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EXHIBIT 10.3.1
ALLIED RISER COMMUNICATIONS CORPORATION
Deferred Stock Unit Agreement
WHEREAS, __________________________ (the "Grantee") is an employee of
Allied Riser Communications Corporation (the "Company") or one of its
Subsidiaries; and
WHEREAS, the execution of a deferred stock unit agreement to be
effective at the start of business on ________________, 20___ (the "Date of
Grant") in the favor of the Grantee in the form hereof has been authorized by
the Board of Directors of the Company (the "Board") on ___________________,
20___;
NOW, THEREFORE, pursuant to the Company's 2000 Stock Option and Equity
Incentive Plan (the "Plan") and subject to the terms and conditions thereof and
the terms and conditions hereinafter set forth, the Company hereby grants to the
Grantee the right to receive __________ deferred stock units (the "Deferred
Stock Units") which, when fully vested, shall be immediately redeemable on a
one-for-one basis for shares of the Company's Class A Common Stock, par value
$.001 per share (the "Common Stock") reserved for issuance under the Company's
Plan.
1. Vesting of Deferred Stock Units. (a) Subject to the terms and
conditions of Sections 1(b), 1(e) and 2 hereof, the Grantee's right to receive
the Deferred Stock Units shall vest and become non-forfeitable on the fourth
anniversary of the Date of Grant, ________________________, 20___ (the "Deferred
Vesting Date" and the period from the Date of Grant to _____________________,
20___ being hereinafter referred to as the "Deferral Period")
Notwithstanding the foregoing, if Grantee is subject to the
policies of the Company permitting transactions in equity securities of the
Company to be effected only during designated "window periods", or if Grantee is
otherwise subject to a "trading ban" or similar restrictions that would prevent
the redemption of the Deferred Stock Units for Common Stock and/or the
subsequent resale of Common Stock on the relevant Deferred Vesting Date, then
unless the Grantee otherwise advises the Company in writing, the Deferred
Vesting Date of the Deferred Stock Units shall be (in lieu of the date specified
above) the first date following the relevant date specified above on which such
Grantee would be permitted to effect a redemption of Deferred Stock Units in
compliance with applicable Company policies and/or law (as appropriate).
(b) Notwithstanding the provisions of Section 1(a) hereof, if the
Grantee ceases to be employed by the Company or a Subsidiary (and otherwise
ceases to continue to qualify as a Participant under and for purposes of the
Plan) prior to the end of the Deferral Period (other than as a result of his or
her death, disability or involuntary termination without "Cause") the Board may
in its sole discretion under such circumstances determine that the Grantee's
right to receive all or any portion of the Deferred Stock Units that have not
become vested and non-forfeitable as of the relevant termination date shall
become vested and non-forfeitable as of such termination date.
Notwithstanding the provisions of Section 1(a) hereof, if the
Grantee dies or becomes permanently disabled prior to the end of the Deferral
Period, all of the Deferred Stock Units shall become vested and non-forfeitable
as of the day immediately preceding the date on which the Grantee's employment
by the Company or any of its Subsidiaries terminated by reason of Grantee's
death or permanent disability.
Notwithstanding the provisions of Section 1(a) hereof, if the
Grantee is involuntarily terminated by the Company without "Cause" (as defined
in Section 9(e) of the Plan) prior to the end of the Deferral Period, a pro rata
number of the Deferred Stock Units shall become vested and non-forfeitable with
such number to be calculated as of the day immediately preceding the date on
which the Grantee's employment by the Company or any of its Subsidiaries is
involuntarily terminated without Cause by the Company.
(c) Forfeiture of Deferred Stock Units. Except as provided in Section
1(b) hereof, the Grantee's right to receive any Deferred Stock Units that have
not previously become vested and non-forfeitable shall be forfeited
automatically and without further notice on the date that the Grantee ceases to
be an employee of the Company or any of its Subsidiaries (and otherwise ceases
to continue to qualify as a Participant under and for purposes of the Plan)
prior to the end of the Deferral Period for any reason; provided, however, that
the Committee may in its sole discretion under such circumstances determine that
the Grantee's right to receive all or any portion of the Deferred Stock Units
that have not become vested and non-forfeitable as of the relevant termination
date shall become vested and non-forfeitable as of such termination date.
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(d) Notwithstanding any other provision of this agreement, the
Grantee's right to receive those of the Deferred Stock Units that have not
previously become vested and non-forfeitable shall be forfeited automatically if
Grantee is terminated for "Cause" as defined in Section 9(e) of the Plan and all
of Grantee's rights hereunder will terminate simultaneously with such
termination of employment or service.
