EXHIBIT 4.1
INTERNATIONAL TRUST AND FINANCIAL SYSTEMS, INC.
EMPLOYEE STOCK INCENTIVE PLAN FOR THE YEAR 2004
1. General Provisions.
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1.1 Purpose. This Stock Incentive Plan (the "Plan") is intended to allow
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designated officers and employees (all of whom are sometimes collectively
referred to herein as the "Employees," or individually as the "Employee") of
International Trust and Financial Systems, Inc., a Florida corporation (the
"Company") and its Subsidiaries (as that term is defined below) which they may
have from time to time (the Company and such Subsidiaries are referred to herein
as the "Company") to receive certain options (the "Stock Options") to purchase
common stock of the Company, par value $0.001 per share (the "Common Stock"),
and to receive grants of the Common Stock subject to certain restrictions (the
"Awards"). As used in this Plan, the term "Subsidiary" shall mean each
corporation which is a "subsidiary corporation" of the Company within the
meaning of Section 424(f) of the Internal Revenue Code of 1986, as amended (the
"Code"). The purpose of this Plan is to provide the Employees, who make
significant and extraordinary contributions to the long-term growth and
performance of the Company, with equity-based compensation incentives, and to
attract and retain the Employees.
1.2 Administration.
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1.2.1 The Plan shall be administered by the Compensation Committee (the
"Committee") of, or appointed by, the Board of Directors of the Company (the
"Board"). The Committee shall select one of its members as Chairman and shall
act by vote of a majority of a quorum, or by unanimous written consent. A
majority of its members shall constitute a quorum. The Committee shall be
governed by the provisions of the Company's Bylaws and of Florida law applicable
to the Board, except as otherwise provided herein or determined by the Board.
1.2.2 The Committee shall have full and complete authority, in its
discretion, but subject to the express provisions of this Plan (a) to approve
the Employees nominated by the management of the Company to be granted Awards or
Stock Options; (b) to determine the number of Awards or Stock Options to be
granted to an Employee; (c) to determine the time or times at which Awards or
Stock Options shall be granted; to establish the terms and conditions upon which
Awards or Stock Options may be exercised; (d) to remove or adjust any
restrictions and conditions upon Awards or Stock Options; (e) to specify, at the
time of grant, provisions relating to exercisability of Stock Options and to
accelerate or otherwise modify the exercisability of any Stock Options; and (f)
to adopt such rules and regulations and to make all other determinations deemed
necessary or desirable for the administration of this Plan. All interpretations
and constructions of this Plan by the Committee, and all of its actions
hereunder, shall be binding and conclusive on all persons for all purposes.
1.2.3 The Company hereby agrees to indemnify and hold harmless each
Committee member and each Employee, and the estate and heirs of such Committee
member or Employee, against all claims, liabilities, expenses, penalties,
damages or other pecuniary losses, including legal fees, which such Committee
member or Employee, his estate or heirs may suffer as a result of his
responsibilities, obligations or duties in connection with this Plan, to the
extent that insurance, if any, does not cover the payment of such items. No
member of the Committee or the Board shall be liable for any action or
determination made in good faith with respect to this Plan or any Award or Stock
Option granted pursuant to this Plan.
1.3 Eligibility and Participation. The Employees eligible under this Plan
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shall be approved by the Committee from those Employees who, in the opinion of
the management of the Company, are in positions which enable them to make
significant contributions to the long-term performance and growth of the
Company. In selecting the Employees to whom Award or Stock Options may be
granted, consideration shall be given to factors such as employment position,
duties and responsibilities, ability, productivity, length of service, morale,
interest in the Company and recommendations of supervisors.
