Exhibit A
PROGRESSIVE TELECOMMUNICATIONS CORPORATION
2000 EQUITY INCENTIVE PLAN
1. NAME AND PURPOSE.
The name of this plan is the Progressive Telecommunications 2000 Equity
Incentive Plan (the "Plan"). The purpose of this Plan is to enable Progressive
Telecommunications Corporation (the "Company") and its Subsidiaries and
Affiliates to attract and retain employees, consultants and directors who
contribute to the Company's success by their ability, ingenuity and industry,
and to enable such employees and directors to participate in the long-term
success and growth of the Company through an equity interest in the Company.
2. DEFINITIONS.
For purposes of this Plan, the following terms shall be defined as set
forth below:
"Affiliate" means any corporation (other than a subsidiary),
partnership, joint venture or any other entity in which the Company owns,
directly or indirectly, at least a ten percent (10%) beneficial ownership
interest.
"Board" means the Board of Directors of the Company.
"Cause" means a felony conviction of a participant or the failure of a
participant to contest prosecution for a felony, or a participant's willful
or grossly negligent action which is demonstrably inimical to the interests,
business or reputation of the Company or any Subsidiary or Affiliate.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor thereto.
"Committee" means the Stock Option Committee of the Board, whose
members shall be appointed from time to time by the Board. If at any time no
Committee shall be in existence, the functions of the Committee specified in
this Plan shall be exercised by the Board.
"Commission" means the Securities and Exchange Commission.
"Company" means Progressive Telecommunications Corporation, a
corporation organized under the laws of the State of Nevada (or any successor
corporation).
"Deferred Stock" means an award made pursuant to Section 10 of the right
to receive Stock at the end of a specified deferral period.
"Director Stock Option" means any option to purchase shares of Stock
granted pursuant to Section 7.
"Disability" means total and permanent disability as determined under
the Company's long term disability program.
"Disinterested Person" shall have the meaning set forth in Rule
16b-3(d)(3) as promulgated by the Commission under the Exchange Act, or any
successor definition adopted by the Commission.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and any successor thereto.
"Fair Market Value" means, as of any given date, the closing price of
the Stock on such date on the National Association of Securities Dealers
Automated Quotation System (NASDAQ) National Market System, or if not then
traded or listed on that system, on the securities trading system or stock
exchange on which the Stock is then primarily traded or listed; or if the stock
is not traded or listed on an exchange the average of the reported high and low
price on such date.
"Incentive Stock Option" means any Stock Option intended to be and
designated as an "incentive stock option" within the meaning of Code Section
422.
"Non-Qualified Stock Option" means any Stock Option that is not an
Incentive Stock Option.
"Normal Retirement," solely for the purpose of this Plan means
retirement from active employment with the Company, any Subsidiary, and any
Affiliate on or after age 65.
"Plan" means this Progressive Telecommunications 2000 Equity Incentive
Plan.
"Restricted Stock" means an award of shares of Stock that are subject
to restrictions under Section 9.
"Retirement" means Normal Retirement.
"Stock" means the common stock of the Company.
"Stock Appreciation Right" means a right granted under Section 8 to
surrender to the Company all or a portion of a Stock Option in exchange for an
amount equal to the difference between (i) the Fair Market Value, as of the
date such Stock Option or such portion thereof is surrendered, of the shares of
Stock covered by such Stock Option or such portion thereof, and (ii) the
aggregate exercise price of such Stock Option or such portion thereof.
"Stock Option" means any option to purchase shares of Stock granted
pursuant to Section 6.
"Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of the
corporations (other than the last corporation in the unbroken chain) owns stock
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in the chain.
3. ADMINISTRATION.
This Plan shall be administered by the Committee which shall at all
times consist of not less than three Disinterested Persons (or, if there are
less than three Disinterested Persons then serving on the Board of Directors,
then all of such Disinterested Persons), each of whom shall be members of the
Board of the Directors. The Committee shall have the power and authority to
grant to eligible employees, pursuant to the terms of this Plan: (i) Stock
Options, (ii) Stock Appreciation Rights, (iii) Restricted Stock, or (iv)
Deferred Stock. In particular, the Committee shall have the authority to:
3.1 Select the officers, other employees and consultants of the
Company, its Subsidiaries, and its Affiliates to whom Stock Options, Stock
Appreciation Rights, Restricted Stock or Deferred Stock awards, or a
combination of the foregoing from time to time will be granted hereunder;
3.2 Determine whether and to what extent Incentive Stock Options,
Non-Qualified Stock Options, Stock Appreciation Rights, Restricted Stock or
Deferred Stock, or a combination of the foregoing are to be granted
hereunder;
3.3 Except as set forth in Section 7 hereof, determine the number of
shares of Stock to be covered by each such award granted hereunder;
3.4 Determine the terms and conditions, not inconsistent with the
terms of this Plan, of any award granted hereunder, including, but not limited
to, any restriction on any Stock Option or other award and/or the shares of
Stock relating thereto based on performance and/or such other factors as the
Committee may determine, in its sole discretion, and any vesting acceleration
features based on performance and/or such other factors as the Committee may
determine, in its sole discretion;
3.5 Determine whether, to what extent, and under what circumstances
Stock and other amounts payable with respect to an award under this Plan shall
be deferred either automatically or at the election of a participant, including
providing for and determining the amount (if any) of deemed earnings on any
deferred amount during any deferral period;
3.6 Adopt, alter, and repeal such administrative rules, guidelines,
and practices governing this Plan as it shall, from time to time, deem
advisable;
