EXHIBIT 4.1
PLANETLINK COMMUNICATIONS, INC.
EMPLOYEE STOCK INCENTIVE PLAN FOR THE YEAR 2004 NO. 2
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 30,000,000
subject to the provisions of Paragraph 4.1.
If shares of the Common Stock
1
<PAGE>
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 exercise. 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.
2
<PAGE>
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
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
3
<PAGE>
is a member of the Armed Force