1.4 Shares Subject to this Plan. The maximum number of shares of the
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Common Stock that may be issued pursuant to this Plan shall be 6,000,000 subject
to adjustment pursuant to the provisions of Paragraph 4.1. If shares of the
Common Stock awarded or issued under this Plan are reacquired by the Company due
to a forfeiture or
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for any other reason, such shares shall be cancelled and thereafter shall again
be available for purposes of this Plan. If a Stock Option expires, terminates
or is cancelled for any reason without having been exercised in full, the shares
of the Common Stock not purchased thereunder shall again be available for
purposes of this Plan. In the event that any outstanding Stock Option or Award
under this Plan for any reason expires or is terminated, the shares of Common
Stock allocable to the unexercised portion of the Stock Option or Award shall be
available for issuance under the International Trust and Financial Systems, Inc.
Non-Employee Directors and Consultants Retainer Stock Plan for the Year 2004.
2. Provisions Relating to Stock Options.
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2.1 Grants of Stock Options. The Committee may grant Stock Options in
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such amounts, at such times, and to the Employees nominated by the management of
the Company as the Committee, in its discretion, may determine. Stock Options
granted under this Plan shall constitute "incentive stock options" within the
meaning of Section 422 of the Code, if so designated by the Committee on the
date of grant. The Committee shall also have the discretion to grant Stock
Options which do not constitute incentive stock options, and any such Stock
Options shall be designated non-statutory stock options by the Committee on the
date of grant. The aggregate Fair Market Value (determined as of the time an
incentive stock option is granted) of the Common Stock with respect to which
incentive stock options are exercisable for the first time by any Employee
during any one calendar year (under all plans of the Company and any parent or
subsidiary of the Company) may not exceed the maximum amount permitted under
Section 422 of the Code (currently, $100,000.00). Non-statutory stock options
shall not be subject to the limitations relating to incentive stock options
contained in the preceding sentence. Each Stock Option shall be evidenced by a
written agreement (the "Option Agreement") in a form approved by the Committee,
which shall be executed on behalf of the Company and by the Employee to whom the
Stock Option is granted, and which shall be subject to the terms and conditions
of this Plan. In the discretion of the Committee, Stock Options may include
provisions (which need not be uniform), authorized by the Committee in its
discretion, that accelerate an Employee's rights to exercise Stock Options
following a "Change in Control," upon termination of the Employee's employment
by the Company without "Cause" or by the Employee for "Good Reason," as such
terms are defined in Paragraph 3.1 hereof. The holder of a Stock Option shall
not be entitled to the privileges of stock ownership as to any shares of the
Common Stock not actually issued to such holder.
2.2 Purchase Price. The purchase price (the "Exercise Price") of shares
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of the Common Stock subject to each Stock Option (the "Option Shares") shall not
be less than 85 percent of the Fair Market Value of the Common Stock on the date
of exercise. For an Employee holding greater than 10 percent of the total
voting power of all stock of the Company, either Common or Preferred, the
Exercise Price of an incentive stock option shall be at least 110 percent of the
Fair Market Value of the Common Stock on the date of the grant of the option.
As used herein, "Fair Market Value" means the mean between the highest and
lowest reported sales prices of the Common Stock on the New York Stock Exchange
Composite Tape or, if not listed on such exchange, on any other national
securities exchange on which the Common Stock is listed or on The Nasdaq Stock
Market, or, if not so listed on any other national securities exchange or The
Nasdaq Stock Market, then the average of the bid price of the Common Stock
during the last five trading days on the OTC Bulletin Board immediately
preceding the last trading day prior to the date with respect to which the Fair
Market Value is to be determined. If the Common Stock is not then publicly
traded, then the Fair Market Value of the Common Stock shall be the book value
of the Company per share as determined on the last day of March, June,
September, or December in any year closest to the date when the determination is
to be made. For the purpose of determining book value hereunder, book value
shall be determined by adding as of the applicable date called for herein the
capital, surplus, and undivided profits of the Company, and after having
deducted any reserves theretofore established; the sum of these items shall be
divided by the number of shares of the Common Stock outstanding as of said date,
and the quotient thus obtained shall represent the book value of each share of
the Common Stock of the Company.
