Exhibit 4.04
WTAA INTERNATIONAL, INC.
A FLORIDA CORPORATION
2001-5 STOCK OPTION PLAN
ARTICLE I
PURPOSE OF PLAN
The 2001-5 Stock Option Plan (the "PLAN") of WTAA International, Inc. (the
Company), adopted by the Board of Directors of the Company effective July 25,
2001 is intended to advance the best interests of the Company by providing
employees and consultants of the Company or any Subsidiary who have substantial
responsibility for the growth of the Company or any Subsidiary with additional
incentives by allowing such employees or consultants to acquire an ownership
interest in the Company. The Plan is a compensatory benefit plan within the
meaning of Rule 701 under the Securities Act of 1933, as amended (the
"SECURITIES ACT").
ARTICLE II
DEFINITIONS
For purposes of the Plan the following terms have the indicated meanings:
"AUTHORIZATION DATE" has the meaning ascribed thereto in Section 5.8(a)
hereof.
"BOARD" means the Board of Directors of the Company.
"CODE" means the Internal Revenue Code of 1986, as amended, and any successor
statute.
"COMMITTEE" means the Compensation Committee or such other committee of the
Board as the Board may designate to administer the Plan or, if for any
reason the Board has not designated such a committee, the Board will
administer the Plan. The Committee, if other than the Board, shall be
composed of two or more directors as appointed from time to time by the
Board.
"COMMON STOCK" means the Common Stock, no par value per share, of WTAA,
International, Inc., a Florida Corporation
"ELECTION NOTICE" has the meaning ascribed thereto in Section 5.2 hereof.
"FAIR MARKET VALUE" per share on any given date means the average of the
closing prices of the sales of the Common Stock on all securities exchanges
on which such stock may at the time be listed, or, if there have been no
sales on any such exchange on any day, the average of the highest bid and
lowest asked prices on all such exchanges at the end of such day, or, if on
any day such stock is not so listed, the average of the representative bid
and asked prices quoted on the OTCBB Stock Market as of 4:00 p.m., New York
time, or, if on any day such stock is not quoted on the OTCBB Stock Market,
the average of the highest bid and lowest asked prices on such day in the
domestic over-the-counter market as reported by the National Quotation
Bureau, Incorporated, or any similar successor organization. If at any time
the Common Stock is not listed or quoted, the Fair Market Value per share
shall be determined by the Committee or the Board based on such factors as
the members thereof in the exercise of their business judgment, consider
relevant.
"OPTION SHARES" shall mean (i) all shares of Common Stock issued or
issuable upon the exercise of an Option and (ii) all shares of Common Stock
issued with respect to the Common Stock referred to in clause (i) above by
way of stock dividend or stock split or in connection with any conversion,
merger, consolidation or recapitalization or other reorganization affecting
the Common Stock. Unless provided otherwise herein or in the Participant's
grant, Option Shares will continue to be Option Shares in the hands of any
holder other than the Participant (except for the Company), and each such
transferee thereof will succeed to the rights and obligations of a holder
of Option Shares hereunder.
"OPTIONS" has the meaning set forth in Article IV.
"PARTICIPANT" means any employee of the Company or any Subsidiary who has
been selected to participate in the Plan by the Committee or the Board.
"PUBLIC OFFERING" means the sale, in one or more underwritten public
offerings registered under the Securities Act, of shares of the Company's
common stock.
"SALE NOTICE" has the meaning ascribed thereto In Section 5.9(a) hereof.
"SALE OF THE COMPANY" means a merger or consolidation effecting a change in
control of the Company, a sale of all or substantially all of the assets of
the Company or a sale of a majority of the outstanding voting securities of
the Company effecting a change in control of the Company.
"SECURITIES ACT" has the meaning ascribed thereto in Article 1 hereof.
"SUBSIDIARY" means any subsidiary corporation (as such term is defined in
Section 424(f) of the Code) of the Company.
"TERMINATION DATE" has the meaning ascribed thereto in Section 5.7(a)
hereof.
ARTICLE III
ADMINISTRATION
The Plan shall be administered by the Committee. Subject to the limitations
of the Plan, the Committee shall have the sole and complete authority to: (i)
select Participants, (ii) grant Options (as defined in Article IV) to
Participants in such forms and amounts as it shall determine, (iii) impose such
limitations, restrictions and conditions upon such Options as it shall deem
appropriate, (iv) interpret the Plan and adopt, amend and rescind administrative
guidelines and other rules and regulations relating to the Plan, (v) correct any
defect or omission or reconcile any inconsistency in the Plan or in any Options
granted under the Plan and (vi) make all other determinations and take all other
actions necessary or advisable for the implementation and administration of the
Plan. The Committee's determinations on matters within its authority shall be
conclusive and binding upon the Participants, the Company and all other persons.
