Exhibit 4.36
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AMERICAN TELESOURCE INTERNATIONAL, INC.
2000 INCENTIVE STOCK OPTION PLAN
I. INTRODUCTION
1.1 Purposes
The purposes of the 2000 Incentive Stock Option Plan (the "Plan") of American
TeleSource International, Inc., a Delaware corporation (the "Company"), are (i)
to align the interests of the Company's stockholders and the recipients of
options under this Plan by increasing the proprietary interest of such
recipients in the Company's growth and success, (ii) to advance the interests of
the Company by attracting, motivating and retaining officers, other employees,
and consultants and (iii) to motivate such persons to act in the long-term best
interests of the Company and its stockholders.
1.2 Administration
This Plan shall be administered by a committee (the "Committee") designated by
the Board of Directors of the Company (the "Board") consisting of two or more
members of the Board. Each member of the Committee may be a "Non-Employee
Director" within the meaning of Rule 16b-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and an "outside director" within the
meaning of Section 162(m) of the Internal Revenue Code of 1986, as amended (the
"Code").
The Committee shall, subject to the terms of this Plan, select eligible persons
for participation in this Plan and shall determine the number of shares of
Common Stock subject to each option granted hereunder, the exercise price of
such option, the time and conditions of exercise of such option and all other
terms and conditions of such option, including, without limitation, the form of
the option agreement. The Committee may, in its sole discretion and for any
reason at any time, subject to the requirements of Section 162(m) of the Code
and regulations thereunder in the case of an option intended to be qualified
performance-based compensation, take action such that any or all outstanding
options shall become exercisable in part or in full. The Committee shall,
subject to the terms of this Plan, interpret this Plan and the application
thereof, establish rules and regulations it deems necessary or desirable for the
administration of this Plan and may impose, incidental to the grant of an
option, conditions with respect to the grant, such as limiting competitive
employment or other activities. All such interpretations, rules, regulations and
conditions shall be final, binding and conclusive. Each option shall be
evidenced by a written agreement (an "Agreement") between the Company and the
optionee setting forth the terms and conditions of such option.
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The Committee may delegate some or all of its power and authority hereunder to
the Board; provided, however, that the Committee may not delegate its power and
authority to the Board with regard to the grant of an award to any person who is
a "covered employee" within the meaning of Section 162(m) of the Code or who, in
the Committee's judgment, is likely to be a covered employee at any time during
the period an award hereunder to such employee would be outstanding.
No member of the Board or Committee shall be liable for any act, omission,
interpretation, construction or determination made in connection with this Plan
in good faith, and the members of the Board and the Committee shall be entitled
to indemnification and reimbursement by the Company in respect of any claim,
loss, damage or expense (including attorneys' fees) arising therefrom to the
full extent permitted by law, except as otherwise may be provided in the
Company's Certificate of Incorporation, as amended, and/or By-Laws, as amended,
and under any directors' and officers' liability insurance that may be in effect
from time to time.
A majority of the Committee shall constitute a quorum. The acts of the Committee
shall be either (i) acts of a majority of the members of the Committee present
at any meeting at which a quorum is present or (ii) acts approved in writing by
all of the members of the Committee without a meeting.
1.3 Eligibility
Participants in this Plan shall consist of such officers and other employees,
persons expected to become officers and other employees and consultants of the
Company, its affiliates and its subsidiaries from time to time (individually a
"Subsidiary" and collectively the "Subsidiaries") as the Committee in its sole
discretion may select from time to time. For purposes of this Plan, references
to employment shall also mean an agency relationship with the Company and
references to employment by the Company shall also mean employment by an
affiliate of the Company or a Subsidiary. The Committee's selection of a person
to participate in this Plan at any time shall not require the Committee to
select such person to participate in this Plan at any other time.
1.4 Shares Available
Subject to adjustment as provided in Section 3.7, 9,800,000 shares of the common
stock, par value $0.001 per share, of the Company ("Common Stock") shall be
available for grants of options under this Plan, reduced by the sum of the
aggregate number of shares of Common Stock which become subject to outstanding
options. To the extent that shares of Common Stock subject to an outstanding
option granted under this Plan are not issued or delivered by reason of the
expiration, termination, cancellation or forfeiture of such option (other than
by reason of the delivery or withholding of shares of Common Stock to pay all or
a portion of the exercise price of such option, or to satisfy all or a portion
of the tax withholding obligations relating to such option), then such shares of
Common Stock shall again be available under this Plan.
