Exhibit 4.3
2001 STOCK WAGE AND FEE PAYMENT PLAN
THIS PLAN is adopted as of this 1st day of December, 2000, for the
benefit of certain employees, consultants and directors of The Tracker
Corporation of America, a Delaware corporation (the "Company").
INTRODUCTION
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A. The Company wishes to preserve its operating capital and reduce its
monthly cash needs.
B. The Company wishes to retain and motivate eligible employees,
consultants and directors, and to provide them with incentives and
rewards more directly linked to the profitability of the Company's
business and increases in stockholder value.
C. The Company believes its best interests will be served by issuing
shares of the Company's $0.001 par value common stock (the "Common
Stock"), where possible, in lieu of otherwise payable wage payments
or fees.
AGREEMENT
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NOW, THEREFORE, on the stated premises and for and in consideration of
the mutual benefits to the Company and eligible employees and directors who so
elect, to be derived from their employment or directorship by the Company, the
parties hereby agree as follows:
1. 2000 Year.
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1.1. Any full-time employee, consultant and non-employee (outside) director
who deferred all or part of his or her wage payments or fees due from
the Company during the period from January 1, 2000 to December 1, 2000
(the "2000 Year") is eligible to participate in the Plan.
1.2. Any eligible full-time employee, consultant or director may elect to
receive his or her compensation for the 2000 Year in the form of
shares of Common Stock issuable under the Plan (the "Shares"), in lieu
of cash, based upon the "Stock Price." For purposes hereof, "Stock
Price" means the average quoted closing bid of the last five business
days ending December 1, 2000 during which the Common Stock traded on
the over the counter market.
1.3. Eligible full-time employees, consultants or directors electing to
receive Common Stock in lieu of cash compensation should complete and
submit to the Company the election form attached hereto as EXHIBIT A
to denote those months during the 2000 Year for which he or she
desires that Common Stock be issued. The election is binding.
1.4. Participating employees, consultants or directors will receive that
number of Shares equal to his or her compensation (not including
discretionary bonuses, overtime, and other extra payments) for those
months during the 2000 Year denoted on the election form.
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2. 2001 Calendar Year.
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2.1. Full Election.
2.1.1. Any full-time employee, consultant and non-employee (outside)
director who intends to defer all or part of his or her wage payments
or fees due from the Company during the period from January 1, 2001 to
December 31, 2001 (the "2001 Calendar Year") is eligible to
participate in the Plan.
2.1.2. Any eligible full-time employee, consultant or director may elect to
receive all of his or her compensation for the 2001 Calendar Year in
the form of Shares of Common Stock, in lieu of cash, based upon the
Stock Price. Employees, consultants or directors so electing to
receive Common Stock in lieu of 2001 cash compensation (not including
discretionary bonuses, overtime, and other extra payments) should
complete and submit to the Company the election form attached hereto
as EXHIBIT B. The election is binding.
2.1.3. Participating employees, consultants or directors will receive that
number of Shares equal to his or her 2001 compensation.
2.1.4. If an electing employee, consultant or director terminates service
before the end of the 2001 Calendar Year, he or she will return to the
Company the portion of Shares (or their then cash-value) that
corresponds to the remainder of the 2001 Calendar Year. However, in
the case of an employee, consultant or director who is laid off or
otherwise terminated by the Company (other than for cause) before the
end of the 2001 Calendar Year, he or she will not be obligated to
return such Shares or cash value.
2.2. Partial Election.
2.2.1. Eligible employees consultants or directors who do not make the
election described at Section 2.1 may elect to receive compensation
for months the Company may designate during the 2001 Calendar Year
(the "Designated Months") as follows: As cash ("Option A"); as 50%
discounted stock ("Option B"); or as Stock at market value, with a
guaranteed three times future value ("Option C").
2.2.2. Any eligible employee, consultants or director may elect, by
completing and submitting the election form attached hereto as EXHIBIT
C, to receive his or her compensation for the Designated Months in any
combination of Options A, B or C. The election is binding with respect
to compensation for the Designated Months.
2.2.3. Before the beginning of each calendar month in the period January 1,
2001 through December 31, 2001, the Company will notify each eligible
employee, consultant or director selecting Option B or C on an
election form whether the month will be a Designated Month. If it is,
then the affected employee, consultant or director will receive his or
her compensation for the Designated Month in the manner set forth in
the election form.
