EXHIBIT 4.1
PLANETLINK COMMUNICATIONS, INC.
EMPLOYEE STOCK INCENTIVE PLAN FOR THE YEAR 2004 NO. 3
1. General
Provisions.
1.1
Purpose. This Stock
Incentive Plan (the
"Plan") is intended to allow
designated officers and employees (all of whom are sometimes collectively
referred to herein as the "Employees," or individually as the "Employee") of
Planetlink Communications, Inc., a Georgia corporation (the
"Company") and its
Subsidiaries (as that term is defined
below) which they may have from time
to
time (the Company and such Subsidiaries are
referred to herein as the "Company")
to receive certain options (the "Stock
Options") to purchase common stock of the
Company, par value $0.001 per share (the
"Common Stock"), and to receive grants
of the Common Stock subject to certain
restrictions (the
"Awards"). As used
in
this Plan, the term "Subsidiary" shall mean each corporation which is a
"subsidiary corporation" of the Company within
the meaning of Section 424(f) of
the Internal Revenue Code of 1986, as
amended (the "Code").
The purpose of this
Plan is to provide the Employees, who make significant and extraordinary
contributions to the long-term growth and performance of the Company, with
equity-based compensation incentives, and
to attract and retain the Employees.
1.2
Administration.
1.2.1 The
Plan shall be
administered by the
Compensation Committee
(the
"Committee") of, or appointed by, the Board of Directors of the Company (the
"Board"). The Committee shall select one of its members as
Chairman and shall
act by vote of a majority of a quorum, or by unanimous written consent. A
majority of its members shall constitute a quorum. The Committee shall be
governed by the provisions of the Company's
Bylaws and of Georgia law applicable
to the Board, except as otherwise provided
herein or determined by the Board.
1.2.2 The Committee shall have full and complete authority, in its
discretion, but subject to the express
provisions
of this Plan (a) to
approve
the Employees nominated by the management
of the Company to be granted Awards or
Stock Options; (b) to determine the number of Awards or Stock
Options to be
granted to an Employee; (c) to determine the time or times at which Awards
or
Stock Options shall be granted; to
establish the terms and conditions upon which
Awards or Stock Options may be exercised; (d) to remove or adjust any
restrictions and conditions upon Awards or
Stock Options; (e) to specify, at the
time of grant, provisions relating to exercisability of Stock Options and to
accelerate or otherwise modify the
exercisability of any Stock Options; and (f)
to adopt such rules and regulations and to
make all other determinations deemed
necessary or desirable for the
administration of this Plan. All interpretations
and constructions of this Plan by the Committee, and all of its actions
hereunder, shall be binding and conclusive
on all persons for all purposes.
1.2.3 The
Company hereby agrees to indemnify and hold harmless each
Committee member and each Employee,
and the estate and
heirs of such Committee
member or Employee, against all claims, liabilities, expenses, penalties,
damages or other pecuniary losses, including legal fees, which such Committee
member or Employee, his estate or heirs may suffer as a result of his
responsibilities, obligations or duties in connection with this Plan, to the
extent that insurance, if any, does not cover the payment of such items.
No
member of the Committee or the Board shall be liable for any action or
determination made in good faith with
respect to this Plan or any Award or Stock
Option granted pursuant to this Plan.
1.3
Eligibility and Participation. The Employees eligible under this
Plan
shall be approved by the Committee
from those
Employees who, in the
opinion of
the management of the Company, are in positions which enable them to make
significant contributions to the long-term performance and growth of the
Company. In selecting the Employees to whom Award or Stock
Options may be
granted, consideration shall be given to factors such as
employment
position,
duties and responsibilities, ability, productivity,
length of service,
morale,
interest in the Company and recommendations
of supervisors.
1.4
Shares Subject to this Plan. The maximum number of shares of the
Common Stock that may be issued pursuant to this Plan shall be 50,000,000
subject to the provisions of Paragraph 4.1. If shares of the Common Stock
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awarded or issued under this Plan are reacquired by the Company due to a
forfeiture or for any other reason, such shares shall be cancelled and
thereafter shall again be available for
purposes of this Plan. If a Stock Option
expires, terminates or is cancelled for any
reason without having been exercised
in full, the shares of the Common Stock not
purchased thereunder
shall again be
available for purposes of this Plan.
2.
Provisions Relating to Stock Options.
