Exhibit 4.5
ACT TELECONFERENCING, INC.
2000 STOCK OPTION PLAN
Non-Statutory Stock Option Agreement
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(Employee)
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Name of Optionee:
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No. of Shares Covered: Date of Grant:
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Exercise Price Per Share: Expiration Date:
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Exercise Schedule (Cumulative):
Date(s) of No. of Shares as to Which
Exercisability Option Becomes Exercisable
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This Non-Statutory Stock Option Agreement ("Agreement") between ACT
Teleconferencing, Inc., a Colorado corporation (the "Company"), and the optionee
identified above (the "Optionee") is effective as of the date of grant specified
above.
Recitals
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WHEREAS, the Company maintains the ACT Teleconferencing, Inc. 2000 Stock
Option Plan (the "Plan"); and
WHEREAS, pursuant to the Plan, the Board of Directors of the Company (the
"Board") or a committee of two or more directors of the Company (the
"Committee") appointed by the Board administers the Plan and has the authority
to determine the awards to be granted under the Plan (if the Board has not
appointed a committee to administer the Plan, then the Board shall constitute
the Committee); and
WHEREAS, the Committee has determined that the Optionee is eligible to
receive an award under the Plan in the form of a non-statutory stock option (the
"Option");
NOW, THEREFORE, the Company hereby grants this Option to the Optionee under
the terms and conditions as follows.
Terms and Conditions*
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1. Grant. The Optionee is granted this Option to purchase the number of Shares
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specified at the beginning of this Agreement.
2. Exercise Price. The price to the Optionee of each Share subject to this
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Option shall be the exercise price specified at the beginning of this
Agreement.
3. Non-Statutory Stock Option. This Option is not intended to be an
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"incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
4. Exercise Schedule. This Option shall vest and become exercisable as to the
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number of Shares and on the dates specified in the exercise schedule at the
beginning of this Agreement. The exercise schedule shall be cumulative;
thus, to the extent this Option has not already been exercised and has not
expired, terminated or been cancelled, the Optionee or the person otherwise
entitled to exercise this Option as provided herein may at any time, and
from time to time, purchase all or any portion of the Shares then
purchasable under the exercise schedule.
This Option may also be exercised in full (notwithstanding the exercise
schedule) under the circumstances described in Section 8 of this Agreement
if it has not expired prior thereto.
5. Expiration. This Option shall expire at 5:00 p.m. Denver, Colorado time on
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the earliest of:
(a) The expiration date specified at the beginning of this Agreement
(which date shall not be later than ten years after the date of
grant);
(b) The last day of the period following the termination of employment of
the Optionee during which this Option can be exercised (as specified
in Section 7 of this Agreement); or
(c) The date (if any) fixed for cancellation pursuant to Section 8 of this
Agreement.
In no event may anyone exercise this Option, in whole or in part, after it
has expired, notwithstanding any other provision of this Agreement.
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* Unless the context indicates otherwise, terms that are not defined in this
Agreement shall have the meaning set forth in the Plan as it currently exists or
as it is amended in the future.
6. Procedure to Exercise Option.
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Notice of Exercise. This Option may be exercised by delivering written
notice of exercise to the Company at the principal executive office of the
Company, to the attention of the Company's Secretary, in the form attached
to this Agreement. The notice shall state the number of Shares to be
purchased, and shall be signed by the person exercising this Option. If the
person exercising this Option is not the Optionee, he/she also must submit
appropriate proof of his/her right to exercise this Option.
Tender of Payment. Upon giving notice of any exercise hereunder, the
Optionee shall provide for payment of the purchase price of the Shares
being purchased through one or a combination of the following methods:
(a) Cash;
(b) Cancellation of indebtedness;
(c) By delivery to the Company of unencumbered Shares having an
aggregate Fair Market Value (as defined in paragraph 7 of the Plan) on
the date of exercise equal to the purchase price of such Shares;
(d) By a reduction in the number of Shares delivered to the Optionee
upon exercise, such number of Shares having an aggregate Fair Market
Value on the date of exercise equal to the purchase price of such
Shares; or
(e) To the extent permitted by law, a broker-assisted cashless
exercise in which the Optionee irrevocably instructs a broker to
deliver proceeds of a sale of all or a portion of the Shares to be
issued pursuant to the exercise to the Company in payment of the
purchase price of such Shares.
Notwithstanding the foregoing, the Optionee shall not be permitted to pay
any portion of the purchase price with Shares if the Committee, in its sole
discretion, determines that payment in such manner is undesirable.
Delivery of Certificates. As soon as practicable after the Company receives
the notice and purchase price provided for above, it shall deliver to the
person exercising this Option, in the name of such person, a certificate or
certificates representing the Shares being purchased. The Company shall pay
any original issue or transfer taxes with respect to the issue or transfer
of the Shares and all fees and expenses incurred by it in connection
therewith. All Shares so issued shall be fully paid and nonassessable.
