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Exhibit 10.2
RESTRICTED STOCK AGREEMENT
FIBERNET TELECOM GROUP, INC.
This Agreement (the " Agreement ") is made as of
August 17, 2006 (the " Grant Date "), between FiberNet
Telecom Group, Inc. (the " Company "), a Delaware
corporation, and the individual set forth on the signature page
hereto (the " Participant ").
Background
WHEREAS, the Company has adopted the FiberNet Telecom Group,
Inc. 2003 Equity Incentive Plan (as amended, the " Plan ")
to promote the interests of the Company by providing an incentive
for employees, directors and consultants of the Company, its
Affiliates and Subsidiaries;
WHEREAS, pursuant to the provisions of the Plan, the Company
desires to offer for sale to the Participant shares of the
Company’s common stock, $0.001 par value per share ("
Common Stock "), in accordance with the provisions of the
Plan, all on the terms and conditions hereinafter set forth;
WHEREAS, the parties hereto understand and agree that any terms
used and not defined herein have the meanings ascribed to such
terms in the Plan and that any and all references herein to
employment of the Participant by the Company shall include the
Participant’s employment or service as an employee, director
or consultant of the Company or any Affiliate or Subsidiary.
NOW, THEREFORE, in consideration of the promises and the mutual
covenants contained herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Terms of Purchase . The Participant hereby accepts the
offer of the Company to issue to the Participant, in accordance
with the terms of the Plan and this Agreement, that number of
Shares of the Company’s Common Stock set forth on
Schedule 1 attached hereto (such shares, subject to
adjustment pursuant to Section 4.3 of the Plan and
Section 2(i) hereof, the " Granted Shares ") at a
purchase price per share of $0.001 (the " Purchase Price "),
receipt of which is hereby acknowledged by the Company.
2. Company’s Lapsing Repurchase Right .
(a) Lapsing Repurchase Right . Except as set forth in
Sections 2(b), 2(c) and 2(d) hereof, in the event that for any
reason the Participant is no longer an employee, director or
consultant of the Company, an Affiliate or a Subsidiary prior to
the fourth anniversary of the Grant Date, the Company (or its
designee) shall have the option, but not the obligation, to
purchase from the Participant (or the Participant’s successor
in interest) and, in the event the Company exercises such option,
the Participant (or the Participant’s successor in interest)
shall be obligated to sell to the Company (or its designee), at a
price per Granted Share equal to the Purchase Price, all or any
part of the Granted Shares as set forth in clauses (i) and
(ii) below (the " Lapsing Repurchase Right "). The
Company’s Lapsing Repurchase Right shall be valid for a
period of one year commencing with the date of such termination of
employment or service. Notwithstanding any other provision hereof,
in the event the Company is prohibited during such one-year period
from exercising its Lapsing Repurchase Right by Section 160 of
the Delaware General Corporation Law as amended from time to time
(or any successor provision), then the time period during which
such Lapsing Repurchase Right may be exercised shall be extended
until thirty days after the Company is first not so prohibited.
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(i) If the Company, an Affiliate or a Subsidiary
terminates such Participant without "cause" (as defined in the
Plan) or the Participant resigns from the Company, an Affiliate or
a Subsidiary for "good reason" (as defined in the Plan), the
Company shall have the option to repurchase all of the Granted
Shares less one-forty-eighth (1/48) of the Granted Shares for
each full month elapsed after the Grant Date that the Participant
continues to serve as an employee, director or consultant of the
Company or an Affiliate or Subsidiary.
(ii) Notwithstanding anything to the contrary contained in this
Agreement, in the event the Company, an Affiliate or a Subsidiary
terminates the Participant’s employment or service for
"cause" (as defined in the Plan) or the Participant voluntarily
resigns from the Company, an Affiliate or a Subsidiary, the Company
shall have the option to repurchase all of the Granted Shares
acquired by the Participant hereunder at the Purchase Price.
(b) Effect of Termination upon Death, Disability or
Retirement . Except as otherwise provided in Section 2(a)
above, the Company’s Lapsing Repurchase Right shall terminate
and the Participant’s ownership of all Granted Shares then
owned by the Participant shall become fully vested if the
Participant ceases to be an employee, director or consultant of the
Company or an Affiliate or Subsidiary by reason of death,
Disability or Retirement.