(e) Change of Control. Notwithstanding the provisions of Sections 1(a)
and 1(b) hereof, any unvested Deferred Stock Units subject to this agreement
shall become immediately and fully vested in the event of a Business Combination
(as hereinafter defined) of the Company prior to the Deferred Vesting Date. For
the purposes of this agreement, the following definitions shall apply:
(i) a "Business Combination" means the occurrence of any of the
following events:
(A) a sale or transfer to an unaffiliated third party of
the power to elect a majority of the members of the
Board of Directors of the Company
(B) a sale to an unaffiliated third party of substantially
all of the assets of the Company
(C) a merger or other consolidation transaction with an
unaffiliated third party following which the ability to
elect a majority of the members of the Board of
Directors of the Company or a majority of the voting
power of the surviving corporation is not held by the
pre-transaction stockholder group, and
2. Issuance of Deferred Stock Units. Subject to the terms and
conditions of Section 4 hereof, the Deferred Stock Units shall be issuable to
the Grantee at the time and to the extent that they become vested and
non-forfeitable in accordance with Section 1 hereof.
3. Compliance with Law. The Company shall make reasonable efforts to
comply with all applicable federal and state securities laws in connection with
the issuance of the Deferred Stock Units to Grantee as contemplated herein;
provided, however, that notwithstanding any other provision of this agreement,
the Company shall not be obligated to issue any Deferred Stock Units hereunder
if the issuance thereof would result in a violation of any such law.
4. Transferability. The Grantee's right to receive the Deferred Stock
Units shall not be transferable by the Grantee except by will or the laws of
descent and distribution, or as otherwise contemplated by, and in compliance
with the applicable provisions of, the Plan (particularly paragraph 2 of Section
13 of the Plan).
5. Anti-Dilution/Anti-Expansion Adjustments. In the event of any change
in the capital structure of the Company as a result of any stock dividend, stock
split, recapitalization, reclassification, merger, consolidation , combination
or exchange of shares or other similar corporate transaction or event, the Board
may in its sole discretion make such adjustments in the number of Deferred Stock
Units granted hereunder as it may in good xxxxx xxxx necessary in order to
prevent the dilution or expansion of the rights of the Grantee hereunder, and
any and all such adjustments that may be made by the Board shall be final and
binding.
6. Withholding Taxes. To the extent that the Company is required to
withhold federal, state, local or foreign taxes in connection with any issuance
or transfer hereunder of Deferred Stock Units to the Grantee or his or her
estate, as the case may be, it shall be a condition to such issuance or transfer
that the Grantee or his or her estate pay, or make arrangements satisfactory to
the Company for the payment of, the balance of any such taxes.
7. Continuation of Employment. Neither this agreement nor any action
taken hereunder shall be construed as giving the Grantee any right to continued
employment with the Company or any Subsidiary, nor shall this agreement or any
action taken hereunder be construed as entitling the Company or any Subsidiary
to the services of the Grantee for any period of time. For the purposes of this
agreement, the continuous employment of the Grantee with the Company or a
Subsidiary shall not be deemed interrupted, and the Grantee shall not be deemed
to have ceased to be employed by the Company or a Subsidiary, by reason of the
transfer of his employment among the Company and its Subsidiaries.
8. Amendments. Any amendment to the Plan shall be deemed to be an
amendment to this agreement to the extent that the amendment is applicable
hereto; provided, however; that no amendment shall adversely affect the rights
of the Grantee hereunder without the Grantee's consent.
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9. Severability. In the event that one or more of the provisions of
this agreement shall be invalidated for any reason by a court of competent
jurisdiction, any provision so invalidated shall be deemed to be separable from
the other provisions hereof, and the remaining provisions hereof shall continue
to be valid and fully enforceable.
10. Governing Law. This agreement is made in, and shall be construed in
accordance with, the laws of the State of Texas.
11. Capitalized Terms. Capitalized terms that are used but not defined
herein are used herein as defined in the Plan.
This agreement is executed by the Company on this ____ day of
_________________, 20___.
ALLIED RISER COMMUNICATIONS CORPORATION
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Name and Title
The undersigned Grantee hereby acknowledges receipt of an executed
original of this agreement and accepts the right to receive the Deferred Stock
Units, subject to the terms and conditions of the Plan and the terms and
conditions hereinabove set forth.
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Grantee
Date: _________________, 20___
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