Exhibit 4(c)
PRO TECH COMMUNICATIONS, INC.
AMENDED AND RESTATED 1998 STOCK OPTION PLAN
1. Purpose. The purpose of the 1998 Stock Option Plan of PRO TECH
COMMUNICATIONS, INC. is to provide incentive to employees, including
officers, directors and consultants of the Corporation, as defined below,
to encourage such individuals proprietary interest in the Corporation, to
encourage such individuals to remain in the employ of the Corporation, and
to attract to the Corporation individuals of experience and ability.
2. Definitions.
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(c) "Committee" shall mean the Committee appointed by the Board in
accordance with Section 4 of the Plan.
(d) "Common Stock" shall mean Company's common stock, par value $.001
per share.
(e) "Company" shall mean Pro Tech Communications, Inc., a Florida
corporation.
(f) "Corporation" shall mean and include the Company and any parent
or subsidiary corporation thereof, within the meaning of Section
425 of the Code.
(g) "Disability" shall mean the condition of an Employee who is
unable to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve
(12) months, all within the meaning of Section 22(e)(3) of the
Code.
(h) "Employee" shall mean any individual (including an officer or a
director) who is an employee of the Corporation (within the
meaning of section 422A(a)(2) of the Code and the regulations
thereunder).
(i) "Exercise Price" shall mean the price per Share of Common Stock,
determined by the Board or Committee, at which an Option may be
exercised.
(j) "Fair Market Value" of a Share of Common Stock as of a specified
date shall mean the closing price of a Share on the principal
securities exchange on which such Shares are traded on the day
immediately preceding the date as of which Fair Market Value is
being determined, or on the next preceding date on which such
Shares are traded if no Shares were traded on such immediately
preceding day, or if the Shares are not traded on a securities
exchange, Fair Market Value shall be deemed to be the average of
the high bid and low asked prices of the Shares in the
over-the-counter market on the day immediately preceding the date
as of which Fair Market Value is being determined or on the next
preceding date on which such high bid and low asked prices were
recorded. If the Shares are not publicly traded, Fair Market
Value shall be determined by the Board or Committee. In no case
shall Fair Market Value be less than the par value of a Share of
the Common Stock, and in no event shall Fair Market Value be
determined with regard to restrictions other than restrictions
which, by their terms, will never lapse.
(k) "Incentive Stock Option" shall mean an Option described in Code
section 422A(b).
(l) "Nonstatutory Stock Option" shall mean an Option which is not an
Incentive Stock Option.
(m) "Option" shall mean a stock option granted pursuant to the Plan.
(n) "Optionee" shall mean a person to whom an Option has been
granted.
(o) "Plan" shall mean this Pro Tech Communications, Inc. 1998 Stock
Option Plan.
(p) "Purchase Price" shall mean the Exercise Price times the number
of whole Shares with respect to which an Option is exercised.
(q) "Share" shall mean one share of Common Stock.
(r) "Ten Percent Shareholder" shall mean any Employee who, at the
time of the grant of an Option, owns (or is deemed to own, under
Sections 422A(b)(6) and 425(d) of the Code) more than ten percent
of the total combined voting power of all classes of outstanding
stock of the Corporation.
3. Effective Date. This Plan was adopted by the Board as of March 5, 1998, and
this Plan was amended and restated with Board approval as of April 26, 2000
and shareholder approval as of August 11, 2000. In order for an Option
under the Plan to be accorded Incentive Stock Option treatment under the
Code, this Plan must be approved by the Company's stockholders at a
duly-held meeting of the Company's stockholders within 12 months after the
date the Plan was adopted by the Board. All Incentive Stock Options granted
under the Plan are made contingent upon such stockholder approval of the
Plan. If stockholder approval is not obtained within such period, all
Incentive Stock Options previously granted under the Plan shall be deemed
to be, and treated under the Code as, a Nonstatutory Stock Option.
