Exhibit 4.4
ITC/\DELTACOM, INC.
STOCK INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
ITC/\DeltaCom, Inc., a Delaware corporation (the "Company"), hereby grants
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 Shares of Stock Covered by Xxxxx: ___________
Purchase Price per Share of Stock: $0.01
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
RESTRICTED STOCK AGREEMENT
Restricted Stock This grant is an award of Stock in the number of
Transferability shares set forth on the cover sheet, at the
purchase price set forth on the cover sheet, and
subject to the vesting conditions described below
("Restricted Stock"). Except as provided in the
next sentence, your Restricted Stock may not be
transferred, assigned, pledged or hypothecated,
whether by operation of law or otherwise, nor may
your Restricted Stock be made subject to
execution, attachment or similar process. You may
transfer your Restricted Stock 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 right to the Stock under this Restricted
Stock grant vests as to one third (1/3) of the
total number of shares of Stock shown on the cover
sheet on the Grant Date. An additional one third
(1/3) of the shares of Stock under this Restricted
Stock grant will become vested on each of the
first
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and second anniversaries of the Grant Date,
provided you then continue in Service. One hundred
percent (100%) of the total number of shares of
Stock under this Restricted Stock grant will
become vested upon your termination of Service due
to your death or Disability.
The resulting aggregate number of vested shares
will be rounded down to the nearest whole number
of shares. You may not vest in more than the
number of shares covered by this grant.
Except as otherwise may be provided for in an
applicable employment agreement between you and
the Company or an Affiliate, no additional shares
of Stock will vest after your Service has
terminated for any reason.
Right of Repurchase for In the event that your Service terminates for any
Unvested Stock reason other than because of your death or
Disability, except as otherwise may be provided
for in an applicable employment agreement between
you and the Company or an Affiliate, the Company
will have the right to purchase all of the shares
of Stock subject to this grant that have not yet
vested (the "Repurchase Right"). If the Company
fails to purchase such Stock within 90 days of
your termination of Service, the Company's right
to purchase such Stock will terminate. The
purchase price for any Stock repurchased will be
the price that you paid for those shares of Stock
and will be paid in cash.
Termination for Cause 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 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
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shall be reduced by any amount repaid by you to
the Company pursuant to Section 304 of the
Xxxxxxxx-Xxxxx Act of 2002.
Escrow The certificates for the Restricted Stock will be
deposited in escrow with the Secretary of the
Company to be held in accordance with the
provisions of this paragraph. Each deposited
certificate will be accompanied by a duly executed
Assignment Separate from Certificate in
substantially the form attached hereto as Exhibit
A. The deposited certificates will remain in
escrow until such time or times as the
certificates are to be released or otherwise
surrendered for cancellation as provided below.
All regular cash dividends on the Stock (or other
securities at the time held in escrow) will be
paid directly to you and will not be held in
escrow. However, in the event of any stock
dividend, stock split, recapitalization or other
change affecting the Company's outstanding common
stock as a class effected without receipt of
consideration or in the event of a stock split, a
stock dividend or a similar change in the Company
Stock, any new, substituted or additional
securities or other property which is by reason of
such transaction distributed with respect to the
Stock will be delivered to the Secretary of the
Company to be held in escrow hereunder, but only
to the extent the Stock is at the time subject to
the escrow requirements of this Agreement.
The shares of Stock held in escrow hereunder will
be subject to the following terms and conditions
relating to their release from escrow or their
surrender to the Company for repurchase and
cancellation:
. As your interest in the shares vests as
described above, the certificates for such
vested shares will be released from escrow
and delivered to you, at your request, within
thirty (30) days after each vesting date.
. Upon termination of your Service, any
escrowed shares in which you are vested on
the termination date will be promptly
released from escrow.
. If the Company should exercise its Repurchase
Right with respect to any unvested shares
held at the time in escrow hereunder, the
escrowed certificates for such unvested
shares will, concurrently with the payment of
the purchase price for such shares of Stock,
be
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surrendered to the Company for cancellation,
and you will have no further rights with
respect to such shares of Stock.
. If the Company should elect not to exercise
its Repurchase Right with respect to any
shares held at the time in escrow hereunder,
the escrowed certificates for such shares
will be surrendered to you.
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 the vesting of Stock acquired 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 the
vesting of shares arising from this grant, the
Company will have the right to require such
payments from you, or to withhold such amounts
from other payments due to you from the Company or
any Affiliate.
Section 83(b) Election Under Section 83 of the Internal Revenue Code of
1986, as amended (the "Code"), the difference
between the purchase price paid for the shares of
Stock and their fair market value on the date any
forfeiture restrictions applicable to such shares
lapse will be reportable as ordinary income at
that time. For this purpose, "forfeiture
restrictions" include the Company's Repurchase
Right as to unvested Stock described above. You
may elect to be taxed at the time the shares are
acquired rather than when such shares cease to be
subject to such forfeiture restrictions by filing
an election under Section 83(b) of the Code with
the Internal Revenue Service within thirty (30)
days after the Grant Date. You will have to make a
tax payment to the extent the purchase price is
less than the fair market value of the shares on
the Grant Date. No tax payment will have to be
made to the extent the purchase price is at least
equal to the fair market value of the shares on
the Grant Date. The form for making this election
is attached as Exhibit B hereto. Failure to make
this filing within the thirty (30) day period will
result in the recognition of ordinary income by
you (in the event the fair market value of the
shares increases after the date of purchase) as
the forfeiture restrictions lapse.
