Unassociated Document


    Exhibit
      10.1

    RACKABLE
      SYSTEMS, INC. 

    STOCK
      UNIT GRANT NOTICE

    (2005
      EQUITY INCENTIVE PLAN)

     

    Rackable
      Systems, Inc. (the “Company”),
      pursuant to Section 7(c) of the Company’s 2005 Equity Incentive Plan (the
“Plan”),
      hereby awards to Participant a Stock Unit Award covering the number of stock
      units (the “Stock
      Units”)
      set
      forth below (the “Award”).
      This
      Award shall be evidenced by a Stock Unit Award Agreement (the “Award
      Agreement”).
      This
      Award is subject to all of the terms and conditions as set forth herein and
      in
      the applicable Award Agreement and the Plan, each of which are attached hereto
      and incorporated herein in their entirety. 

     

    
      	Participant:	 	 
	Date
              of
              Grant:	 	 
	Vesting
              Commencement Date:	 	 
	Number
              of Stock Units:	 	 
	Payment
              for Common Stock:	 	Participant’s
              services to the
              Company


    

     

    Vesting
      Schedule:
      The
      Stock Units shall vest in a series of sixteen (16) successive equal quarterly
      installments over the four (4)-year period measured from the Vesting
      Commencement Date. 

     

    
      	
              Special
                Tax Withholding Right:

            	
               ̈

            	
              You
                may direct the Company (i) to withhold, from shares otherwise issuable
                upon vesting of the Award, a portion of those shares with an aggregate
                fair market value (measured as of the vesting date) equal to the
                amount of
                the applicable withholding taxes, and (ii) to make a cash payment
                equal to
                such fair market value directly to the appropriate taxing authorities,
                as
                provided in Section 10 of the Award Agreement.

            
	 	
               ̈

            	
              None

            


    

     

    Delivery
      Schedule:
      Delivery of one share of Common Stock for each Stock Unit which vests shall
      occur on the applicable vesting date, provided that delivery may be delayed
      as
      provided in Section 3 of the Award Agreement. 

     

    Additional
      Terms/Acknowledgements:
      Participant acknowledges receipt of, and understands and agrees to, this Grant
      Notice, the Award Agreement and the Plan. Participant further acknowledges
      that
      as of the Date of Grant, this Grant Notice, the Award Agreement and the Plan
      set
      forth the entire understanding between Participant and the Company regarding
      the
      award of the Stock Units and the underlying Common Stock and supersede all
      prior
      oral and written agreements on that subject with the exception of (i) Stock
      Awards previously granted and delivered to Participant under the Plan, and
      (ii) the following agreements only:

     

    OTHER
      AGREEMENTS:                   
___________________________________________________

     

     

    
      	RACKABLE SYSTEMS,
              INC. 	 	PARTICIPANT
	 	 	 	 	 
	By:	 	 	 	 
	 	
                                              
                Signature

            	 	 	                                
              Signature
	 	 	 	 	 
	Title:	 	 	Date:	 
	 	 	 	 	 
	Date: 	 	 	
            	 


    

     

    Attachments:
       Award
      Agreement, and 2005 Equity Incentive Plan

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    RACKABLE
      SYSTEMS, INC. 

    2005
      EQUITY INCENTIVE PLAN

    STOCK
      UNIT AWARD AGREEMENT

    


    Pursuant
      to the Stock Unit Grant Notice (“Grant
      Notice”)
      and
      this Stock Unit Award Agreement (“Agreement”),
      Rackable Systems, Inc. (the “Company”)
      has
      awarded you a Stock Unit Award pursuant to Section 7(c) of the Company’s 2005
      Equity Incentive Plan (the “Plan”)
      for
      the number of Stock Units as indicated in the Grant Notice (collectively, the
      “Award”).
      Defined terms not explicitly defined in this Agreement but defined in the Plan
      shall have the same definitions as in the Plan. Subject to adjustment and the
      terms and conditions as provided herein and in the Plan, each Stock Unit shall
      represent the right to receive one (1) share of Common Stock.

     

    The
      details of your Award, in addition to those set forth in the Grant Notice,
      are
      as follows.

     

    1.  NUMBER
      OF STOCK UNITS AND SHARES OF COMMON STOCK.
      The
      number of Stock Units in your Award is set forth in the Grant
      Notice.

