EXHIBIT 4.1
AMERICAN UNITED GLOBAL, INC.
2000 EMPLOYEE STOCK OPTION PLAN
1. PURPOSES
The purposes of the American United Global, Inc. 2000 Employee Stock
Option Plan (the "Plan") are to aid American United Global, Inc. and its
"subsidiaries" or "parents" (as defined under the federal securities laws)
(together the "Company") in attracting and retaining highly capable employees
and to enable selected key employees and consultants or other representatives of
the Company to acquire or increase ownership interest in the Company on a basis
that will encourage them to perform at increasing levels of effectiveness and
use their best efforts to promote the growth and profitability of the Company.
Consistent with these objectives, this Plan authorizes the granting to selected
key employees and consultants of options to acquire up to 6,000,000 shares of
the Company's voting Common Stock, par value $.01 per share (the "Common
Stock"), pursuant to the terms and conditions hereinafter set forth.
Options granted hereunder may be (i) "Incentive Options" (which term, as
used herein, shall mean options that are intended to be "incentive stock
options" within the meaning of Code Section 422), or (ii) "Non-Qualified
Options" (which term, as used herein, shall mean options that are not intended
to be Incentive Options).
2. EFFECTIVE DATE
Following approval by the holders of a majority of the outstanding shares
of common stock, this Plan shall become effective as of December 7, 1999 (the
"Effective Date").
3. ADMINISTRATION
(a) This Plan shall be administered by a committee (the "Committee")
consisting of not less than two members of the Board of Directors of the Company
(the "Board of Directors"), who are selected by the Board of Directors. If, at
any time, there are less than two members of the Committee, the Board of
Directors shall appoint one or more other members of the Board of Directors to
serve on the Committee. All Committee members shall serve, and may be removed,
at the pleasure of the Board of Directors.
(b) A majority of the members of the Committee (but not less than two)
shall constitute a quorum, and any action taken by a majority of such members
present at any meeting at which a quorum is present, or acts approved in writing
by all such members, shall be the acts of the Committee.
(c) Subject to the other provisions of this Plan, the Committee shall
have full authority to decide the date or dates on which options (the "Options")
to acquire shares of Common Stock will be granted under this Plan (the "Date of
Grant"), to determine whether the Options to be granted shall be Incentive
Options or Nonqualified Options, or a combination of both, to select the persons
to whom the Options will be granted and to determine the number of shares of
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Common Stock to be covered by each Option, the price at which such shares may be
purchased upon the exercise of such option (the "Option Exercise Price"), and
other terms and conditions of the Options. In making those determinations, the
Committee shall solicit the recommendations of the President and Chairman of the
Board of the Company and may take into account the proposed optionee's present
and potential contributions to the Company's business and any other factors
which the Committee may deem relevant. Subject to the other provisions of this
Plan, the Committee shall also have full authority to interpret this Plan and
any stock option agreements evidencing Options granted hereunder, to issue rules
for administering this Plan, to change, alter, amend or rescind such rules, and
to make all other determinations necessary or appropriate for the administration
of this Plan. All determinations, interpretations and constructions made by the
Committee pursuant to this Section 3 shall be final and conclusive. No member of
the Board of Directors or the Committee shall be liable for any action,
determination or omission taken or made in good faith with respect to this Plan
or any Option granted hereunder.
4. ELIGIBILITY
Subject to the provisions of Section 7 below, key employees of the Company
(including officers and directors who are employees) and consultants and other
representatives of the Company shall be eligible to receive Options under this
Plan.
5. OPTION SHARES
(a) The shares subject to Options granted under this Plan shall be
shares of Common Stock and, except as otherwise required or permitted by
Subsection 5(b) below, the aggregate number of shares with respect to which
Options may be granted shall not exceed 6,000,000 shares. If an Option expires,
terminates or is otherwise surrendered, in whole or in part, the shares
allocable to the unexercised portion of such Option shall again become available
for grants of Options hereunder. As determined from time to time by the Board of
Directors, the shares available under this Plan for grants of Options may
consist either in whole or in part of authorized but unissued shares of Common
Stock or shares of Common Stock which have been reacquired by the Company or a
subsidiary following original issuance.
(b) The aggregate number of shares of Common Stock as to which Options
may be granted hereunder, as provided in Subsection 5(a) above, the number of
shares covered by each outstanding Option and the Option Exercise Price shall be
proportionately adjusted for any increase or decrease in the number of issued
shares of Common Stock resulting from a stock split or other subdivision or
consolidation of shares or other capital adjustment, or the payment of a stock
dividend; PROVIDED, HOWEVER, that any fractional shares resulting from any such
adjustment shall be eliminated.
