Exhibit 4.5
ITC/\DELTACOM, INC.
STOCK INCENTIVE PLAN
STOCK UNIT AGREEMENT
ITC/\DeltaCom, Inc., a Delaware corporation (the "Company"), hereby grants
stock units relating to shares of its common stock, $.01 par value (the
"Stock"), to the individual named below as the Holder, subject to the vesting
conditions set forth in the attachment. Additional terms and conditions of the
grant are set forth in this cover sheet, in the attachment and in the
ITC/\DeltaCom, Inc. Stock Incentive Plan (the "Plan").
Grant Date: _____________, 20__
Name of Holder: ________________________________________
Holder's Social Security Number: _______-_______-______
Number of Stock Units Covered by Grant: _______________
By signing this cover sheet, you agree to all of the terms and conditions
described in this Agreement and in the Plan, a copy of which is attached. You
acknowledge that you have carefully reviewed the Plan and agree that the Plan
will control in the event any provision of this Agreement should appear to be
inconsistent with the terms of the Plan.
Holder: _______________________________________________
(Signature)
Company: _______________________________________________
(Signature)
Title: ________________________________________
Attachment
This is not a stock certificate or a negotiable instrument.
ITC/\DELTACOM, INC.
STOCK INCENTIVE PLAN
STOCK UNIT AGREEMENT
Stock Unit Transferability This grant is an award of stock units in the
number of units set forth on the cover sheet,
subject to the vesting conditions described below
("Stock Units"). Except as provided in the next
sentence, your Stock Units may not be transferred,
assigned, pledged or hypothecated, whether by
operation of law or otherwise, nor may the Stock
Units be made subject to execution, attachment or
similar process. You may transfer your Stock Units
subject to the terms and conditions contained in
this Agreement (including the vesting conditions)
by gift to one or more or your Family members or
to a Family Trust.
Definitions Capitalized terms not defined in this Agreement
are defined in the Plan, and have the meaning set
forth in the Plan. The following additional terms
have the meanings provided below:
"Service" means service by you as an employee,
officer, director or consultant to the Company or
an Affiliate. A change in your position or duties
will not result in interrupted or terminated
Service so long as you continue to be an employee,
officer, director or consultant of the Company or
an Affiliate.
"Cause" means, as determined by the Board and
unless otherwise provided in an applicable
employment agreement between you and the Company
or an Affiliate, (i) your gross negligence or
willful misconduct in connection with the
performance of your duties, (ii) your conviction
of a criminal offense (other than minor traffic
offenses) or (iii) your material breach of any
term of any employment, consulting or other
services, confidentiality, intellectual property
or non-competition agreement between you and the
Company or an Affiliate.
Vesting Your Stock Unit grant vests as to one third (1/3)
of the total number of Stock Units shown on the
cover sheet on the Grant Date. An additional one
third (1/3) of the Stock Units under this Stock
Unit grant will become vested on each of the first
and second anniversaries of the Grant Date,
provided you then continue in Service. One hundred
percent (100%)
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of the total number of Stock Units under this
Stock Unit grant will become vested upon your
termination of Service due to your death or
Disability.
The resulting aggregate number of vested Stock
Units will be rounded down to the nearest whole
number of Stock Units. You may not vest in more
than the number of Stock Units covered by this
grant.
Except as may be provided in an applicable
employment agreement between you and the Company
or an Affiliate, no additional Stock Units will
vest after your Service has terminated for any
reason.
Delivery of Stock Pursuant to A certificate for all of the vested shares of
Vested Units Stock represented by the Stock Units shall be
delivered to you on the third anniversary of the
Grant Date; provided, that, if the third
anniversary of the Grant Date occurs during a
period in which you are (i) subject to a lock-up
agreement restricting your ability to sell Stock
in the open market or (ii) are restricted from
selling Stock in the open market because a trading
window is not available, delivery of such vested
shares will be delayed until the date immediately
following the expiration of the lock-up agreement
or the opening of a trading window.
