SIERRA HOLDINGS CORP. AMENDED AND RESTATED Restricted Stock Unit Award Agreement
Exhibit 10.3
[Recipient Name]
SIERRA HOLDINGS CORP.
AMENDED AND RESTATED
2007 EQUITY INCENTIVE PLAN
Restricted Stock Unit Award Agreement
Sierra Holdings Corp.
c/o Avaya Inc.
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| Attn: | Director, Executive Compensation and Benefits |
Ladies and Gentlemen:
The undersigned (i) acknowledges that the undersigned has received an award (the “Award”) of restricted stock units (the “Units”) governed by the terms of the Sierra Holdings Corp. Amended and Restated 2007 Equity Incentive Plan (the “Plan”), subject to the terms set forth below and in the Plan, which is incorporated herein by reference; and (ii) agrees with Sierra Holdings Corp. (the “Company”) as follows:
| 1. | Preliminary Matters. Not later than upon the execution of this Agreement and effective as of the date hereof, the undersigned has executed and become a party to the Management Stockholders’ Agreement, dated October 26, 2007 by and among the Company and certain stockholders of the Company (the “Stockholders’ Agreement”) [and the Senior Manager Registration and Preemptive Rights Agreement, dated October 26, 2007], by and among the Company and certain stockholders of the Company. |
| 2. | Effective Date. Subject to the undersigned’s execution of the documents referenced in Section 1 above, the grant date for the Award is [ ]. |
| 3. | Shares Subject to Award. The Award consists of the right to receive, on the terms set forth herein and in the Plan and except as otherwise provided in Section 5 below, one share (a “Share”) of common stock, par value $.001 per share, of the Company (“Stock”) with respect to each Unit forming part of the Award. Subject to adjustment pursuant to Section 7 of the Plan, the Award covers [ ] Units. |
| 4. | Meaning of Certain Terms. Except as otherwise expressly provided, all terms used herein shall have the same meaning as in the Plan. |
| 5. | Delivery of Shares. |
| a. | Vesting. The award shall vest and become non-forfeitable in full on [ ]; provided, however, that vesting shall accelerate upon the earlier occurrence of one of the events described in Section 5.b.i, iii, iv or v below. Notwithstanding the preceding sentence, in the event (i) the undersigned voluntarily terminates employment without Good Reason or (ii) the undersigned’s employment is terminated for Cause, any Units that are unvested as of the date of termination shall be forfeited and cancelled. |
| b. | Distribution. With respect to each vested Unit and subject to adjustment pursuant to Section 7 of the Plan, the Company shall deliver one Share on, or within thirty (30) days before or after, the earliest of (i) an event that is both a “change in control event” (as defined in Treas. Reg. § 1.409A-3(i)(5)(i)) and a “change in control” in which the Company or its business is acquired that also constitutes a Transfer by the Majority Stockholders of Control of Parent (each such capitalized term as defined in the Management Stockholders’ Agreement) (such event, a “Change in Control”), (ii) [ ], (iii) the undersigned’s death or Disability, (iv) termination of the undersigned’s employment without Cause or (v) the undersigned’s voluntary termination of employment for Good Reason. |
| 6. | Effect of Covered Transaction. In the event a Covered Transaction that is not a Change in Control occurs prior to [ ], the Units, unless previously paid pursuant to Section 5 above, and unless assumed in the transaction, shall automatically be converted into the right to receive from the surviving or acquiring entity (or, if so arranged by the Administrator, from an affiliate thereof), on the same payment schedule as is specified in Section 5 above and otherwise subject to the terms and conditions of this Award, cash (or, in the Administrator’s discretion, securities or other property, including Stock) on a basis that in the Administrator’s judgment as closely as possible under the circumstances, and on a basis that complies with the requirements of Section 409A, effectuates the intent of the Award, adjusted in such manner as the Administrator shall have prescribed prior to the Covered Transaction for notional interest or other notional investment experience for the period between the Covered Transaction and payment. |
| 7. | Dividends, etc. If while the undersigned still holds the Award and prior to delivery of any Shares under the Award, the Company makes a dividend or other distribution with respect to the Stock, the undersigned shall be entitled, subject to withholding of tax by the Company pursuant to Section 8 below, to a payment in lieu of such dividend or other distribution (which in-lieu-of payment shall be in cash to the extent the dividend or other distribution was in cash, and otherwise in such form as the Administrator shall determine) equal on a per-Share amount to the per-Share amount of the dividend or other distribution paid by the Company with respect to one Share of outstanding Stock. |
| 8. | Certain Tax Matters. The undersigned expressly acknowledges that because the Award consists of an unfunded and unsecured promise by the Company to deliver Shares in the future, subject to the terms hereof, it is not possible to make a so-called “83(b) election” with respect to the Award. The undersigned also expressly acknowledges that the undersigned (i) is subject to FICA tax upon the distribution of the Units underlying the Award and will promptly pay to the Company, upon demand, the full amount of such tax unless the Company determines instead that it will withhold such tax from other payments owed to the undersigned, and (ii) will be subject to income tax and related withholding requirements with respect to the Award at such time as cash or property is delivered with respect to the Award (unless required to include amounts in income prior thereto by reason of Section 409A or otherwise). The undersigned agrees that the undersigned’s rights hereunder are subject to |
| the undersigned promptly paying to the Company in cash (or by such other means as may be acceptable to the Company in its discretion, including, as the Administrator so determines) all taxes required to be withheld in connection with the Award. |
| 9. | Governing Law. This Agreement and all claims arising out of or based upon this Agreement or relating to the subject matter hereof shall be governed by and construed in accordance with the domestic substantive laws of the State of Delaware without giving effect to any choice or conflict of laws provision or rule that would cause the application of the domestic substantive laws of any other jurisdiction. |
| Very truly yours, |
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| [Recipient’s Name] |
Dated: , 20[ ]
The foregoing Restricted Stock Unit
Award Agreement is hereby accepted:
| SIERRA HOLDINGS CORP. | ||
| By |
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| [ ] | ||