EXHIBIT 4.5
NON-QUALIFIED STOCK OPTION
To:
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NAME
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ADDRESS
Exercise Price: $
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Date of Grant:
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You (the "Optionee") are hereby granted in connection with your
employment with Talk.com Inc. (the "Company"), or any subsidiary or affiliate
thereof, an option ("Option"), effective as of the date of grant ("Date of
Grant"), to purchase ________ shares of common stock of Company, $.01 par value
("Common Stock"), at the exercise price shown above.
1. The vesting dates for this option are as follows: in
installments, as follows: (i) ______ shares of common stock may be purchased on
the first anniversary of the Date of Grant and, (ii) ________ shares of common
stock may be purchased on the second anniversary of the Date of Grant, and (iii)
_______ shares of common stock may be purchased on the third anniversary of the
Date of Grant; provided, however, the Option shall only vest as set forth in
(i), (ii), and (iii) if the Optionee has been employed by the Company or any of
its affiliates between the Date of Grant and the vesting date and on such
vesting date. In addition, the Option will vest in full (less any component or
portion which would otherwise be vested or exercisable and any portion
previously vested and exercised) upon a "Change of Control" (as that term is
defined herein). Notwithstanding the foregoing the Board of Directors of the
Company (the "Board") or its designees may accelerate or waive such vesting date
with respect to any or all of the shares of Common Stock covered by the Option.
A. "Change of Control" shall be deemed to have occurred
upon the happening of any of the following events:
(i) any person (as defined in Section 3(a)(9) under the
Securities Exchange Act of 1934, as amended (the
"Exchange Act")), other than the Company (or a
Significant Subsidiary as defined below) becomes the
Beneficial Owner (as defined in Rule 13d-3 under the
Exchange Act; provided, that a Person shall be deemed
to be the Beneficial Owner of all shares that any
such Person has the right to acquire pursuant to any
agreement or arrangement or upon exercise of
conversion rights, warrants, options or otherwise,
without regard to the 60 day period referred to in
Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Company or any
Significant Subsidiary (as defined below)
representing 50% or more of the combined voting power
of the Company's or such Significant Subsidiary's
then outstanding securities;
(ii) during any period of two years, individuals who at
the beginning of such period constitute the Board of
Company and any new director (other than a director
designated by a person who has entered into an
agreement with the Company to effect a transaction
described in clauses (i), (iii), or (iv) of this
paragraph) whose election by the Board or nomination
for election by stockholders was approved by a vote
of at least two-thirds of the directors then still in
office who either were directors at the beginning of
the two-year period or whose election or nomination
for election was previously so approved but
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excluding for this purpose any such new director
whose initial assumption of office occurs as a result
of either an actual or threatened election contest
(as such terms are used in Rule 14a-11 of Regulation
14A under the Exchange Act) or other actual or
threatened solicitation of proxies or consents by or
on behalf of an individual, corporation, partnership,
group, associate or other entity or Person other than
the Board, cease for any reason to constitute at
least a majority of the Board of the Company;
(iii) the consummation of a merger or consolidation of the
Company or any subsidiary owning directly or
indirectly all or substantially all of the
consolidated assets of the Company ( a "Significant
Subsidiary") with any other entity, including a
merger or consolidation which would result in the
voting securities of the Company or a Significant
Subsidiary outstanding immediately prior thereto
continuing to represent more than 50% of the combined
voting power of the surviving or resulting entity
outstanding immediately after such merger or
consolidation;
(iv) the stockholders of the Company approve a plan or
agreement for the sale or disposition of all or
substantially all of the consolidated assets of the
Company in which case the Board shall determine the
effective date of the Change of Control resulting
therefrom; and
(v) any other event occurs which the Board determines, in
its discretion, would materially alter the structure
of the Company or its ownership.
2. The Optionee may exercise the Option by giving written notice
to the Secretary of the Company on forms supplied by the Company at its then
principal executive office, accompanied by payment of the exercise price for the
total number of shares the Optionee specifies that the Optionee wishes to
purchase. The payment may be in any of the following forms: (a) cash, which may
be evidenced by a check and includes cash received from a so-called "cashless
exercise"; (b) (unless prohibited by the Board) certificates representing shares
of Common Stock of the Company, which will be valued by the Secretary of the
Company at the fair market value per share of the Company's Common Stock on the
date of delivery of such certificates of the Company, accompanied by an
assignment of the stock to the Company; or (c) (unless prohibited by the Board)
any combination of cash and Common Stock of the Company valued as provided in
clause (b). Any assignment of stock shall be in a form and substance
satisfactory to the Secretary of the Company, including guarantees of
signature(s) and payment of all transfer taxes if the Secretary deems such
guarantees necessary or desirable.
3. The Company agrees to use commercially reasonable efforts to
file a Form S-8 and register the shares issuable upon the exercise of the
Options contemplated herein under the Securities Act of 1933 and any applicable
state securities registration requirements and to cause such shares to be listed
on NASDAQ (if such shares are not already listed or so registered).
4. Your Option will, to the extent not previously exercised by
you, as to any shares purchasable hereunder (i.e. vested) expire upon the
earlier of: (a) the tenth anniversary of the Date of Grant or (b) ninety (90)
days after your employment with the Company is terminated for any reason.