2.3 Option Period. The Stock Option period (the "Term") shall commence on
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the date of grant of the Stock Option and shall be 10 years or such shorter
period as is determined by the Committee. Each Stock Option shall provide that
it is exercisable over its term in such periodic installments as the Committee
may determine, subject to the provisions of Paragraph 2.4.1. Section 16(b) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act") exempts
persons normally subject to the reporting requirements of Section 16(a) of the
Exchange Act (the "Section 16 Reporting Persons") pursuant to a qualified
employee stock option plan from the normal requirement of not selling until at
least six months and one day from the date the Stock Option is granted.
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2.4 Exercise of Options.
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2.4.1 Each Stock Option may be exercised in whole or in part (but not as to
fractional shares) by delivering it for surrender or endorsement to the Company,
attention of the Corporate Secretary, at the principal office of the Company,
together with payment of the Exercise Price and an executed Notice and Agreement
of Exercise in the form prescribed by Paragraph 2.4.2. Payment may be made (a)
in cash, (b) by cashier's or certified check, (c) by surrender of previously
owned shares of the Common Stock valued pursuant to Paragraph 2.2 (if the
Committee authorizes payment in stock in its discretion), (d) by withholding
from the Option Shares which would otherwise be issuable upon the exercise of
the Stock Option that number of Option Shares equal to the exercise price of the
Stock Option, if such withholding is authorized by the Committee in its
discretion, or (e) in the discretion of the Committee, by the delivery to the
Company of the optionee's promissory note secured by the Option Shares, bearing
interest at a rate sufficient to prevent the imputation of interest under
Sections 483 or 1274 of the Code, and having such other terms and conditions as
may be satisfactory to the Committee. Subject to the provisions of this
Paragraph 2.4 and Paragraph 2.5, the Employee has the right to exercise his or
her Stock Options at the rate of at least 20 percent per year over five years
from the date the Stock Option is granted.
2.4.2 Exercise of each Stock Option is conditioned upon the agreement of
the Employee to the terms and conditions of this Plan and of such Stock Option
as evidenced by the Employee's execution and delivery of a Notice and Agreement
of Exercise in a form to be determined by the Committee in its discretion. Such
Notice and Agreement of Exercise shall set forth the agreement of the Employee
that (a) no Option Shares will be sold or otherwise distributed in violation of
the Securities Act of 1933, as amended (the "Securities Act") or any other
applicable federal or state securities laws, (b) each Option Share certificate
may be imprinted with legends reflecting any applicable federal and state
securities law restrictions and conditions, (c) the Company may comply with said
securities law restrictions and issue "stop transfer" instructions to its
Transfer Agent and Registrar without liability, (d) if the Employee is a Section
16 Reporting Person, the Employee will furnish to the Company a copy of each
Form 4 or Form 5 filed by said Employee and will timely file all reports
required under federal securities laws, and (e) the Employee will report all
sales of Option Shares to the Company in writing on a form prescribed by the
Company.
2.4.3 No Stock Option shall be exercisable unless and until any applicable
registration or qualification requirements of federal and state securities laws,
and all other legal requirements, have been fully complied with. At no time
shall the total number of securities issuable upon exercise of all outstanding
options under this Plan, and the total number of securities provided for under
any bonus or similar plan or agreement of the Company exceed a number of
securities which is equal to 30 percent of the then outstanding securities of
the Company, unless a percentage higher than 30 percent is approved by at least
two-thirds of the outstanding securities entitled to vote. The Company will use
reasonable efforts to maintain the effectiveness of a Registration Statement
under the Securities Act for the issuance of Stock Options and shares acquired
thereunder, but there may be times when no such Registration Statement will be
currently effective. The exercise of Stock Options may be temporarily suspended
without liability to the Company during times when no such Registration
Statement is currently effective, or during times when, in the reasonable
opinion of the Committee, such suspension is necessary to preclude violation of
any requirements of applicable law or regulatory bodies having jurisdiction over
the Company. If any Stock Option would expire for any reason except the end of
its term during such a suspension, then if exercise of such Stock Option is duly
tendered before its expiration, such Stock Option shall be exercisable and
exercised (unless the attempted exercise is withdrawn) as of the first day after
the end of such suspension. The Company shall have no obligation to file any
Registration Statement covering resales of Option Shares.
