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EXHIBIT 4.6A
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NON-QUALIFIED STOCK OPTION AGREEMENT
AGREEMENT made as of this [ ] day of [ ], [199__] between ICG
Communications, Inc., a Delaware corporation (hereinafter referred to as the
"Company"), and [ ], residing at [ ] (hereinafter referred to as the
"Employee").
W I T N E S S E T H:
WHEREAS, the Company desires, in connection with the
employment of the Employee and in accordance with its 1996 Stock Option Plan
(the "Plan"), to provide the Employee with an opportunity to acquire Common
Stock, $.01 par value (hereinafter referred to as "Common Stock"), of the
Company on favorable terms and thereby increase his proprietary interest in the
continued progress and success of the business of the Company;
NOW, THEREFORE, in consideration of the premises, the mutual
covenants herein set forth and other good and valuable consideration, the
Company and the Employee hereby agree as follows:
1. Grant of Option. Pursuant to a determination by the Stock Option
Committee of the Board of Directors of the Company authorized to administer the
Plan made on [ ] (the "Date of Grant"), the Company, subject to the terms of the
Plan and this Agreement, hereby grants to the Employee as a matter of separate
inducement and agreement, and in addition to and not in lieu of salary or other
compensation for services, the right to purchase (hereinafter referred to as the
"Option") an aggregate of [ ] shares of Common Stock, subject to adjustment as
provided in Section 8 hereof (such shares, as adjusted, shall hereinafter be
referred to as the "Shares"). The Option is not intended to qualify as an
incentive stock option under Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code").
2. Purchase Price. The purchase price of shares of Common Stock covered by
the Option will be [$ ] per share, subject to adjustment as provided in Section
8 hereof.
3. Exercise of Option. The Option shall be exercisable on the terms and
conditions hereinafter set forth:
(a) The Option shall become exercisable cumulatively as to the
following amounts of the number of Shares originally subject thereto (after
giving effect to any adjustment pursuant to Section 8 hereof), on the dates
indicated:
(i) as to [ ] Shares on or after [not earlier than one (1) year after
the date of grant];
(ii) as to [ ] Shares on or after [ ];
(iii) as to [ ] Shares on or after [ ]; and
(iv) as to [ ] Shares on or after [ ].
(b) The Option may be exercised pursuant to the provisions of this
Section 3, by notice and payment (including, but not limited to, a cashless
exercise) to the
Company as provided in Sections 11 and 16 hereof.
4. Term of Option. The term of the Option shall be a period of ten (10)
years from the Date of Grant. This Option, to the extent unexercised, shall
expire on the day immediately prior to the tenth anniversary of the Date of
Grant. The holder of the Option shall not have any rights to dividends or any
other rights of a stockholder with respect to any shares of Common Stock subject
to the Option until such shares shall have been issued to him (as evidenced by
the appropriate entry on the books of a duly authorized transfer agent of the
Company) provided that the date of issuance shall not be earlier than the date
this Option is exercised and provision of the purchase price of the shares of
Common Stock (with respect to which this Option is being exercised) is made to
the Company pursuant to the provisions contained herein.
5. Non-transferability of Option. The Option shall not be transferable
otherwise than by will or by the laws of descent and distribution, or pursuant
to a domestic relations order, and the Option may be exercised during the
lifetime of the Employee only by him. More particularly, but without limiting
the generality of the foregoing, the Option may not be assigned, transferred
(except as provided in the next preceding sentence) or otherwise disposed of, or
pledged or hypothecated in any way, and shall not be subject to execution,
attachment or other process. Any assignment, transfer, pledge, hypothecation or
other disposition of the Option attempted contrary to the provisions of this
Agreement, or any levy of execution, attachment or other process attempted upon
the Option, will be null and void and without effect. Any attempt to make any
such assignment, transfer, pledge, hypothecation or other disposition of the
Option or any attempt to make any such levy of execution, attachment or other
process will cause the Option to terminate immediately upon the happening of any
such event; provided, however, that any such termination of the Option under the
foregoing provisions of this Section 5 will not prejudice any rights or remedies
which the Company or any Parent or Subsidiary may have under this Agreement or
otherwise.