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2.2.4. An employee, consultant or director who elects Option B will receive
on the first business day of each Designated Month (or shortly
thereafter) a number of Shares equal to his or her compensation (not
including discretionary bonuses, overtime, and other extra payments)
for the month, divided by one-half of the "Month's Price." The
"Month's Price" means the average quoted closing bid for the last five
business days of the preceding month.
2.2.5. An employee, consultant or director who elects Option C will receive
on the first business day of each Designated Month (or shortly
thereafter) a number of Shares equal to his or her compensation (not
including discretionary bonuses, overtime, and other extra payments)
for the month, divided by the Month's Price.
2.2.6. If an employee, consultant or director who elects Option B or Option
C terminates service before the end of the Designated Month for which
the Shares are allocated, he or she will return to the Company the
portion of Shares (or their then cash value) that corresponds to the
remainder of the Designated Month. However, in the case of an
employee, consultant or director who is laid off or otherwise
terminated by the Company (other than for cause) before the end of the
Designated Month, he or she will not be obligated to return such
Shares or cash value.
2.2.7. If an electing employee, consultant or director does not dispose of
any Option C Shares for 30 months after the Shares are allocated and
remains an employee, consultant or director of the Company for such
period, then the Company will make a payment to the employee,
consultant or director equal to the excess, if any, of the following
equation: (i) Three-times the amount of cash compensation that the
employee or director elected to receive in the form of Option C Shares
for all the Designated Months (or for such shorter period if an
employee was laid off or otherwise terminated by the Company (other
than for cause) before December 31, 2002) (the "Guaranty Price"),
minus (ii) the product of (A) the average quoted bid price for the
five business days before the conclusion of the 30-month period (the
"30 Month Price"), multiplied by (B) the number of Option C Shares.
(However, an employee, consultant or director who is laid off or
otherwise terminated by the Company (other than for cause) before the
end of the 30-month period is nonetheless entitled to receive the
payment specified in the first sentence of this section.) The Company
has the option to pay the excess in the form of cash, additional
stock, or both. In the alternative, the Company may purchase the
Option C Shares for the Guaranty Price.
3. Form S-8 Registration.
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3.1. The Company will register 8,000,000 Shares for the Plan on Form S-8.
Upon the effectiveness of the Form S-8 registration statement, the
Shares issued under the plan may be freely traded, subject to the
applicable resale limitations set forth in General Instruction C to
Form S-8. Shares issued to participants may be authorized but unissued
Shares or treasury shares.
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3.2. If for any reason the number of remaining authorized, but unissued,
Shares under the Plan is less than the number of Shares that eligible
employees, consultants and directors would otherwise be entitled to
receive, each eligible employee or director who elected to receive
Shares under Option B or Option C (an "Electing Participant") shall
receive the following number of Option B or Option C Shares: (A/B) x
C, where A is the number of remaining authorized but unissued Shares
under the Plan; B is the total number of Shares (Option B and Option
C) which the Electing Participant would otherwise be entitled to
receive, and C is the number or Option B or Option C Shares that the
Electing Participant would otherwise be entitled to receive.
4. Fees and Commissions. No fees, commissions or other charges will be
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paid by the electing participants in connection with the grants of
Shares to such persons under the Plan.
5. Taxes. No later than the dates of which the value of any Shares
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granted pursuant to this Plan first becomes includible in the gross
income of an electing participant for US federal income tax purposes,
he or she will pay to the Company, or make arrangements satisfactory
to the Company, regarding payment of, any federal, state or local
taxes of any kind required by law to be withheld with respect to the
Shares. The obligations of the Company under this Agreement shall be
conditioned upon such payment or arrangements, and the Company shall,
to the extent permitted by law, have the right to deduct any such
taxes from any payment of any kind otherwise due to any electing
participant.
6. Securities Laws. Any future sale of any Shares granted pursuant to
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this Plan will be regulated by the Securities Act of 1933 Act, as
amended, and any applicable state or provincial law, rule or
regulation. The transfer of any such Shares by an electing participant
will be permitted only if the request for transfer is accompanied by
evidence satisfactory to the Company and its counsel that such
transfer will not result in a violation of any applicable federal,
state or provincial law, rule or regulation.
7. Market Risk. The risk of an increase in the market price of the Shares
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shall be borne solely by the Company. The risk of a decrease in the
market price of the Shares shall be borne solely by the electing
participants.
8. Conflicting Agreements. In the event of any conflict or inconsistency
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between the terms of this Agreement and the employment or directorship
agreements of the electing participants, the terms of this Agreement
shall prevail.
