EXHIBIT 99(d)(3)
TALK AMERICA HOLDINGS, INC.
2001 NON-OFFICER LONG-TERM INCENTIVE PLAN
1. Definitions. In this Plan, except where the context otherwise
indicates, the following definitions shall apply:
1.1. "Agreement" means a written agreement implementing an Award.
1.2. "Award" means a grant of an Option or Right or an award of
Restricted Stock or Incentive Shares.
1.3. "Board" means the Board of Directors of the Company.
1.4. "Committee" means a committee or subcommittee of the Board
appointed by the Board to administer this Plan and programs hereunder. The
Committee may, in its discretion, appoint a subcommittee to administer the Plan
with respect to specific Awards hereunder.
1.5. "Common Stock" means the common stock, par value $.01 per share,
of the Company.
1.6. "Company" means Talk America Holdings, Inc.
1.7. "Date of Exercise" means the date on which the Company receives
notice of the exercise of an Option in accordance with the terms of Section 8.1.
1.8. "Date of Grant" means the date on which an Option or Right is
granted or Restricted Stock or Incentive Shares are awarded under this Plan.
1.9. "Director" means a member of the Board of Directors of the
Company or any Subsidiary.
1.10. "Employee" means any person determined by the Committee to be an
employee of the Company or a Subsidiary, including a consultant or any person
who has been hired to be an employee of the Company or a Subsidiary, but shall
not include (i) any Director of the Company or (ii) any person who is an officer
of the Company or any Subsidiary. For the purposes hereof, the term "officer"
shall have the meaning set forth in Section 16 of Exchange Act and Rule 16a-1(f)
promulgated thereunder.
1.11. "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
1.12. "Fair Market Value" means an amount equal to the last sale price
for a Share on the Nasdaq National Market as reported by such source as the
Committee may select, or, if such price quotations of the Common Stock are not
then reported, then the fair market value of a Share as determined by the
Committee pursuant to a reasonable method adopted in good faith for such
purpose.
1.13. "Grantee" means an Employee to whom Restricted Stock has been
awarded pursuant to Section 9 or Incentive Shares have been awarded pursuant to
Section 10.
1.14. "Incentive Shares" means an award providing for the contingent
grant of Shares pursuant to the provisions of Section 10.
1.15. "Option" means an option to purchase Shares granted under this
Plan in accordance with the terms of Section 6.
1.16. "Option Period" means the period during which an Option may be
exercised.
1.17. "Option Price" means the price per Share at which an Option may
be exercised. Subject to the terms of the Plan, the Option Price shall be
determined by the Committee; provided, however, that in no event shall the
Option Price be less than the greater of 25% of the Fair Market Value as of the
Date of Grant or the par value of the Common Stock.
1.18. "Optionee" means an Employee to whom an Option or Right has been
granted.
1.19. "Performance Goals" means performance goals established by the
Committee, which may be based on earnings or earnings growth, sales, return on
assets, equity or investment, regulatory compliance, satisfactory internal or
external audits, improvement of financial ratings, achievement of balance sheet
or income statement objectives, or any other objective goals established by the
Committee, and may be absolute in their terms or measured against or in
relationship to other companies comparably, similarly or otherwise situated.
Such performance standards may be particular to an employee or the department,
branch, Subsidiary or other division in which he or she works, or may be based
on the performance of the Company generally, and may cover such period as may be
specified by the Committee.
1.20. "Plan" means this Talk America Holdings, Inc. 2001 Non-Officer
Long-Term Incentive Plan, as amended from time to time.
1.21 "Related Option" means the Option in connection with which, or by
amendment to which, a specified Right is granted.
1.22. "Related Right" means the Right granted in connection with, or
by amendment to, a specified Option.
1.23. "Restricted Stock" means Shares awarded under the Plan pursuant
to the provisions of Section 9.
1.24 "Right" means a stock appreciation right granted under the Plan
in accordance with the terms of Section 7.
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1.25 "Right Period" means the period during which a Right may be
exercised.
1.26. "Share" means a share of Common Stock.
1.27. "Subsidiary" means a corporation at least 50% of the total
combined voting power of all classes of stock of which is owned by the Company,
either directly or through one or more other Subsidiaries.
2. Purpose. This Plan is intended to assist the Company and its
Subsidiaries in attracting and retaining Employees of outstanding ability and
to promote the identification of their interests with those of the stockholders
of the Company.
