Exhibit 4.5
AMERILINK CORPORATION
RESTRICTED STOCK AWARD AGREEMENT
June 9, 1998
Xxxxxx X. Govern
000 Xxxxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxx 00000
In recognition of your exemplary services as an officer of AmeriLink
Corporation, an Ohio corporation (the "Corporation"), the Board of Directors of
the Corporation has granted to you on this date two thousand four hundred
fourteen (2,414) common shares, without par value, of the Corporation ("Common
Shares"), as an award of restricted stock (the "Award"). Such shares are
hereinafter referred to collectively as the "Restricted Shares." The terms and
conditions of the Award are set forth below.
1. Date of Grant. The Award is granted to you effective as of June 9,
1998.
2. Transfer Restrictions. (a) Unless and until (and only to the extent
that) all or any portion of the Restricted Shares vest and become transferable
(subject to the provisions of Section 2(b) hereof), as provided in Section 4,
you may not sell, assign, transfer, pledge or otherwise encumber any of the
Restricted Shares. Promptly after the effective date hereof, the Corporation
shall deliver to you certificates evidencing the Restricted Shares issued in
your name; provided, however, that you hereby agree to deliver to the Secretary
of the Corporation the certificates representing the Restricted Shares, together
with stock powers duly endorsed in blank, promptly after the delivery of such
certificates to you.
(b) Notwithstanding any other provision of this Agreement to
the contrary, you may not sell, assign, transfer, pledge or otherwise encumber
any of the Restricted Shares which have vested and become transferable unless
and until (i) such Restricted Shares have been registered under the Securities
Act of 1933, as amended, and all applicable state securities laws or (ii) the
Corporation has received an opinion of counsel in form and substance reasonably
satisfactory to the Corporation and its counsel that such transaction is exempt
from the registration requirements of such laws. The Corporation shall have no
obligation hereunder to so register any Restricted Shares.
(c) The Corporation shall have the right to require that any
certificate for Restricted Shares issued pursuant to this Agreement bear any
restrictive legend required by law and/or to evidence restrictions on the
transfer of the shares under applicable law or this Agreement.
3. Forfeiture. You shall forfeit any portion of the Award that has not
vested and become transferable upon the earliest to occur of any of the
following: (i) the expiration of 180 days following your death, (ii) the
termination of your services as an officer of the Corporation for any reason or
no reason (including, without limitation, non-renewal of any term), or (iii)
your resignation as an officer of the Corporation. Upon the occurrence of such
forfeiture, all of your right, title and interest in and to any Restricted
Shares that constitute the portion of the Award which has been forfeited shall
be terminated and the Corporation shall cause the certificate(s) representing
the forfeited shares to be canceled or transferred free and clear of all
restrictions to its treasury.
4. Vesting Provisions. Subject to the provisions of Section 3 hereof,
eight hundred five (805) of the Restricted Shares shall vest on June 9, 1999,
eight hundred five (805) of the Restricted Shares shall vest on June 9, 2000 and
eight hundred four (804) of the Restricted Shares shall vest on June 9, 2001.
When any portion of the Award vests and becomes transferable, the Corporation
shall promptly deliver a certificate (free of all adverse claims and transfer
restrictions, except as set forth in Section 2(b) hereof) representing the
number of shares constituting the vested and transferable portion of the Award
to you at your address given above and such shares shall no longer be deemed to
be Restricted Shares subject to the terms and conditions of this Agreement
(except to the extent that the transfer of such shares may continue to be
restricted under the provisions of Section 2(b), above).
5. Dividends and Voting Rights. Except for the restrictions on transfer
set forth in Section 2 and the possibility of forfeiture set forth in Section 3,
upon the issuance of a certificate representing Restricted Shares, you shall
have all other shareholders' rights and privileges attributable to such shares,
including, without limitation, the right to vote such shares and to receive all
dividends paid on account of such shares; provided, however, that all
securities, money, funds or other property received by you on account of or in
exchange for any Restricted Shares, whether as a result of any cash or share
dividend, share split, reclassification, merger or consolidation, reorganization
or otherwise, shall be delivered to, and held by, the Corporation under the same
restrictions on transfer and possibility of forfeiture as the Restricted Shares
from which they derive.
6. Regulatory Approvals and Listings. Notwithstanding anything
contained in this Agreement to the contrary, the Corporation shall have no
obligation to issue or deliver certificates of Common Shares evidencing
Restricted Shares prior to (a) the obtaining of any approval from any
governmental agency which the Corporation shall, in its sole discretion,
determine to be necessary or advisable, (b) the admission of such shares to
trading on the Applicable Market (defined below) and (c) the completion of any
registration or other qualification of said shares under any state or Federal
law or ruling of any governmental body which the Corporation shall, in its sole
discretion, determine to be necessary or advisable.
As used herein, "Applicable Market" means the Nasdaq National Market
("NNM") or, if the Common Shares are no longer traded in the NNM, then the
principal national securities exchange, if any, on which the Common Shares are
traded as determined by the Corporation's Board of Directors or a committee
thereof, or if the Common Shares are no longer traded in the NNM or on any
national securities exchange, then such other market price reporting system
pursuant to which the Common Shares are traded or quoted as designated by the
Corporation's Board of Directors or a committee thereof.