5. In the event of any change in the outstanding shares of the
Common Stock of the Company by reason of a stock dividend, stock split,
combination of shares, recapitalization, merger, consolidation, transfer of
assets, reorganization, conversion or what the Board deems in its reasonable
discretion to be similar circumstances, the number and kind of shares subject to
this Option and the exercise price of such shares shall be appropriately
adjusted in a manner to be determined in the reasonable discretion of the Board.
6. Except as otherwise provided by the Board or the Committee
(as defined below), this Option is not transferable except as designated by
Optionee or by will or the laws of descent and distribution, and is exercisable
during the Optionee's lifetime only by the Optionee, including, for this
purpose, the Optionee's legal guardian or custodian in the event of disability.
Until the exercise price has been paid in full pursuant to due exercise of this
Option and the purchased shares are delivered to the Optionee, the Optionee does
not have any rights as a stockholder of the Company. The Company reserves the
right not to deliver to the Optionee the shares purchased by virtue of the
exercise of this Option during any period of time in which the Company
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deems, in its sole discretion, that such would violate a federal, state, local
or securities exchange rule, regulation or law.
7. Notwithstanding anything to the contrary contained herein,
this Option is not exercisable without the consent of the Company until all the
following events occur and during the following periods of time:
(a) Until this Option and the optioned shares are
approved and/or registered with such federal, state
and local regulatory bodies or agencies and
securities exchanges as the Company may deem
necessary or desirable; or
(b) During any period of time in which the Company deems
that the exercisability of this Option, the offer to
sell the shares optioned hereunder, or the sale
thereof, may violate a federal, state, local or
securities exchange rule, regulation or law, or may
cause the Company to be legally obligated to issue or
sell more shares than the Company is legally entitled
to issue or sell.
(c) Until the Optionee has paid or made suitable
arrangements to pay (i) all federal, state and local
income tax withholding required to be withheld by the
Company in connection with the Option exercise and
(ii) the Optionee's portion of other federal, state
and local payroll and other taxes due in connection
with the Option exercise.
8. The following two paragraphs shall be applicable if, on the
date of exercise of this Option, the Common Stock to be purchased pursuant to
such exercise has not been registered under the Securities Act of 1933, as
amended, and under applicable state securities laws, and shall continue to be
applicable for so long as such registration has not occurred:
(a) The Optionee hereby agrees, warrants and represents
that he will acquire the Common Stock to be issued
hereunder for his own account for investment purposes
only, and not with a view to, or in connection with,
any resale or other distribution of any of such
shares, except as hereafter permitted. The Optionee
further agrees that he will not at any time make any
offer, sale, transfer, pledge or other disposition of
such Common Stock to be issued hereunder without an
effective registration statement under the Securities
Act of 1933, as amended, and under any applicable
state securities laws or an opinion of counsel
acceptable to the Company to the effect that the
proposed transaction will be exempt from such
registration. The Optionee shall execute such
instruments, representations, acknowledgments and
agreements as the Company may, in its sole
discretion, deem advisable to avoid any violation of
federal, state, local or securities exchange rule,
regulation or law.
(b) The certificates for Common Stock to be issued to the
Optionee hereunder shall bear the following legend:
"The shares represented by this certificate
have not been registered under the
Securities Act of 1933, as amended, or under
applicable state securities laws. The shares
have been acquired for investment and may
not be offered, sold, transferred, pledged
or otherwise disposed of without an
effective registration statement under the
Securities Act of 1933, as amended, and
under any applicable state securities laws
or an opinion of counsel acceptable to the
Company that the proposed transaction will
be exempt from such registration."
The foregoing legend shall be removed upon
registration of the legended shares under the
Securities Act of 1933, as amended, and under any
applicable state laws or upon receipt of any opinion
of counsel acceptable to the Company that said
registration is no longer required.
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9. The sole purpose of the agreements, warranties,
representations and legend set forth in the two immediately preceding paragraphs
is to prevent violations of the Securities Act of 1933, as amended, and any
applicable state securities laws.
10. It is the intention of the Company and the Optionee that this
Option shall not be an "Incentive Stock Option" as that term is used in Section
422 of the Code and the regulations thereunder. This Option is not granted
pursuant to any stock option plan. Notwithstanding the foregoing, the Board and
the Compensation Committee or similar committee thereof (the "Committee") shall
have plenary authority to interpret the Option, prescribe, amend and rescind
rules and regulations relating to it, and make all other determinations deemed
necessary or advisable for the administration and/or exercise of the Option.
11. This Option constitutes the entire understanding between the
Company and the Optionee with respect to the subject matter hereof and no
amendment, modification or waiver of this Option, in whole or in part, shall be
binding upon the Company unless in writing and signed by an authorized officer
of the Company. This Option and the performances of the parties hereunder shall
be construed in accordance with and governed by the laws of the State of
Delaware.
Please sign the copy of this Option and return it to the Company's
Secretary, thereby indicating your understanding of and agreement with its terms
and conditions.
TALK.COM INC.
By:
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Aloysius T. Lawn IV
Executive Vice President-General
Counsel and Secretary
I hereby acknowledge receipt of a copy of the foregoing stock Option and, having
read it hereby signify my understanding of, and my agreement with, its terms and
conditions.
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Optionee Date