3. Administration. The Committee shall administer this Plan and shall have
plenary authority, in its discretion, to award Options, Rights, Restricted Stock
and Incentive Shares to Employees, subject to the provisions of this Plan. The
Committee shall have plenary authority and discretion, subject to the provisions
of this Plan, to determine the Employees to whom Options or Rights shall be
granted and to whom Restricted Stock or Incentive Shares shall be awarded, the
terms (which terms need not be identical) of all Awards to Employees, including
without limitation the Option Price of Options, the time or times at which
Awards are made, the number of Shares covered by Awards, any exceptions to
non-transferability, any Performance Goals applicable to Awards, any provisions
relating to vesting, any circumstances in which the Options would terminate, the
period during which Options and Rights may be exercised, and the period during
which Restricted Stock shall be subject to restrictions. In making these
determinations, the Committee may take into account the nature of the services
rendered or to be rendered by the Award recipients, their present and potential
contributions to the success of the Company and its Subsidiaries, and such other
factors as the Committee in its discretion shall deem relevant. Subject to the
provisions of this Plan, the Committee shall have plenary authority to interpret
this Plan, prescribe, amend and rescind rules and regulations relating to it,
and make all other determinations deemed necessary or advisable for the
administration of this Plan. The determinations of the Committee on the matters
referred to in this Section 3 shall be binding and final.
4. Eligibility. Options, Rights, Restricted Stock and Incentive Shares
may be granted or awarded only to Employees. An Employee who has been granted an
Option or Right or awarded Restricted Stock or Incentive Shares may be granted
additional Options and Rights or awarded additional shares of Restricted Stock
or Incentive Shares.
5. Stock Subject to Plan.
5.1. Subject to adjustment as provided in Section 11, the maximum
number of Shares that may be issued under this Plan is 5,000,000 Shares.
5.2. If an Option or Right expires or terminates for any reason (other
than termination by virtue of the exercise of a Related Option or Related Right,
as the case may be) without having been fully exercised, if Shares of Restricted
Stock are forfeited or if Shares covered by an Incentive
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Share Award are not issued or are forfeited, the unissued or forfeited Shares
which had been subject to the Award shall become available for the grant of
additional Awards.
5.3. Upon exercise of a Right (regardless of whether the Right is
settled in cash or Shares), the number of Shares with respect to which the Right
is exercised shall be charged against the number of Shares issuable under the
Plan and shall not become available for the grant of other Awards.
6. Options.
6.1. Options granted under this Plan to Employees shall not be
incentive stock options, as defined under Section 424 of the Internal Revenue
Code of 1986, as amended, and shall be evidenced by an Agreement that specifies
the terms and conditions of the grant. Options shall be subject to the terms and
conditions set forth in this Section 6 and such other terms and conditions not
inconsistent with this Plan as the Committee may specify.
6.2. The Option Period shall be determined by the Committee and
specifically set forth in the Agreement; provided, however, that an Option shall
not be exercisable after ten years from its Date of Grant.
6.3. The Committee, in its discretion, may provide in an Agreement for
the right of the Optionee to surrender to the Company an Option (or a portion
thereof) that has become exercisable and to receive upon such surrender, without
any payment to the Company (other than required tax withholding amounts) that
number of Shares (equal to the highest whole number of Shares) having an
aggregate fair market value as of the date of surrender equal to that number of
Shares subject to the Option (or portion thereof) being surrendered multiplied
by an amount equal to the excess of (i) the Fair Market Value on the date of
surrender over (ii) the Option Price, plus an amount of cash equal to the fair
market value of any fractional Share to which the Optionee would be entitled but
for the parenthetical above relating to whole number of Shares. Any such
surrender shall be treated as the exercise of the Option (or portion thereof).
7. Rights.
7.1. Rights granted under the Plan shall be evidenced by an Agreement
specifying the terms and conditions of the grant.
7.2. A Right may be granted under the Plan:
(a) in connection with, and at the same time as, the grant of an
Option under the Plan;
(b) by amendment of an outstanding Option granted under the Plan;
or
(c) independently of any Option granted under the Plan.
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7.3. A Right granted under Section 7.2(a) or Section 7.2(b) of this
Plan is a Related Right. A Related Right may, in the Board's or Committee's
discretion, apply to all or any portion of the Shares subject to the Related
Option.
7.4. A Right may be exercised in whole or in part as provided in the
applicable Agreement, and, subject to the terms of the Agreement, entitles an
Optionee to receive, without payment to the Company (but subject to required tax
withholding), either cash or that number of Shares (equal to the highest whole
number of Shares), or a combination thereof, in an amount or having a fair
market value determined as of the Date of Exercise not to exceed the number of
Shares subject to the portion of the Right exercised multiplied by an amount
equal to the excess of (i) the Fair Market Value on the Date of Exercise of the
Right over (ii) either (A) the Fair Market Value on the Date of Grant of the
Right if it is not a Related Right, or (B) the Option Price as provided in the
Related Option if the Right is a Related Right.