6. Exercise Upon Cessation of Employment. (a) If the Employee at any time
ceases to be an employee of the Company or of any Parent or Subsidiary (i) by
reason of his discharge for Good Cause or (ii) due to his voluntary termination
of employment without the consent of the Committee, the Option shall, at the
time of such termination of employment, terminate and the Employee shall forfeit
all rights hereunder. If, however, the Employee for any other reason (other than
Disability or death) ceases to be such an employee, the Option may, subject to
the provisions of Section 5 hereof, be exercised by the Employee to the same
extent the Employee would have been entitled under Section 3 hereof to exercise
the Option immediately prior to such cessation of employment, at any time within
three (3) months after such cessation of employment, at the end of which period
the Option to the extent not then exercised, shall terminate and the Employee
shall forfeit all rights hereunder, even if the Employee subsequently returns to
the employ of the Company or any Parent or Subsidiary. In no event, however, may
the Option be exercised after the expiration of the term provided in Section 4
hereof.
(b) The Option shall not be affected by any change of duties or
position of the Employee so long as he continues to be a full-time employee
of the Company or of any Parent or Subsidiary thereof. If the Employee is
granted a temporary leave of absence, such leave of absence shall be deemed
a continuation of his employment by the Company or of any Parent or
Subsidiary thereof for the purposes of this Agreement, but only if and so
long as the employing corporation consents thereto.
7. Exercise Upon Death or Disability. (a) If the Employee dies while he is
employed by the Company or by any Parent or Subsidiary (or within three (3)
months after his Retirement), and on or after the first date upon which he would
have been entitled to exercise the Option under the provisions of Section 3
hereof, the Option may, subject to the provisions of Section 5 hereof, be
exercised with respect to all or any part of the shares of Common Stock as to
which the deceased Employee had not exercised the Option at the time of his
death (but only to the extent the Option was exercisable at the earlier of (i)
the date of his Retirement or (ii) the date of his death), by the estate of the
Employee (or by the person or persons who acquire the right to exercise the
Option by written designation of the Employee) at any time within one (1) year
after the date of the Employee's death (in no event, however, after the
expiration of the term provided in Section 4 hereof), at the end of which period
the Option, to the extent not then exercised, shall terminate and the Director
shall forfeit all rights hereunder.
(b) In the event that the employment of the Employee by the Company
and any Parent or Subsidiary is terminated by reason of the Disability of
the Employee on or after the first date upon which he would have been
entitled to exercise the Option under the provisions of Section 3 hereof,
the Option may, subject to the provisions of Section 5 hereof, be exercised
with respect to all or any part of the shares of Common Stock as to which
he had not exercised the Option at the time of his Disability (but only to
the extent the Option was exercisable at such time) by the Employee at any
time within the period ending one (1) year after the date of such
termination of employment (in no event, however, after the expiration of
the term provided in Section 4 hereof), at the end of which period the
Option, to the extent not then exercised, shall terminate and the Employee
shall forfeit all rights hereunder even if the Employee subsequently
returns to the employ of the Company or any Parent or Subsidiary.
8. Adjustments. In the event there is any change in the Common Stock of the
Company by reason of any reorganization, recapitalization, stock split, stock
dividend or otherwise, there shall be substituted for or added to each share of
Common Stock theretofore appropriated or thereafter subject, or which may become
subject, to this Option the number and kind of shares of stock or other
securities into which each outstanding share of Common Stock shall be so changed
or for which each such share shall be exchanged, or to which each such share
shall be entitled, as the case may be, and the per share price thereof also
shall be appropriately adjusted.
