EXHIBIT 4.1
TELECOMMUNICATION PRODUCTS, INC.
NON-EMPLOYEE DIRECTORS AND CONSULTANTS
RETAINER STOCK PLAN
1. Introduction.
This plan shall be known as the "Telecommunication Products, Inc. Non-Employee
Directors and Consultants Retainer Stock Plan" and is hereinafter referred to as
the "Plan". The purposes of the Plan are to enable Telecommunication Products,
Inc., a Colorado corporation ("Company"), to promote the interests of the
Company and its shareholders by attracting and retaining non-employee Directors
and Consultants capable of furthering the future success of the Company and by
aligning their economic interests more closely with those of the Company's
shareholders, by paying their retainer or fees in the form of shares of the
Company's common stock, par value one tenth of one cent ($0.001) per share
(Common Stock").
2. Definitions.
The following terms shall have the meanings set forth below:
"Board" means the Board of Directors of the Company.
"Change of Control" has the meaning set forth in Section 12(d).
"Code" means the Internal Revenue Code of 1986, as amended, and the rules and
regulations thereunder. References to any provision of the Code or rule or
regulation thereunder shall be deemed to include any amended or successor
provision, rule or regulation.
"Committee" means the committee that administers the Plan, as more fully defined
in Section 13.
"Common Stock" has the meaning set forth in Section 1.
"Company" has the meaning set forth in Section 1.
"Deferral Election" has the meaning set forth in Section 6.
"Deferred Stock Account" means a bookkeeping account maintained by the Company
for a Participant representing the Participant's interest in the shares credited
to such Deferred Stock Account pursuant to Section 7.
"Delivery Date" has the meaning set forth in Section 6.
"Director" means an individual who is a member of the Board of Directors of the
Company.
"Dividend Equivalent" for a given dividend or other distribution means a number
of shares of Common Stock having a Fair Market Value, as of the record date for
such dividend or distribution, equal to the amount of cash, plus the fair market
value on the date of distribution of any
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property, that is distributed with respect to one share of Common Stock pursuant
to such dividend or distribution; such fair market value to be determined by the
Committee in good faith.
"Effective Date" has the meaning set forth in Section 3.
"Exchange Act" has the meaning set forth in Section 13(b).
"Fair Market Value" means the mean between the highest and lowest reported sales
prices of the Common Stock on the NYSE Composite Tape or, if not listed on such
exchange, on any other national securities exchange on which the Common Stock is
listed or on NASDAQ on the last trading day prior to the date with respect to
which the Fair Market Value is to be determined.
"Participant" has the meaning set forth in Section 4.
"Payment Time" means the time when a Stock Retainer is payable to a Participant
pursuant to Section 5 (without regard to the effect of any Deferral Election).
"Stock Retainer" has the meaning set forth in Section 5.
"Third Anniversary" has the meaning set forth in Section 6.
3. Effective Date of the Plan.
The Plan shall be effective as of January 29, 2002 ("Effective Date"), provided
that it is approved by the Board.
4. Eligibility.
Each individual who is a Director or Consultant on the Effective Date and each
individual who becomes a Director or Consultant thereafter during the term of
the Plan, shall be a participant ("Participant") in the Plan, in each case
during such period as such individual remains a Director or Consultant and is
not an employee of the Company or any of its subsidiaries. Each credit of shares
of Common Stock pursuant to the Plan shall be evidenced by a written agreement
duly executed and delivered by or on behalf of the Company and a Participant, if
such an agreement is required by the Company to assure compliance with all
applicable laws and regulations.
5. Grants of Shares.
Commencing on the Effective Date, the amount for service to directors or
consultants shall instead be payable in shares of Common Stock ("Stock
Retainer") pursuant to this Plan at the deemed issuance price of one tenth of
one cent ($0.001) per Share.
6. Deferral Option.
From and after the Effective Date, a Participant may make an election (a
"Deferral Election") on an annual basis to defer delivery of the Stock Retainer
specifying which one of the following way the Stock Retainer is to be delivered:
(a) on the date which is three years after the
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Effective Date for which it was originally payable ("Third Anniversary"), (b) on
the date upon which the Participant ceases to be a Director or Consultant for
any reason ("Departure Date") or (c) in five equal annual installments
commencing on the Departure Date ("Third Anniversary" and "Departure Date" each
being referred to herein as a "Delivery Date"). Such Deferral Election shall
remain in effect for each Subsequent Year unless changed, provided that, any
Deferral Election with respect to a particular Year may not be changed less than
six (6) months prior to the beginning of such Year and provided, further, that
no more than one Deferral Election or change thereof may be made in any Year.