(c) The aggregate fair market value, determined on the Date of Grant (as
such term is defined in Section 6(a) below), of the shares of stock with respect
to which Incentive Options are exercisable for the first time by an Optionee (as
such term as defined in Section 6 below) during any calendar year (under all
incentive stock option plans of the Company and its subsidiaries) may not exceed
$100,000.
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6. TERMS AND CONDITIONS OF OPTIONS
The Committee may, in its discretion, grant to a key employee only
Incentive Options, only Nonqualified Options, or a combination of both, and each
Option granted shall be clearly identified as to its status. Recipients other
than employees of the Company can only receive Nonqualified Options. Each Option
granted pursuant to this Plan shall be evidenced by a stock option agreement
between the Company and the recipient to whom the option is granted (the
"Optionee") in such form or forms as the Committee, from time to time, shall
prescribe, which agreements need not be identical to each other but shall comply
with and be subject to the following terms and conditions:
(a) OPTION EXERCISE PRICE. The Option Exercise Price at which each share
of Common Stock may be purchased pursuant to an Option shall be determined by
the Committee, except that (i) the Option Exercise Price at which each share of
Common Stock may be purchased pursuant to an Incentive Option shall be not less
than 100% of the fair market value for each such share on the Date of Grant of
such Incentive Option and (ii) the Option Exercise Price at which each share of
Common Stock may be purchased pursuant to a Non-Qualified Option shall not be
less than 85% of the fair market value for each share on the Date of Grant of
such Nonqualified Option. Anything contained in this Section 6(a) to the
contrary notwithstanding, in the event that the number of shares of Common Stock
subject to any Option is adjusted pursuant to Section 5(b) above, a
corresponding adjustment shall be made in the Option Exercise Price per share.
(b) DURATION OF OPTIONS. The duration of each Option granted hereunder
shall be determined by the Committee, except that each Nonqualified Option
granted hereunder shall expire and all rights to purchase shares of Common Stock
pursuant thereto shall cease one day before the tenth anniversary of the Date of
Grant of such Option and each Incentive Option granted hereunder shall expire
and all rights to purchase shares of Common Stock pursuant thereto shall cease
one day before the tenth anniversary of the Date of Grant of such Option (in
each case, the "Expiration Date").
(c) VESTING OF OPTIONS. The vesting of each Option granted hereunder
shall be determined by the Committee. Only such vested portions of Options may
be exercised. Anything contained in this Section 6(c) to the contrary
notwithstanding, an Optionee shall become fully (100%) vested in each of his or
her Options upon his or her termination of employment with the Company or any of
its subsidiaries for reasons of death, disability or retirement. The Committee
shall, in its sole discretion, determine whether or not disability or retirement
has occurred.
(d) MERGER, CONSOLIDATION, ETC. In the event the Company shall propose
to merge into, consolidate with, or sell or otherwise transfer all or
substantially all of its assets to, another corporation and provision is not
made pursuant to the terms of such trans shall, pursuant to action by its Board
of Directors, at any time action for (i) the assumption by the surviving,
resulting or acquiring corporation of outstanding Options, (ii) the substitution
therefor of new options granting reasonably similar rights and privileges, or
(iii) the payment of cash or other consideration in respect thereof, the
Committee shall cause written notice of the proposed transaction to be given to
each Optionee not less than 30 days prior to the announced anticipated effective
date of the proposed transaction, and the Committee shall specify in such notice
a date,
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which date shall be not less than 10 days prior to the announced anticipated
effective date of the proposed transaction (the "Vesting Date"), upon which
Vesting Date each Optionee's Options shall become fully (100%) vested. Each
Optionee shall have the right to exercise his or her Options to purchase any or
all shares then subject to such Options during the period commencing on the
Vesting Date and ending at 5:00 p.m. on the day which is two (2) days prior to
the announced anticipated effective date of the proposed transaction. If the
transaction is consummated, each Option, to the extent not previously exercised
prior to the effective date of the transaction, shall terminate on such
effective date. If the transaction is abandoned or otherwise not consummated,
then to the extent that any Option not exercised prior to such abandonment shall
have vested solely by operation of this Section 6(d), such vesting shall be
annulled and be of no further force or effect and the vesting period set forth
in Section 6(c) above shall be reinstituted as of the date of such abandonment.
