EXHIBIT (e)(12)
FORM OF RESTRICTED STOCK AWARD AGREEMENT
UNDER THE CYPRESS COMMUNICATIONS, INC.
2000 STOCK OPTION AND INCENTIVE PLAN
Pursuant to Rule 12b-31 under the Securities Exchange Act of 1934, the
following schedule sets forth the material details in which the substantially
identical documents that have not been filed differ from the form document filed
herewith:
Name of Grantee Number of Grant Date Final Acceptance Date Accepted by
Shares Date Grantee
--------------- --------- ----------------- ---------------- -----------------
W. Xxxxx Xxxxxx 37,610 February 16, 2001 March 16, 2001 April 27, 2001
Xxxx X. Xxxxxxxxx, Xx. 3,160 February 16, 2001 March 16, 2001 March 15, 2001
R. Xxxxxxx Xxxxx 1,050 February 16, 2001 March 16, 2001 March 16, 2001
Xxxxxxxxxxx X. Xxxxx 550 April 1, 2001 July 1, 2001 June 11, 2001
The vesting of the restricted stock shares granted pursuant to the
agreements identified in the table above is as follows:
Percentage of Total Number of Shares Granted Vesting Date of Such Percentage
-------------------------------------------- -------------------------------
33% February 16, 2002
33% February 16, 2003
34% February 16, 2004
RESTRICTED STOCK AWARD AGREEMENT
UNDER THE CYPRESS COMMUNICATIONS, INC.
2000 STOCK OPTION AND INCENTIVE PLAN
Name of Grantee:
Number of Shares:
Purchase Price per Share: $.001 per share
Grant Date:
Final Acceptance Date:
Pursuant 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 this 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. The restrictions and conditions
in Paragraph 2 of this Agreement shall lapse on the Vesting Date or Dates
specified in the following schedule so long as the Grantee remains an employee
of the Company or Subsidiary on such Dates. If a series of Vesting Dates is
specified, then the restrictions and conditions in Paragraph 2 shall lapse only
with respect to the number of shares of Restricted Stock specified as vested on
such date.
Number of Shares Vested Vesting Date
Subsequent to such Vesting Date or Dates, 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) 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.
(b) 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
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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 workgroup 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.
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.
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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:
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W. Xxxxx Xxxxxx
Chairman and Chief Executive Officer
The foregoing Agreement is hereby accepted and the terms and conditions
thereof hereby agreed to by the undersigned.
Dated:
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Grantee's Signature
Grantee's name and address:
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