RESTRICTED STOCK AWARD AGREEMENT UNDER THE MPOWER HOLDING CORPORATION 2005 LONG-TERM INCENTIVE PLAN
EXHIBIT
10.2
RESTRICTED
STOCK AWARD AGREEMENT UNDER THE
MPOWER
HOLDING CORPORATION 2005 LONG-TERM INCENTIVE PLAN
THIS
AWARD AGREEMENT (the “Award
Agreement”),
is
made effective as of [date] (the “Date
of Grant”)
between Mpower Holding Corporation, a Delaware corporation (the “Company”),
and
[Name] (the “Participant”).
Capitalized terms not otherwise defined herein shall have the same meanings
as
in the Mpower Holding Corporation 2005 Long-Term Incentive Plan (the
“Plan”).
1. Grant
of
the
Award.
Subject to the provisions of this Award Agreement and the Plan, the Company
hereby grants to the Participant, an aggregate of [#
of
Shares Granted]
shares
of restricted stock (the “Restricted
Stock”),
subject to adjustment as set forth in the Plan.
2. Incorporation
of Plan.
The
Participant acknowledges receipt of the Plan, a copy of which is attached hereto
and represents that he is familiar with its terms and provisions. This Award
Agreement and the Restricted Stock shall be subject to the Plan, the terms
of
which are incorporated herein by reference, and in the event of any conflict
or
inconsistency between the Plan and this Award Agreement, the Plan shall
govern.
3. Vesting
Schedule.
Unless
previously vested or cancelled in accordance with the provisions of the Plan
or
this Award Agreement, 25% of the Restricted Stock shall vest and all
restrictions shall lapse on each of the first, second, third and fourth
anniversaries of the Date of Grant.
4. Termination
of Employment.
Except as otherwise provided for in Section 5 of this Award Agreement,
in
the
event of the Participant’s termination of employment with the Company for any
reason, all unvested Restricted Stock will be canceled and forfeited without
consideration as of the date of such termination.
5. Change
in Control and Other Acceleration.
In the event you are terminated without cause or resign with good reason at
any
time after a Change of Control, all unvested shares of Restricted Stock shall
immediately and fully vest and all restrictions shall lapse. For purposes of
this Agreement, “Change of Control” shall have the same meaning as in the Plan.
Termination without cause and resignation for good reason are defined in Section
14. Further, the Company in its absolute discretion at any time may accelerate
the vesting of any portion of the shares of Restricted Stock awarded pursuant
to
this Award Agreement.
6.
Transfer
of Shares.
As soon as practicable after the Award Date, the Company will record the
Restricted Stock in book form with the Company’s stock transfer agent subject to
the terms and conditions set forth in the Plan and this Award Agreement. As
soon
as practicable after the shares of Restricted Stock shall have vested in the
manner set forth in Paragraphs 3 or 5, the Company will have the shares listed
in street name with a brokerage company of the Company’s choice, free of any
restrictions imposed pursuant to this Agreement. In no event shall the shares
be
so listed unless and until the shares have vested and all other terms and
conditions in this Agreement have been satisfied. By accepting the Restricted
Stock, the Employee irrevocably nominates and appoints the Secretary of the
Company as agent (the “Agent”)
for
purposes of surrendering or transferring the Restricted Stock to the Company
upon any forfeiture or transfer required or authorized by this Agreement. This
power is intended as a power coupled with an interest and will survive the
Employee’s death. In addition, it is intended as a durable power and will
survive the Employee’s disability.
7.
Nontransferability
of
Restricted Stock. Unless the Company determines otherwise on or after
the Date of Grant, Restricted Stock shall not be transferable other than by
last
will and testament or by the laws of descent and distribution or pursuant to
a
domestic relations order, as the case may be; provided,
however,
that
the Company may, in its discretion and subject to such terms and conditions
as
it shall specify, permit the transfer of Restricted Stock for no consideration
(i) to the Participant’s family member, (ii) to one or more trusts established
in whole or in part for the benefit of one or more of such family members,
(iii)
to one or more entities which are beneficially owned in whole or in part by
one
or more such family members or (iv) to any other individual or entity permitted
under law and the rules of the American Stock Exchange or any other exchange
that lists the Common Stock (collectively, “Permitted
Transferees”).
Any
Restricted Stock transferred to a Permitted Transferee shall be further
transferable only by last will and testament or the laws of descent and
distribution or, for no consideration, to another Permitted Transferee of the
Participant.
8.
Rights
as a
Stockholder. The Participant shall have, with respect to the
Restricted Stock, all the rights of a stockholder of the Company, including,
if
applicable, the right to vote the Restricted Stock and to receive any cash
dividends, subject to the restrictions set forth in the Plan and this Award
Agreement.
9.
Dividends
and
Distributions. Any Common Stock or other securities of the Company
received by the Participant as a result of a distribution to holders of
Restricted Stock or as a dividend on the Restricted Stock shall be subject
to
the same restrictions as such Restricted Stock, and all references to Restricted
Stock hereunder shall be deemed to include such Common Stock or other
securities.
10.
Legend
on Certificates.
The Company may cause a legend or legends to be put on certificates representing
the Common Stock covered by the award of Restricted Stock to make appropriate
reference to such restrictions as the Company may deem advisable under the
Plan
or as may be required by the rules, regulations, and other requirements of
the
Securities and Exchange Commission, any exchange that lists such Common Stock,
and any applicable federal or state laws.
11.
No
Entitlements.