     

    (a)  The
      number of Stock Units subject to your Award and the number of shares of Common
      Stock deliverable with respect to such Stock Units may be adjusted from time
      to
      time for Capitalization Adjustments as described in Section 11(a) of the Plan.
      You shall receive no benefit or adjustment to your Award with respect to any
      cash dividend or other distribution that does not result in a Capitalization
      Adjustment pursuant to Section 11(a) of the Plan; provided,
      however,
      that
      this sentence shall not apply with respect to any shares of Common Stock that
      are delivered to you in connection with your Award after such shares have been
      delivered to you.

     

    (b)  Any
      additional Stock Units, shares of Common Stock, cash or other property that
      becomes subject to the Award pursuant to this Section 1 shall be subject, in
      a
      manner determined by the Board, to the same forfeiture restrictions,
      restrictions on transferability, and time and manner of delivery as applicable
      to the other Stock Units and Common Stock covered by your Award.

     

    (c)  Notwithstanding
      the provisions of this Section 1, no fractional Stock Units or rights for
      fractional shares of Common Stock shall be created pursuant to this Section
      1.
      The Board shall, in its discretion, determine an equivalent benefit for any
      fractional Stock Units or fractional shares that might be created by the
      adjustments referred to in this Section 1.

     

    2.  VESTING.
      The
      Stock
      Units shall vest, if at all, as provided in the Vesting Schedule set forth
      in
      your Grant Notice and the Plan, provided that vesting shall cease upon the
      termination of your Continuous Service. 

     

    3.  DELIVERY
      OF SHARES OF COMMON STOCK.
      Subject
      to the provisions of this Agreement and the Plan, in the event one or more
      Stock
      Units vests, the Company shall deliver to you one (1) share of Common Stock
      for
      each Stock Unit that vests on the applicable vesting date. However, if a
      scheduled delivery date falls on a date that is not a business day, such
      delivery date shall instead fall on the next following business day.
      Notwithstanding the foregoing, in the event that you are subject to the
      Company’s Policy
      Regarding Stock Trading by Officers, Directors and Employees
      (or any
      successor policy) and any shares covered by your Award are scheduled to be
      delivered on a day (the “Original
      Delivery Date”)
      that
      does not occur during a “window period” applicable to you as determined by the
      Company in accordance with such policy, then such shares shall not be delivered
      on such Original Delivery Date and shall instead be delivered on the earlier
      to
      occur of the following: (i) the first day of the next “window period” applicable
      to you pursuant to such policy; or (ii) the day that is sixty (60) days after
      the Original Delivery Date. The form of such delivery (e.g.,
      a stock
      certificate or electronic entry evidencing such shares) shall be determined
      by
      the Company. 

     

    
      
        
        

      

      
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    4.  PAYMENT
      BY YOU.
      This
      Award was granted in consideration of your services for the Company. Subject
      to
      Section 10 below, except as otherwise provided in the Grant Notice, you will
      not
      be required to make any payment to the Company (other than your past and future
      services for the Company) with respect to your receipt of the Award, vesting
      of
      the Stock Units, or the delivery of the shares of Common Stock underlying the
      Stock Units. 

     

    5.  SECURITIES
      LAW COMPLIANCE.
      You may
      not be issued any Common Stock under your Award unless the shares of Common
      Stock are either (i) then registered under the Securities Act, or (ii) the
      Company has determined that such issuance would be exempt from the registration
      requirements of the Securities Act. Your Award must also comply with other
      applicable laws and regulations governing the Award, and you shall not receive
      such Common Stock if the Company determines that such receipt would not be
      in
      material compliance with such laws and regulations.

     

    6.  RESTRICTIVE
      LEGENDS.
      The
      Common Stock issued under your Award shall be endorsed with appropriate legends,
      if any, determined by the Company.

     

    7.  TRANSFER
      RESTRICTIONS.
      Prior to
      the time that shares of Common Stock have been delivered to you, you may not
      transfer, pledge, sell or otherwise dispose of the shares in respect of your
      Award. For example, you may not use shares that may be issued in respect of
      your
      Stock Units as security for a loan, nor may you transfer, pledge, sell or
      otherwise dispose of such shares. This restriction on transfer will lapse upon
      delivery to you of shares in respect of your vested Stock Units. Your Award
      is
      not transferable, except by will or by the laws of descent and distribution.
      Notwithstanding the foregoing, by delivering written notice to the Company,
      in a
      form satisfactory to the Company, you may designate a third party who, in the
      event of your death, shall thereafter be entitled to receive any distribution
      of
      Common Stock pursuant to this Agreement.