All expenses associated with the administration of the Plan shall be borne by
the Company. The Committee may, as approved by the Board and to the extent
permissible by law, delegate any of its authority hereunder to such persons or
entities as it deems appropriate
ARTICLE IV
LIMITATION ON AGGREGATE SHARES
The number of shares of Common Stock with respect to which stock purchase
options ("OPTIONS") may be granted under the Plan shall not exceed, in the
aggregate, more than 20% of the issued capital of the Company , subject to
adjustment in accordance with Section 6.4. To the extent any Options expire
unexercised or are canceled, terminated or forfeited in any manner without the
issuance of Common Stock thereunder, such shares shall again be available under
the Plan. The shares of Common Stock available under the Plan may consist of
authorized and unissued shares, treasury shares or a combination thereof, as the
Committee shall determine.
ARTICLE
AWARDS
5.1 GRANT OF OPTIONS. The Committee may grant Options to Participants from
time to time in accordance with this Article V. Options granted under the
Plan will be nonqualified stock options within the meaning of Section 422
of the Code or any successor provision, as specified by the Committee or
the Board. The exercise price per share of Common Stock under each
incentive stock option shall be fixed by the Committee or the Board at the
time of grant of the Option and shall be not less than the par value per
share (as adjusted pursuant to Section 6.4). Options shall be exercisable
at such time or times as the Committee or the Board shall determine. The
Committee or the Board shall determine the term of each Option, which term
shall not exceed five years from the date of grant of the Option.
5.2 EXERCISE PROCEDURE. Options shall be exercisable by written notice to
the Company (to the attention of the Company's Secretary) accompanied by
payment in full of the applicable exercise price. Payment of such exercise
price may be made (i) in cash (including check, bank draft or money order),
(ii) if approved by the Committee or the Board prior to exercise (in the
case of an incentive stock option, if approved by the Committee or the
Board in the grant), by delivery of a full recourse promissory note of the
Participant bearing interest at a rate not less than the applicable federal
rate determined pursuant to Section 1274 of the Code as of the date of
purchase or exercise (a "NOTE"), (iii) in shares of Common Stock valued at
their Fair Market Value as of the date of exercise as provided in Section
5.3 below or (iv) in a combination of the foregoing.
5.3 EXCHANGE OF PREVIOUSLY ACQUIRED STOCK. The Committee or the Board, in
its discretion and subject to such conditions as the Committee or the Board
may determine, may permit the option price for the shares being acquired
upon the exercise of an Option to be paid, in full or in part, by the
delivery to the Company of a number of shares of Common Stock having an
aggregate Fair Market Value as of the date of exercise equal to the
exercise price for the shares being acquired.
5.4 WITHHOLDING TAX REQUIREMENTS. It shall be a condition of the exercise
of any Option that the Participant exercising the Option make appropriate
payment or other provision acceptable to the Company with respect to any
withholding tax requirement arising from such exercise. The amount of
withholding tax required, if any, with respect to any Option exercise (the
"WITHHOLDING AMOUNT")shall be determined by the Treasurer or other
appropriate officer of the Company, and the Participant shall furnish such
information and make such representations as such officer requires to make
such determination. If the Company determines that withholding tax is
required with respect to any Option exercise, the Company shall notify the
Participant of the Withholding Amount, and the Participant shall pay to the
Company an amount not less than. the Withholding Amount. In lieu of making
such payment, the Participant may elect to pay the Withholding Amount by
either (i) delivering to the Company a number of shares of Common Stock
having an aggregate Fair Market Value as of the "measurement date" (as
hereinafter defined) not less than the Withholding Amount or (ii) directing
the Company to withhold (and not to deliver or issue to the Participant) a
number of shares of Common Stock otherwise issuable upon the Option
exercise having an aggregate Fair Market Value as of the measurement date
not less than the Withholding Amount. In addition. if the Committee or the
Board approves, a Participant may elect pursuant to the prior sentence to
deliver or direct the withholding of shares of Common Stock having an
aggregate Fair Market Value in excess of the minimum Withholding Amount but
not in excess of the Participant's applicable highest marginal combined
federal income and state income tax rate, as estimated in good faith by
such Participant. Any fractional share interests resulting from the
delivery or withholding of shares of Common Stock to meet withholding tax
requirements shall be settled in cash. All amounts paid to or withheld by
the Company and the value of all shares of Common Stock delivered to or
withheld by the Company pursuant to this Section 5.4 shall be deposited in
accordance with applicable law by the Company as withholding tax for the
Participant's account. If the Treasurer or other appropriate officer of the
Company determines that no withholding tax is required with respect to the
exercise of any Option (because such Option is an incentive stock option or
otherwise), but subsequently it is determined that the exercise resulted in
taxable income as to which withholding is required (as a result of a
disposition of shares or otherwise), the Participant shall promptly, upon
being notified of the withholding requirement, pay to the Company by means
acceptable to the Company the amount required to be withheld; and at its
election the Company may condition any transfer of shares issued upon
exercise of an incentive stock option upon receipt of such payment. The
term "measurement date" as used in this Section 5.4 shall mean the date on
which any taxable income resulting from the exercise of an Option is
determined under applicable federal income tax law.
