EXHIBIT (e)(11)
RESTRICTED STOCK AWARD AGREEMENT
UNDER THE CYPRESS COMMUNICATIONS, INC.
2000 STOCK OPTION AND INCENTIVE PLAN
Name of Grantee: W. Xxxxx Xxxxxx
Number of Shares: 165,000
Purchase Price per Share: $.001 per share
Grant Date: February 16, 2001
Final Acceptance Date: Xxxxx 00, 0000
Xxxxxxxx to the Cypress Communications, Inc. 2000 Stock Option and
Incentive Plan (the "Plan") as amended through the date hereof, Cypress
Communications, Inc, (the "Company") hereby grants a Restricted Stock Award (an
"Award") to the Grantee named above. Upon acceptance of this Award, the Grantee
shall receive the number of shares of Common Stock, par value $.001 per share
(the "Stock") of the Company specified above, subject to the restrictions and
conditions set forth herein and in the Plan.
1. Acceptance of Award. The Grantee shall have no rights with
respect to this Award unless he or she shall have accepted this Award prior to
the close of business on the Final Acceptance Date specified above by (i) making
payment to the Company by certified or bank check or other instrument acceptable
to the Committee of the Purchase Price per Share, if any, times the number of
shares to be accepted, and (ii) signing and delivering to the Company a copy of
this Award Agreement. Upon acceptance of thin Award by the Grantee, the shares
of Restricted Stock so accepted shall be issued and held by the Company's
transfer agent in book entry form, and the Grantee's name shall be entered as
the stockholder of record on the books of the Company. Thereupon, the Grantee
shall have all the rights of a shareholder with respect to such shares,
including voting and dividend rights, subject, however, to the restrictions and
conditions specified in Paragraph 2 below.
2. Restrictions and Conditions.
(a) Any book entries for the shares of Restricted Stock
granted herein shall bear the following legend:
THIS CERTIFICATE AND THE SHARES EVIDENCED HEREBY ARE SUBJECT
TO THE TERMS AND CONDITIONS OF THE COMPANY'S 2000 STOCK OPTION
AND INCENTIVE PLAN AND A RESTRICTED STOCK AWARD AGREEMENT, TO
SUBSTANTIAL RESTRICTIONS ON TRANSFER, .AND TO RETURN TO THE
ISSUER IN CERTAIN CIRCUMSTANCES, ALL AS SET FORTH IN THE PLAN
AND SUCH AGREEMENT. A COPY OF THE PLAN AND SUCH AGREEMENT ARE
ON FILE IN THE OFFICES OF THE CORPORATE SECRETARY OF THE
ISSUER.
(b) Shares of Restricted Stock granted herein may not be
sold, assigned. transferred, pledged or otherwise encumbered or disposed of by
the Grantee prior to vesting.
(c) If the Grantee's employment with the Company and its
Subsidiaries is voluntarily or involuntarily terminated for any reason prior to
vesting of shares of Restricted Stock granted herein, the Company shall have the
right to repurchase such shares from the Grantee or the Grantee's legal
representative at their original purchase price. The Company must exercise such
right of repurchase or forfeiture by written notice to the Grantee or the
Grantee's legal representative not later than 90 days following; such
termination of employment.
3. Vesting of Restricted Stock. All of the Shares of Restricted
Stock shall become fully vested, and the restrictions and conditions in
Paragraph 2 of this Agreement shall lapse, on May 30, 2005 (the "Vesting Date"),
so long as the Grantee remains an employee of the Company or Subsidiary on such
Vesting Date. Subsequent to such Vesting Date, the shares of Stock on which all
restrictions and conditions have lapsed shall no longer be deemed Restricted
Stock.
4. Acceleration of Vesting in Special Circumstances.
(a) If on any date after the date of this Award and prior
to the Vesting Date, the closing sales price of the Common Stock of Cypress
Communications, Inc., as reported by the Nasdaq National Market (or if the
Common Stock is listed on a national securities exchange, as reported by such
exchange), exceeds Six and No/100 Dollars ($6.00) per share (the "Acceleration
Price"), then one-half (1/2) of the Shares of Stock subject to this Award (i.e.,
82,500 Shares) shall automatically become fully vested and no longer be deemed
Restricted Stock, and any restrictions and conditions on such Shares of Stock
shall be deemed waived by the Committee, and, in the case of Grantee's death,
all such Shares may thereafter be exercised by the Grantee's legal
representative or legatee in place of Grantee; provided, however, that the if
the Company at any time or from time to time after the date hereof effects a
subdivision of the outstanding Common Stock (by stock split, stock dividend,
recapitalization or otherwise) or a combination the outstanding shares of Common
Stock into a smaller number of shares (by reverse stock split, recapitalization
or otherwise), the Acceleration Price shall be automatically adjusted by
multiplying the Acceleration Price by a fraction, the numerator of which is the
total number of shares of Common Stock issued and outstanding immediately prior
to the time of such subdivision or combination, and the denominator of which is
the total number of shares of Common Stock issued and outstanding immediately
after such subdivision or combination.
