EXHIBIT 4.3
K-tel International, Inc. 1997 Stock Option Plan.
K-TEL INTERNATIONAL, INC.
1997 STOCK OPTION PLAN
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PART I
PURPOSES; DEFINITIONS; SHAREHOLDER APPROVAL;
RESERVATION OF SHARES; AND PARTICIPATION IN PLAN
ARTICLE I
Purposes
1.1 Purposes of Plan. The purpose of this K-tel International, Inc.
1997 Stock Option Plan (the "Plan") is to provide incentives to employees of the
Company and/or any Subsidiary who contribute, and are expected to contribute, to
the success of the Company and any Subsidiary, to provide a means of rewarding
outstanding performance, and to enhance the interest of such employees in the
Company's continued success and progress by providing them a proprietary
interest in the Company. Further, this Plan is designed to enhance the Company's
ability to maintain a competitive position in attracting and retaining qualified
personnel necessary for the continued success and progress of the Company.
ARTICLE II
Definitions
2.1 Certain terms used herein shall have the meaning below stated,
subject to the provisions of Section 7.1.
"Board" or "Board of Directors" means the Board of Directors of the
Company.
"Code" means the Internal Revenue Code of 1986, as amended.
"Committee" means the committee appointed by the Board to administer
this Plan pursuant to Article VII or, if no Committee is appointed by the Board,
means the Board.
"Common Stock" means, subject to the provisions of Section 9.3, the
Common Stock of the Company, par value $.01 per share.
"Company" means K-tel International, Inc., a Minnesota corporation.
"Disability" means (subject to Section 6.2) a physical or mental
impairment of sufficient severity such that an Employee is permanently unable to
continue his employment with the Company as determined by the Committee.
"Employee" means an employee (including an officer) of the Company or
of any Subsidiary of the Company.
"Fair Market Value" means the fair market value of the Company's Common
Stock as determined by the Committee on the basis of available prices for such
Common Stock or in such manner as may be authorized by applicable regulations
under the Code.
"Incentive Stock Option" means an option to purchase Common Stock,
granted by the Company to an Employee pursuant to Section 5.1, which is intended
to meet the requirements of Section 422A of the Code and which is designated at
the time of the award of an Incentive Stock Option.
"Non-Statutory Option" means an option to purchase Common Stock,
granted by the Company to an Optionee pursuant to Section 5.1, which is not an
Incentive Stock Option.
"Option" means an Incentive Stock Option or a Non-Statutory Option.
"Optionee" means the holder of an Option granted under the Plan.
"Plan" means the K-tel International, Inc. 1997 Stock Option Plan, as
set forth herein and as from time to time amended.
"Subsidiary" means a subsidiary or parent corporation, as defined in
Section 425(e) and (f) of the Code, with respect to the Company.
"1933 Act" means the Securities Act of 1933, as amended.
ARTICLE III
Shareholder Approval; Reservations of Shares
3.1 Shareholder Approval. This Plan was approved by the Board of
Directors on February 18, 1997 and shall be subject to approval by the
affirmative vote of the holders of a majority of the Company's Common Stock at a
meeting of shareholders, which approval must be obtained no later than February
17, 1998.
3.2 Shares Reserved Under Plan. Subject to adjustment under the
provisions of Section 9.3 hereof, the maximum number of shares of Common Stock
which may be issued and sold under this Plan is 300,000 shares. Such shares may
be either authorized and unissued shares or shares issued and thereafter
acquired by the Company. Shares issued pursuant to this Plan shall be subject to
all applicable provisions of the Articles of Incorporation and Bylaws of the
Company in existence at the time of issuance of such shares and at all times
thereafter. If Options granted under this Plan shall terminate or cease to be
exercisable by reason of expiration, surrender for cancellation or otherwise
without having been wholly exercised, new Options may be granted under this Plan
covering the number of shares to which such termination or cessation relates. At
no time may the sum of the maximum number of shares issuable under outstanding
Options granted under this Plan and the number of shares previously issued under
Options granted under this Plan exceed the maximum number of shares that may be
issued and sold under this Plan, as above stated.
ARTICLE IV
Participation in Plan
4.1 Eligibility to Receive Options. Options under this Plan may be
granted only to Employees who are employed by the Company or a Subsidiary on the
date the Option is granted and who the Committee believes are in a position to
make an important contribution to the success of the Company, all as determined
by the Committee, provided that no Employee shall be eligible for Options under
this Plan if such person has been a member of the Board of Directors of the
Company or a Subsidiary within one year of the grant.