9. Assignment. Participants in the Plan may unconditionally assign their
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interests under the Plan.
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10. Governing Law. The terms of this Agreement shall be governed by
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Georgia law, without regard to its conflicts of law principles.
11. Counterparts. This Agreement may be executed in several counterparts,
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each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
12. Entire Agreement. This Agreement, together with the election form
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completed by an electing participant, constitutes the entire agreement
between the Company and the electing participant.
13. Amendments. This Agreement shall not be altered, amended or modified
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except by written agreement signed by the parties hereto.
IN WITNESS WHEREOF, the undersigned, being duly authorized, hereby
executes this Agreement on behalf of the Company as of the date first above
written.
THE TRACKER CORPORATION OF AMERICA
By: /s/ Bruce I. Lewis
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Bruce I. Lewis
Its: Chief Executive Officer
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EXHIBIT A
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ELECTION UNDER 2001 STOCK WAGE AND FEE PAYMENT PLAN
This election is made by the undersigned eligible employee or director
under the 2001 Stock Wage and Fee Payment Plan adopted by The Tracker
Corporation of America, a Delaware corporation. Capitalized terms not otherwise
defined herein have the meaning ascribed in the Plan.
1. The undersigned hereby elects to receive his or her compensation (not
including discretionary bonuses, overtime, and other extra payments) for
each of the months of the 2000 Calendar Year denoted below in the form of
Common Stock:
__________ January 2000
__________ February 2000
__________ March 2000
__________ April 2000
__________ May 2000
__________ June 2000
__________ July 2000
__________ August 2000
__________ September 2000
__________ October 2000
__________ November 2000
__________ December 2000
2. The undersigned has read the Plan and the prospectus for the Shares to be
issued pursuant to the Plan, and, for and in consideration of the benefits
to be derived from the undersigned by this election, hereby agrees to be
bound by all of the terms and conditions, and agreements in the Plan, which
is hereby incorporated by reference.
ACKNOWLEDGED AND AGREED:
Signature:___________________________
Name:________________________________
Date:________________________________
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EXHIBIT B
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ELECTION UNDER 2001 STOCK WAGE AND FEE PAYMENT PLAN
This election is made by the undersigned eligible employee or director
under the 2001 Stock Wage and Fee Payment Plan adopted by The Tracker
Corporation of America, a Delaware corporation. Capitalized terms not otherwise
defined herein have the meaning ascribed in the Plan.
2. The undersigned hereby elects to receive his or her compensation (not
including discretionary bonuses, overtime, and other extra payments) for
each of the months of the 2001 Calendar Year denoted below in the form of
Common Stock:
__________ January 2001
__________ February 2001
__________ March 2001
__________ April 2001
__________ May 2001
__________ June 2001
__________ July 2001
__________ August 2001
__________ September 2001
__________ October 2001
__________ November 2001
__________ December 2001
2. The undersigned has read the Plan and the prospectus for the Shares to be
issued pursuant to the Plan, and, for and in consideration of the benefits
to be derived from the undersigned by this election, hereby agrees to be
bound by all of the terms and conditions, and agreements in the Plan, which
is hereby incorporated by reference.
ACKNOWLEDGED AND AGREED:
Signature:___________________________
Name:________________________________
Date:________________________________
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EXHIBIT C
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ELECTION UNDER 2001 STOCK WAGE AND FEE PAYMENT PLAN
This election is made by the undersigned eligible employee or director
under the 2001 Stock Wage and Fee Payment Plan adopted by The Tracker
Corporation of America, a Delaware corporation. Capitalized terms not otherwise
defined herein have the meaning ascribed in the Plan.
3. The undersigned hereby elects to receive his or her compensation (not
including discretionary bonuses, overtime, and other extra payments) in the
following forms during each Designated Month of the 2001 Calendar Year
denoted below in the form of Common Stock:
Percentage Options
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_________% Option A - Cash
_________% Option B - 50% Discounted Stock
_________% Option C - Stock at market value,
with guaranteed three times
future value
Total _________%
2. The undersigned has read the Plan and the prospectus for the Shares to be
issued pursuant to the Plan, and, for and in consideration of the benefits
to be derived from the undersigned by this election, hereby agrees to be
bound by all of the terms and conditions, and agreements in the Plan, which
is hereby incorporated by reference.
ACKNOWLEDGED AND AGREED:
Signature:___________________________
Name:________________________________
Date:________________________________
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