(a)
No
Right to Continued Employment. This award is not an
employment agreement, and nothing in this Award Agreement or the Plan shall
(i)
alter the Participant’s status as an “at-will” employee of the Company, (ii) be
construed as guaranteeing the Participant’s employment by the Company or as
giving the Participant any right to continue in the employ of the Company during
any period (including without limitation the period between the Date Of Grant
and the applicable vesting date in accordance with Section 3) or (iii) be
construed as giving the Participant any right to be reemployed by the Company
following any termination of Employment.
(b)
No
Right to Future Awards. This award of Restricted
Stock and all other equity-based awards, are discretionary. This award does
not
confer on the Participant any right or entitlement to receive another award
of
Restricted Stock or any other equity-based award at any time in the future
or in
respect of any future period.
(c)
No
Effect on Future Employment Compensation. The Company
has made this award of Restricted Stock to the Participant in its sole
discretion. This award does not confer on the Participant any right or
entitlement to receive compensation in any specific amount for any future fiscal
year, and does not diminish in any way the Company’s discretion to determine the
amount, if any, of the Participant’s compensation. In addition, this award of
Restricted Stock is not part of the Participant’s base salary or wages and will
not be taken into account in determining any other employment-related rights
the
Participant may have, such as rights to pension or severance pay.
12.
Taxes
and Withholding. No
later than the date as of which an amount first becomes includable in the gross
income of the Participant for applicable income tax purposes with respect to
the
Restricted Stock, the Participant shall pay to the Company or make arrangements
satisfactory to the Company regarding payment of any federal, state, local
or
foreign taxes of any kind required by law to be withheld with respect to such
amount. Unless otherwise determined by the Company, in accordance with rules
and
procedures established by the Company, the minimum required withholding
obligations may be settled in Common Stock, including Common Stock that is
part
of the award that gives rise to the withholding requirement. The obligation
of
the Company under this Award Agreement shall be conditional upon such payment
or
arrangements and the Company shall, to the extent permitted by law, have the
right to deduct any such taxes from any payment of any kind otherwise due to
the
Participant (including with respect to the Restricted Stock).
13.
Securities
Laws. In
connection with the grant or vesting of the Restricted Stock the Participant
will make or enter into such written representations, warranties and agreements
as the Company may reasonably request in order to comply with applicable
securities laws or with this Award Agreement.
14.
Definitions.
(a) “Cause”
shall mean the occurrence of any of the following events: (i) Participant’s
willful material violation of any law or regulation applicable to the business
of the Company; (ii) Participant’s conviction of, or plea of “no contest” to, a
felony; (iii) any willful perpetration by Participant of an act of moral
turpitude or common law fraud whether or not related to Participant’s activities
on behalf of the Company; (iv) any act of gross negligence by Participant in
the
performance of Participant’s duties as an employee; (v) any violation of the
“Standards of Conduct” set forth in the Company’s employee manual, as in effect
from time to time; or (vi) any willful misconduct by Participant that is
materially injurious to the financial condition or business reputation of,
or is
otherwise materially injurious to, the Company.
(b)
“Good
Reason” shall mean the occurrence of any of the following events: (i) a material
adverse change in the Participant’s title or duties in effect on the effective
of the Change of Control; (ii) a material reduction in your Fixed Salary or
Annual Bonus opportunity in effect on the effective date of the Change of
Control; or (iii) the relocation of the Participant’s principal place of
business to a location that is more than 35 miles from the Participant’s
principal place of business on the effective date of the Change of
Control.
(a)
Notices.
Any
notice necessary under
this Award Agreement shall be addressed to the Company in care of its Secretary
at the principal executive office of the Company and to the Participant at
the
address appearing in the records of the Company for the Participant or to either
party at such other address as either party hereto may hereafter designate
in
writing to the other. Any such notice shall be deemed effective upon receipt
thereof by the addressee.
(b)
Headings.
The
headings of sections and
subsections are included solely for convenience of reference and shall not
affect the meaning of the provisions of this Award Agreement.
(c)
Counterparts.
This
Award Agreement may
be executed in two or more counterparts, each of which shall be deemed to be
an
original but all of which together will constitute one and the same
instrument.
(d)
Entire
Agreement. This Award Agreement
and the Plan constitute the entire agreement between the parties hereto with
regard to the subject matter hereof. They supersede all other agreements,
representations or understandings (whether oral or written and whether express
or implied) that relate to the subject matter hereof.
(e)
Amendments.
The
Board or the Company
shall have the power to alter or amend the terms of the Restricted Stock as
set
forth herein from time to time, in any manner consistent with the provisions
of
Section 15 of the Plan, and any alteration or amendment of the terms of the
Restricted Stock by the Company shall, upon adoption, become and be binding
on
all persons affected thereby without requirement for consent or other action
with respect thereto by any such person. The Company shall give written notice
to the Participant of any such alteration or amendment as promptly as
practicable after the adoption thereof. The foregoing shall not restrict the
ability of the Participant and the Company by mutual consent to alter or amend
the terms of the Restricted Stock in any manner that is consistent with the
Plan
and approved by the Company.
(f)
Successor.
Except
as otherwise provided
herein, this Award Agreement shall be binding upon and shall inure to the
benefit of any successor or successors of the Company, and to any Permitted
Transferee pursuant to Section 7.
(g)
Choice
of Law. Except as to matters of
federal law, this Award Agreement and all actions taken thereunder shall be
governed by and construed in accordance with the laws of the State of New York
(other than its conflict of law rules).
MPOWER
HOLDING CORPORATION
By:
___________________________________
Name:
_________________________________
Title:
__________________________________
Agreed
and acknowledged as
of
the
date first above written:
_____________________
[Name]