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Shares of Common Stock shall be made available from authorized and unissued
shares of Common Stock, or authorized and issued shares of Common Stock
reacquired and held as treasury shares or otherwise or a combination thereof.
To the extent necessary for an award to be qualified performance-based
compensation under Section 162(m) of the Code and the regulations thereunder,
the maximum number of shares of Common Stock with respect to which options may
be granted during any calendar year to any person shall be 1,000,000, subject to
adjustment as provided in Section 3.7.
II. STOCK OPTIONS
2.1 Grants of Stock Options
The Committee may, in its discretion, grant options to purchase shares of Common
Stock to such eligible persons as may be selected by the Committee. Each option,
or portion thereof, that is not an Incentive Stock Option, shall be a
"Non-Statutory Stock Option." An Incentive Stock Option may not be granted to
any person who is not an employee of the Company or any subsidiary (as defined
in Section 424 of the Code). An "Incentive Stock Option" shall mean an option to
purchase shares of Common Stock that meets the requirements of Section 422 of
the Code, or any successor provision, which is intended by the Committee to
constitute an Incentive Stock Option. Each Incentive Stock Option shall be
granted within ten years of the date this Plan is adopted by the Board. To the
extent that the aggregate Fair Market Value (determined as of the date of grant)
of shares of Common Stock with respect to which options designated as Incentive
Stock Options are exercisable for the first time by a participant during any
calendar year (under this Plan or any other plan of the Company, or any parent
or subsidiary as defined in Section 424 of the Code) exceeds the amount
(currently $100,000) established by the Code, such options shall constitute
Non-Statutory Stock Options. "Fair Market Value" shall mean the closing
transaction price of a share of Common Stock as reported on The American Stock
Exchange on the date as of which such value is being determined or, if there
shall be no reported transactions on such date, on the next preceding date for
which a transaction was reported; provided, however, that Fair Market Value may
be determined by the Committee by whatever means or method as the Committee, in
the good faith exercise of its discretion, shall at such time deem appropriate.
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2.2 Terms of Stock Options
Options shall be subject to the following terms and conditions and shall contain
such additional terms and conditions, not inconsistent with the terms of this
Plan, as the Committee shall deem advisable:
(a) Number of Shares and Purchase Price. The number of shares of Common Stock
subject to an option and the purchase price per share of Common Stock
purchasable upon exercise of the option shall be determined by the Committee;
provided, however, that the purchase price per share of Common Stock purchasable
upon exercise of an option shall not be less than 100% of the Fair Market Value
of a share of Common Stock on the date of grant of such option; provided
further, that if an Incentive Stock Option shall be granted to any person who,
at the time such option is granted, owns capital stock possessing more than ten
percent of the total combined voting power of all classes of capital stock of
the Company (or of any parent or subsidiary as defined in Section 424 of the
Code) (a "Ten Percent Holder"), the purchase price per share of Common Stock
shall be the price (currently 110% of Fair Market Value) required by the Code in
order to constitute an Incentive Stock Option.
(b) Option Period and Exercisability. The period during which an option may be
exercised shall be determined by the Committee; provided, however, that no
Incentive Stock Option shall be exercised later than ten years after its date of
grant and provided further, that if an Incentive Stock Option shall be granted
to a Ten Percent Holder, such option shall not be exercised later than five
years after its date of grant. The Committee may, in its discretion, establish
performance measures or other criteria, which shall be satisfied or met as a
condition to the grant of an option or to the exercisability of all or a portion
of an option. The Committee shall determine whether an option shall become
exercisable in cumulative or non-cumulative installments and in part or in full
at any time. An exercisable option, or portion thereof, may be exercised only
with respect to whole shares of Common Stock.
