Exhibit 4.3
2000 STOCK WAGE AND FEE PAYMENT PLAN
THIS PLAN is adopted as of this 31st day of December, 1999, for the benefit
of certain employees and directors of The Tracker Corporation of America, a
Delaware corporation (the "Company").
INTRODUCTION
------------
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 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
---------
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. 1999 Calendar Year.
--------------------
1.1. Any full-time employee 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, 1999 to December 31, 1999 (the "1999 Calendar Year") is
eligible to participate in the Plan.
1.2. Any eligible full-time employee or director may elect to receive his or
her compensation for the 1999 Calendar 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 in December 1999 during which the
Common Stock traded on the over the counter market.
1.3. Eligible full-time employees 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
1999 Calendar Year for which he or she desires that Common Stock be issued. The
election is binding.
1.4. Participating employees 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 Calendar Year 1999 denoted on
the election form.
2. 2000 Calendar Year.
--------------------
2.1. Full Election.
2.1.1. Any full-time employee 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, 2000 to December 31, 2000 (the "2000
Calendar Year") is eligible to participate in the Plan.
2.1.2. Any eligible full-time employee or director may elect to receive all
of his or her compensation for the 2000 Calendar Year in the form of Shares of
Common Stock, in lieu of cash, based upon the Stock Price. Employees or
directors so electing to receive Common Stock in lieu of 2000 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 or directors will receive that number of
Shares equal to his or her 2000 compensation.
2.1.4. If an electing employee or director terminates service before the end
of the 2000 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 2000
Calendar Year. However, in the case of an employee who is laid off or otherwise
terminated by the Company (other than for cause) before the end of the 2000
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 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 2000 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 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,
2000 through December 31, 2000, the Company will notify each eligible employee
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 or director will
receive his or her compensation for the Designated Month in the manner set forth
in the election form.
2.2.4. An employee 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 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 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 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 or director does not dispose of any Option C
Shares for 30 months after the Shares are allocated and remains an employee or
director of the Company for such period, then the Company will make a payment to
the employee 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
or director an employee 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.
-----------------------
3.1. The Company will register 3,500,000 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.
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
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 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 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 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
------------
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
-----------------------
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
----------
interests under the Plan.
10. Governing Law. The terms of this Agreement shall be governed by Georgia
-------------
law, without regard to its conflicts of law principles.
11. Counterparts. This Agreement may be executed in several counterparts,
-------------
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
-----------------
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
----------
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
-----------------------------
Bruce I. Lewis
Its: Chief Executive Officer
EXHIBIT A
---------
ELECTION UNDER 2000 STOCK WAGE AND FEE PAYMENT PLAN
This election is made by the undersigned eligible employee or director
under the 2000 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 1999 Calendar Year denoted below in the form of Common Stock:
__________ January 1999
__________ February 1999
__________ March 1999
__________ April 1999
__________ May 1999
__________ June 1999
__________ July 1999
__________ August 1999
__________ September 1999
__________ October 1999
__________ November 1999
__________ December 1999
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:__________________________________
<PAGE>
EXHIBIT B
---------
ELECTION UNDER 2000 STOCK WAGE AND FEE PAYMENT PLAN
This election is made by the undersigned eligible employee or director
under the 2000 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 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:__________________________________
<PAGE>
EXHIBIT C
---------
ELECTION UNDER 2000 STOCK WAGE AND FEE PAYMENT PLAN
This election is made by the undersigned eligible employee or director
under the 2000 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 2000 Calendar Year denoted
below in the form of Common Stock:
Percentage Options
---------- -------
_________% 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:__________________________________