7. Responsibility and Indemnification. No member of the Board of
Directors or any committee thereof shall be liable to the Corporation, you or
any third party for any action or determination made in good faith with respect
to this Agreement and the Award hereunder, or for any matter as to which the
Corporation's articles of incorporation or code of regulations, or any valid
contract between the Corporation and such member, limits or negates the
liability of Directors. Such members shall be entitled to indemnification and
reimbursement in the manner provided in the Corporation's articles of
incorporation and code of regulations, in any valid contract between the
Corporation and such member, and under any directors' and officers' liability
insurance coverage which may be in effect from time to time.
8. Corporate Changes. The grant of the Award pursuant to this Agreement
shall not affect the right or power of the Corporation to make adjustments,
reclassifications, reorganizations, or changes of its stock, securities, capital
or business structure, or to merge, consolidate, dissolve, or liquidate, or to
sell, lease or transfer all or any part of its business or assets.
9. Change in Control. In the event of a Change in Control (defined
below), all restrictions previously established with respect to the Award and
the Restricted Shares will conclusively be deemed to have been satisfied. You
shall be entitled to have issued to you the Restricted Shares, free and clear of
any restriction or restrictive legend, except that if upon the advice of counsel
to the Corporation, Common Shares cannot lawfully be issued without restriction,
then the Corporation shall make payment to you in cash in an amount equal to the
Change in Control Price (defined below)of the Common Shares that otherwise would
have been issued, subject to the following terms and conditions:
(i) Such cash payments to you shall be due and payable, and
shall be paid by the Corporation, immediately upon the occurrence of such Change
in Control; and
(ii) After the payment provided for in (i) above, you
shall have no further rights under this Agreement or the
Award.
As used herein, "Change in Control" means (a) the acquisition
after the effective date hereof by any "Person" (defined for the purposes of
this Section to mean any person within the meaning of Section 13(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), other than the
Corporation or an employee benefit plan created by the Board of Directors of the
Corporation), either directly or indirectly, of the beneficial ownership
(determined under Rule 13d-3 of the Regulations promulgated by the Securities
and Exchange Commission ("SEC") under Section 13(d) of the Exchange Act) of any
securities issued by the Corporation if, after such acquisition, such Person is
the beneficial owner of securities issued by the Corporation having 20% or more
of the voting power in the election of Directors at the next meeting of the
holders of voting securities to be held for such purpose of all of the voting
securities issued by the Corporation, if such person acquired such beneficial
ownership without the prior consent of the Board of Directors; (b) the
commencement (determined under Rule 14d-2 of the Regulations promulgated by the
SEC under Section 14(d) of the Exchange Act) after the effective date of hereof
by any Person of a tender offer subject to the provisions of Section 14(d) of
the Exchange Act if, after consummation of such tender offer, such Person would,
directly or indirectly, be the beneficial owner of securities issued by the
Corporation having 20% or more of the voting power in the election of Directors
at the next meeting of the holders of voting securities to be held for such
purpose of all of the voting securities issued by the Corporation, if such
Person commenced such tender offer without the prior written consent of the
Directors; (c) the election of a majority of the Directors, elected at any
meeting of the holders of voting securities of the Corporation, who were not
nominated for such election by the Board of Directors or a duly constituted
committee of the Board of Directors; or (d) the merger or consolidation with or
transfer of substantially all of the assets of the Corporation to another person
if the Board of Directors does not adopt a resolution, before the Corporation
enters into any agreement for such merger, consolidation or transfer,
determining that it is not a Change in Control.
As used herein, "Change in Control Price" means the higher of (i) the
mean of the high and low closing prices for the Corporation's Common Shares on
the Applicable Market on the date of determination of the Change in Control, or
(ii) the highest price per share actually paid for the Common Shares in
connection with the Change in Control.
10. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, except as preempted by applicable
Federal law. If any one or more provisions of this Agreement shall be found to
be illegal or unenforceable in any respect, the validity and enforceability of
the remaining provisions hereof shall not in any way be affected or impaired
thereby.
11. Miscellaneous. This Agreement constitutes the entire understanding
of the parties hereto with respect to the subject matter hereof. This Agreement
may not be modified, changed or amended except in a writing signed by each of
the parties hereto. This Agreement may be signed in multiple counterparts, each
of which shall be deemed an original hereof. The captions of the several
sections and subsections of this Agreement are not a part of the context hereof,
are inserted only for convenience in locating such sections and subsections and
shall be ignored in construing this Agreement.
Please acknowledge your receipt and agreement to the provisions of this
Agreement by signing the enclosed copy hereof in the space provided below and
returning it promptly to the Corporation.
AMERILINK CORPORATION
By:
Xxxxx X. Xxxxxxx, President
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST SET FORTH ABOVE:
XXXXXX X. GOVERN