(c) Method of Exercise. An option may be exercised (i) by giving written notice
to the Company specifying the number of whole shares of Common Stock to be
purchased and accompanied by payment therefor in full (or arrangement made for
such payment to the Company's satisfaction) either (A) in cash, (B) by delivery
(either actual delivery or by attestation procedures established by the Company)
of previously owned whole shares of Common Stock (which the optionee has held
for at least six months prior to the delivery of such shares or which the
optionee purchased on the open market and in each case for which the optionee
has good title, free and clear of all liens and encumbrances) having an
aggregate Fair Market Value, determined as of the date of exercise, equal to the
aggregate purchase price payable by reason of such exercise, (C) in cash by a
broker-dealer acceptable to the Company to whom the optionee has submitted an
irrevocable notice of exercise or (D) a combination of (A) and (B), in each case
to the extent set forth in the Agreement relating to the option and (ii) by
executing such documents as the Company may reasonably request. The Company
shall have sole discretion to disapprove of an election pursuant to any of
clauses (B)-(D). Any fraction of a share of Common Stock, which would be
required to pay such purchase price, shall be disregarded and the remaining
amount due shall be paid in cash by the optionee. No certificate representing
Common Stock shall be delivered until the full purchase price therefor has been
paid (or arrangement made for such payment to the Company's satisfaction).
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2.3 Termination of Employment or Service
(a) Disability. Subject to paragraph (e) below and unless otherwise specified in
the Agreement relating to an option, if an optionee's employment with or service
to the Company terminates by reason of Disability, each option held by such
optionee shall be fully exercisable and may thereafter be exercised by such
optionee (or such optionee's legal representative or similar person) until and
including the earlier to occur of (i) the date which is one year after the
effective date of such optionee's termination of employment or service and (ii)
the expiration date of the term of such option. For purposes of this Plan,
"Disability" shall mean the inability of an optionee substantially to perform
such optionee's duties and responsibilities for a continuous period of at least
six months.
(b) Retirement. Subject to paragraph (e) below and unless otherwise specified in
the Agreement relating to an option, if an optionee's employment with or service
to the Company terminates by reason of retirement on or after age 62 after a
minimum of 10 years of continuous employment with or service to the Company
("Retirement"), each option held by such optionee shall, to the extent not
exercisable as of the effective date of the optionee's retirement, become
exercisable in accordance with the vesting provisions set forth in the Agreement
relating to such option and upon becoming exercisable may be exercised by such
optionee (or such optionee's legal representative or similar person) until the
expiration date of the term of such option.
(c) Death. If an optionee's employment with or service to the Company terminates
by reason of death, each option held by such optionee shall be fully exercisable
and may thereafter be exercised by such optionee's executor, administrator,
legal representative, beneficiary or similar person until and including the
earlier to occur of (i) the date which is one year after the date of death and
(ii) the expiration date of the term of such option.
(d) Other Termination. Subject to paragraph (e) below and unless otherwise
specified in the Agreement relating to an option, if an optionee's employment
with or service to the Company terminates for any reason other than Disability,
Retirement or death or for Cause, each option held by such optionee shall be
exercisable only to the extent that such option is exercisable on the effective
date of such optionee's termination of employment or service and may thereafter
be exercised by such optionee (or such optionee's legal representative or
similar person) until and including the earlier to occur of (i) the date which
is three months after the effective date of such optionee's termination of
employment or service and (ii) the expiration date of the term of such option.
For purposes of this Plan, "Cause" shall mean (i) the commission of a criminal
act, fraud, gross negligence or willful misconduct against, or in derogation of,
the interests of the Company; (ii) divulging confidential information regarding
the Company; (iii) interference with the relationship between the Company and
any major supplier or customer; or (iv) the performance of any similar action
that the Committee, in its sole discretion, may be deem to be sufficiently
injurious to the interests of the Company to constitute cause for termination.
(e) Termination of Employment - Incentive Stock Options. Unless otherwise
specified in the Agreement relating to an option, if the employment with the
Company of a holder of an Incentive Stock Option terminates by reason of
Permanent and Total Disability (as defined in Section 22(e)(3) of the Code),
each Incentive Stock Option held by such optionee shall be exercisable to the
extent set forth in Section 2.3(a), and may thereafter be exercised by such
optionee (or such optionee's legal representative or similar person) until and
including the earlier to occur of (i) the date which is one year after the
effective date of such optionee's termination of employment and (ii) the
expiration date of the term of such option.