9. Merger or Consolidation, Etc. of the Company. Upon (a) the merger or
consolidation of the Company with or into another corporation (pursuant to which
the stockholders of the Company immediately prior to such merger or
consolidation will not, as of the date of such merger or consolidation, own a
beneficial interest in shares of voting securities of the corporation surviving
such merger or consolidation having at least a majority of the combined voting
power of such corporation's then outstanding securities), if the agreement of
merger or consolidation does not provide for (i) the continuance of this Option,
or (ii) the substitution of new option(s) for this Option, or for the assumption
of such Option by the surviving corporation, (b) the dissolution, liquidation or
sale of substantially all the assets of the Company or (c) a Change in Control
of the Corporation, the Employee shall have the right immediately prior to the
effective date of such merger, consolidation, dissolution, liquidation, sale of
assets or Change in Control of the Corporation to exercise this Option (to the
extent not exercised and not otherwise expired) in whole or in part without
regard to any installment provision that may have been made part of the terms
and conditions of this Option, provided that any conditions precedent to the
exercise of this Option, other than the passage of time, have occurred. The
Company, to the extent practicable, shall give advance notice to the Employee of
such merger, consolidation, dissolution, liquidation, sale of assets or Change
in Control of the Corporation. To the extent this Option is not so exercised, it
shall be forfeited as of the effective time of any merger, consolidation,
dissolution, liquidation or sale of assets (but not in the case of a Change in
Control of the Corporation).
10. Registration. The shares of Common Stock subject hereto and issuable
upon the exercise hereof may not be registered under the Securities Act of 1933,
as amended, and, if required upon the request of counsel to the Company, the
Employee will give a representation as to his investment intent with respect to
such shares prior to their issuance as set forth in Section 11 hereof.
The Company may register or qualify the shares covered by the Option for
sale pursuant to the Securities Act of 1933, as amended, at any time prior to or
after the exercise in whole or in part of the Option.
11. Method of Exercise of Option. (a) Subject to the terms and conditions
of this Agreement, the Option shall be exercisable by notice in the manner set
forth in Exhibit A hereto (the "Notice") and provision for payment to the
Company in accordance with the procedure prescribed herein. Each such Notice
shall:
(i) state the election to exercise the Option and the number of Shares
in respect of which it is being exercised;
(ii) contain a representation and agreement as to investment intent,
if required by counsel to the Company with respect to such Shares, in form
satisfactory to counsel for the Company;
(iii) be signed by the Employee or the person or persons entitled to
exercise the Option and, if the Option is being exercised by any person or
persons other than the Employee, be accompanied by proof, satisfactory to
counsel for the Company, of the right of such person or persons to exercise
the Option; and
(iv) be received by the Company on or before the date of the
expiration of this Option. In the event the date of expiration of this
Option falls on a day which is not a regular business day at the Company's
executive office in Englewood, Colorado, then such written notice must be
received at such office on or before the last regular business day prior to
such date of expiration.
(b) Payment of the purchase price of any shares of Common Stock, in
respect of which the Option shall be exercised, shall be made by the
Employee or such person or persons at the place specified by the Company at
the time the Notice is delivered to the Company (i) by delivering to the
Company a certified or bank cashier's check payable to the order of the
Company, (ii) by delivering to the Company properly endorsed certificates
of shares of Common Stock (or certificates accompanied by an appropriate
stock power) with signature guaranties by a bank or trust company, (iii) by
having withheld from the total number of shares of Common Stock to be
acquired upon the exercise of this Option a specified number of such shares
of Common Stock, (iv) by any form of "cashless" exercise, or
(v) by any combination of the above.
(c) The Option shall be deemed to have been exercised with respect to
any particular shares of Common Stock if, and only if, the preceding
provisions of this Section
11 and the provisions of Section 12 hereof shall
have been complied with, in which event the Option shall be deemed to have
been exercised on the date the Notice of exercise of the Option was
received by the Company. Anything in this Agreement to the contrary
notwithstanding, any notice of exercise given pursuant to the provisions of
this Section 11 shall be void and of no effect if all the preceding
provisions of this Section 11 and the provisions of Section 12 shall not
have been complied with.