2.5 Continuous Employment. Except as provided in Paragraph 2.7 below, an
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Employee may not exercise a Stock Option unless from the date of grant to the
date of exercise the Employee remains continuously in the employ of the Company.
For purposes of this Paragraph 2.5, the period of continuous employment of an
Employee with the Company shall be deemed to include (without extending the term
of the Stock Option) any period during which the Employee is on leave of absence
with the consent of the Company, provided that such leave of absence shall not
exceed three months and that the Employee returns to the employ of the Company
at the expiration of such leave of absence. If the Employee fails to return to
the employ of the Company at the expiration of such leave of absence, the
Employee's employment with the Company shall be deemed terminated as of the date
such leave of absence commenced. The continuous employment of an Employee with
the Company shall also be deemed to include any period during which the Employee
is a member of the Armed Forces of the United States,
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provided that the Employee returns to the employ of the Company within 90 days
(or such longer period as may be prescribed by law) from the date the Employee
first becomes entitled to a discharge from military service. If an Employee
does not return to the employ of the Company within 90 days (or such longer
period as may be prescribed by law) from the date the Employee first becomes
entitled to a discharge from military service, the Employee's employment with
the Company shall be deemed to have terminated as of the date the Employee's
military service ended.
2.6 Restrictions on Transfer. Each Stock Option granted under this Plan
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shall be transferable only by will or the laws of descent and distribution. No
interest of any Employee under this Plan shall be subject to attachment,
execution, garnishment, sequestration, the laws of bankruptcy or any other legal
or equitable process. Each Stock Option granted under this Plan shall be
exercisable during an Employee's lifetime only by the Employee or by the
Employee's legal representative.
2.7 Termination of Employment.
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2.7.1 Upon an Employee's Retirement, Disability (both terms being defined
below) or death, (a) all Stock Options to the extent then presently exercisable
shall remain in full force and effect and may be exercised pursuant to the
provisions thereof, and (b) unless otherwise provided by the Committee, all
Stock Options to the extent not then presently exercisable by the Employee shall
terminate as of the date of such termination of employment and shall not be
exercisable thereafter. Unless employment is terminated for cause, as defined
by applicable law, the right to exercise in the event of termination of
employment, to the extent that the optionee is entitled to exercise on the date
the employment terminates as follows:
(i) At least six months from the date of termination if termination
was caused by death or disability.
(ii) At least 30 days from the date of termination if termination was
caused by other than death or disability.
2.7.2 Upon the termination of the employment of an Employee for any reason
other than those specifically set forth in Paragraph 2.7.1, (a) all Stock
Options to the extent then presently exercisable by the Employee shall remain
exercisable only for a period of 90 days after the date of such termination of
employment (except that the 90 day period shall be extended to 12 months if the
Employee shall die during such 90 day period), and may be exercised pursuant to
the provisions thereof, including expiration at the end of the fixed term
thereof, and (b) unless otherwise provided by the Committee, all Stock Options
to the extent not then presently exercisable by the Employee shall terminate as
of the date of such termination of employment and shall not be exercisable
thereafter.
2.7.3 For purposes of this Plan:
(a) "Retirement" shall mean an Employee's retirement from the employ
of the Company on or after the date on which the Employee attains the age of 65
years; and
(b) "Disability" shall mean total and permanent incapacity of an
Employee, due to physical impairment or legally established mental incompetence,
to perform the usual duties of the Employee's employment with the Company, which
disability shall be determined (i) on medical evidence by a licensed physician
designated by the Committee, or (ii) on evidence that the Employee has become
entitled to receive primary benefits as a disabled employee under the Social
Security Act in effect on the date of such disability.