Unless otherwise specified in the Agreement relating to an option, if the
employment with the Company of a holder of an Incentive Stock Option terminates
for any reason other than Permanent and Total Disability or death or for Cause,
each Incentive Stock Option held by such optionee shall be exercisable to the
extent set forth in Section 2.3(a), Section 2.3(b) or Section 2.3(d), as
applicable, and may thereafter be exercised by such holder (or such holder's
legal representative or similar person) until and including the earlier to occur
of (i) the date which is three months after the effective date of such
optionee's termination of employment and (ii) the expiration date of the term of
such option.
(f) Death Following Termination of Employment or Service. Unless otherwise
specified in the Agreement relating to an option, if an optionee dies during the
period set forth in Section 2.3(a), Section 2.3(b), Section 2.3(d), if any, or
Section 2.3(e), each option held by such optionee shall be exercisable only to
the extent that such option is exercisable on the date of such optionee's death
and may thereafter be exercised by such optionee's executor, administrator,
legal representative, beneficiary or similar person until and including the
earlier to occur of (i) the date which is one year after the date of death and
(ii) the expiration date of the term of such option.
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(g) Cause. Notwithstanding anything to the contrary in this Plan or in any
Agreement relating to an option, if the employment with or service to the
Company of the holder of an option is terminated by the Company for Cause, each
option held by such holder shall terminate automatically on the effective date
of such holder's termination of employment or service.
III. GENERAL
3.1 Effective Date and Term of Plan
This Plan shall be submitted to the stockholders of the Company for approval
and, if approved by the affirmative vote of a majority of the shares of Common
Stock present in person or represented by proxy at the 2001 annual meeting of
stockholders, shall become effective as of the date of approval by the Board. No
option may be exercised prior to the date of such stockholder approval. This
Plan shall terminate 10 years after its effective date, unless terminated
earlier by the Board. Termination of this Plan shall not affect the terms or
conditions of any option granted prior to termination.
In the event that this Plan is not approved by the stockholders of the Company
on or before December 31, 2001, this Plan and any options granted hereunder
shall be null and void.
3.2 Amendments
The Board may amend this Plan as it shall deem advisable, subject to any
requirement of stockholder approval required by applicable law, rule or
regulation, including Section 162(m) and Section 422 of the Code; provided,
however, that no amendment shall be made without stockholder approval if such
amendment would (a) increase the maximum number of shares of Common Stock
available under this Plan (subject to Section 3.7), (b) effect any change
inconsistent with Section 422 of the Code, (c) extend the term of this Plan or
(d) permit the grant of a stock option having a purchase price per share of
Common Stock of less that 100% of the Fair Market Value of a share of Common
Stock on the date of grant of such stock option. No amendment may impair the
rights of a holder of an outstanding option without the consent of such holder.
3.3 Agreement
No option shall be valid until an Agreement is executed by the Company and the
optionee and, upon execution by the Company and the optionee and delivery of the
Agreement to the Company, such option shall be effective as of the effective
date set forth in the Agreement.
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3.4 Non-Transferability
Unless otherwise specified in the Agreement relating to an option, no option
hereunder shall be transferable other than by will or the laws of descent and
distribution or pursuant to beneficiary designation procedures approved by the
Company. Except to the extent permitted by the foregoing sentence, each option
may be exercised during the optionee's lifetime only by the optionee or the
optionee's legal representative or similar person. Except as permitted by the
second preceding sentence, no option hereunder shall be sold, transferred,
assigned, pledged, hypothecated, encumbered or otherwise disposed of (whether by
operation of law or otherwise) or be subject to execution, attachment or similar
process. Upon any attempt to so sell, transfer, assign, pledge, hypothecate,
encumber or otherwise dispose of any option hereunder, such option and all
rights thereunder shall immediately become null and void.