3.7 Interpret the terms and provisions of this Plan and any award
issued under this Plan (and any agreements relating thereto); and
3.8 Otherwise supervise the administration of this Plan.
All decisions made by the Committee pursuant to the provisions of this
Plan shall be final and binding on all persons, including the Company and
participants in this Plan.
4. STOCK SUBJECT TO PLAN.
The total number of shares of Stock reserved and available for
distribution under this Plan shall be 2,000,000. Such shares may consist, in
whole or in part, of authorized and unissued shares or treasury shares. If any
shares of Stock that have been optioned cease to be subject to option, or if any
shares subject to any Restricted Stock or Deferred Stock award granted hereunder
are forfeited or such award otherwise terminates, those shares shall again be
available for distribution in connection with future awards under this Plan.
In the event of any merger, reorganization, consolidation,
recapitalization, stock dividend, or other change in corporate structure
affecting the Stock, a substitution or adjustment shall be made in the
aggregate number of shares reserved for issuance under this Plan, in the number
and option price of shares subject to outstanding Stock Options and Director
Stock Options granted under this Plan, and in the number of shares subject to
Restricted Stock or Deferred Stock awards granted under this Plan, in such
manner as may be determined to be appropriate by the Committee, in its sole
discretion, provided that the number of shares subject to any award shall
always be a whole number. Such adjusted option price shall also be used to
determine the amount payable by the Company upon the exercise of any Stock
Appreciation Right associated with any Stock Option.
5. ELIGIBILITY.
5.1 Officers, other employees and consultants of the Company, its
Subsidiaries or its Affiliates (but excluding members of the Committee and any
person who serves only as a director) who are responsible for or contribute to
the management, growth, and/or profitability of the business of the Company,
its Subsidiaries, or its Affiliates are eligible to be granted Stock Options,
Stock Appreciation Rights, Restricted Stock or Deferred Stock awards.
5.2 Directors of the Company (other than directors who are also
officers or employees of the Company, its Subsidiaries or its Affiliates) are
eligible to be granted Director Stock Options pursuant to Section 7 of the Plan.
5.3 Except as set forth in Section 7 of the Plan, the optionees and
participants under this Plan shall be selected from time to time by the
Committee, in its sole discretion, from among those eligible, and the Committee
shall determine, in its sole discretion, the number of shares covered by each
award or grant to an optionee or participant.
6. STOCK OPTIONS FOR EMPLOYEES AND CONSULTANTS.
Stock Options may be granted either alone or in addition to other awards
granted under this Plan. Any Stock Option granted under this Plan shall be in
such form as the Committee
from time to time approve, and the provisions of Stock Option awards need not be
the same with respect to each optionee.
The Stock Options granted under this Plan may be of two types: (i)
Incentive Stock Options, or (ii) Non-Qualified Stock Options. The Committee
shall have the authority to grant any optionee Incentive Stock Options,
Non-Qualified Stock Options, or both types of Stock Options (in each case with
or without Stock Appreciation Rights) except that Incentive Stock Options shall
not be granted to employees of an Affiliate. To the extent that any Stock
Option does not qualify as an Incentive Stock Option, it shall constitute a
separate Non-Qualified Stock Option.
Anything in this Plan to the contrary notwithstanding, no term of this
Plan relating to Incentive Stock Options shall be interpreted, amended, or
altered, nor shall any discretion or authority granted under this Plan be so
exercised, so as to disqualify either this Plan or any Incentive Stock Option
under Code Section 422. Notwithstanding the foregoing, in the event an optionee
voluntarily disqualifies an option as an Incentive Stock Option within the
meaning of Code Section 422, the Committee may, but shall not be obligated to,
make such additional grants, awards, or bonuses as the Committee shall deem
appropriate, to reflect the tax savings to the Company which results from such
disqualification.
Stock Options granted under this Plan 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 desirable:
6.1 Option Price. The option price per share of Stock purchasable
under a Stock Option shall be determined by the Committee at the time of grant
but shall not be less than 100% of the Fair Market Value of the Stock on the
date of the grant of the Incentive Stock Option and not less than 80% of the
Fair Market Value on the date of the grant of the Non-Qualified Stock Options.