Notwithstanding anything to the contrary in this Agreement, the Company
shall not be required to issue or deliver any Shares prior to the
completion of such registration or other qualification of such Shares under
any state or federal law, rule or regulation as the Company shall determine
to be necessary or desirable.
7. Employment Requirement. This Option may be exercised only while the
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Optionee remains employed with the Company or a parent or subsidiary
thereof, and only if the Optionee has been continuously so employed since
the date of this Agreement; provided that:
(a) This Option may be exercised for three months following the day the
Optionee's employment by the Company ceases if such cessation of
employment is for a reason other than death or disability, but only to
the extent that it was exercisable immediately prior to termination of
employment.
(b) This Option may be exercised within one year after the Optionee's
employment by the Company ceases if such cessation of employment is
because of death or disability.
(c) If the Optionee's employment terminates after a declaration made
pursuant to Section 8 of this Agreement in connection with an Event,
this Option may be exercised at any time permitted by such
declaration.
Notwithstanding the above, this Option may not be exercised after it has
expired.
8. Acceleration of Option.
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Death or Disability. This Option may be exercised in full, regardless of
whether such exercise occurs prior to a date on which this Option would
otherwise vest, upon the death or disability of the Optionee; provided that
the Optionee shall have been continuously employed by the Company or a
parent or subsidiary thereof between the date of this Agreement and the
date of such death or disability.
Change in Control. In the event of a Change in Control as defined in
paragraph 11 of the Plan, then, without any action by the Committee or the
Board, this Option, to the extent not already exercised in full or
otherwise terminated, expired or canceled, shall become immediately
exercisable in full and the Committee may, as provided in paragraph 11(c)
of the Plan, determine that this option shall be canceled and make certain
cash payments with respect to this Option.
Event. In the event of an Event as defined in paragraph 12 of the Plan, the
Committee may, but shall not be obligated to:
(a) if the Event is a merger or consolidation or statutory share exchange,
make appropriate provision for the protection of this Option by the
substitution for this Option of options or voting common stock of the
corporation surviving any merger or consolidation or, if appropriate,
the parent corporation of the Company or such surviving corporation,
as provided in paragraph 12 of the Plan; or
(b) at least 20 days prior to the occurrence of the Event, declare, and
provide written notice to the Optionee of the declaration, that this
Option, whether or not then exercisable, shall be canceled at the time
of, or immediately prior to the occurrence of, the Event (unless it
shall have been exercised prior to the occurrence of the Event). In
connection with any such declaration, the Committee may, but shall not
be obligated to, cause payment to be made to the Optionee of cash
equal to, for each Share covered by the canceled Option, the amount,
if any, by which the Event Proceeds per Share, as defined in paragraph
12 of the Plan, exceeds the exercise price per Share covered by this
Option. At the time of any such declaration, this Option shall
immediately become exercisable in full and the Optionee shall have the
right, during the period preceding the time of cancellation of this
Option, to exercise this Option as to all or any part of the Shares
covered by this Option. In the event of a declaration pursuant to
this subsection, to the extent this Option has not been exercised
prior to the Event, the unexercised part of this Option shall be
canceled at the time of, or immediately prior to, the Event, as
provided in the declaration. Notwithstanding the foregoing, the
holder of this Option shall not be entitled to the payment provided
for in this subsection if this Option shall have expired pursuant to
Section 5 above.
Discretionary Acceleration. The Committee has the power, in its sole
discretion, to declare at any time that this Option shall be immediately
exercisable.
9. Limitation on Transfer. While the Optionee is alive, only the Optionee or
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his/her guardian or legal representative may exercise this Option. This
Option may not be assigned or transferred other than by will or the laws of
descent and distribution or pursuant to a qualified domestic relations
order as defined by the Code or Title I of the Employee Retirement Income
Security Act, or the rules thereunder.
10. No Shareholder Rights Before Exercise. No person shall have any of the
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rights of a shareholder of the Company with respect to any Share subject to
this Option until the Share actually is issued to him/her upon exercise of
this Option.
11. Discretionary Adjustment. In the event of any reorganization, merger,
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consolidation, recapitalization, liquidation, reclassification, stock
dividend, stock split, combination of shares, rights offering, or
extraordinary dividend or divestiture (including a spin-off), or any other
change in the corporate structure or Shares of the Company, the Committee
(or if the Company does not survive any such transaction, a comparable
committee of the Board of Directors of the surviving corporation) may,
without the consent of the Optionee, make such adjustment as it determines
in its discretion to be appropriate as to the number and kind of securities
subject to and reserved under the Plan and, in order to prevent dilution or
enlargement of rights of the Optionee, the number and kind of securities
issuable upon exercise of this Option and the exercise price hereof.
