Exhibit
10.12.3
US LEC Corp.
INCENTIVE STOCK OPTION
AGREEMENT
THIS 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
«SumOfShares_» shares of Class A Common Stock of the
Company (the “Shares”) at an exercise price of $2.08
per share (the “Option”). The Option is intended to be
a tax-qualified incentive stock option described in section 422 of
the Internal Revenue Code (the “Code”) to the extent
possible, 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 out in 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, (i) in no event shall
the Option become exercisable until September 27, 2006, even
if it becomes vested prior to that date and (ii) if the
Optionee dies while employed by the Company or a Subsidiary, 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 before
September 27, 2006 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 at any time, and from time to time, prior
to October 27, 2006. If the Optionee’s employment with
the Company or a Subsidiary terminates because of his or her
Retirement on or after September 27, 2006, 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 before September 27, 2006, because of
the 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 by the
Optionee (or his or her legal representative), to the extent vested
under Section 2, with respect to the unpurchased Shares at any
time, and from time to time, prior to December 27, 2006. If an
Optionee ceases to be employed by the Company or a Subsidiary on or
after September 27, 2006, because of the 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,
the Option may be exercised by the Optionee (or his or her legal
representative), to the extent vested under Section 2, with
respect to unpurchased shares at any time, and from time to time,
prior to the expiration of ninety (90) days from the date the
Optionee ceases to be employed by the Company or a Subsidiary by
reason of the Optionee’s disability or death. 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 before
September 27, 2006 (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 at any
time, and from time to time, prior to October 27, 2006. If an
Optionee’s employment by the Company or a Subsidiary is
terminated for any reason on or after September 27, 2006 (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 at any time, and from time to time, prior to the
expiration 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 the 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
