EX-4
EVERLERT, INC.
AMENDED AND RESTATED
NON-EMPLOYEE DIRECTORS AND CONSULTANTS
RETAINER STOCK PLAN
1. Introduction.
This plan shall be known as the "Everlert Amended and Restated Non-
Employee Directors and Consultants Retainer Stock Plan" and is
hereinafter referred to as the "Plan". The purposes of the Plan
are to enable Everlert, 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.
"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 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 June 3, 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 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 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.
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 Twenty Million (20,000,000). 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 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
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 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 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 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. Micellaneous.
(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 Nevada.
IN WITNESS WHEREOF, this Plan has been executed as of the 3rd day of
June, 2002.
Everlert, Inc.
By: /s/ James J. Weber
James J. Weber, President