4. Administration. The Plan shall be administered by the Board or a Committee
appointed by the Board consisting of not less than two members. The Board
may from time to time remove members from, or add members to, the
Committee. Vacancies on the Committee, however caused, shall be filled by
the Board. The Board or Committee shall from time to time at its discretion
shall determine who shall be granted Options, the number of Shares to be
optioned to each and the designation of such Options as Incentive Stock
Options or Nonstatutory Stock Options. The interpretation and construction
by the Board or the Committee of any provisions of the Plan or of any
Option granted thereunder shall be binding and conclusive on all Optionees
and their legal representatives and beneficiaries.
5. Eligibility. Any Employee may be granted Incentive Stock Options under the
Plan and any Employee or officer, director, consultant of or other person
rendering services to, the Corporation may be granted Nonstatutory Stock
Options under the Plan if, in each instance, the Board or Committee
determines that such person performs services of special importance to the
management, operation and development of the business of the Corporation.
6. Stock. The stock subject to Options granted under the Plan shall be Shares
of authorized but unissued or reacquired Common Stock. The aggregate number
of Shares which may be issued under Options exercised under this Plan shall
not exceed 2,000,000. The number of Shares subject to Options outstanding
under the Plan at any time may not exceed the number of Shares remaining
available for issuance under the Plan. In the event that an Option
outstanding under the Plan expires for a reason or is terminated, the
Shares allocable to the unexercised portion of such Option shall again be
available for grant of Options under the Plan.
The limitations established by this Section 6 shall be subject to
adjustment upon the occurrence of the events specified and in the manner
provided in Section 9 hereof.
7. Terms and Conditions of Options. Options granted pursuant to the Plan shall
be evidenced by written agreements in such form as the Board or the
Committee shall from time to time determine, which agreements shall comply
with and be subject to the following terms and conditions:
(a) Date of Grant. Each Option shall specify its effective date (the
"date of grant"), which shall be the date specified by the Board
or Committee in its action relating to the grant of the Option,
but which date shall not be earlier than the date of the
determination by the Board or Committee to grant such Option nor
more than thirty days after such date.
(b) Number of Shares. Each Option shall state the number of Shares to
which it pertains and shall provide for the adjustment thereof in
accordance with the provisions of Section 9 hereof.
(c) Exercise Price. Each Option shall state the Exercise Price, which
price shall be determined by the Board or Committee, provided
however, that the Exercise Price (i) in the case of an Incentive
Stock Option granted to an Employee who is not a Ten Percent
Shareholder, shall not be less than the par value nor less than
the Fair Market Value of the Shares to which the Option relates
on the date of grant, (ii) in the case of an Incentive Stock
Option granted to an Employee who is a Ten Percent Shareholder,
shall not be less than the par value nor less than 110% of the
Fair Market Value of the Shares to which the Option relates on
the date of grant, and (iii) in the case of a Nonstatutory Stock
Option granted to any Employee or officer or director of the
Corporation, shall not be less than the par value of the Shares
to which the Option relates. The Exercise Price of an Option
shall be subject to adjustment in accordance with Section 9
hereof. The Company may, at its discretion, permit the cashless
exercise of Options in accordance with the procedures and
restrictions established by the Board or the Committee.
(d) Exercise of Options and Medium and Time of Payment. To exercise
an Option, the Optionee shall give written notice to the Company
specifying the number of Shares to be purchased and accompanied
by payment in cash or by certified check of the full Purchase
Price therefor and the amount of any withholding tax obligation
of the Corporation as described in Section 14 (a) hereof. No
Share shall be issued until full payment therefor has been made.
(e) Term and Exercise of Options; Non-Transferability of Incentive
Stock Options. Subject to Section 10 hereof, Options may be
exercised as determined by the Board or Committee and as stated
in the written agreement evidencing the Option, provided,
however, that no Incentive Stock Option granted to an Employee
who is not a Ten Percent Shareholder shall be exercisable after
the expiration of ten (10) years from the date it is granted, and
no Incentive Stock Option granted to an Employee who is a Ten
Percent Shareholder shall be exercisable after the expiration of
five (5) years from the date it is granted. In addition, the
aggregate fair market value (determined at the time an Incentive
Stock Option is granted) of Shares with respect to which
Incentive Stock Options are exercisable for the first time by an
Optionee during any calendar year (under this Plan and all other
plans maintained by the Corporation) shall not exceed $100,000.