(d) The certificate or certificates for shares of Common Stock as to
which the Option shall be exercised will be registered in the name of the
Employee (or in the name of the Employee's estate or other beneficiary if
the Option is exercised after the Employee's death), or if the Option is
exercised by the Employee and if the Employee so requests in the notice
exercising the Option, will be registered in the name of the Employee and
another person jointly, with right of survivorship and will be delivered as
soon as practical after the date the Notice (and full payment) is received
by the Company, but only upon compliance with all of the provisions of this
Agreement.
(e) If the Employee fails to accept delivery of and pay for all or any
part of the number of Shares specified in such Notice upon tender or
delivery thereof, his right to exercise the Option with respect to such
undelivered Shares may be terminated in the sole discretion of the Board of
Directors of the Company. The Option may be exercised only with respect to
full Shares.
(f) The Company shall not be required to issue or deliver any
certificate or certificates for shares of its Common Stock purchased upon
the exercise of any part of this Option prior to the payment to the
Company, upon its demand, of any amount requested by the Company for the
purpose of satisfying its liability, if any, to withhold state or local
income or earnings tax or any other applicable tax or assessment (plus
interest or penalties thereon, if any, caused by a delay in making such
payment) incurred by reason of the exercise of this Option or the transfer
of shares thereupon. Such payment shall be made by the Employee in cash or,
with the consent of the Company, by tendering to the Company shares of
Common Stock equal in value to the amount of the required withholding. In
the alternative, the Company may, at its option, satisfy such withholding
requirements by withholding from the shares of Common Stock to be delivered
to the Employee pursuant to an exercise of this Option a number of shares
of Common Stock equal in value to the amount of the required withholding.
12. Approval of Counsel. The exercise of the Option and the issuance and
delivery of shares of Common Stock pursuant thereto shall be subject to approval
by the Company's counsel of all legal matters in connection therewith,
including, but not limited to, compliance with the requirements of the
Securities Act of 1933, as amended, and the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, and the requirements of any
stock exchange upon which the Common Stock may then be listed.
13. Resale of Common Stock. (a) If so requested by the Company, upon any
sale or transfer of the Common Stock purchased upon exercise of the Option, the
Employee shall deliver to the Company an opinion of counsel satisfactory to the
Company to the effect that either (i) the Common Stock to be sold or transferred
has been registered under the Securities Act of 1933, as amended, and that there
is in effect a current prospectus meeting the requirements of Section 10(a) of
said Act which is being or will be delivered to the purchaser or transferee at
or prior to the time of delivery of the certificates evidencing the Common Stock
to be sold or transferred, or (ii) such Common Stock may then be sold without
violating Section 5 of said Act.
(b) The Common Stock issued upon exercise of the Option shall bear the
following legend if required by counsel for the Company:
THE SHARES EVIDENCED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF
UNLESS THEY HAVE FIRST BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR UNLESS, IN THE OPINION OF COUNSEL
FOR THE COMPANY, SUCH REGISTRATION IS NOT REQUIRED.
14. Reservation of Shares. To the extent shares of Common Stock are not
readily tradable over an established securities market, the Company shall at all
times during the term of the Option reserve and keep available such number of
shares of the class of stock then subject to the Option as will be sufficient to
satisfy the requirements of this Agreement.
15. Limitation of Action. The Employee and the Company each acknowledges
that every right of action accruing to him or it, as the case may be, and
arising out of or in connection with this Agreement against the Company or a
Parent or Subsidiary, on the one hand, or against the Employee, on the other
hand, shall, irrespective of the place where an action may be brought, cease and
be barred by the expiration of three years from the date of the act or omission
in respect of which such right of action arises.