6.2 Option Term. The term of each Stock Option shall be fixed by
the Committee, but no Incentive Stock Option shall be exercisable later than 10
years after the date such Incentive Stock Option is granted and no
Non-Qualified Stock Option shall be exercisable later than 10 years and two days
after the date such Non-Qualified Stock Option is granted.
6.3 Exercisability. Subject to Section 6.10 with respect to
Incentive Stock Options, Stock Options shall be exercisable at such time or
times and subject to such terms and conditions as shall be determined by the
Committee at the date of grant; provided, however, that, except as provided
in Sections 6.6, 6.7, and 6.8, unless otherwise determined by the Committee at
grant, no Stock Option shall be exercisable prior to the first anniversary date
of the granting of the option. If the Committee provides, in its discretion,
that any Stock Option is exercisable only in installments, the Committee may
waive such installment exercise provisions at any time in whole or in part based
on performance and/or such other factors as the Committee may determine in its
sole discretion.
6.4 Method of Exercise. Stock Options may be exercised in
whole or in part at any time during the option period, by giving written notice
of exercise to the Company specifying the number of shares to be purchased,
accompanied by payment in full of the purchase price, in cash, by check or such
other instrument or mode of payment as may be acceptable to the Committee. As
determined by the Committee, in its sole discretion, at or after grant, payment
in full or in part may also be made in the form of unrestricted Stock already
owned by the optionee or, in the case of the exercise of a Non-Qualified Stock
Option, Restricted Stock or Deferred Stock subject to an award hereunder (based,
in each case, on the Fair Market Value of the Stock on the date the option is
exercised, as determined by the Committee). If payment of the option exercise
price of a Non-Qualified Stock Option is made in whole or in part in the form of
Restricted Stock or Deferred Stock, the shares received upon the exercise of
such Stock Option shall be restricted or deferred, as the case may be, in
accordance with the original term of the Restricted Stock award or Deferred
Stock award in question, equal to the number of shares of Restricted Stock or
Deferred Stock surrendered upon the exercise of that option. No shares of
unrestricted Stock shall be issued until full payment therefor has been made.
An optionee shall have the right to dividends or other rights of a stockholder
with respect to shares subject to the option when the optionee has given
written notice of exercise and has paid in full for those shares.
6.5 Non-transferability of Options. No Stock Option shall be
transferable by the optionee otherwise than by will or by the laws of descent
and distribution, and all Stock Options shall be exercisable, during the
optionee's lifetime, only by the optionee.
6.6 Termination by Death. Unless otherwise determined by the
Committee at grant, if an optionee's employment with the Company, any
Subsidiary, and any Affiliate terminates by reason of his death, the Stock
Option may thereafter be exercised, to the extent then exercisable (or on such
accelerated basis as the Committee shall determine at or after grant), by the
legal representative of the estate or by the legatee of the optionee under the
will of the optionee or by the heir of the optionee under the laws of descent
and distribution, for a period of one year from the date of such death or until
the expiration of the stated term of such Stock Option, whichever period is the
shorter.
6.7 Termination by Reason of Disability. Unless otherwise
determined by the Committee at grant, if an optionee's employment with the
Company, any Subsidiary and any Affiliate terminates by reason of Disability,
any Stock Option held by such optionee may thereafter be exercised to the extent
it was exercisable at the time of termination due to Disability (or on such
accelerated basis as the Committee shall determine at or after grant), but may
not be exercised after one year from the date of such termination of employment
or the expiration of the stated term or such Stock Option, whichever period is
shorter; provided, however, that, if the optionee dies within such one-year
period, any unexercised Stock Option held by such optionee shall thereafter be
exercisable to the extent to which it was exercisable at the time of death for
a period of three months from the date of such death or for the stated term of
such Stock Option, whichever period is the shorter. In the event of termination
of employment by reason of Disability, if an Incentive Stock Option is exercised
after the expiration of the exercise periods that apply for purposes of Code
Section 422, such Stock Option will thereafter be treated as a Non-Qualified
Stock Option.
6.8 Termination by Reason of Retirement. Unless otherwise
determined by the Committee at grant, if an optionee's employment with the
Company, any Subsidiary and any Affiliate terminates by reason of Normal
Retirement, any Stock Option held by such optionee may thereafter be exercised
to the extent it was exercisable at the time of such Retirement (or on such
accelerated basis as the Committee shall determine at or after grant), but may
not be exercised after one year from the date of such termination of employment
or the expiration of the stated term of such Stock Option, whichever period is
the shorter; provided, however, that, if the optionee dies within such one-year
period any unexercised Stock Option held by such optionee shall thereafter be
exercisable, to the extent to which it was exercisable at the time of death,
for a period of three months from the date of such death or for the stated term
of the Stock Option, whichever period is the shorter. Notwithstanding the
foregoing, the tax treatment available pursuant to Section 422 of the Internal
Revenue Code of 1986 upon the exercise of an Incentive Stock Option will not
be available to an optionee who exercises any Incentive Stock Options more than
(i) 12 months after the date of termination of employment due to permanent
disability or (ii) three months after the date of termination of employment
due to retirement.
