EXHIBIT 4.4
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement") is made and entered into as of
the ______ day of _____________, 1997 (the "Effective Date"), by and between
PREMIERE TECHNOLOGIES, INC., a Georgia corporation (the "Corporation"), and
________________ (the "Employee").
W I T N E S S E T H:
WHEREAS, the Employee is an employee of Voice-Tel Enterprises, Inc. ("VTE"),
which has been acquired by the Corporation; and
WHEREAS, the Board of Directors of the Corporation (the "Board") has
authorized the granting of stock options to certain employees of VTE to purchase
shares of the Corporation's $.01 par value common stock (the "Common Stock"),
upon the terms and conditions herein contained; and
WHEREAS, the Employee has been granted stock options by the Board as provided
herein;
NOW, THEREFORE, in consideration of the premises and the mutual agreements and
covenants contained herein, and other good and valuable consideration, the
receipt, adequacy and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
1. GRANT OF OPTION. Subject to the terms and conditions of this
Agreement, the Corporation hereby grants to the Employee the right and
option (the "Option") to purchase __________ shares of Common Stock
(the "Option Shares").
2. EXERCISE PRICE. The purchase price (the "Exercise Price") for each
Option Share shall be ___________ Dollars ($________).
3. EXERCISE OF OPTION.
(a) To the extent that the Option has become and remains exercisable
it may be exercised by the Employee delivering to the Corporation a written
notice of exercise signed by the Employee, in substantially the form attached
hereto as EXHIBIT A (a "Notice of Exercise"), together with a check payable to
the Corporation in the amount of the total Exercise Price for the Option Shares
to be purchased pursuant to the Notice of Exercise. In lieu of a check, all or
any portion of the Exercise Price may be paid by tendering to the Corporation
shares of Common Stock owned by the Employee and duly endorsed for transfer, or
by authorization to the Corporation to withhold Option Shares otherwise issuable
upon exercise of the Option, in each case to be credited against the Exercise
Price of the Option Shares to be purchased at the market value of the Common
Stock tendered or the Option Shares withheld on the date of exercise; provided,
however,
no fractional shares of Common Stock may be so tendered, and the Corporation
shall not be obligated to make any cash payments to the Employee in
consideration of any excess of the aggregate market value of shares of Common
Stock tendered over the aggregate Exercise Price.
(b) The Option shall first become exercisable on such dates and with
respect to such number of Option Shares as are specified below, provided that
the Employee is employed by VTE, the Corporation or any subsidiary of the
Corporation (collectively the "Premiere Group") on each such date:
[INSERT VESTING SCHEDULE]
(c) The Employee may exercise the Option for less than the full number
of Option Shares with respect to which the Option is exercisable (the "Available
Option Shares"), but such exercise shall not be made at any one time for less
than ten percent (10%) of the total number of Option Shares specified in Section
1 hereof, and no fractional shares of Common Stock shall be issued. Subject to
the other restrictions on exercise set forth herein, the unexercised portion of
the exercisable Option may be exercised at a later date by the Employee, and the
10 percent requirement shall not apply to any exercise of the Option if all
remaining Available Option Shares are being purchased.
(d) Within thirty (30) days after the exercise of the Option as herein
provided, the Corporation shall deliver to the Employee a certificate or
certificates for the total Option Shares being purchased, in such names and
denominations as are requested by the Employee.
(e) Neither the Option nor the Option Shares have been registered
under the Securities Act of 1933, as amended (the "Act"), or under the
securities laws of any state. The Corporation shall use its best efforts to
file a registration statement on Form S-8 with the Securities and Exchange
Commission by June 30, 1997. Each certificate representing Option Shares issued
upon the exercise of the Option prior to the date such registration statement
becomes effective shall bear the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY
APPLICABLE STATE SECURITIES LAWS, AND MAY NOT BE SOLD, PLEDGED OR OTHERWISE
TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER THE ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD
THERETO, OR (ii) THE CORPORATION HAS RECEIVED AN OPINION OF COUNSEL
ACCEPTABLE TO THE CORPORATION THAT REGISTRATION UNDER THE ACT OR SUCH
APPLICABLE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH SUCH
PROPOSED SALE, PLEDGE OR TRANSFER.