     

    8.  AWARD
      NOT A SERVICE CONTRACT.
      Your
      Award is not an employment or service contract, and nothing in your Award shall
      be deemed to create in any way whatsoever any obligation on your part to
      continue in the service of the Company or any Affiliate, or on the part of
      the
      Company or any Affiliate to continue such service. In addition, nothing in
      your
      Award shall obligate the Company or any Affiliate, their respective
      stockholders, boards of directors or employees to continue any relationship
      that
      you might have as an Employee or Consultant of the Company or any
      Affiliate.

     

    
      
        
        

      

      
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    9.  UNSECURED
      OBLIGATIONS.
      Your
      Award is unfunded, and even as to any Stock Units which vest, you shall be
      considered an unsecured creditor of the Company with respect to the Company’s
      obligation, if any, to issue Common Stock pursuant to this Agreement. You shall
      not have voting or any other rights as a stockholder of the Company with respect
      to the Common Stock acquired pursuant to this Agreement until such Common Stock
      is issued to you pursuant to Section 3 of this Agreement. Upon such issuance,
      you will obtain full voting and other rights as a stockholder of the Company
      with respect to the Common Stock so issued. Nothing contained in this Agreement,
      and no action taken pursuant to its provisions, shall create or be construed
      to
      create a trust of any kind or a fiduciary relationship between you and the
      Company or any other person. 

     

    10.  WITHHOLDING
      OBLIGATIONS.

     

    (a)  On
      or
      before the time you receive a distribution of Common Stock pursuant to your
      Award, or at any time thereafter as requested by the Company, you hereby
      authorize any required withholding from the Common Stock issuable to you and
      otherwise agree to make adequate provision in cash for any sums required to
      satisfy the federal, state, local and foreign tax withholding obligations of
      the
      Company or any Affiliate which arise in connection with your Award (the
“Withholding
      Taxes”).
      If
      specified in your Grant Notice, you may direct the Company to withhold shares
      of
      Common Stock with a Fair Market Value (measured as of the vesting date) equal
      to
      the amount of such Withholding Taxes; provided,
      however,
      that
      the number of such shares of Common Stock so withheld shall not exceed the
      amount necessary to satisfy the Company’s required tax withholding obligations
      using the minimum statutory withholding rates for federal, state, local and
      foreign tax purposes, including payroll taxes, that are applicable to
      supplemental taxable income. 

     

    (b)  Unless
      the tax withholding obligations of the Company and/or any Affiliate are
      satisfied, the Company shall have no obligation to deliver to you any Common
      Stock. 

     

    (c)  In
      the
      event the Company’s obligation to withhold arises prior to the delivery to you
      of Common Stock or it is determined after the delivery of Common Stock to you
      that the amount of the Company’s withholding obligation was greater than the
      amount withheld by the Company, you agree to indemnify and hold the Company
      harmless from any failure by the Company to withhold the proper
      amount.

     

    11.  NOTICES.
      Any
      notices provided for in your Award or the Plan shall be given in writing to
      each
      of the other parties hereto and shall be deemed effectively given on the earlier
      of (i) the date of personal delivery, including delivery by express courier,
      or
      (ii) the date that is five (5) days after deposit in the United States Post
      Office (whether or not actually received by the addressee), by registered or
      certified mail with postage and fees prepaid, addressed at the following
      addresses, or at such other address(es) as a party may designate by ten (10)
      days’ advance written notice to each of the other parties hereto: 

     

    
      
        
        

      

      
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      	COMPANY:	
            	Rackable Systems, Inc.
	
            	 	Attn: General Counsel
	
            	 	46600 Landing Parkway
	
            	 	Fremont, California 94538
	 	 	 
	PARTICIPANT:	 	Your address as on file with the Company
              at the time notice is given


    

     

    12.  HEADINGS.
      The
      headings of the Sections in this Agreement are inserted for convenience only
      and
      shall not be deemed to constitute a part of this Agreement or to affect the
      meaning of this Agreement.

     

    13.  AMENDMENT.
      This
      Agreement may be amended only by a writing executed by the Company and you
      which
      specifically states that it is amending this Agreement. Notwithstanding the
      foregoing, this Agreement may be amended solely by the Company by a writing
      which specifically states that it is amending this Agreement, so long as a
      copy
      of such amendment is delivered to you, and provided that no such amendment
      adversely affecting your rights hereunder may be made without your written
      consent. Without limiting the foregoing, the Company reserves the right to
      change, by written notice to you, the provisions of this Agreement in any way
      it
      may deem necessary or advisable to carry out the purpose of the grant as a
      result of any change in applicable laws or regulations or any future law,
      regulation, ruling, or judicial decision, provided that any such change shall
      be
      applicable only to rights relating to that portion of the Award which is then
      subject to restrictions as provided herein.