6.9 Other Termination. Unless otherwise determined by the
Committee at grant, if an optionee's employment with the Company, any Subsidiary
and any Affiliate terminates for any reason other than death, Disability or
Normal Retirement, any Stock Option held by such optionee shall thereupon
terminate, except that such Stock Option may be exercised for the lesser of
three months from the date of termination or the balance of such Stock Option's
term if the optionee's employment with the Company, any Subsidiary and any
Affiliate is involuntarily terminated by the optionee's employer without Cause.
6.10 Limit on Value of Incentive Stock Option First Exercisable
Annually. The aggregate Fair Market Value (determined at the time of grant) of
the Stock for which "incentive stock options" within the meaning of Code
Section 422 are exercisable for the first time by an optionee during any
calendar year under this Plan (and/or any other stock option plans of the
Company, any Subsidiary and any Affiliate) shall not exceed $100,000.
7. DIRECTOR STOCK OPTIONS.
Director Stock Options granted under this Plan shall be Non-Qualified
Stock Options which are not intended to be "incentive stock options" within the
meaning of Code Section 422. Director Stock Options granted under this Plan
shall be in such form as the Committee may from time to time approve, and the
provisions of Director Stock Options need not be the same with respect to each
optionee.
Director Stock Options granted under the Plan shall be evidenced by a
written agreement in such form as the Committee shall from time to time approve,
which agreements shall comply with and be subject to the following terms and
conditions:
7.1 Option Price. The option price per share of Stock purchasable
under a Director Stock Option shall be not less than 75% of the Fair Market
Value of the Stock on the date of the grant of the Director Stock Option.
7.2 Option Term. Each Director Stock Option shall be exercisable
for 10 years and two days after the date such Director Stock Option is granted
(subject to prior termination as hereinafter provided).
7.3 Exercisability. Director Stock Options shall be exercisable at
such time or times and subject to such terms and conditions as shall be
determined by the Committee at the date of grant. If the Committee provides,
in its discretion, that any Director Stock Option is exercisable only in
installments, the Committee may waive such installment exercise provisions at
any time in whole or in part based on performance and/or such other factors as
the Committee may determine in its sole discretion; provided, however, that in
the event of a "Change of Control" (as defined in Section 14 below), the value
of all outstanding Director Stock Options that have been outstanding for at
least six months shall be cashed out on the basis of the "Change of Control
Price" (as defined in Section 14 below) as of the date the Change of Control
occurs, and all Director Stock Options that have not been outstanding for at
least six months shall be immediately exercisable.
7.4 Method of Exercise. Director Stock Options may be exercised
in whole or in part at any time during the option period, by giving written
notice of exercise to the Company specifying the number of shares to be
purchased, accompanied by payment in full of the purchase price, in cash, by
check or such other instrument or mode of payment as may, be acceptable to the
Committee. Payment in full or in part may also be made in the form of Stock
already owned by the optionee (based on the Fair Market value of the Stock on
the date the option is exercised). No shares of Stock shall be issued until
full payment therefor has been made. An optionee shall have the rights to
dividends or other rights of a stockholder with respect to shares subject to the
option when the optionee has given written notice of exercise and has paid in
full for such shares.
7.5 Non-transferability of Options. No Director Stock Option shall
be transferable by the optionee otherwise than by will or by the laws of descent
and distribution, and all Director Stock Options shall be exercisable, during
the optionee's lifetime, only by the optionee.
7.6 Termination by Disability or Death. Upon an optionee's
termination of service as a director by reason of disability or death, any
Director Stock Options held by such optionee may thereafter be immediately
exercised by the optionee or, in the case of death, by the legal representative
or the estate or by the legatee of the optionee under the will of the optionee,
until the expiration of the stated term of such Director Stock Options.
7.7 Other Termination. Upon an optionee's termination of
service as a director with the Company for any reason other than disability or
death, any Director Stock Options held by such optionee may thereafter be
exercised, to the extent exercisable at termination, until the expiration of the
stated term of such Director Stock Options.
8. STOCK APPRECIATION RIGHTS.
8.1 Grant and Exercise. Stock Appreciation Rights may be granted
in conjunction with all or part of any Stock Option granted under this Plan.
In the case of a Non-Qualified Stock Option, such rights may be granted either
at or after the time of the grant of such Non-Qualified Stock Option. In the
case of an Incentive Stock Option, such rights may be granted only at the time
of the grant of such Incentive Stock Option.
