Exhibit
10.12.4
US LEC Corp.
NON-QUALIFIED STOCK OPTION
AGREEMENT
THIS NON-QUALIFIED STOCK OPTION
AGREEMENT (“Option Agreement”), dated the
day of
, 2006, is issued under and subject to the provisions of the US LEC
Corp. 1998 Omnibus Stock Plan as amended (the “Plan”),
and is between US LEC Corp., a Delaware corporation (the
“Company”), and the undersigned employee of the Company
or a Subsidiary (the “Optionee”):
1. Grant of Option . The
Company hereby grants to the Optionee, upon and subject to the
terms and conditions of the Plan, an option to purchase a total of
{xx,xxx} shares of Class A Common Stock of the Company (the
“Shares”) at an exercise price of ${xx.xx} per share
(the “Option”). The Option is intended to be a
non-qualified stock option — that is, it is not
an incentive stock option described in section 422 of the Internal
Revenue Code (the “Code”) — and this Option
Agreement shall be construed to implement that intent.
2. Vesting of Option .
Subject to such limitations and restrictions as are provided in the
Plan and this Option Agreement, the Option shall vest and become
exercisable as to the number of shares set forth opposite the
respective vesting dates as set forth on Exhibit A attached hereto
and incorporated by reference hereby, provided that the Optionee
shall be entitled to cumulate the vested shares and to exercise the
same, in whole or in part, after it vests and becomes exercisable,
at any time prior to the expiration or termination of the term
hereof. Notwithstanding the foregoing, if the Optionee dies while
still employed by the Company, the Option shall become fully vested
and exercisable in full.
3. Expiration . Subject to
the possibility of earlier termination as provided hereafter, all
of the Optionee’s rights under this Option Agreement in any
event shall expire ten (10) years from the date
hereof.
4. Rights upon Retirement .
If the Optionee’s employment with the Company or a Subsidiary
terminates because of his or her Retirement, and as of such date
the Optionee has not exercised this Option as to all of the Shares,
the Option may be exercised by the Optionee, to the extent vested
under Section 2 as of the date of Retirement, with respect to
the vested unpurchased Shares for a period of thirty (30) days
from the date of the Optionee’s Retirement. Thereafter, to
the extent not exercised, all rights of the Optionee under this
Option (other than the Optionee’s right to Shares theretofore
purchased under the Option) shall terminate and become null and
void immediately.
5. Rights upon Death or
Disability . If an Optionee ceases to be employed by the
Company or a Subsidiary because of Optionee’s death or
Disability and as of the date of such death or Disability the
Optionee has not exercised this Option as to all of the Shares,
then the Option may be exercised with respect to the unpurchased
Shares, provided that the period during which the Option may be so
exercised shall expire ninety (90) days from the date of the
Optionee’s Disability, if employment ceases on account of
Optionee’s Disability, and ninety (90) days from the
date of the Optionee’s death, if employment ceases on account
of Optionee’s death, and, in the case of Disability, the
Option may be so exercised only as to the Shares vested under
Section 2 as of the date of Disability. Thereafter, to the
extent not exercised, all rights of the Optionee under this Option
(other than the Optionee’s right to Shares theretofore
purchased under the Option) shall terminate and become null and
void immediately. The Option of a deceased Optionee may be
exercised by the Optionee’s estate or a person who acquired
the right to exercise the Option by bequest or inheritance. The
Option of a disabled Optionee may be exercised by a person who
acquired the right to exercise the Option by an effective power of
attorney or is otherwise authorized to act on behalf of the
Optionee.
6. Rights upon Termination of
Employment . If an Optionee’s employment by the Company
or a Subsidiary is terminated for any reason (by the Company or a
Subsidiary whether with or without cause or by resignation by the
Optionee) other than by death, Retirement, or Disability, and as of
such date the Optionee has not exercised this Option as to all of
the Shares, the Option may be exercised by the Optionee, to the
extent vested under Section 2 as of the date of termination of
employment, with respect to the vested unpurchased Shares for a
period of thirty (30) days from the date of the
Optionee’s termination of employment. Thereafter, to the
extent not exercised, all rights of the Optionee under this Option
(other than the Optionee’s right to Shares theretofore
purchased under the Option) shall terminate and become null and
void immediately.
7. Method of Exercise . The
Option shall be exercised by the tender of cash, or, at the
discretion of the Committee, by delivery of shares of Common Stock
already owned by Optionee or a combination of cash or such shares
of Common Stock, or through such other means that the Committee
determines are acceptable under the terms of the Plan pursuant to
the provisions of Sections 3.2(f) and (g) of the Plan, and
delivery to the Committee or Company at its principal place of
business of a written notice of exercise, at least five
(5) days prior to the date of exercise. The written notice
must:
(a) State the election to exercise
the Option, the number of whole Shares with respect to which the
Option is being exercised (which may not be less than one hundred
(100) Shares, unless the number being exercised is the balance
of the number of Shares that may be exercised under the Option),
the method of exercise elected by the Optionee, and the name,
address, and social security number of the person in whose name the
stock certificate or certificates for such Shares is to be
registered;
(b) contain any such representation
and agreements as to Optionee’s investment intent with
respect to such Shares as shall be required by the
Committee;
(c) be signed by the person entitled
to exercise the Option, and if the Option is being exercised by any
person or persons other than the Optionee, be accompanied by proof,
satisfactory to the Committee, of the right of such person or
persons to exercise the Option; and
(d) be delivered by hand or by
registered or certified mail, postage pre-paid, return receipt
requested, to the Company’s headquarters or to such other
location as may be specified in writing by the Company or Committee
from time to time.
Within ten (10) days after the
Company or Committee receives such notice in a form satisfactory to
the Committee and the acceptance of payment, the Company shall
deliver to the Optionee a certificate representing the Shares
purchased hereunder.
8. Non-Assignability . Except
as permitted in section 424(c) of the Code, the Option may not be
transferred, assigned, pledged, hypothecated, or otherwise
encumbered in any way or be subject to execution, attachment, or
similar process. Upon any attempt to so transfer, assign, pledge,
hypothecate, or encumber an Option, or upon the levy, by reason of
any attachment, or similar process, of any Option contrary to the
provisions hereof, such Option shall become null and void. The
Committee, in its discretion, may subsequently re-grant to the
former Optionee any Option, in whole or in part, which became null
and void pursuant to the provisions of this Section 8. If the
Option is transferred as permitted by section 424(c) of the Code,
the provisions of the Plan, including, but not limited to, the
restrictions on transferability, shall apply to the
Optionee’s successor, including the executor, administrator,
or trustee of his or her estate. Notwithstanding any permitted
transfer during the Optionee’s lifetime, during an
Optionee’s lifetime the Option may be exercised only by him
or her, or by his or her guardian or legal
representative.
9. Subject to Plan and Laws .
The Option shall be subject to the limitations and restrictions as
provided in the Plan, including, but not limited to, the provisions
regarding (a) the Optionee’s not being entitled to the
privileges of stock ownershi