(b) Upon submission by Grantee to the Company's Board of
Directors (the "Board") and approval by the Board of a Fully-Funded Business
Plan, one-half (1/2) of the Shares of Stock subject to this Award (i.e., $82,500
Shares) shall automatically become fully vested and no longer be deemed
Restricted Stock, and any restrictions and conditions on such Shares of Stock
shall be deemed waived by the Committee and, in the case of Grantee's death, all
such Shares may thereafter be exercised by the Grantee's legal representative or
legatee in place of Grantee. For purposes of this Section 4(b), a "Fully-Funded
Business Plan" means a written business plan or model for the Company by which
Company operations become free
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cash flow positive without the influx of new or additional financing (excluding
existing and/or committed financing) in the Board's sole discretion.
(c) Upon the occurrence of (i) a Change of Control of the
Company (as defined in Section 15 of the Plan), (ii) termination of employment
by reason of Grantee's death or Disability, (iii) termination of employment of
the Grantee by the Company without Cause, or (iv) resignation of the Grantee for
Good Reason, any restrictions and conditions on all shares of Stock subject to
this Award shall be deemed waived by the Committee and all such shares shall
automatically become fully vested and no longer be deemed Restricted Stock, and,
in the case of Grantee's death, all such shares may thereafter be exercised by
the Grantee's legal representative or legatee in place of Grantee.
(d) For purposes hereof,
(i) the term "Disability" means that condition
described in Section 22(e)(3) of the Internal Revenue Code of 1986, as
amended from time to time. In the event of a dispute, the determination
of Disability will be made by the Company and will be supported by
advice of a physician competent in the area to which such Disability
relates.
(ii) the term "Cause" means (A) the willful and
continued failure of the Grantee (other than any such failure resulting
from incapacity or disability) to substantially perform the Grantee's
normally required duties with the Company or a Subsidiary after notice
by the Company to the Grantee of such failure; (B) any act of
dishonesty, fraud, misappropriation, embezzlement or similar conduct
against the Company or a Subsidiary, other than the occasional,
customary and de minimis use of Company property for personal purposes;
(C) commission of any act by the Grantee constituting a felony or any
other crime involving moral turpitude; or (D) any material violation of
the Company's policies and such violation has continued after written
notice of such violation from the Company.
(iii) the term "Good Reason" means the voluntary
termination of employment by Grantee following the occurrence of any of
the following events: (A) a substantial adverse change, not consented
to by Grantee, in the nature or scope of Grantee's responsibilities,
authorities, powers, functions or duties from the responsibilities,
authorities, powers, functions or duties exercised by Grantee on the
date hereof; (B) an involuntary reduction in Grantee's annual base
salary except for across-the-board salary reduction similarly affecting
all or substantially all employees; or (C) the relocation of the
Company's offices at which Grantee is principally employed or the
relocation of the offices of Grantee's primary work group to a Location
more than 30 miles from such offices, or the requirement by the Company
for Grantee to be based anywhere other than the Company's offices at
such location on an extended bases, except for required travel on the
Company's business to an extent substantially consistent with Grantee's
business travel obligations.
5. Dividends. Dividends, if any, on shares of Restricted Stock
shall be paid currently to the Grantee.
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6. Incorporation of Plan. Notwithstanding anything herein to the
contrary, this Agreement shall be subject to and governed by all the terms and
conditions of the Plan. Capitalized terms in this Agreement shall have the
meaning specified in the Plan, unless a different meaning is specified herein.
7. Transferability. This Agreement is personal to the Grantee, is
non-assignable and is not transferable in any manner, by operation of law or
otherwise, other than by will or the laws of descent and distribution.
8. Tax Withholding. The Grantee shall, not later than the date as
of which the receipt of this Award becomes a taxable event for Federal income
tax purposes, pay to the Company or make arrangements satisfactory to the
Committee for payment of any Federal, state, and local taxes required by law to
be withheld on account of such taxable event. The Grantee may elect to have such
minimum tax withholding obligation satisfied, in whole or in part, by
authorizing the Company to withhold from shares of Stock to be issued a number
of shares of Stock with an aggregate Fair Market Value that would satisfy the
withholding amount due.
9. No Obligation to Continue Employment. Neither the Company nor
any Subsidiary is obligated by or as a result of the Plan or this Agreement to
continue the Grantee in employment and neither the Plan nor this Agreement shall
interfere in any way with the right of the Company or any Subsidiary to
terminate the employment of the Grantee at any time.
10. Notices. Notices hereunder shall be mailed or delivered to the
Company at its principal place of business and shall be mailed or delivered to
the Grantee at the address on file with the Company or, in either case, at such
other address as one party may subsequently furnish to the other party in
writing.
11. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, applied without
regard to conflict of law principles.
CYPRESS COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. XxXxxxxx
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Name: Xxxxxx X. XxXxxxxx
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Title: Executive Vice President
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The foregoing Agreement is hereby accepted and the terms and conditions
thereof hereby agreed to by the undersigned.
Dated: 4/27/01 /s/ W. Xxxxx Xxxxxx
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Grantee's Signature
Grantee's name and address:
0000 Xxxxxxx Xxxx.
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Xxxxxxx, Xx. 00000
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