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The Employee and the Corporation agree to execute such documents and instruments
as counsel for the Corporation reasonably deems necessary to ensure that the
granting of the Option and the issuance of any Option Shares upon the exercise
thereof will be in compliance with applicable federal and state securities laws.
(f) The Employee agrees not to sell, transfer or otherwise dispose of
his interest in, or reduce his risk relative to, any of the Option Shares
purchased hereunder until such time as the requirements of ASRs 130 and 135 have
been met. The Employee understands that ASRs 130 and 135 relate to the
publication of financial results of at least thirty (30) days of post-merger
combined operations of the Corporation and VTE. Premiere agrees that it shall
publish such results within forty-five (45) days after the end of the first
fiscal quarter of Premiere containing the required period of post-merger
combined operations.
(g) The Corporation covenants and agrees that all Option Shares which
may be issued upon exercise of the Option shall, upon issuance and payment
therefor, be legally and validly issued and outstanding, fully paid and
nonassessable, and free from all liens, claims and encumbrances, except
restrictions imposed by applicable securities laws, the Corporation's Articles
of Incorporation and/or this Agreement. The Corporation shall at all times
reserve and keep available for issuance upon the exercise of the Option such
number of authorized but unissued shares of Common Stock as will be sufficient
to permit the exercise in full of the Option.
4. TERM OF OPTION.
(a) The term of the Option shall commence on the respective exercise
dates set forth in Section 3(b) hereof, and shall continue in effect until the
first to occur of the following: (i) the first date (the "Employment Termination
Date") on which the Employee is no longer employed by any member of the Premiere
Group, if that occurs prior to the third (3rd) anniversary of the Effective
Date; (ii) the date on which the Option has been fully exercised with respect to
all of the Option Shares; or (iii) the eighth (8th) anniversary of the Effective
Date.
(b) In the event the Option is terminated pursuant to subsection
(a)(i) of this Section 4, the Option, to the extent it has not become
exercisable pursuant to Section 3(b) hereof, shall be canceled as of the
Employment Termination Date.
(c) In the event of the Employee's death, the Option may be exercised
hereunder by the Employee's personal representative, legatees or heirs at law,
as the case may be, and in the case of the Employee's mental incompetence, by
his legal guardian, or if none has been appointed, by his duly authorized
attorney-in-fact.
5. NONTRANSFERABILITY. This Agreement, the Option and all rights
hereunder are nontransferable and nonassignable by the Employee, other than by
the last will and
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testament of the Employee or the laws of descent and distribution, unless the
Corporation consents thereto in writing. Any transfer or attempted transfer
except pursuant to the preceding sentence shall be null and void and of no
effect whatsoever.
6. ADJUSTMENTS.
(a) If, prior to the termination of the Option as provided in Section
4(a) hereof:
(i) The number of outstanding shares of Common Stock is increased
by a stock split, stock dividend or other similar event, the Exercise Price
shall be proportionately reduced and the number of Option Shares that have
not theretofore been purchased by the Employee shall be proportionately
increased.
(ii) The number of outstanding shares of Common Stock is
decreased by a combination or reclassification of shares, or other similar
event, the Exercise Price shall be proportionately increased and the number
of Option Shares that have not theretofore been purchased by the Employee
shall be proportionately reduced.
If any adjustment under this Section 6(a) would create a fractional share of
Common Stock or a right to acquire a fractional share of Common Stock, such
fractional share shall be disregarded and the number of Option Shares subject to
the Option shall be the next higher number of shares.