Any Deferral Election and any change or revocation thereof shall be made by
delivering written notice thereof to the Committee no later than six (6) months
prior to the beginning of the Year in which it is to be effected; provided that,
with respect to the Year beginning on the Effective Date, any Deferral Election
or revocation thereof must be delivered no later than the close of business on
the thirtieth (30th) day after the Effective Date.
7. Deferred Stock Accounts.
The Company shall maintain a Deferred Stock Account for each Participant who
makes a Deferral Election to which shall be credited, as of the applicable
Payment Time, the number of shares of Common Stock payable pursuant to the Stock
Retainer to which the Deferral Election relates. So long as any amounts in such
Deferred Stock Account have not been delivered to the Participant under Section
8, each Deferred Stock Account shall be credited as of the payment date for any
dividend paid or other distribution made with respect to the Common Stock, with
a number of shares of Common Stock equal to (a) the number of shares of Common
Stock shown in such Deferred Stock Account on the record date for such dividend
or distribution multiplied by (b) the Dividend Equivalent for such dividend or
distribution.
8. Delivery of Shares.
(a) The shares of Common Stock in a Participant's Deferred Stock Account with
respect to any Stock Retainer for which a Deferral Election has been made
(together with dividends attributable to such shares credited to such Deferred
Stock Account) shall be delivered in accordance with this Section 8 as soon as
practicable after the applicable Delivery Date. Except with respect to a
Deferral Election pursuant to Section 6(c), or other agreement between the
parties, such shares shall be delivered at one time; provided that, if the
number of shares so delivered includes a fractional share, such number shall be
rounded to the nearest whole number of shares. If the Participant has in effect
a Deferral Election pursuant to Section 6(c), then such shares shall be
delivered in five equal annual installments (together with dividends
attributable to such shares credited to such Deferred Stock Account), with the
first such installment being delivered on the first anniversary of the Delivery
Date; provided that, if in order to equalize such installments, fractional
shares would have to be delivered, such installments shall be adjusted by
rounding to the nearest whole share. If any such shares are to be delivered
after the Participant has died or become legally incompetent, they shall be
delivered to the
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Participant's estate or legal guardian, as the case may be, in accordance with
the foregoing; provided that, if the Participant dies with a Deferral Election
pursuant to Section 6(c) in effect, the Committee shall deliver all remaining
undelivered shares to the Participant's estate immediately. References to a
Participant in this Plan shall be deemed to refer to the Participant's estate or
legal guardian, where appropriate.
(b) The Company may, but shall not be required to, create a grantor trust or
utilize an existing grantor trust (in either case, "Trust") to assist it in
accumulating the shares of Common Stock needed to fulfill its obligations under
this Section 8. However, Participants shall have no beneficial or other interest
in the Trust and the assets thereof, and their rights under the Plan shall be as
general creditors of the Company, unaffected by the existence or nonexistence of
the Trust, except that deliveries of Stock Retainers to Participants from the
Trust shall, to the extent thereof, be treated as satisfying the Company's
obligations under this Section 8.
9. Share Certificates; Voting and Other Rights.
The certificates for shares delivered to a Participant pursuant to Section 8
above shall be issued in the name of the Participant, and from and after the
date of such issuance the Participant shall be entitled to all rights of a
shareholder with respect to Common Stock for all such shares issued in his or
her name, including the right to vote the shares, and the Participant shall
receive all dividends and other distributions paid or made with respect thereto.
10. General Restrictions.
(a) Notwithstanding any other provision of the Plan or agreements made pursuant
thereto, the Company shall not be required to issue or deliver any certificate
or certificates for shares of Common Stock under the Plan prior to fulfillment
of all of the following conditions:
(i) Listing or approval for listing upon official notice of issuance of such
shares on the New York Stock Exchange, Inc., or such other securities exchange
as may at the time be a market for the Common Stock;
(ii) Any registration or other qualification of such shares under any state or
federal law or regulation, or the maintaining in effect of any such registration
or other qualification which the Committee shall, upon the advice of counsel,
deem necessary or advisable; and
(iii) Obtaining any other consent, approval, or permit from any state or federal
governmental agency which the Committee shall, after receiving the advice of
counsel, determine to be necessary or advisable.
(b) Nothing contained in the Plan shall prevent the Company from adopting other
or additional compensation arrangements for the Participants.
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11. Shares Available.
Subject to Section 12 below, the maximum number of shares of Common Stock which
may in the aggregate be paid as Stock Retainers pursuant to the Plan is Four
Million (4,000,000). Shares of Common Stock issueable under the Plan may be
taken from treasury shares of the Company or purchased on the open market.