A Stock Appreciation Right or applicable portion thereof granted with
respect to a given Stock Option shall terminate and no longer be exercisable
upon the termination or exercise of the related Stock Option, except that,
unless otherwise provided by the Committee at the time of grant, a Stock
Appreciation Right granted with respect to less than the full number of shares
covered by a related Stock Option shall only be reduced if and to the extent
that the number of shares covered by the exercise or termination of the related
Stock Option exceeds the number of shares not covered by the Stock Appreciation
Right.
A Stock Appreciation Right may be exercised by an optionee, in
accordance with Section 8.2, by surrendering the applicable portion of the
related Stock Option. Upon such exercise and surrender, the optionee shall be
entitled to receive amount determined in the manner prescribed in Section 8.2.
Stock Options having been so surrendered, in whole or in part, shall no longer
be exercisable to the extent the related Stock Appreciation Rights have been
exercised.
8.2 Terms and Conditions. Stock Appreciation Rights shall be
subject to such terms and conditions, not inconsistent with the provisions of
this Plan, as shall be determined from time to time by the Committee, including
the following:
(a) Stock Appreciation Rights shall be exercisable only at such time or
times and to the extent that the Stock Options to which they relate shall be
exercisable in accordance with the provisions of Section 6 and this Section;
provided, however, that any Stock Appreciation Right granted subsequent to the
grant of the related Stock Option shall not be exercisable during the first six
months of the term of the Stock Appreciation Right, except that this additional
limitation shall not apply in the event of death or Disability of the optionee
prior to the expiration of the six-month period.
(b) Upon the exercise of a Stock Appreciation Right, an optionee shall be
entitled to receive up to, but not more than, an amount in cash or shares of
Stock equal in value to the excess of the Fair Market Value of one share of
Stock over the option price per share specified in the related Stock Option
multiplied by the number of shares with respect to which the Stock Appreciation
Right shall have been exercised, with the Committee having the sole and
exclusive right to determine the form of payment.
(c) Stock Appreciation Rights shall be transferable only when and to the
extent that the underlying Stock Option would be transferable under Section 6.5.
(d) Upon the exercise of a Stock Appreciation Right, the Stock Option or
part thereof to which such Stock Appreciation Right is related shall be deemed
to have been
exercised for the purpose of the limitation set forth in Section 4 on the
number of shares of Stock to be issued under this Plan.
(e) A Stock Appreciation Right granted in connection with an Incentive Stock
Option may be exercised only if and when the market price of the Stock subject
to the Incentive Stock Option exceeds the exercise price of such Stock Option.
(f) In its sole discretion, the Committee may provide, at the time of grant
of a Stock Appreciation Right under this Section, that such Stock Appreciation
Right can be exercised only in the event of a "Change of Control" and/or a
"Potential Change of Control" (as defined in Section 14).
(g) The Committee, in its sole discretion, may also provide that, in the
event of a "Change of Control" and/or a "Potential Change of Control" (as
defined in Section 14), the amount to be paid upon the exercise of a Stock
Appreciation Right shall be based on the "Change of Control Price" (as defined
in Section 14).
9. RESTRICTED STOCK.
9.1 Administration. Shares of Restricted Stock may be issued either alone
or in addition to other awards granted under this Plan. The Committee shall
determine the consultants, officers and key employees of the Company and its
Subsidiaries and Affiliates to whom, and the time or times at which, grants of
Restricted Stock will be made, the number of shares to be awarded, the price, if
any, to be paid by the recipient of Restricted Stock (subject to Section 9.2,
the time or times within which such awards may be subject to forfeiture, and all
other conditions of the awards. The Committee may also condition the grant of
Restricted Stock upon the attainment of specified performance goals, or such
other criteria as the Committee may determine, in its sole discretion. The
provisions of Restricted Stock awards need not be the same with respect to each
recipient.
9.2 Awards and Certificates. The prospective recipient of an award of
shares of Restricted Stock shall not have any rights with respect to such award,
unless and until such recipient has executed an agreement evidencing the award
(a "Restricted Stock Award Agreement") and has delivered a fully executed copy
thereof to the Company, and has otherwise complied with the then applicable
terms and conditions.
(a) Awards of Restricted Stock must be accepted within a period of 90 days
(or such shorter period as the Committee may specify) after the award date by
executing a Restricted Stock Award Agreement and paying whatever price, if any,
is required.
(b) Each participant who is awarded Restricted Stock shall be issued a stock
certificate with respect to those shares of Restricted Stock. The certificate
shall be registered in the name of the participant, and shall bear an
appropriate legend referring to the terms, conditions, and restrictions
applicable to such award, substantially in the following form:
"The transferability of this certificate and the shares of stock represented
hereby are subject to the terms and conditions (including forfeiture) of the
Progressive Telecommunications 2000 Equity Incentive Plan and a Restricted Stock
Award Agreement entered into between the registered owner and Progressive
Telecommunications Corporation. Copies of the Plan and the Agreement are on
file in the offices of Progressive Telecommunications Corporation, 601 Cleveland
Street, Suite 930, Clearwater, Florida 33755"
(c) The Committee shall require that the stock certificates evidencing such
shares will be held in custody by the Company until the restrictions thereon
shall have lapsed, and that, as a condition of any Restricted Stock award, the
participant shall have delivered a stock power to the Company, endorsed in
blank, relating to the Stock covered by such award.
