EXHIBIT 4
2006 NON-EMPLOYEE DIRECTORS AND CONSULTANTS RETAINER STOCK PLAN
5G WIRELESS COMMUNICATIONS, INC.
2006 NON-EMPLOYEE DIRECTORS AND CONSULTANTS
RETAINER STOCK PLAN
1. INTRODUCTION.
This plan shall be known as the "5G Wireless Communications, Inc. 2006
Non-Employee Directors and Consultants Retainer Stock Plan" is hereinafter
referred to as the "Plan." The purposes of the Plan are to enable 5G Wireless
Communications, Inc., a Nevada 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.
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"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 defined below), 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 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 was adopted by the Board effective December 21, 2005 ("Effective
Date").
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 eligible to 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.
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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 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 (5) 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
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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 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.
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(b) Nothing contained in the Plan shall prevent the Company from
adopting other or additional compensation arrangements for the
Participants.
11. SHARES AVAILABLE.
Subject to Section 12 below, the maximum number of shares of Common Stock that
may in the aggregate be paid as Stock Retainers pursuant to the Plan is One
Million (1,000,000). Shares of Common Stock issuable 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, and (ii) 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:
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(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
of 1934, as amended ("Exchange Act")) (a "Person") of beneficial
ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of twenty percent (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
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owning, immediately prior to such reorganization, merger, binding share
exchange or consolidation, 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 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 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 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 senior executive officers 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.
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(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 Exchange Act, as it may deem proper and in the best interest of the Company
without approval of the Company's stockholders; provided that, to the extent
required under Nevada 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 re-election 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 Nevada.
5G WIRELESS COMMUNICATIONS, INC.
By: /s/ Jerry Dix
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Jerry Dix, Chief Executive Officer
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