YOU ACKNOWLEDGE THAT IT IS YOUR SOLE
RESPONSIBILITY, AND NOT THE COMPANY'S, TO FILE A
TIMELY ELECTION UNDER SECTION 83(b),
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EVEN IF YOU REQUEST THE COMPANY OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON YOUR
BEHALF. YOU ARE RELYING SOLELY ON YOUR OWN
ADVISERS WITH RESPECT TO THE DECISION AS TO
WHETHER OR NOT TO FILE ANY 83(b) ELECTION.
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 have the right to vote the Restricted Stock
and to receive any dividends declared or paid on
such stock. Any distributions you receive as a
result of any stock split, stock dividend,
combination of shares or other similar transaction
will be deemed to be a part of the Restricted
Stock and subject to the same conditions and
restrictions applicable thereto. Except as
described in the Plan, no adjustments are made for
dividends or other rights if the applicable record
date occurs before your stock certificate is
issued.
Adjustments In the event of a stock split, a stock dividend or
a similar change in the Company stock, the number
of shares covered by this grant will be adjusted
(and rounded down to the nearest whole number) in
accordance with the Plan.
Legends All certificates representing the Restricted Stock
issued in connection with this grant will, where
applicable, have endorsed a legend substantially
to the following effect:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER AND
OPTIONS TO PURCHASE SUCH SHARES SET FORTH IN AN
AGREEMENT BETWEEN THE COMPANY AND THE REGISTERED
HOLDER, OR THE REGISTERED HOLDER'S PREDECESSOR IN
INTEREST. A COPY OF SUCH AGREEMENT IS ON FILE AT
THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE
FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY OF
THE COMPANY BY THE HOLDER OF RECORD OF THE SHARES
REPRESENTED BY THIS CERTIFICATE."
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
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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
Restricted Stock. 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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EXHIBIT A
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, ______________ hereby sells, assigns and transfers unto
ITC/\DeltaCom, Inc., a Delaware corporation (the "Company"), _______________
(_________) shares of common stock of the Company represented by Certificate No.
___ herewith and does hereby irrevocably constitute and appoint _____________
Attorney to transfer such shares of common stock on the books of the Company
with full power of substitution in the premises.
Dated: ____________, 20__
_______________________________________
Printed Name
_______________________________________
Signature
Spouse Consent (if applicable)
_______________ (Purchaser's spouse) indicates by the execution of this
Assignment his or her consent to be bound by the terms herein as to his or her
interests, whether as community property or otherwise, if any, in the shares of
the common stock of the Company.
_______________________________________
Signature
INSTRUCTIONS: PLEASE DO NOT FILL IN ANY BLANKS OTHER THAN THE SIGNATURE LINE.
THE PURPOSE OF THIS ASSIGNMENT IS TO ENABLE THE COMPANY TO EXERCISE ITS
"REPURCHASE OPTION" SET FORTH IN THE AGREEMENT WITHOUT REQUIRING ADDITIONAL
SIGNATURES ON THE PART OF PURCHASER.
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EXHIBIT B
ELECTION UNDER SECTION 83(b) OF
THE INTERNAL REVENUE CODE
The undersigned hereby makes an election pursuant to Section 83(b) of the
Internal Revenue Code with respect to the property described below and supplies
the following information in accordance with the regulations promulgated
thereunder:
1. The name, address and social security number of the undersigned:
Name: _________________________________________________________
Address: ______________________________________________________
_______________________________________________________________
Social Security No.: ______________-______________-____________
2. Description of property with respect to which the election is being
made:
____________ shares of common stock, par value $.01 per share, of
ITC/\DeltaCom, Inc., a Delaware corporation, (the "Company").
3. The date on which the property was transferred is _________ ___, 20__.
4. The taxable year to which this election relates is calendar year 20__.
5. Nature of restrictions to which the property is subject:
The shares of stock are subject to the provisions of an Restricted
Stock Agreement between the undersigned and the Company. The shares of
stock are subject to forfeiture under the terms of the Agreement.
6. The fair market value of the property at the time of transfer
(determined without regard to any lapse restriction) was $__________ per share,
for a total of $_________.
7. The amount paid by taxpayer for the property was $___________.
8. A copy of this statement has been furnished to the Company.
Dated: ____________, 20__
___________________________________
Taxpayer's Signature
___________________________________
Taxpayer's Printed Name
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PROCEDURES FOR MAKING ELECTION
UNDER INTERNAL REVENUE CODE SECTION 83(b)
The following procedures must be followed with respect to the attached
form for making an election under Internal Revenue Code section 83(b) in order
for the election to be effective:
1. You must file one copy of the completed election form with the IRS
Service Center where you file your federal income tax returns within 30 days
after the Grant Date of your Restricted Stock.
2. At the same time you file the election form with the IRS, you must
also give a copy of the election form to the Secretary of the Company.
3. You must file another copy of the election form with your federal
income tax return (generally, Form 1040) for the taxable year in which the stock
is transferred to you.
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