12. Tax Withholding. Delivery of Shares upon exercise of this Option shall be
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subject to any required withholding taxes. As a condition precedent to
receiving Shares upon exercise of this Option, the Optionee may be required
to pay to the Company, in accordance with the provisions of paragraph 9 of
the Plan, an amount equal to the amount of any required withholdings.
13. Interpretation of This Agreement. All decisions and interpretations made
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by the Committee with regard to any question arising hereunder or under the
Plan shall be binding and conclusive upon the Company and the Optionee. If
there is any inconsistency between the provisions of this Agreement and the
Plan, the provisions of the Plan shall govern.
14. Discontinuance of Employment. This Agreement shall not give the Optionee a
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right to continued employment with the Company or any parent or subsidiary
of the Company, and the Company or any such parent or subsidiary employing
the Optionee may terminate his/her employment at any time and otherwise
deal with the Optionee without regard to the effect it may have upon
him/her under this Agreement.
15. Option Subject to Plan, Articles of Incorporation and Bylaws. The Optionee
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acknowledges that this Option and the exercise thereof is subject to the
Plan, the Articles of Incorporation, as amended from time to time, and the
Bylaws, as amended from time to time, of the Company, and any applicable
federal or state laws, rules or regulations.
16. Obligation to Reserve Sufficient Shares. The Company shall at all times
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during the term of this Option reserve and keep available a sufficient
number of Shares to satisfy this Agreement.
17. Binding Effect. This Agreement shall be binding in all respects on the
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heirs, representatives, successors and assigns of the Optionee.
18. Choice of Law. This Agreement is entered into under the laws of the State
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of Colorado and shall be construed and interpreted thereunder (without
regard to its conflict of law principles).
IN WITNESS WHEREOF, the Optionee and the Company have executed this Agreement as
of the ____ day of ________, 20__.
OPTIONEE
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ACT TELECONFERENCING, INC.
By_____________________________________
Its__________________________________
__________________, 20___
Notice of Option Exercise
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ACT TELECONFERENCING, INC.
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Attention: Chief Financial Officer
Sir/Madam:
I hereby exercise the following option (the "Option") granted to me under
the ACT Teleconferencing, Inc. 2000 Stock Option Plan (the "Plan") with respect
to the number of shares of Common Stock, no par value ("Shares"), of ACT
Teleconferencing, Inc. (the "Company"), indicated below:
Name:
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Date of Grant of Option:
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Exercise Price Per Share:
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Number of Shares With Respect to
Which the Option is Hereby
Exercised:
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Total Exercise Price:
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[ ] Enclosed with this letter is a check, bank draft or money
order in the amount of the Total Exercise Price.
[ ] I hereby agree to pay the Total Exercise Price by
cancellation of a debt owed to me by the Company.
[ ] I hereby agree to pay the Total Exercise Price within five business
days of the date hereof and, as stated in the attached Broker's
Letter, I have delivered irrevocable instructions to
__________________________________ to promptly deliver to the Company
the amount of sale or loan proceeds from the Shares to be issued
pursuant to this exercise necessary to satisfy my obligation hereunder
to pay the Total Exercise Price.
[ ] Enclosed with this letter is a certificate evidencing
unencumbered Shares (duly
endorsed in blank) having an aggregate Fair Market Value (as defined
in the Plan) equal to or in excess of the Total Exercise Price.
[ ] I elect to pay the Total Exercise Price through a reduction in the
number of Shares delivered to me upon this exercise of the Option as
provided in paragraph 8 of the Plan.
If I am enclosing Shares with this letter, I hereby represent and warrant
that I am the owner of such Shares free and clear of all liens, security
interests and other restrictions or encumbrances. I agree that I will pay any
required withholding taxes in connection with this exercise as provided in
paragraph 9 of the Plan.
Please issue a certificate (the "Certificate") for the number of Shares
with respect to which the Option is being exercised in the name of the person
indicated below and deliver the Certificate to the address indicated below:
Name in Which to Issue Certificate: ______________________________
Address to Which Certificate
Should be Delivered: ______________________________
Principal Mailing Address
for Holder of the Certificate (if ______________________________
different from above):
Very truly yours,
______________________________
Signature
______________________________
Name, please print
______________________________
Social Security Number
-2-
__________________, 20___
Broker Assisted Option Exercise
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ACT TELECONFERENCING, INC.
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Attention: Chief Financial Officer
Sir/Madam:
Name of Optionee:
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Date of Grant of Option:
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Exercise Price Per Share:
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Number of Shares With Respect to
Which the Option is to be Exercised:
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Total Exercise Price:
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The above Optionee has requested that we finance the exercise of the above
Option to purchase Shares of common stock of ACT Teleconferencing, Inc. (the
"Company") and has given us irrevocable instructions to promptly deliver to the
Company the amount of sale or loan proceeds from the Shares to be issued
pursuant to such exercise to satisfy the Optionee's obligation to pay the Total
Exercise Price.
Very truly yours,
___________________________
Broker Name
By_________________________