3.5 Tax Withholding
The Company shall have the right to require, prior to the issuance or delivery
of any shares of Common Stock, payment by the optionee of any Federal, state,
local or other taxes which may be required to be withheld or paid in connection
with an option hereunder. An Agreement may provide that (i) the Company shall
withhold whole shares of Common Stock which would otherwise be delivered upon
exercise of the option having an aggregate Fair Market Value determined as of
the date the obligation to withhold or pay taxes arises in connection with the
option (the "Tax Date") in the amount necessary to satisfy any such obligation
or (ii) the optionee may satisfy any such obligation by any of the following
means: (A) a cash payment to the Company, (B) delivery (either actual delivery
or by attestation procedures established by the Company) to the Company of
previously owned whole shares of Common Stock (which the optionee has held for
at least six months prior to the delivery of such shares or which the optionee
purchased on the open market and in each case for which the optionee has good
title, free and clear of all liens and encumbrances) having an aggregate Fair
Market Value determined as of the Tax Date, equal to the amount necessary to
satisfy any such obligation, (C) authorizing the Company to withhold whole
shares of Common Stock which would otherwise be delivered upon exercise of the
option having an aggregate Fair Market Value determined as of the Tax Date,
equal to the amount necessary to satisfy any such obligation, (D) a cash payment
by a broker-dealer acceptable to the Company to whom the optionee has submitted
an irrevocable notice of exercise or (E) any combination of (A), (B) and (C), in
each case to the extent set forth in the Agreement relating to the option;
provided, however, that the Company shall have sole discretion to disapprove of
an election pursuant to any of clauses (B)-(E). Shares of Common Stock to be
delivered or withheld may not have an aggregate Fair Market Value in excess of
the amount determined by applying the minimum statutory withholding rate. Any
fraction of a share of Common Stock, which would be required to satisfy such an
obligation, shall be disregarded and the remaining amount due shall be paid in
cash by the optionee.
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3.6 Restrictions On Shares
Each option hereunder shall be subject to the requirement that if at any time
the Company determines that the listing, registration or qualification of the
shares of Common Stock subject to such option upon any securities exchange or
under any law, or the consent or approval of any governmental body, or the
taking of any other action is necessary or desirable as a condition of, or in
connection with, the exercise of such option or the delivery of shares
thereunder, such option shall not be exercised and such shares shall not be
delivered unless such listing, registration, qualification, consent, approval or
other action shall have been effected or obtained, free of any conditions not
acceptable to the Company. The Company may require that certificates evidencing
shares of Common Stock delivered pursuant to any option hereunder bear a legend
indicating that the sale, transfer or other disposition thereof by the holder is
prohibited except in compliance with the Securities Act of 1933, as amended, and
the rules and regulations thereunder.
3.7 Adjustment
In the event of any stock split, stock dividend, recapitalization,
reorganization, merger, consolidation, combination, exchange of shares,
liquidation, spin-off or other similar change in capitalization or event, or any
distribution to holders of Common Stock other than a regular cash dividend, the
number and class of securities available under this Plan, the maximum number and
class of securities with respect to which options may be granted during any
calendar year to any person, the number and class of securities subject to each
outstanding option, and the purchase price per security, such adjustments to be
made in the case of outstanding options without an increase in the aggregate
purchase price. The decision of the Committee regarding any such adjustment
shall be final, binding and conclusive. If any adjustment would result in a
fractional security being (a) available under this Plan, such fractional
security shall be disregarded, or (b) subject to an option under this Plan, the
Company shall pay the optionee, in connection with the first exercise of the
option in whole or in part occurring after such adjustment, an amount in cash
determined by multiplying (A) the fraction of such security (rounded to the
nearest hundredth) by (B) the excess, if any, of (x) the Fair Market Value on
the exercise date over (y) the exercise price of the option.
3.8 Change of Control
(a) Unless the Board shall otherwise expressly provide in the Agreement relating
to an Option, upon the occurrence of a Change of Control an Option shall
automatically become fully exercisable.