(c) Effect of Change in Control . Except as otherwise
provided in Section 2(a) above, the Company’s Lapsing
Repurchase Right shall terminate, and the Participant’s
ownership of all Granted Shares then owned by the Participant shall
become vested, in the event of a Change of Control of the Company
as defined in the Plan; provided, that the Participant expressly
acknowledges that, pursuant to the terms of Section 14 of the
Plan, the Board of Directors of the Company may determine whether a
Change of Control will have occurred.
(d) Discretion of the Plan Administrator . Except as
otherwise provided in Section 2(a) above, the Company’s
Lapsing Repurchase Right shall terminate, and the
Participant’s ownership of all Granted Shares then owned by
the Participant shall become vested at any time in the sole
discretion of the Administrator of the Plan.
(e) Closing . In the event that the Company exercises the
Lapsing Repurchase Right, the Company shall notify the Participant
in writing of its intent to repurchase the Granted Shares. Such
notice may be mailed by the Company up to and including the last
day of the time period provided for above for exercise of the
Lapsing Repurchase Right. The notice shall specify the place, time
and date for payment of the repurchase price (the " Closing
") and the number of Granted Shares with respect to which the
Company is exercising the Lapsing Repurchase Right. The Closing
shall be not less than ten days nor more than sixty days from the
date of mailing of the notice, and the Participant or the
Participant’s successor in interest with respect to the
Granted Shares which the Company elects to repurchase shall have no
further rights as the owner thereof from and after the date
specified in the notice. At the Closing, the repurchase price shall
be delivered to the Participant or the Participant’s
successor in interest and the Granted Shares being repurchased,
duly endorsed for transfer, shall, to the extent that they are not
then in the possession of the Company, be delivered to the Company
by the Participant or the Participant’s successor in
interest.
(f) Escrow . The certificates representing all Granted
Shares acquired by the Participant hereunder which from time to
time are subject to the Lapsing Repurchase Right shall be delivered
to the Company and the Company shall hold such Granted Shares in
escrow as provided in this Section 2(f). Promptly following
receipt by the Company of a written request from the Participant,
the Company shall release from escrow and deliver to the
Participant a certificate for the whole number of Granted Shares,
if any, as to which the Company’s Lapsing Repurchase Right
has lapsed. In the event of
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a repurchase by the Company of Granted Shares
subject to the Lapsing Repurchase Right, the Company shall release
from escrow and cancel a certificate for the number of Granted
Shares so repurchased. Any securities distributed in respect of the
Granted Shares held in escrow, including, without limitation,
shares issued as a result of stock splits, stock dividends or other
recapitalizations, shall also be held in escrow in the same manner
as the Granted Shares.
(g) Prohibition on Transfer . The Participant recognizes
and agrees that all Granted Shares which are subject to the Lapsing
Repurchase Right may not be sold, transferred, assigned,
hypothecated, pledged, encumbered or otherwise disposed of, whether
voluntarily or by operation of law, other than to the Company (or
its designee). However, the Participant, with the approval of the
Administrator, may transfer the Granted Shares for no consideration
to or for the benefit of the Participant’s Immediate Family
(including, without limitation, to a trust for the benefit of the
Participant’s Immediate Family or to a partnership or limited
liability company for one or more members of the
Participant’s Immediate Family), subject to such limits as
the Administrator may establish, and the transferee shall remain
subject to all the terms and conditions applicable to this
Agreement prior to such transfer and each such transferee shall so
acknowledge in writing as a condition precedent to the
effectiveness of such transfer. The term " Immediate Family
" means the Participant’s spouse, former spouse, parents,
children, stepchildren, adoptive relationships, sisters, brothers,
nieces and nephews and grandchildren (and, for this purpose, shall
also include the Participant). The Company shall not be required to
transfer any Granted Shares on its books which shall have been
sold, assigned or otherwise transferred in violation of this
Section 2(g), or to treat as the owner of such Granted Shares,
or to accord the right to vote as such owner or to pay dividends
to, any person or organization to which any such Granted Shares
shall have been so sold, assigned or otherwise transferred, in
violation of this Section 2(g).
(h) Failure to Deliver Granted Shares to be Repurchased .
In the event that the Granted Shares to be repurchased by the
Company under this Agreement are not in the Company’s
possession pursuant to Section 2(f) above or otherwise and the
Participant or the Participant’s successor in interest fails
to deliver such Granted Shares to the Company (or its designee),
the Company may elect (i) to establish a segregated account in
the amount of the repurchase price, such account to be turned over
to the Participant or the Participant’s successor in interest
upon delivery of such Granted Shares, and (ii) immediately to
take such action as is appropriate to transfer record titl
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