9.3 Restrictions and Conditions. The shares of Restricted Stock awarded
pursuant to this Section shall be subject to the following restrictions and
conditions:
(a) Subject to the provisions of this Plan and the Restricted Stock Award
Agreements, during such period as may be set by the Committee commencing on the
grant date (the "Restriction Period"), the participant shall not be permitted to
sell, transfer, pledge or assign shares of Restricted Stock awarded under this
Plan. Within these limits, the Committee may, in its sole discretion, provide
for the lapse of such restrictions in installments and may accelerate or waive
such restrictions in whole or in part based on performance and/or such other
factors as the Committee may determine, in its sole discretion.
(b) Except as provided in Section 9.3(a), the participant shall have, with
respect to the shares of Restricted Stock, all of the rights of a stockholder of
the Company, including the right to receive any dividends. Dividends paid in
stock of the Company or stock received in connection with a stock split with
respect to Restricted Stock shall be subject to the same restrictions as on such
Restricted Stock. Certificates for shares of unrestricted Stock shall be
delivered to the participant promptly after, and only after, the period of
forfeiture shall expire without forfeiture in respect of such shares of
Restricted Stock.
(c) Subject to the provisions of the Restricted Stock Award Agreement and
this Section, upon the participant's termination of employment for any reason
during the Restriction Period, all shares still subject to restriction shall be
forfeited by the participant, and the participant shall only receive the amount,
if any, paid by the participant for such forfeited Restricted Stock.
(d) In the event of special hardship circumstances of a participant whose
employment is involuntarily terminated (other than for Cause), the Committee
may, in its sole discretion, waive in whole or in part any or all remaining
restrictions with respect to such participant's shares of Restricted Stock.
10. DEFERRED STOCK AWARDS.
10.1 Administration. Deferred Stock may be awarded either alone or in
addition to other awards granted under this Plan. The Committee shall determine
the consultants, officers and key employees of the Company, its Subsidiaries and
Affiliates to whom, and the time or times at which, Deferred Stock shall be
awarded, the number of shares of Deferred Stock to be awarded to any
participant, the duration of the period (the "Deferral Period") during which,
and the conditions under which, receipt of the Stock will be deferred and the
terms and conditions of the award in addition to those set forth in Section
10.2. The Committee may also condition the grant of Deferred Stock upon the
attainment of specified performance goals, or such other criteria as the
Committee shall determine, in its sole discretion. The provisions of Deferred
Stock awards need not be the same with respect to each recipient.
10.2 Terms and Conditions. The shares of Deferred Stock awarded pursuant to
this Section shall be subject to the following terms and conditions:
(a) Subject to the provisions of this Plan and the award agreement, Deferred
Stock awards may not be sold, assigned, transferred, pledged, or otherwise
encumbered during the Deferral Period. At the expiration of the Deferral
Period (or Elective Deferral Period, where applicable), share certificates shall
be delivered to the participant, or his legal representative, in a number equal
to the shares covered by the Deferred Stock award.
(b) At the time of the award, the Committee may, in its sole discretion,
determine that amounts equal to any dividends declared during the Deferral
Period with respect to the number of shares covered by a Deferred Stock award
will be: (a) paid to the participant currently, (b) deferred and deemed to be
reinvested, or (c) forfeited because the participant has no rights with respect
thereto.
(c) Subject to the provisions of the award agreement and this Section, upon
termination of employment for any reason during the Deferral Period for a given
award, the Deferred Stock in question including any deferred and reinvested
dividends thereon shall be forfeited by the participant.
(d) Based on performance and/or such other criteria as the Committee may
determine, the Committee may, at or after the grant, accelerate the vesting of
all or any part of any Deferred Stock award and/or waive the deferral
limitations for all or any part of such award.
(e) In the event of special hardship circumstances of a participant whose
employment is involuntarily terminated (other than for Cause), the Committee
may, in its sole discretion, waive in whole or in part any or all of the
remaining deferral limitations imposed hereunder with respect to any or all of
the participant's Deferred Stock.
(f) A participant may elect to defer further receipt of the award for a
specified period or until a specified event (the "Elective Deferral Period"),
subject in each case to the Committee's approval and to such terms as are
determined by the Committee, all in its sole discretion. Subject to any
exceptions adopted by the Committee, such election must be made at least six
months prior to the completion of the Deferral Period for a Deferred Stock award
(or for an installment of such an award).