7.5. The Right Period shall be determined by the Committee and
specifically set forth in the Agreement, subject to the following conditions:
(a) a Right will expire no later than the earlier of (1) ten
years from the Date of Grant, or (2) in the case of a Related Right, the
expiration of the Related Option;
(b) a Right may be exercised only when the Fair Market Value on
the Date of Exercise exceeds either (1) the Fair Market Value on the Date of
Grant of the Right if it is not a Related Right, or (2) the Option Price of the
Related Option if the Right is a Related Right; and
(c) a Right that is a Related Right to an Option may be exercised
only when and to the extent the Related Option is exercisable.
7.6. The exercise, in whole or in part, of a Related Right shall cause
a reduction in the number of Shares subject to the Related Option equal to the
number of Shares with respect to which the Related Right is exercised.
Similarly, the exercise, in whole or in part, of a Related Option shall cause a
reduction in the number of Shares subject to the Related Right equal to the
number of Shares with respect to which the Related Option is exercised.
8. Exercise of Options and Rights.
8.1. An Option or Right may, subject to the terms of the applicable
Agreement under which it was granted, be exercised in whole or in part by the
delivery to the Company of written notice of the exercise, in such form as the
Committee may prescribe, accompanied, in the case of an Option, by (a) a full
payment for the Shares with respect to which the Option is exercised or (b)
irrevocable instructions to a broker to deliver promptly to the Company cash
equal to the exercise price of the option. To the extent provided in the
applicable Option Agreement, payment may be made in whole or in part by delivery
(including constructive delivery) of Shares valued at Fair Market Value on the
Date of Exercise or by delivery of a promissory note as provided in Section 8.2
hereof.
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8.2. To the extent provided in an Agreement and permitted by
applicable law, the Committee may accept as partial payment of the Option Price
a promissory note executed by the Optionee evidencing his or her obligation to
make future cash payment thereof. Promissory notes made pursuant to this Section
8.2 shall be payable upon such terms as may be determined by the Committee,
shall be secured by a pledge of the Shares received upon exercise of the Option,
or other securities the Committee may deem to be acceptable for such purposes,
and shall bear interest at a rate fixed by the Committee.
8.3. Options and Rights made under this Plan shall be transferable by
will, the laws of descent and distribution, and as provided by the Committee in
an Agreement.
9. Restricted Stock Awards.
9.1. Restricted Stock awards under this Plan shall consist of Shares
that are restricted against transfer, subject to forfeiture, and subject to such
other terms and conditions as may be determined by the Committee. Such terms and
conditions may provide, in the discretion of the Committee, for the lapse of
forfeiture and transfer restrictions to be contingent upon the achievement of
one or more specified Performance Goals.
9.2. Restricted Stock awards under this Plan shall be evidenced by
Agreements specifying the terms and conditions of the Award. Each Agreement
evidencing an Award of Restricted Stock shall contain the following:
(a) prohibitions against the sale, assignment, transfer,
exchange, pledge, hypothecation, or other encumbrance of (i) the Shares awarded
as Restricted Stock under this Plan, (ii) the right to vote the Shares, and
(iii) the right to receive dividends thereon, in each case during the
restriction period applicable to the Shares; provided, however, that the Grantee
shall have all the other rights of a stockholder including without limitation
the right to receive dividends and the right to vote the Shares;
(b) a requirement that each certificate representing Shares of
Restricted Stock shall be deposited with the Company, or its designee, and shall
bear the following legend:
"This certificate and the shares of stock represented hereby
are subject to the terms and conditions (including the risks of
forfeiture and restrictions against transfer) contained in the
Talk America Holdings, Inc. 2001 Non-Officer Long-Term Incentive
Plan, and an Agreement entered into between the registered owner
and Talk America Holdings, Inc. Release from such terms and
conditions shall be made only in accordance with the provisions
of this Plan and the Agreement, a copy of each of which is on
file in the office of the Secretary of Talk America Holdings,
Inc."; and
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(c) the terms and conditions upon which any restrictions
applicable to Shares of Restricted Stock shall lapse and new certificates free
of the foregoing legend shall be issued to the Grantee or his or her legal
representative.
9.3. The Committee may include in any Agreement awarding Restricted
Stock a requirement that, in the event of a Grantee's termination of employment
for any reason prior to the lapse of restrictions, all Shares of Restricted
Stock shall be forfeited by the Grantee to the Company without payment of any
consideration by the Company and neither the Grantee nor any successors, heirs,
assigns or personal representatives of the Grantee shall thereafter have any
further rights or interest in the Shares or certificates.