5.5 NOTIFICATION OF INQUIRIES AND AGREEMENTS. Each Participant and each
permitted transferee shall notify the Company in writing within 10 days
after the date such Participant or permitted transferee (i) first obtains
knowledge of any Internal Revenue Service inquiry, audit, assertion,
determination, investigation, or question relating in any manner to the
value of Options granted hereunder, (ii) includes or agrees (including,
without limitation, in any settlement, closing or other similar agreement)
to include in gross income with respect to any Option granted under this
Plan (A) any amount in excess of the amount reported on Form 1099 or Form
W-2 to such Participant by the Company, or (B) if no such Form was
received, any amount; and (iii) exercise, sells, disposes of, or otherwise
transfers (other than to a permitted transferee) an Option acquired
pursuant to this Plan. Upon request, a Participant or permitted transferee
shall provide to the Company any information or document relating to any
event described in the preceding sentence which the Company (in its sole
discretion) requires in order to calculate and substantiate any change in
the Company's tax liability as a result of such event.
5.6 CONDITIONS AND LIMITATIONS ON EXERCISE. At the discretion of the
Committee or the Board, exercised at the time of grant, Options may be made
exercisable, in one or more installments, upon (i) the happening of certain
events, (ii) the passage of a specified period of time, (iii) the
fulfillment of certain conditions or (iv) the achievement by the Company or
any Subsidiary of certain performance goals. Unless the Committee or the
Board specifies otherwise in the Option grant, each Option granted pursuant
to this Plan will be immediately exercisable with respect to the Common
Stock issuable upon exercise thereof. The shares of Common Stock
purchasable or purchased upon exercise of any Option shall be subject to
such vesting provisions as the Committee or the Board shall decide at the
time that the Options are granted.
5.7 EXPIRATION OF OPTIONS.
(a) NORMAL EXPIRATION. In no event shall any part of any Option be
exercisable after the stated date of expiration thereof.
(b) EARLY EXPIRATION UPON TERMINATION OF EMPLOYMENT. Except as
otherwise provided by the Committee at the time of grant of such
Options, upon termination for any reason of a Participant's employment
by the Company and its Subsidiaries, all Options or portions thereof
held by such Participant on the date of such termination shall expire
and be forfeited to the extent not theretofore exercised on the
thirtieth (30th) day (one year if termination is caused by the
Participant's death or disability) following the date of such
termination.