(e) EXERCISE OF OPTIONS. A person entitled to exercise an Option, or any
portion thereof, may exercise it (or such vested portion thereof) in whole at
any time, or in part from time to time, by delivering to the Company at its
principal office, directed to the attention of its Chairman, President or such
other duly elected officer as shall be designated in writing by the Committee to
the Optionee, written notice specifying the number of shares of Common Stock
with respect to which the Option is being exercised, together with payment in
full of the Option Exercise Price for such shares. Such payment shall be made in
cash or by certified check or bank draft to the order of the Company; PROVIDED,
HOWEVER, that the Committee may, in its sole discretion, authorize such payment,
in whole or in part, in any other form, including payment by personal check or
by the exchange of shares of Common Stock of the Company previously acquired by
the person entitled to exercise the Option and having a fair market value on the
date of exercise equal to the price for which the shares of Common Stock may be
purchased pursuant to the Option. In lieu of payment of cash upon exercise of an
Option, a Holder may effect a "cashless" exercise of an Option by surrendering
such Option at the principal office of the Company, accompanied by a notice
stating (i) such Holder's intent to effect such cashless exercise (ii) the
number of shares of Common Stock to be issued upon exchange, and (iii) the date
upon which the Holder requests that such exercise is to occur. The exercise
price for the Options to be acquired shall be paid by the surrender, as
indicated in the notice, of such number of Options as equals the aggregate
Exercise Price of the Options desired to be exercised, divided by the difference
in the Market Price of the shares of Common Stock underlying the Options of the
Common Stock publicly traded, and the Exercise Price of this Option. The "Market
Price" is defined as the average of the closing bid and ask prices for the
Common Stock for the ten trading days prior to the date specified in (iii) above
(which date shall not precede the date of receipt by the Company of the Holder's
notice).
(f) NONTRANSFERABILITY. The Options shall not be transferable other than
by will or the laws of descent and distribution and no Option may be exercised
by anyone other than the Optionee; that if the Optionee dies or becomes
incapacitated, the Option may be exercised by his or her estate, legal
representative or beneficiary, as the case may be, subject to all other terms
and conditions contained in this Plan.
(g) TERMINATION OF EMPLOYMENT. The following rules shall apply in the
event that an Optionee is an employee of the Company as regards such Optionee's
termination of employment with the Company:
(i) In the event of an Optionee's termination of employment with
the Company either (1) by the Company for Cause (as defined in any relevant
employment agreement to which Optionee is a party) or for fraud, dishonesty,
habitual drunkenness or drug use, or willful disregard of assigned duties by
such Optionee in the absence of such an agreement, or (2) by the Optionee
voluntarily otherwise than at the end of an employment term under a relevant
employment agreement to which Optionee is a party and without the written
consent of the Company, then the Option shall immediately terminate.
(ii) In the event of the Optionee's termination of employment with
the Company
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for reason of retirement or under circumstances other than those specified in
subsection (g)(i) immediately above, and for reasons other than death or
disability, the Option shall terminate three months after the date of such
termination of employment or on the Expiration Date, whichever shall first
occur; PROVIDED, HOWEVER, that if the Optionee dies within such 3-month period,
the time period set forth in subsection (g) (iii) immediately below shall apply.
(iii) In the event of the death or disability, of the Optionee while
the Optionee is employed by the Company, the Option shall terminate on the first
anniversary of the Optionee's date of termination of employment, or on the
Expiration Date, whichever shall first occur.
(iv) Anything contained in this Section 6 to the contrary
notwithstanding, the Option may only be exercised following the Optionee's
termination of employment with the Company for reasons other than death,
disability or retirement if, and to the extent that, the Option was exercisable
immediately prior to such termination of employment.
(v) The Optionee's transfer of employment between American United
Global, Inc. and its "subsidiaries" and "parents" (as defined under the federal
securities laws) shall not constitute a termination of employment and the
Committee shall determine in each case whether an authorized leave of absence
for military service or otherwise shall constitute a termination of employment.
(vi) Termination of the Optionee's employment shall not affect the
vesting schedule of the Optionee's Option.
(h) NO RIGHTS AS SHAREHOLDER OR TO CONTINUED EMPLOYMENT. No Optionee
shall have any rights as a shareholder of the Company with respect to any shares
covered by an Option prior to the date of issuance to such Optionee of the
certificate or certificates for such shares, and neither this Plan nor any
Option granted hereunder shall confer upon an Optionee any right to continuance
of employment by the Company or interferes in any way with the right of the
Company to terminate the employment of such Optionee.