12. Adjustments; Change of Control.
(a) In the event that there is, at any time after the Board adopts the Plan, any
change in corporate capitalization, such as a stock split, combination of
shares, exchange of shares, warrants or rights offering to purchase Common Stock
at a price below its fair market value, reclassification, or recapitalization,
or a corporate transaction, such as any merger, consolidation, separation,
including a spin-off, or other extraordinary distribution of stock or property
of the Company, any reorganization (whether or not such reorganization comes
within the definition of such term in Section 368 of the Code) or any partial or
complete liquidation of the Company (each of the foregoing a "Transaction"), in
each case other than any such Transaction which constitutes a Change of Control
(as defined below), (i) the Deferred Stock Accounts shall be credited with the
amount and kind of shares or other property which would have been received by a
holder of the number of shares of Common Stock held in such Deferred Stock
Account had such shares of Common Stock been outstanding as of the effectiveness
of any such Transaction, (ii) the number and kind of shares or other property
subject to the Plan shall likewise be appropriately adjusted to reflect the
effectiveness of any such Transaction and (iii) the Committee shall
appropriately adjust any other relevant provisions of the Plan and any such
modification by the Committee shall be binding and conclusive on all persons.
(b) If the shares of Common Stock credited to the Deferred Stock Accounts are
converted pursuant to Section 12(a) into another form of property, references in
the Plan to the Common Stock shall be deemed, where appropriate, to refer to
such other form of property, with such other modifications as may be required
for the Plan to operate in accordance with its purposes. Without limiting the
generality of the foregoing, references to delivery of certificates for shares
of Common Stock shall be deemed to refer to delivery of cash and the incidents
of ownership of any other property held in the Deferred Stock Accounts.
(c) In lieu of the adjustment contemplated by Section 12(a), in the event of a
Change of Control, the following shall occur on the date of the Change of
Control: (i) the shares of Common Stock held in each Participant's Deferred
Stock Account shall be deemed to be issued and outstanding as of the Change of
Control; (ii) the Company shall forthwith deliver to each Participant who has a
Deferred Stock Account all of the shares of Common Stock or any other property
held in such Participant's Deferred Stock Account; and (iii) the Plan shall be
terminated.
(d) For purposes of this Plan, Change of Control shall mean any of the following
events:
(i) The acquisition by any individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act
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of 1934, as amended (the "Exchange Act")) (a "Person") of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of 20% or
more of either (a) the then outstanding shares of common stock of the Company
("Outstanding Company Common Stock") or (b) the combined voting power of the
then outstanding voting securities of the Company entitled to vote generally in
the election of directors ("Outstanding Company Voting Securities"); provided,
however, that the following acquisitions shall not constitute a Change of
Control: (a) any acquisition directly from the Company (excluding an acquisition
by virtue of the exercise of a conversion privilege unless the security being so
converted was itself acquired directly from the Company), (b) any acquisition by
the Company, (c) any acquisition by any employee benefit plan (or related trust)
sponsored or maintained by the Company or any corporation controlled by the
Company or (d) any acquisition by any corporation pursuant to a reorganization,
merger or consolidation, if, following such reorganization, merger or
consolidation, the conditions described in clauses (a), (b) and (c) of paragraph
(iii) of this Section 12(d) are satisfied; or
(ii) Individuals who, as of the date hereof, constitute the Board of the Company
(as of the date hereof, "Incumbent Board") cease for any reason to constitute at
least a majority of the Board; provided, however, that any individual becoming a
director subsequent to the date hereof whose election, or nomination for
election by the Company's shareholders, was approved by a vote of at least a
majority of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board, but
excluding, for this purpose, any such individual whose initial assumption of
office occurs as a result of either an actual or threatened election contest (as
such terms are used in Rule 14a-11 of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board; or
(iii) Approval by the shareholders of the Company of a reorganization, merger,
binding share exchange or consolidation, unless, following such reorganization,
merger, binding share exchange or consolidation (a) more than sixty percent
(60%) of, respectively, the then outstanding shares of common stock of the
corporation resulting from such reorganization, merger, binding share exchange
or consolidation and the combined voting power of the then outstanding voting
securities of such corporation entitled to vote generally in the election of
directors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such reorganization, merger,
binding share exchange or consolidation in substantially the same proportions as
their ownership, immediately prior to such reorganization, merger, binding share
exchange or consolidation, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (b) no Person
(excluding the Company, any employee benefit plan (or related trust) of the
Company or such corporation resulting from such reorganization, merger, binding
share exchange or consolidation and any Person beneficially owning, immediately
prior to such reorganization, merger, binding share exchange or consolidation,