In the event that your Service terminates for any
reason other than for Cause prior to the third
anniversary of the Grant Date, shares of Stock
corresponding to the vested portion of your Stock
Units will be delivered to you immediately
following your termination of Service.
Forfeiture of Unvested Units In the event that your Service terminates for any
reason other than because of your death or
Disability, unless otherwise provided in an
applicable employment agreement between you and
the Company or an Affiliate, you will forfeit all
of the Stock Units that have not yet vested.
Termination for Cause If your Service is terminated for Cause, you shall
forfeit all Stock Units, whether or not vested. In
addition, if your Service is terminated for Cause
you shall be required to forfeit to the Company an
amount equal to the aggregate gain that you
recognized pursuant to the vesting or exercise of
Incentive Awards during the twelve (12) month
period preceding your termination of Service (the
"Look-back Period"). For this purpose the
aggregate gain recognized by you is equal to the
sum of: (i) the aggregate spread value of
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all Options exercised by you (including Options
exercised by a Family member or Family Trust)
during the Look-back Period, where the spread
value is the difference between the fair market
value of the Stock on the date of the Option
exercise and the Option exercise price; (ii) the
aggregate value of all shares of Restricted Stock
owned by you that vested during the Look-back
Period, less the purchase price, if any, for the
Restricted Stock and (iii) the aggregate value of
all shares of Stock delivered to you pursuant to
Restricted Units during the Look-back Period. Any
amount required to be paid by you to the Company
pursuant to this paragraph shall be reduced by any
amount repaid by you to the Company pursuant to
Section 304 of the Xxxxxxxx-Xxxxx Act of 2002.
Withholding Taxes You agree, as a condition of this grant, that you
will make acceptable arrangements to pay any
withholding or other taxes that may be due as a
result of vesting in Stock Units or your
acquisition of Stock under this grant. In the
event that the Company determines that any
federal, state, local or foreign tax or
withholding payment is required relating to this
grant, the Company will have the right to: (i)
require that you arrange such payments to the
Company, (ii) withhold such amounts from other
payments due to you from the Company or any
Affiliate, or (iii) cause an immediate forfeiture
of shares of Stock subject to the Restricted Units
granted pursuant to this Agreement in an amount
equal to the withholding or other taxes due.
Retention Rights This Agreement does not give you the right to be
retained by the Company (or any Affiliates) in any
capacity. The Company (and any Affiliate) reserve
the right to terminate your Service at any time
and for any reason.
Shareholder Rights You do not have any of the rights of a shareholder
with respect to the Stock Units unless and until
the Stock relating to the Stock Units has been
delivered to you. You will, however, be entitled
to receive, upon the Company's payment of a cash
dividend on outstanding Stock, a cash payment for
each Stock Unit that you hold as of the record
date for such dividend equal to the per-share
dividend paid on the Stock.
Adjustments In the event of a stock split, a stock dividend or
a similar change in the Company stock, the number
of Stock Units covered by this grant will be
adjusted (and rounded down to the nearest whole
number) in accordance with the terms of
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the Plan.
Applicable Law This Agreement will be interpreted and enforced
under the laws of the State of Delaware, other
than any conflicts or choice of law rule or
principle that might otherwise refer construction
or interpretation of this Agreement to the
substantive law of another jurisdiction.
Consent to Electronic The Company may choose to deliver certain
Delivery statutory materials relating to the Plan in
electronic form. By accepting this grant you agree
that the Company may deliver the Plan prospectus
and the Company's annual report to you in an
electronic format. If at any time you would prefer
to receive paper copies of these documents, as you
are entitled to receive, the Company would be
pleased to provide copies. Please contact
________________ at ________________ to request
paper copies of these documents.
The Plan The text of the Plan is incorporated in this
Agreement by reference. This Agreement and the
Plan constitute the entire understanding between
you and the Company regarding this grant of Stock
Units. Any prior agreements, commitments or
negotiations concerning this grant are superseded.
By signing the cover sheet of this Agreement, you agree to all of the terms
and conditions described above and in the Plan.
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