3. Provisions Relating to Awards.
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3.1 Grant of Awards. Subject to the provisions of this Plan, the
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Committee shall have full and complete authority, in its discretion, but subject
to the express provisions of this Plan, to (1) grant Awards pursuant to this
Plan, (2) determine the number of shares of the Common Stock subject to each
Award (the "Award Shares"), (3) determine the terms and conditions (which need
not be identical) of each Award, including the consideration (if
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any) to be paid by the Employee for such Common Stock, which may, in the
Committee's discretion, consist of the delivery of the Employee's promissory
note meeting the requirements of Paragraph 2.4.1, (4) establish and modify
performance criteria for Awards, and (5) make all of the determinations
necessary or advisable with respect to Awards under this Plan. Each Award under
this Plan shall consist of a grant of shares of the Common Stock subject to a
restriction period (after which the restrictions shall lapse), which shall be a
period commencing on the date the Award is granted and ending on such date as
the Committee shall determine (the "Restriction Period"). The Committee may
provide for the lapse of restrictions in installments, for acceleration of the
lapse of restrictions upon the satisfaction of such performance or other
criteria or upon the occurrence of such events as the Committee shall determine,
and for the early expiration of the Restriction Period upon an Employee's death,
Disability or Retirement as defined in Paragraph 2.7.3, or, following a Change
of Control, upon termination of an Employee's employment by the Company without
"Cause" or by the Employee for "Good Reason," as those terms are defined herein.
For purposes of this Plan:
"Change of Control" shall be deemed to occur (a) on the date the Company
first has actual knowledge that any person (as such term is used in Sections
13(d) and 14(d)(2) of the Exchange Act) has become the beneficial owner (as
defined in Rule 13(d)-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 40 percent or more of the combined voting
power of the Company's then outstanding securities, or (b) on the date the
stockholders of the Company approve (i) a merger of the Company with or into any
other corporation in which the Company is not the surviving corporation or in
which the Company survives as a subsidiary of another corporation, (ii) a
consolidation of the Company with any other corporation, or (iii) the sale or
disposition of all or substantially all of the Company's assets or a plan of
complete liquidation.
"Cause," when used with reference to termination of the employment of an
Employee by the Company for "Cause," shall mean:
(a) The Employee's continuing willful and material breach of his
duties to the Company after he receives a demand from the Chief Executive of the
Company specifying the manner in which he has willfully and materially breached
such duties, other than any such failure resulting from Disability of the
Employee or his resignation for "Good Reason," as defined herein; or
(b) The conviction of the Employee of a felony; or
(c) The Employee's commission of fraud in the course of his
employment with the Company, such as embezzlement or other material and
intentional violation of law against the Company; or
(d) The Employee's gross misconduct causing material harm to the
Company.
"Good Reason" shall mean any one or more of the following, occurring
following or in connection with a Change of Control and within 90 days prior to
the Employee's resignation, unless the Employee shall have consented thereto in
writing:
(a) The assignment to the Employee of duties inconsistent with
his executive status prior to the Change of Control or a substantive change in
the officer or officers to whom he reports from the officer or officers to whom
he reported immediately prior to the Change of Control; or
(b) The elimination or reassignment of a majority of the duties
and responsibilities that were assigned to the Employee immediately prior to the
Change of Control; or
(c) A reduction by the Company in the Employee's annual base
salary as in effect immediately prior to the Change of Control; or
(d) The Company requiring the Employee to be based anywhere
outside a 35-mile radius from his place of employment immediately prior to the
Change of Control, except for required travel on the Company's business to an
extent substantially consistent with the Employee's business travel obligations
immediately prior to the Change of Control; or
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(e) The failure of the Company to grant the Employee a
performance bonus reasonably equivalent to the same percentage of salary the
Employee normally received prior to the Change of Control, given comparable
performance by the Company and the Employee; or
(f) The failure of the Company to obtain a satisfactory
Assumption Agreement (as defined in Paragraph 4.12 of this Plan) from a
successor, or the failure of such successor to perform such Assumption
Agreement.