directly or indirectly, twenty percent (20%) or more
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of the Outstanding Company Common Stock or Outstanding Company Voting
Securities, as the case may be) beneficially owns, directly or indirectly,
twenty percent (20%) or more of, respectively, the then outstanding shares of
common stock of the corporation resulting from such reorganization, merger,
binding share exchange or consolidation or the combined voting power of the then
outstanding voting securities of such corporation entitled to vote generally in
the election of directors and (c) at least a majority of the members of the
board of directors of the corporation resulting from such reorganization,
merger, binding share exchange or consolidation were members of the Incumbent
Board at the time of the execution of the initial agreement providing for such
reorganization, merger, binding share exchange or consolidation; or
(iv) Approval by the shareholders of the Company of (a) a complete liquidation
or dissolution of the Company or (b) the sale or other disposition of all or
substantially all of the assets of the Company, other than to a corporation,
with respect to which following such sale or other disposition, (x) more than
sixty percent (60%) of, respectively, the then outstanding shares of common
stock of such corporation and the combined voting power of the then outstanding
voting securities of such corporation entitled to vote generally in the election
of di0rectors is then beneficially owned, directly or indirectly, by all or
substantially all of the individuals and entities who were the beneficial
owners, respectively, of the Outstanding Company Common Stock and Outstanding
Company Voting Securities immediately prior to such sale or other disposition in
substantially the same proportion as their ownership, immediately prior to such
sale or other disposition, of the Outstanding Company Common Stock and
Outstanding Company Voting Securities, as the case may be, (y) no Person
(excluding the Company and any employee benefit plan (or related trust) of the
Company or such corporation and any Person beneficially owning, immediately
prior to such sale or other disposition, directly or indirectly, twenty percent
(20%) or more of the Outstanding Company Common Stock or Outstanding Company
Voting Securities, as the case may be) beneficially owns, directly or
indirectly, twenty percent (20%) or more of, respectively, the then outstanding
shares of common stock of such corporation and the combined voting power of the
then outstanding voting securities of such corporation entitled to vote
generally in the election of directors and (z) at least a majority of the
members of the board of directors of such corporation were members of the
Incumbent Board at the time of the execution of the initial agreement or action
of the Board providing for such sale or other disposition of assets of the
Company.
13. Administration; Amendment and Termination.
(a) The Plan shall be administered by a committee consisting of three members
who shall be the current directors of the Company or senior executive officers
or other directors who are not Participants as may be designated by the Chief
Executive Officer ("Committee"), which shall have full authority to construe and
interpret the Plan, to establish, amend and rescind rules and regulations
relating to the Plan, and to take all such actions and make all such
determinations in connection with the Plan as it may deem necessary or
desirable. (b) The Board may from time to time make such amendments to the Plan,
including to preserve or come within any exemption from liability under Section
16(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
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Act"), as it may deem proper and in the best interest of the Company without
further approval of the Company's stockholders, provided that, to the extent
required under Colorado law or to qualify transactions under the Plan for
exemption under Rule 16b-3 promulgated under the Exchange Act, no amendment to
the Plan shall be adopted without further approval of the Company's stockholders
and, provided, further, that if and to the extent required for the Plan to
comply with Rule 16b-3 promulgated under the Exchange Act, no amendment to the
Plan shall be made more than once in any six (6) month period that would change
the amount, price or timing of the grants of Common Stock hereunder other than
to comport with changes in the Internal Revenue Code of 1986, as amended, the
Employee Retirement Income Security Act of 1974, as amended, or the regulations
thereunder. (c) The Board may terminate the Plan at any time by a vote of a
majority of the members thereof.
14. Miscellaneous.
(a) Nothing in the Plan shall be deemed to create any obligation on the part of
the Board to nominate any Director for reelection by the Company's shareholders
or to limit the rights of the shareholders to remove any Director.
(b) The Company shall have the right to require, prior to the issuance or
delivery of any shares of Common Stock pursuant to the Plan, that a Participant
make arrangements satisfactory to the Committee for the withholding of any taxes
required by law to be withheld with respect to the issuance or delivery of such
shares, including without limitation by the withholding of shares that would
otherwise be so issued or delivered, by withholding from any other payment due
to the Participant, or by a cash payment to the Company by the Participant.
15. Governing Law.
The Plan and all actions taken thereunder shall be governed by and construed in
accordance with the laws of the State of Colorado.
IN WITNESS WHEREOF, this Plan has been executed as of the 28th day of January,
2001.
TELECOMMUNICATION PRODUCTS, INC.
BY: /S/ ROBERT RUSSELL
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ROBERT RUSSELL, PRESIDENT
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