2.1 Grants
of Stock Options. The Committee may grant Stock Options in such
amounts, at such times, and to the
Employees nominated by the management of the
Company as the Committee, in its discretion, may determine. Stock Options
granted under this Plan shall constitute "incentive stock options" within the
meaning of Section 422 of the Code,
if so designated by the Committee on the
date of grant. The Committee shall also have the discretion to grant Stock
Options which do not constitute incentive stock options, and any such Stock
Options shall be designated non-statutory stock options by the
Committee on the
date of grant. The aggregate Fair Market Value (determined as of the time an
incentive stock option is granted) of the Common
Stock with
respect to which
incentive stock options are exercisable for the first time by any
Employee
during any one calendar year (under all plans of the
Company and any parent or
subsidiary of the Company) may not exceed the
maximum amount
permitted under
Section 422 of the Code (currently,
$100,000.00).
Non-statutory
stock options
shall not be subject to the limitations relating to incentive stock options
contained in the preceding sentence. Each Stock Option shall be
evidenced by a
written agreement (the "Option Agreement") in a form approved by
the Committee,
which shall be executed on behalf of the
Company and by the Employee to whom the
Stock Option is granted, and which shall be subject to the
terms and conditions
of this Plan. In the discretion of the Committee, Stock Options may include
provisions (which need not be uniform), authorized by the Committee in its
discretion, that accelerate an Employee's rights to exercise Stock Options
following a "Change in Control," upon
termination of the
Employee's
employment
by the Company without "Cause" or by the Employee
for "Good Reason," as such
terms are defined in Paragraph 3.1 hereof. The holder of a Stock Option
shall
not be entitled to the privileges of stock ownership as to any shares of the
Common Stock not actually issued to such
holder.
2.2
Purchase Price. The purchase price (the "Exercise Price") of shares
of
the Common Stock subject to each Stock
Option (the "Option Shares") shall not be
less than 85 percent of the Fair Market
Value of the Common Stock on the date of
the grant of the option. For an Employee holding greater
than 10 percent of the
total voting power of all stock of the
Company, either Common or Preferred, the
Exercise Price of an incentive stock option
shall be at least 110 percent of the
Fair Market Value of the Common Stock on
the date of the grant of the option. As
used herein, "Fair Market Value" means the mean between the
highest and lowest
reported sales prices of the Common Stock on the New York Stock Exchange
Composite Tape or, if not listed on such exchange, on any other national
securities exchange on which the Common
Stock is listed or on
The Nasdaq Stock
Market, or, if not so listed on any other
national securities
exchange or The
Nasdaq Stock Market, then the average of the bid price of the
Common Stock
during the last five trading days on the OTC Bulletin Board immediately
preceding the last trading day prior to the
date with respect to which the Fair
Market Value is to be determined. If the Common Stock is not then publicly
traded, then the Fair Market Value of the Common Stock shall be
the book value
of the Company per share as determined on the last day of March, June,
September, or December in any year closest
to the date when the determination is
to be made. For the purpose of determining book value hereunder, book value
shall be determined by adding as of the
applicable
date called for herein
the
capital, surplus, and undivided profits of the Company, and after having
deducted any reserves theretofore
established;
the sum of these items
shall be
divided by the number of shares of the
Common Stock outstanding as of said date,
and the quotient thus obtained shall represent the book value of each
share of
the Common Stock of the Company.
2.3 Option
Period. The Stock
Option period (the "Term") shall commence on
the date of grant of the Stock Option and shall be 10 years or such
shorter
period as is determined by the Committee. Each Stock Option shall provide
that
it is exercisable over its term in such periodic
installments as the
Committee
may determine, subject to the provisions of
Paragraph 2.4.1.
Section 16(b) of
the Securities Exchange Act of 1934, as amended
(the "Exchange
Act") exempts
persons normally subject to the reporting
requirements of
Section 16(a) of the
Exchange Act (the "Section 16 Reporting Persons") pursuant to a qualified
employee stock option plan from the normal
requirement of not
selling until at
least six months and one day from the date
the Stock Option is granted.
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2.4
Exercise of Options.