3.2 Incentive Agreements. Each Award granted under this Plan shall be
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evidenced by a written agreement (an "Incentive Agreement") in a form approved
by the Committee and executed by the Company and the Employee to whom the Award
is granted. Each Incentive Agreement shall be subject to the terms and
conditions of this Plan and other such terms and conditions as the Committee may
specify.
3.3 Amendment, Modification and Waiver of Restrictions. The Committee may
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modify or amend any Award under this Plan or waive any restrictions or
conditions applicable to the Award; provided, however, that the Committee may
not undertake any such modifications, amendments or waivers if the effect
thereof materially increases the benefits to any Employee, or adversely affects
the rights of any Employee without his consent.
3.4 Terms and Conditions of Awards. Upon receipt of an Award of shares of
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the Common Stock under this Plan, even during the Restriction Period, an
Employee shall be the holder of record of the shares and shall have all the
rights of a stockholder with respect to such shares, subject to the terms and
conditions of this Plan and the Award.
3.4.1 Except as otherwise provided in this Paragraph 3.4, no shares of the
Common Stock received pursuant to this Plan shall be sold, exchanged,
transferred, pledged, hypothecated or otherwise disposed of during the
Restriction Period applicable to such shares. Any purported disposition of such
the Common Stock in violation of this Paragraph 3.4 shall be null and void.
3.4.2 If an Employee's employment with the Company terminates prior to the
expiration of the Restriction Period for an Award, subject to any provisions of
the Award with respect to the Employee's death, Disability or Retirement, or
Change of Control, all shares of the Common Stock subject to the Award shall be
immediately forfeited by the Employee and reacquired by the Company, and the
Employee shall have no further rights with respect to the Award. In the
discretion of the Committee, an Incentive Agreement may provide that, upon the
forfeiture by an Employee of Award Shares, the Company shall repay to the
Employee the consideration (if any) which the Employee paid for the Award Shares
on the grant of the Award. In the discretion of the Committee, an Incentive
Agreement may also provide that such repayment shall include an interest factor
on such consideration from the date of the grant of the Award to the date of
such repayment.
3.4.3 The Committee may require under such terms and conditions as it deems
appropriate or desirable that (a) the certificates for the Common Stock
delivered under this Plan are to be held in custody by the Company or a person
or institution designated by the Company until the Restriction Period expires,
(b) such certificates shall bear a legend referring to the restrictions on the
Common Stock pursuant to this Plan, and (c) the Employee shall have delivered to
the Company a stock power endorsed in blank relating to the Common Stock.
4. Miscellaneous Provisions.
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4.1 Adjustments Upon Change in Capitalization.
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4.1.1 The number and class of shares subject to each outstanding Stock
Option, the Exercise Price thereof (but not the total price), the maximum number
of Stock Options that may be granted under this Plan, the minimum number of
shares as to which a Stock Option may be exercised at any one time, and the
number and class of shares subject to each outstanding Award, shall be
proportionately adjusted in the event of any increase or decrease in the number
of the issued shares of the Common Stock which results from a split-up or
consolidation of shares, payment of a stock dividend or dividends exceeding a
total of five percent for which the record dates occur in any one fiscal year, a
recapitalization (other than the conversion of convertible securities according
to their
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terms), a combination of shares or other like capital adjustment, so that (a)
upon exercise of the Stock Option, the Employee shall receive the number and
class of shares the Employee would have received had the Employee been the
holder of the number of shares of the Common Stock for which the Stock Option is
being exercised upon the date of such change or increase or decrease in the
number of issued shares of the Company, and (b) upon the lapse of restrictions
of the Award Shares, the Employee shall receive the number and class of shares
the Employee would have received if the restrictions on the Award Shares had
lapsed on the date of such change or increase or decrease in the number of
issued shares of the Company.