ARTICLE VI
GENERAL PROVISIONS
6.1 LISTING, REGISTRATION AND LEGAL COMPLIANCE. If at any time the
Committee or the Board determines, in its discretion, that the listing,
registration or qualification of the shares subject to Options upon any
securities exchange or under any state or federal securities or other law
or regulation, or the consent or approval of any governmental regulatory
body, is necessary or desirable as a condition to or in connection with the
granting of Options or the purchase or issuance of shares thereunder, no
Options may be granted or exercised, in whole or in part, unless such
listing, registration, qualification, consent or approval shall have been
effected or obtained free of any conditions not acceptable to the Committee
or the Board. The holders of such Options will supply the Company with such
certificates, representations and information as the Company shall request
and shall otherwise cooperate with the Company in obtaining such listing,
registration, qualification, consent or approval. In the case of officers
and other persons subject to Section 16(b) of the Securities Exchange Act
of 1934, as amended, the Committee or the Board may at any time impose any
limitations upon the Exercise of Options that, in the Committee's or the
Board's discretion, are necessary or desirable in order to comply with such
Section 16(b) and the rules and regulations thereunder. If the Company, as
part of an offering of securities or otherwise, finds it desirable because
of federal or state regulatory requirements to reduce the period during
which any Options may be exercised, the Committee or the Board may, in its
discretion and without the Participant's consult, so reduce such period on
not less than 15 days' written notice to the holders thereof
6.2 OPTIONS NOT TRANSFERABLE. Options may not be transferred other than by
will or the laws of descent and distribution and, during the lifetime of
the Participant to whom they were granted, may be exercised only by such
Participant (or his or her legal guardian or legal representative). In the
event of the death of a Participant, Options which are not vested and
exercisable on the date of death shall terminate; exercise of Options
granted hereunder to such Participant, which are vested as of the date of
death, may be made only by the executor or administrator of such
Participant's estate or the person or persons to whom such Participant's
rights under the Options will pass by will or the laws of descent and
distribution.
6.3 ADJUSTMENTS. In the event of a reorganization, recapitalization, stock
dividend or stock split, or combination or other change in the shares of
Common Stock, the Board or the Committee may, in order to prevent the
dilution or enlargement of rights under the Plan or outstanding Options,
adjust the number and type of shares as to which options may be granted
under the Plan, the number and type of shares covered by outstanding
Options, the exercise prices specified therein and over provisions of this
Plan which specify a number of shares, all as such Board or Committee
determines to be appropriate and equitable.
6.4 RIGHTS OF PARTICIPANTS. Nothing in the Plan shall interfere with or
limit in any way the right of the Company or any Subsidiary to terminate
any Participant's employment at any time (with or without cause), or confer
upon any Participant any right to continue in the employ of the Company or
any Subsidiary for any period of time or to continue to receive such
Participant's current (or other) rate of compensation. No employee shall
have a right to be selected as a Participant or, having been so selected,
to be selected again as a Participant.
6.5 AMENDMENT, SUSPENSION AND TERMINATION OF PLAN. The Board or the
Committee may suspend or terminate the Plan or any portion thereof at any
time and may amend it from time to time in such respects as the Board or
the Committee may deem advisable; provided, however, that no such amendment
shall be made without stockholder approval to the extent such approval is
required by law, agreement or the rules of any exchange upon which the
Common Stock is listed, and no such amendment, suspension or termination
shall impair the rights of Participants under outstanding Options without
the consent of the Participants affected thereby, except as provided below.
No Options shall be granted hereunder after the tenth anniversary of the
adoption of the Plan.
6.6 AMENDMENT OF OUTSTANDING OPTIONS. The Committee or the Board may amend
or modify any Option in any manner to the extent that the Committee or the
Board would have had the authority under the Plan initially to grant such
Option; provided that, except as expressly contemplated elsewhere herein or
in any agreement evidencing such Option, no such amendment or modification
shall impair the rights of any Participant under any outstanding Option
without the consent of such Participant.
6.7 INDEMNIFICATION. In addition to such other right of indemnification as
they may have as members of the Board or the Committee, the members of the
Committee shall be indemnified by the Company against all costs and
expenses reasonably incurred by them in connection with any action, suit or
proceeding to which they or any of them may be party by reason of any
action taken or failure to act under or in connection with the Plan or any
Option granted under the Plan, and against all amounts paid by them in
settlement thereof (provided such settlement is approved by independent
legal counsel selected by the Company) or paid by them in satisfaction of a
judgment in any such action, suit or proceeding; provided, however, that
any such Committee or Board member shall be entitled to the indemnification
rights set forth in this Section 6.8 only if such member has acted in good
faith and in a manner that such member reasonably believed to be in or not
opposed to the best interests of the Company and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that such
conduct was unlawful, and further provided that upon the institution of any
such action, suit or proceeding a Committee or Board member shall give the
Company written notice thereof and an opportunity to handle and defend the
same before such Committee or Board member undertakes to handle and defend
it on his own behalf.
6.9 RESTRICTED SECURITIES. All Common Stock issued pursuant to the terms of
this Plan shall constitute "restricted securities," as that term is defined in
Rule 144 promulgated by the Securities and Exchange Commission pursuant to the
Securities Act, and may not be transferred except in compliance with the
registration requirements of the Securities Act or an exemption therefrom.