Exhibit 4.2
ATNG, INC.
NON-EMPLOYEE DIRECTORS AND CONSULTANTS RETAINER STOCK PLAN
FOR THE YEAR 2003
1. Introduction. This Plan shall be known as the "ATNG, INC. Non-Employee
Directors and Consultants Retainer Stock Plan for the Year 2003", and is
hereinafter referred to as the "Plan." The purposes of this Plan are to enable
ATNG, Inc., a Texas corporation (the "Company"), to promote the interests of the
Company and its stockholders 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
stockholders, by paying their retainer or fees in the form of shares of the
Company's common stock, par value $0.0001 per share (the "Common Stock").
2. Definitions. The following terms shall have the meanings set forth below:
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"Board" means the Board of Directors of the Company.
"Change of Control" has the meaning set forth in Paragraph 12(d)
hereof.
"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 this Plan, as more
fully defined in Paragraph 13 hereof.
"Common Stock" has the meaning set forth in Paragraph 1 hereof.
"Company" has the meaning set forth in Paragraph 1 hereof.
"Deferral Election" has the meaning set forth in Paragraph 6 hereof.
"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 Paragraph 7 hereof.
"Delivery Date" has the meaning set forth in Paragraph 6 hereof.
"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 the 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 the 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 Paragraph 3 hereof.
"Exchange Act" has the meaning set forth in Paragraph 13(b) hereof.
"Fair Market Value" means the mean between the highest and lowest
reported sales prices of the Common Stock on the New York Stock Exchange
Composite Tape or, if not listed on such exchange, on any other national
securities exchange on which the Common Stock is listed or on The Nasdaq Stock
Market, or, if not so listed on any other national securities exchange or The
Nasdaq Stock Market, then the average of the bid price of the Common Stock
during the last five trading days on the OTC Bulletin Board immediately
preceding the last trading day prior to the date with respect to which the Fair
Market Value is to be determined. If the Common Stock is not then publicly
traded, then the Fair Market Value of the Common Stock shall be the book value
of the Company per share as determined on the last day of March, June,
September, or December in any year closest to the date when the determination is
to be made. For the purpose of determining book value hereunder, book value
shall be determined by adding as of the applicable date called for herein the
capital, surplus, and undivided profits of the Company, and after having
deducted any reserves theretofore established; the sum of these items shall be
divided by the number of shares of the Common Stock outstanding as of said date,
and the quotient thus obtained shall represent the book value of each share of
the Common Stock of the Company.
"Participant" has the meaning set forth in Paragraph 4 hereof.
"Payment Time" means the time when a Stock Retainer is payable to a
Participant pursuant to Paragraph 5 hereof (without regard to the effect of any
Deferral Election).
"Stock Retainer" has the meaning set forth in Paragraph 5 hereof.
"Third Anniversary" has the meaning set forth in Paragraph 6 hereof.
3. Effective Date of the Plan. This Plan was adopted by the Board
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effective May 28, 2003 (the "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 this Plan, shall be a participant (the "Participant") in this 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 the Common Stock pursuant to this 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 of
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compensation for service to directors compensation for service to directors or
consultants shall be payable in shares of the Common Stock(the "Stock Retainer")
pursuant to this Plan at the deemed issuance price of $0.02 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 ways 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 (the "Third Anniversary"), (b) on the date
upon which the Participant ceases to be a Director or Consultant for any reason
(the "Departure Date") or (c) in five equal annual installments commencing on
the Departure Date (the "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
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
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 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 the 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 Paragraph 8 hereof, 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 the Common Stock
equal to (a) the number of shares of the 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.
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(a) The shares of the 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 Paragraph 8
as soon as practicable after the applicable Delivery Date. Except with respect
to a Deferral Election pursuant to Paragraph 6(c) hereof, 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 Paragraph 6(c) hereof, 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 Paragraph 6(c) hereof 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 the Common Stock needed to fulfill its
obligations under this Paragraph 8. However, Participants shall have no
beneficial or other interest in the Trust and the assets thereof, and their
rights under this 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 Paragraph 8.
9. Share Certificates; Voting and Other Rights. The certificates for shares
delivered to a Participant pursuant to Paragraph 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 stockholder with respect to the
Common Stock for all such shares issued in his 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.
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(a) Notwithstanding any other provision of this Plan or
agreements made pursuant thereto, the Company shall not be required to issue or
deliver any certificate or certificates for shares of the Common Stock under
this 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 this Plan shall prevent the Company
from adopting other or additional compensation arrangements for the
Participants.