(i) Each stock option agreement shall specify whether the Options
granted hereunder are Incentive Options, Nonqualified Options, or a combination
of both.
7. TEN PERCENT STOCKHOLDERS
The Committee shall not grant an Incentive Option to an individual who
owns, at the time such Incentive Option is granted (directly or by attribution
pursuant to Section 425(d) of the Code), shares of capital stock of the Company
possessing more than 10% of the voting power of all classes of capital stock of
the Company unless, at the time such Incentive Option is granted, the price at
which each share of Common Stock may be purchased pursuant to the Incentive
Option is at least 110% of the fair market value of each such share on the Date
of Grant and such Incentive Option, by its terms, is not exercisable after the
expiration of five years from the Date of Grant.
8. ISSUANCE OF SHARES; RESTRICTIONS
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(a) Subject to the conditions and restrictions provided in this Section
8, the Company shall, within 20 business days after an Option has been duly
exercised in whole or in part, deliver to the person who exercised the Option
one or more certificates, registered in the name of such person, for the number
of shares of Common Stock with respect to which the Option has been exercised.
The Company may legend any stock certificate issued hereunder to reflect any
restrictions provided for in this Section 8.
(b) Unless the shares subject to Options granted under the Plan have
been registered under the Securities Act of 1933, as amended (the "Act") (and,
in the case of any Optionee who may be deemed an "affiliate" of the Company as
such term is defined in Rule 405 under the Act, such shares have been registered
under the Act for resale by the Optionee), or the Company has determined that an
exemption from registration under the Act is available, the Company may require
prior to and as a condition of the issuance of any shares of Common Stock, that
the person exercising an Option hereunder (i) sign such agreements with respect
thereto as the Company may require in any Option Agreement by and between the
Company and the Optionee, and (ii) furnish the Company with a written
representation in a form prescribed by the Committee to the effect that such
person is acquiring such shares solely with a view to investment for his or her
own account and not with a view to the resale or distribution of all or any part
thereof, and that such person will not dispose of any of such shares otherwise
than in accordance with the provisions of Rule 144 under the Act unless and
until either the distribution of such shares is registered under the Act or the
Company is satisfied that an exemption from such registration is available.
(c) Anything contained herein to the contrary notwithstanding, the
Company shall not be obliged to sell or issue any shares of Common Stock
pursuant to the exercise of an Option granted hereunder unless and until the
Company is satisfied that such sale or issuance complies with all applicable
provisions of the Act and all other laws or regulations by which the Company is
bound or to which the Company or such shares are subject.
9. SUBSTITUTE OPTIONS
Anything contained herein to the contrary notwithstanding, Options may, at
the discretion of the Board of Directors, be granted under this Plan in
substitution for options to purchase shares of capital stock of another
corporation which is merged into, consolidated with, or all or a substantial
portion of the property or stock of which is acquired by, the Company or a
subsidiary. The terms, provisions and benefits to Optionees of such substitute
options shall in all respects be as similar as reasonably practicable to the
terms, provisions and benefits to Optionees of the Options of the other
corporation on the date of substitution, except that such substitute Options
shall provide for the purchase of shares of Common Stock of the Company instead
of shares of such other corporation.
10. TERM OF THE PLAN
Unless the plan has been sooner terminated pursuant to Section 11 below,
this Plan shall terminate on, and no Options shall be granted after, the tenth
anniversary of the Effective Date.
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The provisions of this Plan, however, shall continue thereafter to govern all
Options theretofore granted, until the exercise, expiration or cancellation of
such Options.
11. AMENDMENT AND TERMINATION OF PLAN
The Board of Directors at any time may terminate this Plan or amend it
from time to time in such respects as it deems desirable; PROVIDED, HOWEVER,
that, without the further approval of the stockholders of the Company, no
amendment shall (i) increase the maximum aggregate number of shares of Common
Stock with respect to which Options may be granted under this Plan, (ii) change
the eligibility provisions of Section 4 hereof, or (iv) create a "modification"
of any Incentive Stock Options previously granted or otherwise modify the Plan
with respect to the granting of Incentive Stock Options, as those terms are
defined under the Code; and PROVIDED, FURTHER, that, subject to the provisions
of Section 6 hereof, no termination of or amendment hereto shall adversely
affect the rights of an Optionee or other person holding an option theretofore
granted hereunder without the consent of such Optionee or other person, as the
case may be.
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