16. Notices. Each notice relating to this Agreement shall be in writing and
delivered in person or by certified mail to the proper address. All notices to
the Company or the Committee shall be addressed to them at 0000 Xxxxxx Xxxxxx,
X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxx 00000-0000, Attn: Secretary. All notices to
the Employee shall be addressed to the Employee or such other person or persons
at the Employee's address above specified. Anyone to whom a notice may be given
under this Agreement may designate a new address by notice to that effect.
17. Benefits of Agreement. This Agreement shall inure to the benefit of and
be binding upon each successor and assign of the Company. All obligations
imposed upon the Employee and all rights granted to the Company under this
Agreement shall be binding upon the Employee's heirs, legal representatives and
successors.
18. Severability. In the event that any one or more provisions of this
Agreement shall be deemed to be illegal or unenforceable, such illegality or
unenforceability shall not affect the validity and enforceability of the
remaining legal and enforceable provisions hereof, which shall be construed as
if such illegal or unenforceable provision or provisions had not been inserted.
19. Governing Law. This Agreement will be construed and governed in
accordance with the laws of the State of Delaware.
20. Employment. Nothing contained in this Agreement shall be construed as
(a) a contract of employment between the Employee and the Company or any Parent
or Subsidiary, (b) as a right of the Employee to be continued in the employ of
the Company or any Parent or Subsidiary, or (c) as a limitation of the right of
the Company or any Parent or
Subsidiary to discharge the Employee at any time, with or without cause.
21. Definitions. Unless otherwise defined herein, all capitalized terms
shall have the same definitions as set forth under the Plan.
22. Incorporation of Terms of Plan. This agreement shall be interpreted
under, and subject to, all of the terms and provisions of the Plan, which are
incorporated herein by reference.
IN WITNESS WHEREOF, the Company has caused this Agreement to
be executed in its name by its President or one of its Vice Presidents and its
corporate seal to be hereunto affixed and attested by its Secretary or one of
its Assistant Secretaries and the Employee has hereunto set his hand all as of
the date, month and year first above written.
ICG COMMUNICATIONS, INC.
By:________________________________
Name:
Title:
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[Name of Employee]
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Social Security Number
ATTEST:
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Secretary
EXHIBIT A
NON-QUALIFIED STOCK OPTION EXERCISE FORM
[DATE]
ICG Communications, Inc.
0000 Xxxx Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxx 00000-0000
Dear Sirs:
Pursuant to the provisions of the Non-Qualified Stock Option
Agreement dated [ ], whereby you have granted to me a non-qualified stock option
to purchase [ ] shares of Common Stock of ICG Communications, Inc. (the
"Company"), I hereby notify you that I elect to exercise my option to purchase
________________ of the shares covered by such option at the price specified
therein. In full payment of the price for the shares being purchased hereby, I
am delivering to you herewith (a) a certified or bank cashier's check payable to
the order of the Company in the amount of $____________,* or (b) a certificate
or certificates for [ ] shares of Common Stock of the Company, and which have a
fair market value as of the date hereof of $___________, and a certified or bank
cashier's check, payable to the order of the Company, in the amount of
$________________.** Any such stock certificate or certificates are endorsed, or
accompanied by an appropriate stock power, to the order of the Company, with my
signature guaranteed by a bank or trust company or by a member firm of the New
York Stock Exchange. [I hereby acknowledge that I am purchasing these shares for
investment purposes only and not for resale.]
Very truly yours,
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[Name]
[Address]
(For notices, reports, dividend
checks and other communications to
stockholders.)
OPTION NO. 96-NQO-[ ]
ICG COMMUNICATIONS, INC.
1996 Stock Option Plan
NON-QUALIFIED STOCK OPTION
Granted To
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Optionee
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Number of Shares Price per Share
DATE GRANTED:____________ EXPIRATION DATE:_________