4.1.2 Upon a reorganization, merger or consolidation of the Company with
one or more corporations as a result of which the Company is not the surviving
corporation or in which the Company survives as a wholly-owned subsidiary of
another corporation, or upon a sale of all or substantially all of the property
of the Company to another corporation, or any dividend or distribution to
stockholders of more than 10 percent of the Company's assets, adequate
adjustment or other provisions shall be made by the Company or other party to
such transaction so that there shall remain and/or be substituted for the Option
Shares and Award Shares provided for herein, the shares, securities or assets
which would have been issuable or payable in respect of or in exchange for such
Option Shares and Award Shares then remaining, as if the Employee had been the
owner of such shares as of the applicable date. Any securities so substituted
shall be subject to similar successive adjustments.
4.2 Withholding Taxes. The Company shall have the right at the time of
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exercise of any Stock Option, the grant of an Award, or the lapse of
restrictions on Award Shares, to make adequate provision for any federal, state,
local or foreign taxes which it believes are or may be required by law to be
withheld with respect to such exercise (the "Tax Liability"), to ensure the
payment of any such Tax Liability. The Company may provide for the payment of
any Tax Liability by any of the following means or a combination of such means,
as determined by the Committee in its sole and absolute discretion in the
particular case (1) by requiring the Employee to tender a cash payment to the
Company, (2) by withholding from the Employee's salary, (3) by withholding from
the Option Shares which would otherwise be issuable upon exercise of the Stock
Option, or from the Award Shares on their grant or date of lapse of
restrictions, that number of Option Shares or Award Shares having an aggregate
Fair Market Value (determined in the manner prescribed by Paragraph 2.2) as of
the date the withholding tax obligation arises in an amount which is equal to
the Employee's Tax Liability or (4) by any other method deemed appropriate by
the Committee. Satisfaction of the Tax Liability of a Section 16 Reporting
Person may be made by the method of payment specified in clause (3) above only
if the following two conditions are satisfied:
(a) The withholding of Option Shares or Award Shares and the
exercise of the related Stock Option occur at least six months and one day
following the date of grant of such Stock Option or Award; and
(b) The withholding of Option Shares or Award Shares is made
either (i) pursuant to an irrevocable election (the "Withholding Election") made
by the Employee at least six months in advance of the withholding of Options
Shares or Award Shares, or (ii) on a day within a 10-day "window period"
beginning on the third business day following the date of release of the
Company's quarterly or annual summary statement of sales and earnings.
Anything herein to the contrary notwithstanding, a Withholding Election may
be disapproved by the Committee at any time.
4.3 Relationship to Other Employee Benefit Plans. Stock Options and
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Awards granted hereunder shall not be deemed to be salary or other compensation
to any Employee for purposes of any pension, thrift, profit-sharing, stock
purchase or any other employee benefit plan now maintained or hereafter adopted
by the Company.
4.4 Amendments and Termination. The Board of Directors may at any time
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suspend, amend or terminate this Plan. No amendment, except as provided in
Paragraph 3.3, or modification of this Plan may be adopted, except subject to
stockholder approval, which would (1) materially increase the benefits accruing
to the Employees under this Plan, (2) materially increase the number of
securities which may be issued under this Plan (except for adjustments pursuant
to Paragraph 4.1 hereof), or (3) materially modify the requirements as to
eligibility for participation in this Plan.
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4.5 Successors in Interest. The provisions of this Plan and the actions
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of the Committee shall be binding upon all heirs, successors and assigns of the
Company and of the Employees.
4.6 Other Documents. All documents prepared, executed or delivered in
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connection with this Plan (including, without limitation, Option Agreements and
Incentive Agreements) shall be, in substance and form, as established and
modified by the Committee; provided, however, that all such documents shall be
subject in every respect to the provisions of this Plan, and in the event of any
conflict between the terms of any such document and this Plan, the provisions of
this Plan shall prevail.