10. Incentive Share Awards. Incentive Shares awarded under this Plan
shall be evidenced by an Agreement specifying the terms and conditions of such
Award. Incentive Share Awards shall provide for the issuance of Shares to a
Grantee at such times and subject to such terms and conditions as the Committee
shall deem appropriate, including without limitation terms that condition the
issuance of Shares upon the achievement of Performance Goals.
11. Capital Adjustments. In the event of any change in the outstanding
Common Stock by reason of any stock dividend, split-up, recapitalization,
reclassification, combination or exchange of shares, merger, consolidation or
liquidation and the like, the Committee may, in its discretion, provide for a
substitution for or adjustment in (i) the number and class of Shares subject to
outstanding Options, Rights and Awards of Restricted Stock or Incentive Shares,
(ii) the Option Price of Options and the base price upon which payments under
Rights that are not Related Rights are determined, and (iii) the aggregate
number and class of Shares for which Awards thereafter may be made under this
Plan and to individual Award recipients.
12. Termination or Amendment. The Board may amend, alter or terminate this
Plan in any respect at any time; provided, however, that, no amendment,
alteration or termination of this Plan shall be made by the Board without
approval of each affected Optionee and Grantee if such amendment, alteration or
termination would adversely affect his or her rights or obligations under any
Award made prior to the date of such amendment, alteration or termination.
13. Modification, Extension, Renewal, Substitution.
13.1. Subject to the terms and conditions of this Plan, the Committee
may modify, extend or renew outstanding Options and Rights, or accept the
surrender of outstanding Options and Rights granted under this Plan or options
and stock appreciation rights granted under any other plan of the Company or a
Subsidiary (to the extent not theretofore exercised), and authorize the granting
of new Options and Rights pursuant to this Plan in substitution therefor. Any
substituted Options or Rights may specify a lower exercise price than the
surrendered options and stock appreciation rights, a longer term than the
surrendered options and stock appreciation rights, or have any other provisions
that are authorized by this Plan. Subject to the terms and conditions of this
Plan, the Committee may modify the terms of any outstanding Awards of Restricted
Stock or Incentive Shares. Notwithstanding the foregoing, however, no
modification of an Award shall, without the
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consent of the Optionee or Grantee, alter or impair any of the Optionee's or
Grantee's rights or obligations under such Award.
13.2. Anything contained herein to the contrary notwithstanding,
Options and Rights, Restricted Stock and Incentive Shares may, at the discretion
of the Committee, be granted under this Plan in substitution for options to
purchase shares of capital stock of another corporation which is merged into,
consolidated with, or all or a substantial portion of the property or stock of
which is acquired by, the Company or one of its Subsidiaries. The terms and
conditions of the substitute Options, Rights, Restricted Stock and Incentive
Shares so granted may vary from the terms and conditions set forth in this Plan
to such extent as the Committee may deem appropriate in order to conform, in
whole or part, to the provisions of the Awards in substitution for which they
are granted.
14. Effectiveness of this Plan. This Plan and any amendments hereto are
effective on the date on which they are adopted by the Board, except as
otherwise specified by the Board.
15. Withholding. The Company's obligation to deliver Shares or pay any
amount pursuant to the terms of any Award hereunder shall be subject to
satisfaction of applicable federal, state and local tax withholding
requirements. To the extent provided in the applicable Agreement and in
accordance with rules prescribed by the Committee, an Optionee or Grantee may
satisfy any such withholding tax obligation by any of the following means or by
a combination of such means: (i) tendering a cash payment, (ii) authorizing the
Company to withhold Shares otherwise issuable to the Optionee or Grantee, or
(iii) delivering to the Company already-owned and unencumbered Shares.
16. Term of this Plan. Unless sooner terminated by the Board pursuant to
Section 11, this Plan shall terminate on July 31, 2011, and no Awards may be
made after such date. The termination of this Plan shall not affect the validity
of any Award outstanding on the date of termination.
17. Indemnification of Committee. In addition to such other rights of
indemnification as they may have as Directors or as members of the Committee,
the members of the Committee shall be indemnified by the Company against all
reasonable expenses, including attorneys' fees, actually and reasonably incurred
in connection with the defense of any action, suit or proceeding, or in
connection with any appeal therein, to which they or any of them may be a party
by reason of any action taken or failure to act under or in connection with this
Plan or any Option, Right, Restricted Stock or Incentive Shares granted or
awarded hereunder, and against all amounts reasonably paid by them in settlement
thereof or paid by them in satisfaction of a judgment in any such action, suit
or proceeding, if such members acted in good faith and in a manner which they
believed to be in, and not opposed to, the best interests of the Company.
18. General Provisions.
18.1. The establishment of this Plan shall not confer upon any
Employee any legal or equitable right against the Company, any Subsidiary or the
Committee, except as expressly provided in this Plan.