     

    14.  MISCELLANEOUS.

     

    (a)  The
      rights and obligations of the Company under your Award shall be transferable
      by
      the Company to any one or more persons or entities, and all covenants and
      agreements hereunder shall inure to the benefit of, and be enforceable by the
      Company’s successors and assigns. 

     

    (b)  You
      agree
      upon request to execute any further documents or instruments necessary or
      desirable in the sole determination of the Company to carry out the purposes
      or
      intent of your Award.

     

    (c)  You
      acknowledge and agree that you have reviewed your Award in its entirety, have
      had an opportunity to obtain the advice of counsel prior to executing and
      accepting your Award and fully understand all provisions of your
      Award.

     

    (d)  This
      Agreement shall be subject to all applicable laws, rules, and regulations,
      and
      to such approvals by any governmental agencies or national securities exchanges
      as may be required.

     

    (e)  All
      obligations of the Company under the Plan and this Agreement shall be binding
      on
      any successor to the Company, whether the existence of such successor is the
      result of a direct or indirect purchase, merger, consolidation, or otherwise,
      of
      all or substantially all of the business and/or assets of the
      Company.

     

    
      
        
        

      

      
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    15.  GOVERNING
      PLAN DOCUMENT.
      Your
      Award is subject to all the provisions of the Plan, the provisions of which
      are
      hereby made a part of your Award, and is further subject to all interpretations,
      amendments, rules and regulations which may from time to time be promulgated
      and
      adopted pursuant to the Plan. In the event of any conflict between the
      provisions of your Award and those of the Plan, the provisions of the Plan
      shall
      control; provided,
      however,
      that
      Section 3 of this Agreement shall govern the timing of any distribution of
      Common Stock under your Award. The Company shall have the power to interpret
      the
      Plan and this Agreement and to adopt such rules for the administration,
      interpretation, and application of the Plan as are consistent therewith and
      to
      interpret or revoke any such rules. All actions taken and all interpretations
      and determinations made by the Board shall be final and binding upon you, the
      Company, and all other interested persons. No member of the Board shall be
      personally liable for any action, determination, or interpretation made in
      good
      faith with respect to the Plan or this Agreement.

     

    16.  EFFECT
      ON OTHER EMPLOYEE BENEFIT PLANS.
      The
      value of the Award subject to this Agreement shall not be included as
      compensation, earnings, salaries, or other similar terms used when calculating
      benefits under any employee benefit plan (other than the Plan) sponsored by
      the
      Company or any Affiliate except as such plan otherwise expressly provides.
      The
      Company expressly reserves its rights to amend, modify, or terminate any or
      all
      of the employee benefit plans of the Company or any Affiliate.

     

    17.  CHOICE
      OF LAW.
      The
      interpretation, performance and enforcement of this Agreement shall be governed
      by the law of the state of California without
      regard to such state’s conflicts of laws rules.

     

    18.  SEVERABILITY.
      If all
      or any part of this Agreement or the Plan is declared by any court or
      governmental authority to be unlawful or invalid, such unlawfulness or
      invalidity shall not invalidate any portion of this Agreement or the Plan not
      declared to be unlawful or invalid. Any Section of this Agreement (or part
      of
      such a Section) so declared to be unlawful or invalid shall, if possible, be
      construed in a manner which will give effect to the terms of such Section or
      part of a Section to the fullest extent possible while remaining lawful and
      valid.

     

    19.  OTHER
      DOCUMENTS.
      You
      hereby acknowledge receipt or the right to receive a document providing the
      information required by Rule 428(b)(1) promulgated under the Securities Act.
      In
      addition, you acknowledge receipt of the Company’s Policy
      Regarding Stock Trading by Officers, Directors and Employees.

     

    *
      * * *
      *

     

    This
      Stock Unit Award Agreement shall be deemed to be signed by the Company and
      the
      Participant upon the signing by the Participant of the Stock Unit Grant Notice
      to which it is attached.

     

    RACKABLE
      SYSTEMS, INC. 

    2005
      EQUITY INCENTIVE PLAN

     

    
      
        
        

      

      
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