale of Shares acquired pursuant to such vesting and the receipt of any dividends; and (2) do not commit to structure the terms of the conversion of PostPath Stock Unit(s) into stock unit(s) over Cisco Stock, any acceleration of vesting or any aspect of the PostPath Stock Unit(s) to reduce or eliminate your liability for Tax-Related Items.
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You hereby explicitly and unambiguously consent to the collection, use and transfer, in electronic or other form, of your personal information as described in this Agreement by and among, as applicable, the Employer, and Cisco and its present and future subsidiaries for the exclusive purpose of implementing, administering and managing your participation in the Plan.
You understand that Cisco and the Employer hold certain personal information about you, including, but not limited to, your 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 Cisco, details of all assumed PostPath Stock Units or any other entitlement to Shares awarded, canceled, exercised, vested, unvested or outstanding in your favor, for the purpose of implementing, administering and managing the Plan (“Data”). You understand 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 your country or elsewhere, and that the recipient’s country may have different data privacy laws and protections than your country. You understand that you may request a list with the names and addresses of any potential recipients of the Data by contacting your local human resources representative. You authorize the recipients to receive, possess, use, retain and transfer the Data, in electronic or other form, for the purposes of implementing, administering and managing your participation in the Plan, including any requisite transfer of such Data as may be required to a broker or other third party with whom you may elect to deposit any Shares acquired upon vesting of the assumed PostPath Stock Unit(s). You understand that Data will be held only as long as is necessary to implement, administer and manage your participation in the Plan. You understand that you 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 your local human resources representative. You understand, however, that refusing or withdrawing your consent may affect your ability to participate in the Plan.
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For more information on the consequences of your refusal to consent or withdrawal of consent, you understand that you may contact your local human resources representative.
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By signing below, you hereby acknowledge and agree as follows: (a) the Plan are discretionary in nature and may be modified, amended, suspended or terminated by Cisco at any time, unless otherwise provided in the Plan and this Agreement or the Stock Unit Agreements; (b) the assumed PostPath Stock Unit(s) you were granted were voluntarily given and do not create any contractual or other right to receive future grants of PostPath or Cisco Stock Unit(s), or benefits in lieu of PostPath Stock Unit(s), even if PostPath Stock Unit(s) have been granted repeatedly in the past; (c) all decisions with respect to future grants of stock units, if any, will be at the sole discretion of Cisco; (d) your participation in the Plan will not create a right to further employment with Cisco, its subsidiaries or affiliates or your actual Employer; (e) you are voluntarily participating in the Plan; (f) the assumed PostPath Stock Units(s) are extraordinary in that they do not constitute compensation of any kind for services of any kind rendered to Cisco or the Employer and are outside the scope of your employment contract, if any; (g) the assumed PostPath Stock Unit(s) are not part of normal or expected compensation or salary for any purposes, including, but not limited to, calculating any severance, resignation, termination, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments and in no event should be considered as compensation for, or relating in any way to, past services for Cisco, PostPath or the Employer; (h) in the event that you are not an employee of Cisco (e.g., you are employed by a subsidiary or affiliate of Cisco), the assumed PostPath Stock Unit(s) will not be interpreted to form an employment contract or relationship with Cisco; and furthermore, the assumed PostPath Stock Unit(s) will not be interpreted to form an employment contract with the Employer or any subsidiary or affiliate of Cisco; (i) the future value of Cisco Stock is unknown and cannot be predicted with certainty; (j) if you vest in your assumed PostPath Stock Unit(s) and acquire shares of Cisco Stock under the assumed PostPath Stock Unit(s), the value of the Cisco Stock acquired may increase or decrease in value; (k) in consideration of the conversion of the assumed PostPath Stock Unit(s), no claim or entitlement to compensation or damages shall arise from termination of the assumed PostPath Stock Unit(s) or diminution in value of the assumed PostPath Stock Unit(s) or Cisco Stock acquired through the assumed PostPath Stock Unit(s) which results from termination of your employment by Cisco or the Employer (for any reason whatsoever and whether or not in breach of local labor laws) and you irrevocably release Cisco and the Employer from any such claim that may arise; if notwithstanding the foregoing, any such claim is found by a court of competent jurisdiction to have arisen, then, by signing this Agreement, you will be deemed irrevocably to have waived your entitlement to pursue such a claim; (l) in the event of termination of your employment (whether or not in breach of local labor laws), your right to vest in the assumed PostPath Stock Unit(s) under the Plan, if any, will terminate effective as of the date that you are no longer actively employed and will 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); (m) Cisco is not providing any tax, legal or financial advice, nor is Cisco making any recommendations regarding your participation in the Plan, or your acquisition or sale of Cisco Stock; and (n) you are hereby advised to consult with personal tax, legal and financial advisors regarding participation in the Plan before taking any action related to the Plan.
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You hereby acknowledge and agree as follows: (a) the conversion and adjustment of your assumed PostPath Stock Unit(s) and/or acceleration of vesting of your assumed PostPath Stock Unit(s) to awards over Cisco Shares may have adverse tax and social insurance contribution consequences, including but not limited to any loss of tax and social insurance qualified status and the inability to obtain a tax or social insurance refund for taxes or contributions already paid on such assumed PostPath Stock Unit(s), and that PostPath, Cisco and your Employer do not take any responsibility or liability with respect to the loss of tax and social insurance qualified status of your assumed PostPath Stock Unit(s); (b) you received information regarding the adjustment and conversion of your assumed PostPath Stock Unit(s); and (c) you acknowledge that vesting of your assumed PostPath Stock Unit(s) is contingent upon compliance with applicable local laws; in particular, if allowing you to receive assumed PostPath Stock Unit(s) or the Shares subject to the PostPath Stock Units would not be compliant with applicable foreign securities laws, you will not be permitted to receive Shares under this Agreement.
You acknowledge that if you have received this Agreement or any other documents related to the Plan translated into a language other than English, and if the translated version is different from the English version, the English version will control. Cisco may, in its sole discretion, decide to deliver any documents related to the assumed PostPath Stock Unit(s) and this Agreement by electronic means or to request your consent to future participation in the Plan by electronic means. You hereby consent to receive such documents by electronic delivery and, if requested, agree to participate in the Plan through an on-line or electronic system established and maintained by Cisco, the Xxxxxxx Xxxxxx Corporation or other third party designated by Cisco.
Please sign and date this Agreement, as soon as possible, and return the signed original as soon as possible to ______________ at PostPath.
Until an original of your fully executed Acknowledgment (below) is received by Cisco’s Stock Administration Department your Cisco account will not be activated and you will be unable to acquire Shares under your vested PostPath Stock Unit(s). If you have any questions regarding this Agreement or your assumed PostPath Stock Unit(s), please contact ______________ at ____________.
| CISCO SYSTEMS, INC. | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Xxxx Xxxxxxxx | ||
| Corporate Secretary | ||
ACKNOWLEDGMENT
The undersigned acknowledges receipt of the foregoing Stock Units Assumption Agreement and understands and agrees that all rights and liabilities with respect to the assumed PostPath Stock Unit(s) listed on the table above are hereby assumed by Cisco and are as set forth in the Stock Units
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Agreement(s) for such assumed PostPath Stock Unit(s), the Plan (as applicable) and this Stock Units Assumption Agreement and agrees to the terms as set forth in such Stock Units Assumption Agreement.
| DATED: __________________, 2008 | _________________________________________________________ | |
| ___________________ Optionee | ||
| Address: ___________________________________ | ||
| _________________________________________________________ | ||
| Cisco ID No.: _____________________ | ||
ATTACHMENTS
Exhibit A – Form S-8 Prospectus
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