(b) If, prior to the termination of the Option as provided in Section
4(a) hereof, there shall be any merger, consolidation, exchange of shares,
recapitalization, reorganization or other similar event, as a result of which
shares of Common Stock shall be changed into the same or a different number of
shares of the same or another class or classes of stock or securities of the
Corporation or another entity, then the Employee shall thereafter have the right
to purchase and receive upon the basis and upon the terms and conditions
specified in this Agreement and in lieu of the Option Shares immediately
theretofore purchasable and receivable upon the exercise of the Option, such
shares of stock and/or securities as may be issued or payable with respect to or
in exchange for the number of Option Shares immediately theretofore purchasable
and receivable upon the exercise of the Option had such merger, consolidation,
exchange of shares, recapitalization or reorganization not taken place, and, in
any such case, appropriate provisions shall be made with respect to the rights
and interests of the Employee to the end that the provisions hereof (including,
without limitation, provisions for adjustment of the Exercise Price and of the
number of shares purchasable upon the exercise of the Option) shall thereafter
be applicable, as nearly as may be practicable in relation to any shares of
stock or securities thereafter deliverable upon the exercise hereof. The
Corporation shall not effect any transaction described in this subsection (b)
unless the resulting successor or acquiring entity (if not the Corporation)
assumes by written instrument the obligation to deliver to the Employee such
shares of stock and/or securities as, in accordance with the
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foregoing provisions, the Employee may be entitled to purchase. The foregoing
notwithstanding, in the event of a merger or consolidation in which the
Corporation is not the surviving entity, if the Corporation concludes that it
will be unable to satisfy the conditions of this subsection (b) without a
material adverse effect on the terms of such proposed transaction, then the
Corporation shall have the option, prior to or contemporaneously with the
closing of such merger or consolidation, to purchase the Option from the
Employee at its then fair value, determined with regard to both the spread
between the Exercise Price and the value of the consideration to be received in
the transaction and the remaining term of the Option. The Corporation and the
Employee shall agree on such fair value or, in the event they are unable to
agree, shall submit the question of fair value to an investment banking firm to
be selected by the Corporation, with the cost of such investment banking firm to
be paid by the Corporation.
7. NO EMPLOYMENT RIGHT. Neither this Agreement nor the Option shall give
rise to any entitlement to the Employee to continue to be employed or be
compensated for any services by any member of the Premiere Group.
8. NO RIGHTS AS A SHAREHOLDER. The Employee shall not have any interest
in or shareholder rights with respect to any shares of Common Stock which are
subject to the Option until such shares have been issued and delivered to the
Employee in accordance with this Agreement.
9. TAXES. As a condition to the issuance of Option Shares hereunder, the
Corporation may withhold, or require the Employee to pay or reimburse the
Corporation for, any taxes which the Corporation determines are required to be
withheld under federal, state or local law in connection with the exercise of
the Option.
10. HEIRS AND SUCCESSORS. This Agreement and all terms and conditions
hereof shall be binding upon the Corporation and its successors and assigns, and
upon the Employee and his heirs, legatees and legal representatives.
11. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Georgia.
12. NOTICES. All notices, requests and other communications required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given and received when delivered in person, when delivered by overnight
delivery service, or three (3) business days after being mailed by registered or
certified mail, postage prepaid, return receipt requested, to the following
addresses (or to such other address as one party may from time to time designate
in writing to the other party hereto):
If to the Corporation: Premiere Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Attn: President
If to the Employee: ________________________
________________________
________________________
13. SEVERABILITY. The provisions of this Agreement, and of each separate
section and subsection, are severable, and if any one or more provisions may be
determined to be illegal or otherwise enforceable, in whole or in part, the
remaining provisions, and any unenforceable provisions to the extent
enforceable, shall nevertheless be binding and enforceable.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first set forth above.
PREMIERE TECHNOLOGIES, INC.
By: ________________________________
Title: __________________________
EMPLOYEE:
____________________________________
____________________________________
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