(g) Each award shall be confirmed by, and subject to the terms of, a
Deferred Stock award agreement executed by the Company and the participant.
11. LOAN PROVISIONS.
With the consent of the Committee, the Company may make, guarantee, or
arrange for, a loan or loans to a Plan participant with respect to the exercise
of any Stock Option granted under this Plan and/or with respect to the payment
of the purchase price, if any, of any Restricted Stock awarded hereunder and/or
with respect to the payment by optionee of any or all federal and/or state
income taxes due on account of the granting or exercise of any stock option or
other awards hereunder. The Committee shall have full authority to decide
whether to make a loan or loans hereunder and to determine the amount, terms and
provisions of any such loan or loans, including the interest rate to be charged
in respect of any such loan or loans, whether the loan or loans are to be with
or without recourse against the borrower, the terms on which the loan is to be
repaid and the conditions, if any, under which the loan or loans may be
forgiven.
12. AMENDMENTS AND TERMINATION.
The Board may amend, alter, or discontinue this Plan, but no amendment,
alteration, or discontinuation shall be made which would impair the right of an
optionee or participant under a Stock Option, Director Stock Option, Stock
Appreciation Right, Restricted Stock or Deferred Stock award theretofore
granted, without the optionee's or participant's consent, or which without the
approval of the stockholders would:
12.1 Except as expressly provided in this Plan, increase the total number of
shares reserved for the purpose of this Plan;
12.2 Extend the maximum option period under Section 6.2 or 7.2 of the Plan.
The Committee may amend the terms of any award or option (other than Director
Stock Options) theretofore granted, prospectively or retroactively, but no such
amendment shall impair the rights of any holder without his consent. The
Committee may also substitute new Stock Options for previously granted Stock
Options having higher option prices.
13. UNFUNDED STATUS OF PLAN.
This Plan is intended to constitute an "unfunded" plan for incentive and
deferred compensation. With respect to any payments not yet made to a
Participant or optionee by the Company, nothing set forth herein shall give any
such participant or optionee any rights that are greater than those of an
unsecured, general creditor of the Company. In its sole discretion, the
Committee may authorize the creation of trusts or other arrangements to meet the
obligations created under this Plan to deliver Stock or payments in lieu of or
with respect to awards hereunder; provided, however, that the existence of such
trusts or other arrangements is consistent with the unfunded status of this
Plan.
14. CHANGE OF CONTROL.
The following acceleration and valuation provisions shall apply in the event of
a "Change of Control" or "Potential Change of Control," as defined in this
Section:
14.1 In the event of a "Change of Control," as defined in Section 14.2,
unless otherwise determined by the Committee or the Board in writing at or after
grant, but prior to the occurrence of the Change of Control, or, if and to the
extent so determined by the Committee or the Board in writing at or after grant
(subject to any right of approval expressly reserved by the Committee or the
Board at the time of such determination) in the event of a "Potential Change of
Control," as defined in Section 14(c):
(a) Any Stock Appreciation Rights outstanding for at least six (6) months
and any Stock Options awarded under this Plan not previously exercisable and
vested shall become fully exercisable and vested;
(b) The restrictions and deferral limitations applicable to any Restricted
Stock and preferred Stock awards under this Plan shall lapse and such shares
and awards shall be deemed fully vested; and
(c) All outstanding Stock Options, Stock Appreciation Rights, Restricted
Stock and Deferred Stock awards, shall, to the extent determined by the
Committee at or after grant, be canceled and the holder thereof shall be paid in
cash therefor on the basis of the "Change of Control Price" (as defined in
Section 14.4) as of the date that the Change of Control occurs or Potential
Change of Control is determined to have occurred, or such other date as the
Committee may determine prior to the Change of Control or Potential Change of
Control.
14.2 For Purposes of Section 14.2, a "Change of Control" means the happening
of any of the following:
(a) When any "person" as such term is used in Sections 13(d) and 14(d) of
the Exchange Act (other than the Company, or any Company employee benefit plan,
including its trustee) is or becomes the "beneficial owner" (as defined in Rule
13d-3 under the Exchange Act), directly or indirectly of securities of the
Company representing 30 percent or more of the combined voting power of the
Company's then outstanding securities;
(b) The occurrence of any transaction or event relating to the Company
required to be described pursuant to the requirements of Item 6(e) of Schedule
14A of Regulation 14A of the Commission under the Exchange Act;
(c) The occurrence of a transaction requiring stockholder approval for the
acquisition of the company by an entity other than the Company or a Subsidiary,
through purchase of assets, or by merger, or otherwise;
(d) The dissolution of the Company; or
(e) The sale by the Company of substantially all of its assets.