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(b) The term "Change of Control" shall mean the occurrence of any of the
following events: (i) any "person" (as such term is used in Sections 13(d) and
14(d) of the Exchange Act (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of the Company, or
any company owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of the Stock of the
Company), is or becomes the "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company (not
including in the securities beneficially owned by such person any securities
acquired directly from the Company or its affiliates) representing more than 15%
of the combined voting power of the Company's then outstanding voting
securities; provided, however, a Change of Control shall not be deemed to occur
solely because such person acquired beneficial ownership of more than 15% of the
combined voting power of the Company's then outstanding voting securities as a
result of the acquisition of voting securities by the Company, which by reducing
the number of voting securities outstanding, increases the proportional number
of shares beneficially owned by such person, provided that if a Change of
Control would occur (but for the operation of this sentence) as a result of the
acquisition of voting securities by the Company, and after such share
acquisition by the Company, such person becomes the beneficial owner of any
additional voting securities which increases the percentage of the then
outstanding voting securities beneficially owned by such person, then a Change
of Control shall occur; (ii) during any period of 24 consecutive months,
individuals who at the beginning of such period constitute the Board and any new
director (other than a director designated by a person who has entered into an
agreement with the Company to effect a transaction described in subsection (i),
(iii) or (iv) of this Section 3.08(b)) whose election by the Board or nomination
for election by the Company's stockholders was approved by a vote of at least
two-thirds (2/3) of the directors then still in office who either were directors
at the beginning of the period or whose election or nomination for election was
previously so approved, cease for any reason to constitute a majority of the
Board; (iii) the stockholders of the Company approve a merger, consolidation or
reorganization of the Company with any other corporation, other than a merger,
consolidation or reorganization which would result in the stockholders of the
Company immediately before such merger, consolidation or reorganization, owning,
directly or indirectly immediately following such merger, consolidation or
reorganization, at least 60% of the combined voting power of the voting
securities of the Company or such surviving entity outstanding immediately after
such merger, consolidation or reorganization in substantially the same
proportion as their ownership of the voting securities immediately before such
merger, consolidation, or reorganization; or (iv) the stockholders of the
Company approve a plan of complete liquidation of the Company or an agreement
for the sale or disposition by the Company of all or substantially all of the
Company's assets.
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3.9 No Right of Participation or Employment
No person shall have any right to participate in this Plan. Neither this Plan
nor any option granted hereunder shall confer upon any person any right to
continued employment by the Company, any Subsidiary or any affiliate of the
Company or affect in any manner the right of the Company, any Subsidiary or any
affiliate of the Company to terminate the employment of any person at any time
without liability hereunder.
3.10 Rights As Stockholder
No person shall have any rights as a stockholder of the Company with respect to
any shares of Common Stock, which are subject to an option hereunder until such
person becomes a stockholder of record with respect to such shares of Common
Stock.
3.11 Designation of Beneficiary
If permitted by the Company, an optionee may file with the Committee a written
designation of one or more persons as such optionee's beneficiary or
beneficiaries (both primary and contingent) in the event of the optionee's
death. To the extent an outstanding option granted hereunder is exercisable,
such beneficiary or beneficiaries shall be entitled to exercise such option.
Each beneficiary designation shall become effective only when filed in writing
with the Committee during the optionee's lifetime on a form prescribed by the
Committee. The spouse of a married optionee domiciled in a community property
jurisdiction shall join in any designation of a beneficiary other than such
spouse. The filing with the Committee of a new beneficiary designation shall
cancel all previously filed beneficiary designations.
If an optionee fails to designate a beneficiary, or if all designated
beneficiaries of an optionee predecease the optionee, then each outstanding
option hereunder held by such optionee, to the extent exercisable, may be
exercised by such optionee's executor, administrator, legal representative or
similar person.
3.12 Governing Law
This Plan, each option hereunder and the related Agreement, and all
determinations made and actions taken pursuant thereto, to the extent not
otherwise governed by the Code or the laws of the United States, shall be
governed by the laws of the State of Delaware and construed in accordance
therewith without giving effect to principles of conflicts of laws.
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3.13 Foreign Employees
Without amending this Plan, the Committee may grant options to eligible persons
who are subject to laws of foreign countries or jurisdictions on such terms and
conditions different from those specified in this Plan as may in the judgment of
the Committee be necessary or desirable to foster and promote achievement of the
purposes of this Plan and, in furtherance of such purposes the Committee may
make such modifications, amendments, procedures, subplans and the like as may be
necessary or advisable to comply with provisions of laws of other countries or
jurisdictions in which the Company or its Subsidiaries operates or has
employees.
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