2.4.1 Each
Stock Option may be
exercised in whole or
in part (but not as
to fractional shares) by delivering it for surrender or endorsement to the
Company, attention of the Corporate
Secretary,
at the principal
office of the
Company, together with payment of the
Exercise Price and an executed Notice and
Agreement of Exercise in the form
prescribed by Paragraph 2.4.2. Payment may be
made (a) in cash, (b) by cashier's or certified check, (c) by surrender of
previously owned shares of the Common Stock
valued pursuant to Paragraph 2.2 (if
the Committee authorizes payment in stock
in its discretion), (d) by withholding
from the Option Shares which would otherwise be issuable upon the exercise of
the Stock Option that number of Option
Shares equal to the exercise price of the
Stock Option, if such withholding is authorized by the Committee in its
discretion, or (e) in the discretion of the
Committee,
by the delivery to
the
Company of the optionee's promissory note
secured by the Option Shares, bearing
interest at a rate sufficient to prevent the imputation of interest under
Sections 483 or 1274 of the Code,
and having such other
terms and conditions as
may be satisfactory to the Committee. Subject to the provisions of this
Paragraph 2.4 and Paragraph 2.5, the Employee has the right to
exercise his or
her Stock Options at the rate of at least 20
percent per year over five years
from the date the Stock Option is
granted.
2.4.2
Exercise of each Stock Option is conditioned upon the agreement of
the Employee to the terms and conditions of this Plan and of such Stock
Option
as evidenced by the Employee's execution and delivery of a Notice
and Agreement
of Exercise in a form to be determined by
the Committee in its discretion. Such
Notice and Agreement of Exercise shall set forth the agreement of
the Employee
that (a) no Option Shares will be sold or
otherwise distributed
in violation of
the Securities Act of 1933, as amended (the "Securities Act") or any other
applicable federal or state securities laws,
(b) each Option Share
certificate
may be imprinted with legends reflecting any applicable federal and state
securities law restrictions and conditions,
(c) the Company may comply with said
securities law restrictions and issue "stop transfer" instructions to its
Transfer Agent and Registrar without
liability, (d) if the Employee is a Section
16 Reporting Person, the Employee will furnish to the Company a copy
of each
Form 4 or Form 5 filed by said Employee and will timely file all reports
required under federal securities laws, and (e) the Employee will report
all
sales of Option Shares to the Company in writing on a form
prescribed
by the
Company.
2.4.3 No
Stock Option shall be exercisable unless and until any
applicable
registration or qualification requirements
of federal and state securities laws,
and all other legal requirements, have been fully complied with. At no time
shall the total number of securities
issuable upon exercise
of all outstanding
options under this Plan, and the total number of securities
provided for under
any bonus or similar plan or agreement of the Company exceed a number of
securities which is equal to 30 percent of
the then outstanding
securities of
the Company, unless a percentage higher than 30
percent is approved by at least
two-thirds of the outstanding securities entitled to vote. The
Company will use
reasonable efforts to maintain the
effectiveness
of a Registration
Statement
under the Securities Act for the issuance of Stock
Options and shares
acquired
thereunder, but there may be times when no
such Registration
Statement will be
currently effective. The exercise of Stock Options may
be temporarily suspended
without liability to the Company during times when no such Registration
Statement is currently effective, or during times when, in the reasonable
opinion of the Committee, such suspension is necessary to
preclude violation of
any requirements of applicable law or
regulatory bodies having jurisdiction over
the Company. If any Stock Option would expire
for any reason except
the end of
its term during such a suspension, then if
exercise of such Stock Option is duly
tendered before its expiration, such Stock Option shall be exercisable and
exercised (unless the attempted exercise is
withdrawn) as of the first day after
the end of such suspension. The Company shall have no obligation to file any
Registration Statement covering resales of
Option Shares.
2.5
Continuous Employment.
Except as provided in
Paragraph 2.7 below, an
Employee may not exercise a Stock Option unless from the date of grant to
the
date of exercise the Employee remains
continuously in the employ of the Company.
For purposes of this Paragraph 2.5, the period of continuous
employment of an
Employee with the Company shall be deemed
to include (without extending the term
of the Stock Option) any period during
which the Employee is on leave of absence
with the consent of the Company,
provided that such leave of absence shall
not
exceed three months and that the Employee
returns to the employ
of the Company
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at the expiration of such leave of
absence. If the
Employee fails to return to
the employ of the Company at the expiration of such leave of absence, the
Employee's employment with the Company
shall be deemed terminated as of the date
such leave of absence commenced.
The continuous
employment of an
Employee with
the Company shall also be deemed to include
any period during which the Employee
is a member of the Armed