During the lifetime of the Optionee, an Incentive Stock Option
shall be exercisable only by the Optionee and shall not be
assignable or transferable. In the event of the Optionee's death,
no Incentive Stock Option shall be transferable by the Optionee
otherwise than by will or by the laws of descent and
distribution. Restrictions on the transfer of Nonstatutory Stock
Options, if any, shall be determined by the Board and set forth
in each Nonstatutory Stock Option Agreement.
(f) Termination of Employment. In the event that an Optionee shall
cease to be employed by the Corporation for any reason, such
Optionee (or the heirs or legatees of such Optionee, if
applicable) shall have the right, subject to the restrictions of
Subsection (e) hereof, to exercise the Option at any time within
three (3) months after such termination of employment (twelve
(12) months if the termination was due to the death or Disability
of the Optionee or, in the case of a Nonstatutory Stock Option,
retirement) to the extent that, on the day preceding the date of
termination of employment, the Optionee's right to exercise such
Option had accrued pursuant to the terms of the option agreement
pursuant to which such Option was granted, and had not previously
been exercised.
For this purpose, the employment relationship will be treated as continuing
intact while the Optionee is on military leave, sick leave or other bona fide
leave of absence (to be determined in the sole discretion of the Board and, in
the case of an Optionee who has received an Incentive Stock Option, only to the
extent permitted under Section 422A of the Code and the regulations promulgated
thereunder). Moreover, in the case of an Optionee who has been granted an
Incentive Stock Option, employment shall, in no event, be deemed to continue
beyond the ninetieth (90th) day after the Optionee ceased active employment,
unless the Optionee's reemployment rights are guaranteed by statute or by
contract.
(g) Rights as a Shareholder. An Optionee or, in the case of an
Incentive Stock Option, a transferee of a deceased Optionee or,
in the case of a Nonstatutory Stock Option, a permitted
transferee shall have no rights as a shareholder with respect to
any Shares covered by his or her Option until the date of the
issuance of a stock certificate for such Shares. No adjustment
shall be made for dividends (ordinary or extraordinary, whether
in cash, securities or other property) or distributions or other
rights for which the record date is prior to the date such stock
certificate is issued, except as provided in Section 9.
(h) Modification, Extension and Renewal of Options. Subject to the
terms and conditions and within the limitations of the Plan, the
Board or Committee may modify, extend or renew outstanding
Options granted under the Plan, or accept the exchange of
outstanding Options (to the extent not theretofore exercised) for
the granting of new options in substitution therefor.
Notwithstanding the foregoing, however, no modification of an
Option shall, without the consent of the Optionee, alter or
impair any rights or obligations under any option theretofore
granted under the Plan. Moreover, in the case of any
modification, extension or renewal of an Incentive Stock Option,
all of the requirements set forth herein shall apply in the same
manner as though a new Incentive Stock Option had been granted to
the Optionee on the date of such modification, extension or
renewal, but only if such modification, extension or renewal is
treated, under Section 425(h) of the Code, as the granting of a
new option.
(i) Identification of Option. Each Option granted under the Plan
shall clearly identify its status as an Incentive Stock Option or
Nonstatutory Stock Option.
(j) Other Provisions. The option agreements authorized under the Plan
shall contain, in addition to those provisions provided in
Section 7(e) hereof, such other provisions not inconsistent with
the terms of the Plan, including, without limitation,
restrictions upon the exercise of any Option, and restrictions
upon the transfer of Shares received upon exercise of Options, as
the Board or Committee shall deem advisable.
8. Term of Plan. Options may be granted pursuant to the Plan ten years from
March 5, 1998.
9. Recapitalization. Subject to any required action by the shareholders and
the last sentence of subsection 7(h) hereof, the number of Shares covered
by this Plan as provided in Section 6, the number of Shares covered by each
outstanding Option, and the Exercise Price thereof shall be proportionately
adjusted for any increase or decrease in a number of issued Shares
resulting from a subdivision or consolidation of Shares, stock split, or
the payment of a stock dividend.