14.3 For purposes of Section 14.1, a "Potential Change of Control" means the
happening of any of the following:
(a) The entering into an agreement by the Company, the consummation of which
would result in a Change of Control of the Company as defined in Section 14.2;
(b) The adoption by the Board of Directors of a resolution to the effect
that a Potential Change of Control of the Company has occurred for purposes of
this Plan.
14.4 For purposes of this Section, "Change of Control Price" means the
highest price based upon the Fair Market Value per share or the price paid or
offered in any transaction related to a potential or actual Change of Control of
the Company at any time during the preceding sixty day period as determined by
the Committee, except that (i) in the case of Incentive Stock Options and Stock
Appreciation Rights relating to Incentive Stock Options, such price shall be
based only on transactions reported for the date on which the Committee decides
to cash out such options, and (ii) in the case of Director Stock Options, the
sixty day period shall be the period immediately prior to the Change of Control.
15. GENERAL PROVISIONS.
15.1 All certificates for shares of Stock delivered under this Plan shall be
subject to such stock transfer orders and other restrictions as the Committee
may deem advisable under the rules, regulations, and other requirements of the
Commission or the National Association of Securities Dealers, Inc., any stock
exchange upon which the Stock is then listed, and any applicable federal or
state securities law, and the Committee may cause a legend or legends to be
placed on any such certificates to make appropriate reference to such
restrictions.
15.2 Nothing set forth in this Plan shall prevent the Board from adopting
other or additional compensation arrangements, subject to stockholder approval
if such approval is required; and such arrangements may be either generally
applicable or applicable only in specific cases. The adoption of this Plan
shall not confer upon any employee of the Company, any Subsidiary or any
Affiliate, any right to continued employment (or, in the case of a director,
continued retention as a director) with the Company, a Subsidiary or an
Affiliate, as the case may be, nor shall it interfere in any way with the right
of the Company, a Subsidiary or an Affiliate to terminate the employment of any
of its employees at any time.
15.3 Each participant shall, no later than the date as of which the value of
an award first becomes includable in the gross income of the participant for
federal income tax purposes, pay to the Company, or make arrangements
satisfactory to the Committee regarding payment of, any federal, state, or local
taxes of any kind required by law to be withheld with respect to the award. The
obligations of the Company under this Plan shall be conditioned on such payment
or arrangements and the Company (and, where applicable, its Subsidiaries and
Affiliates) shall, to the extent permitted by law, have the right to deduct any
such taxes from any payment of any kind otherwise due to the participant. If
permitted by the Committee, a participant may irrevocably elect to have the
withholding tax obligation or, in the case of all awards hereunder except Stock
Options which have related Stock Appreciation Rights, if the Committee so
determines, any additional tax obligation with respect to awards hereunder by
(a) having the Company withhold shares of Stock otherwise deliverable to the
participant with respect to the award, or (b) delivering to the Company shares
of unrestricted Stock; provided, however, that any such election shall be made
either (i) during one of the "window" periods described in section (e) (3) (iii)
of Rule 16b-3 promulgated under the Exchange Act, or (ii) at least six months
prior to the date income is recognized with respect to the award.
15.4 At the time of grant or purchase, the Committee may provide in
connection with any grant or purchase made under this Plan that the shares of
Stock received as a result of such grant or purchase shall be subject to a right
of first refusal, pursuant to which the participant shall be required to offer
to the Company any shares that the participant wishes to sell, with the price
being the then Fair Market Value of the Stock, subject to the provisions of
Section 14 and to such other terms and conditions as the Committee may specify
at the time of grant.
15.5 No member of the Board or the Committee, nor any officer or employee of
the Company acting on behalf of the Board or the Committee, shall be personally
liable for any action, determination, or interpretation taken or made in good
faith with respect to this Plan, and all members of the Board or the Committee
and each and any officer or employee of the Company acting on their behalf
shall, to the extent permitted by law, be fully indemnified and protected by the
Company with respect to any such action, determination or interpretation.
16. EFFECTIVE DATE OF PLAN.
This Plan shall be effective on the date it is approved by a majority of the
votes of stockholders either in writing or cast at a duly held stockholders'
meeting at which a quorum representing a majority of all outstanding voting
stock is, either in person or by proxy, present and voting on the Plan.
17. TERM OF PLAN.
No Stock Option, Director Stock Option, Stock Appreciation Right, Restricted
Stock or Deferred Stock award shall be granted pursuant to this Plan on or after
February 28, 2010, but awards theretofore granted may extend beyond that date.
CERTIFICATION OF ADOPTION
I, ____________________, Secretary of Progressive Telecommunications
Corporation, hereby certify that the foregoing is a true and correct copy of the
2000 Equity Incentive Plan of the Company as adopted by the Board of Directors
of the Company at a special meeting held on __________________ and adopted by
the holders of a majority of outstanding shares on___________________.
IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed the seal of
the Company this _________________, 2000.
James C. Watson, Secretary
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