11. Shares Available. Subject to Paragraph 12 below, the maximum number of
shares of the Common Stock which may in the aggregate be paid as Stock Retainers
pursuant to this Plan is 14,000,000. Shares of the Common Stock issueable under
this Plan may be taken from treasury shares of the Company or purchased on the
open market.
12. Adjustments; Change of Control.
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(a) In the event that there is, at any time after the Board
adopts this Plan, any change in corporate capitalization, such as a stock split,
combination of shares, exchange of shares, warrants or rights offering to
purchase the 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, stock dividend, 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 the Common Stock held in such Deferred Stock Account had
such shares of the Common Stock been outstanding as of the effectiveness of any
such Transaction, (ii) the number and kind of shares or other property subject
to this 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 this Plan and any such
modification by the Committee shall be binding and conclusive on all persons.
(b) If the shares of the Common Stock credited to the Deferred
Stock Accounts are converted pursuant to Paragraph 12(a) into another form of
property, references in this 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 this Plan to operate in accordance with its
purposes. Without limiting the generality of the foregoing, references to
delivery of certificates for shares of the 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 Paragraph 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 the 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 the Common Stock or any other property held in such Participant's Deferred
Stock Account; and (iii) this 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 percent
or more of either (1) the then outstanding shares of the Common Stock of
the Company (the "Outstanding Company Common Stock"), or (2) the combined
voting power of then outstanding voting securities of the Company entitled
to vote generally in the election of directors (the "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 Paragraph 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 stockholders, 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 stockholders of the Company of a reorganization,
merger, binding share exchange or consolidation, unless, following such
reorganization, merger, binding share exchange or consolidation (1) more
than 60 percent of, respectively, 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 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, (2) 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, 20 percent or more of the Outstanding Company Common Stock
or Outstanding Company Voting Securities, as the case may be) beneficially
owns, directly or indirectly, 20 percent or more of, respectively, 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 then outstanding voting securities of such
corporation entitled to vote generally in the election of directors, and
(3) 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 stockholders of the Company of (1) a complete
liquidation or dissolution of the Company, or (2) 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, (A) more than 60 percent of, respectively, then outstanding
shares of common stock of such corporation and the combined voting power of
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, (B) 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, 20 percent or more of
the Outstanding Company Common Stock or Outstanding Company Voting
Securities, as the case may be) beneficially owns, directly or indirectly,
20 percent or more of, respectively, then outstanding shares of common
stock of such corporation and the combined voting power of then outstanding
voting securities of such corporation entitled to vote generally in the
election of directors, and (3) 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.
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(a) This Plan shall be administered by a committee consisting
of two 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 (the "Committee"), which shall have
full authority to construe and interpret this Plan, to establish, amend and
rescind rules and regulations relating to this Plan, and to take all such
actions and make all such determinations in connection with this Plan as it may
deem necessary or desirable.
(b) The Board may from time to time make such amendments to
this 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 further approval of the Company's stockholders,
provided that, to the extent required under Texas law or to qualify transactions
under this Plan for exemption under Rule 16b-3 promulgated under the Exchange
Act, no amendment to this Plan shall be adopted without further approval of the
Company's stockholders and, provided, further, that if and to the extent
required for this Plan to comply with Rule 16b-3 promulgated under the Exchange
Act, no amendment to this Plan shall be made more than once in any six month
period that would change the amount, price or timing of the grants of the Common
Stock hereunder other than to comport with changes in the Code, the Employee
Retirement Income Security Act of 1974, as amended, or the regulations
thereunder. The Board may terminate this Plan at any time by a vote of a
majority of the members thereof.
14. Miscellaneous.
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(a) Nothing in this Plan shall be deemed to create any
obligation on the part of the Board to nominate any Director for reelection by
the Company's stockholders or to limit the rights of the stockholders to remove
any Director.
(b) The Company shall have the right to require, prior to the
issuance or delivery of any shares of the Common Stock pursuant to this 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.
14.1 Governing Law. The Plan and all actions taken thereunder shall
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be governed by and construed in accordance with the laws of the State of Texas.
14.2 Information to Shareholders. The Company shall furnish to each of its
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stockholders financial statements of the Company at least annually.
IN WITNESS WHEREOF, this Plan has been executed effective as of May 28, 2003.
ATNG, INC.
By/s/ Robert Simpson
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Robert Simpson, President