4.7 Fairness of the Repurchase Price. In the event that the Company
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repurchases securities upon termination of employment pursuant to this Plan,
either: (a) the price will not be less than the fair market value of the
securities to be repurchased on the date of termination of employment, and the
right to repurchase will be exercised for cash or cancellation of purchase money
indebtedness for the securities within 90 days of termination of the employment
(or in the case of securities issued upon exercise of options after the date of
termination, within 90 days after the date of the exercise), and the right
terminates when the Company's securities become publicly traded, or (b) Company
will repurchase securities at the original purchase price, provided that the
right to repurchase at the original purchase price lapses at the rate of at
least 20 percent of the securities per year over five years from the date the
option is granted (without respect to the date the option was exercised or
became exercisable) and the right to repurchase must be exercised for cash or
cancellation of purchase money indebtedness for the securities within 90 days of
termination of employment (or in case of securities issued upon exercise of
options after the date of termination, within 90 days after the date of the
exercise).
4.8 No Obligation to Continue Employment. This Plan and the grants which
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might be made hereunder shall not impose any obligation on the Company to
continue to employ any Employee. Moreover, no provision of this Plan or any
document executed or delivered pursuant to this Plan shall be deemed modified in
any way by any employment contract between an Employee (or other employee) and
the Company.
4.9 Misconduct of an Employee. Notwithstanding any other provision of
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this Plan, if an Employee commits fraud or dishonesty toward the Company or
wrongfully uses or discloses any trade secret, confidential data or other
information proprietary to the Company, or intentionally takes any other action
which results in material harm to the Company, as determined by the Committee,
in its sole and absolute discretion, the Employee shall forfeit all rights and
benefits under this Plan.
4.10 Term of Plan. No Stock Option shall be exercisable, or Award granted,
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unless and until the Directors of the Company have approved this Plan and all
other legal requirements have been met. This Plan was adopted by the Board
effective March 5, 2004. No Stock Options or Awards may be granted under this
Plan after March 5, 2014.
4.11 Governing Law. This Plan and all actions taken thereunder shall be
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governed by, and construed in accordance with, the laws of the State of Florida.
4.12 Assumption Agreements. The Company will require each successor,
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(direct or indirect, whether by purchase, merger, consolidation or otherwise),
to all or substantially all of the business or assets of the Company, prior to
the consummation of each such transaction, to assume and agree to perform the
terms and provisions remaining to be performed by the Company under each
Incentive Agreement and Stock Option and to preserve the benefits to the
Employees thereunder. Such assumption and agreement shall be set forth in a
written agreement in form and substance satisfactory to the Committee (an
"Assumption Agreement"), and shall include such adjustments, if any, in the
application of the provisions of the Incentive Agreements and Stock Options and
such additional provisions, if any, as the Committee shall require and approve,
in order to preserve such benefits to the Employees. Without limiting the
generality of the foregoing, the Committee may require an Assumption Agreement
to include satisfactory undertakings by a successor:
(a) To provide liquidity to the Employees at the end of the
Restriction Period applicable to the Common Stock awarded to them under this
Plan, or on the exercise of Stock Options;
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(b) If the succession occurs before the expiration of any period
specified in the Incentive Agreements for satisfaction of performance criteria
applicable to the Common Stock awarded thereunder, to refrain from interfering
with the Company's ability to satisfy such performance criteria or to agree to
modify such performance criteria and/or waive any criteria that cannot be
satisfied as a result of the succession;
(c) To require any future successor to enter into an Assumption
Agreement; and
(d) To take or refrain from taking such other actions as the
Committee may require and approve, in its discretion.
4.13 Compliance with Rule 16b-3. Transactions under this Plan are intended
--------------------------
to comply with all applicable conditions of Rule 16b-3 promulgated under the
Exchange Act. To the extent that any provision of this Plan or action by the
Committee fails to so comply, it shall be deemed null and void, to the extent
permitted by law and deemed advisable by the Committee.
4.14 Information to Shareholders. The Company shall furnish to each of its
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stockholders financial statements of the Company at least annually.
IN WITNESS WHEREOF, this Plan has been executed effective as of March 5,
2004.
INTERNATIONAL TRUST AND FINANCIAL
SYSTEMS, INC.
By /s/ Wilbert H. Marmion
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Wilbert H. Marmion, President
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