Subject to any required action by the shareholders of the Company and the
last sentence of Subsection 7(h) hereof, if the Company shall be the surviving
corporation in any merger or consolidation, each outstanding Option shall
pertain and apply to the securities to which a holder of the number of Shares
subject to the Option would have been entitled. A dissolution or liquidation of
the Company or a merger or consolidation in which the Company is not the
surviving corporation shall cause each outstanding Option to terminate, unless
the agreement of merger or consolidation shall otherwise provide, provided that
each Optionee shall, in such event, have the right immediately prior to such
dissolution or liquidation, or merger or consolidation in which the Company is
not the surviving corporation to exercise the Option in whole or in part,
subject to limitations on exercisability of Options under Sections 7(e) and (f)
hereof.
In the event of a change in the Common Stock as presently constituted,
which is limited to a change of all of its authorized shares with par value into
the same number of shares with a different par value or without par value, the
shares resulting from any such change shall be deemed to be Shares of Common
Stock within the meaning of the Plan.
To the extent that the foregoing adjustments relate to stock or securities
of the Company, such adjustments shall be made by the Board or Committee, whose
determination in that respect shall be final, binding and conclusive.
Except as hereinbefore expressly provided in this Section 9, the Optionee
shall have no rights by reason of any subdivision or consolidation of shares of
stock of any class, stock split, or the payment of any stock dividend or any
other increase or decrease in the number of shares of stock of any class or by
reason of any dissolution, liquidation, merger, or consolidation or spin-off of
assets or stock of another corporation, and any issue by the Company of shares
of stock of any class or securities convertible into shares of stock of any
class, shall not affect, and no adjustment by reason thereof shall be made with
respect to, the number or price of Shares subject to the Option.
The grant of an Option pursuant to the Plan shall not affect in any way the
right or power of the Company to make adjustments, reclassifications,
reorganizations or changes of its capital or business structure or to merge or
consolidate or to dissolve, liquidate, sell or transfer all or any part of its
business or assets.
10. Securities Law Requirements. No Shares shall be issued upon the exercise of
any Option unless and until the Company has determined that: (i) it and the
Optionee have taken all actions required to register the Shares under the
Securities Act of 1933 or perfect an exemption from the registration
requirements thereof (including the furnishing by the Optionee of an
appropriate investment letter); (ii) any applicable listing requirement of
any stock exchange on which the Common Stock is listed has been satisfied;
and (iii) any other applicable provision of state or Federal law has been
satisfied.
11. Amendment of the Plan. The Board or Committee may, insofar as permitted by
law, from time to time, with respect to any Shares at the time not subject
to Options, suspend or discontinue the Plan or revise or amend it in any
respect whatsoever except that, without approval of the shareholders of the
Company, no such revision or amendment shall:
(a) Increase the number of Shares subject to the Plan; or
(b) Change the designation in Section 5 of the Plan of the class of
Employees eligible to receive options.
(c) Amend this Section 11 to defeat its purpose.
12. Application of Funds. The proceeds received by the Company from the sale of
Common Stock pursuant to the exercise of an Option will be used for general
corporate purposes or as otherwise determined by the Board.
13. No Obligation to Exercise Option. The granting of an Option shall impose no
obligation upon the Optionee to exercise such Option.
14. Withholding.
(a) Nonstatutory Options. Whenever Shares are to be delivered upon
exercise of a Nonstatutory Option, the Corporation shall be
entitled to require as a condition of delivery that the Optionee
remit to the Corporation an amount sufficient to satisfy the
Corporation's federal, state and local withholding tax
obligations with respect to the exercise of the Option.
(b) Incentive Stock Options. The acceptance of Shares upon exercise
of an Incentive Stock Option shall constitute an agreement by the
Optionee (unless and until the Corporation shall notify the
Optionee that it is relieved, in whole or in part, of its
obligations under this Section 14(b)) (i) to notify the
Corporation if any or all of such Shares are disposed of by the
Optionee within two years from the date the Option was granted or
within one year from the date the Shares were transferred to the
Optionee pursuant to this exercise of the Option, and (ii) to
remit to the Corporation, at the time of and in the case of any
such disposition, an amount sufficient to satisfy the
Corporation's federal, state and local withholding tax
obligations with respect to such disposition, whether or not, as
to both (i) and (ii), the Optionee is in the employ of the
Corporation at the time of such disposition.
15. Governing Law. The Plan shall be governed by the laws of the State of
Florida.