4.2 Participation Not Guarantee of Employment. Nothing in this Plan or
in the instrument evidencing the grant of an Option shall in any manner be
construed to limit in any way the right of the Company or a Subsidiary to
terminate an Employee's employment at any time without regard to the effect of
such termination on any rights such Employee would otherwise have under this
Plan, or give any right to such an Employee to remain employed by the Company or
a Subsidiary in any particular position or at any particular rate of
compensation.
PART II
OPTIONS;
TERMINATION OF EMPLOYMENT AND DEATH
ARTICLE V
Options
5.1 Grants of Options.
(a) Grant. The Committee may grant Incentive Stock Options
and/or Non-Statutory Options to Employees, subject to the limitations provided
in Section 5.1(f) and Section 7.1. All Options under this Plan shall be granted
within ten years of February 18, 1997, the date on which this Plan was adopted
by the Board of Directors subject to approval of the Plan by shareholders.
(b) Option Price. The purchase price per share of Common Stock
under each Incentive Stock Option and Non-Statutory Option shall be determined
by the Committee but shall be not less than 100% of the Fair Market Value per
share of such Common
Stock on the date the Option is granted for Incentive Stock Options and no less
than 85% of the Fair Market Value per share of such Common Stock on the date the
Option is granted for Non-Statutory Options. The purchase price per share may be
subject to adjustment in accordance with the provisions of Section 9.3 hereof.
(c) Options Agreements. Options shall be evidenced by option
agreements in such form and containing such terms and conditions as the
Committee shall approve, which terms and conditions need not be the same for all
Options.
(d) Options Nontransferable. Except with the prior written
consent of the Committee, an Option granted under this Plan shall by its terms
be nontransferable by the Optionee other than by will or the laws of descent and
distribution, and, during the lifetime of the Optionee, shall be exercisable
only by such Optionee. No transfer of an Option by an Optionee by will or by the
laws of descent and distribution shall be effective to bind the Company unless
the Company shall have been furnished with written notice thereof and a copy of
the will and/or such other evidence as the Committee may determine necessary to
establish the validity of the transfer.
(e) Substitution and Cancellation. The Committee may, in its
sole discretion, grant to an Optionee who has been granted an Option under this
Plan, in exchange for the surrender and cancellation of such Option, a new
Option having a purchase price lower (or higher) than the purchase price
provided in the Option so surrendered and cancelled and containing such other
terms as the Committee may deem appropriate, subject to Section 5.1(b) and such
other limitations or restrictions with respect to an Incentive Stock Option as
may be imposed by the Code.
(f) Annual Per-Employee Limitation. The number of shares of
Common Stock subject to all Options granted to any Employee during any calendar
year shall not exceed 50,000 shares.
5.2 Exercise.
(a) Term of Options; Vesting; and Exercise. The term of each
Option granted under this Plan shall not exceed ten (10) years from the date of
grant. An Option granted under this Plan shall become vested and exercisable at
such rate and on such conditions as the Committee shall determine at the time
such Option is granted.
(b) Exercise; Payment on Exercise. Options shall be exercised
by delivering to the Company an exercise notice in the form prescribed by the
Committee. No shares of Common Stock shall be issued on the exercise of an
Option unless paid for in full at the time of purchase as provided in the next
sentence and until the provisions of 9.4 shall have been satisfied. Payment for
shares of Common Stock purchased upon the exercise of an Option shall be made
(i) in cash, or (ii) the following alternative forms of payment: (A) in whole or
in part in shares of Common Stock held by the Optionee for at least six months
and valued at the then Fair Market Value thereof, or (B) by delivery to the
Company of irrevocable instructions to the Optionee's broker, which instructions
and broker shall be satisfactory to the Company, to promptly deliver to the
Company the total purchase price for the shares of the Option being exercised
from the sale proceeds for such shares or the loan proceeds for such shares or
any other securities which the Optionee may have in his account with such
broker, and the Company will deliver such shares directly to such broker in
accordance with such procedures as the Committee may establish, which
alternative forms of payment may be permitted by the Committee at the time the
Option is granted or at any time thereafter during the term of the Option. Stock
certificates
for the shares of Common Stock so paid for will be issued and delivered to the
person entitled thereto only at the Company's office in Minneapolis, Minnesota.
No Optionee shall have any rights as a shareholder with respect to any share of
Common Stock covered by an Option unless and until such Optionee shall have
become the holder of record of such share and, except as otherwise permitted in
Section 9.3 hereof, no adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property or distributions or
other rights) in respect of such share for which the record date is prior to the
date on which such Optionee shall have become the holder of record thereof.
(c) Dissolution, Liquidation, Etc. If at any time after an
Option has become exercisable and prior to its exercise and expiration, a
voluntary dissolution, liquidation (other than a liquidation into another
corporation which agrees to continue this Plan) or winding up of the affairs of
the Company shall be proposed, the Company shall cause notice in writing to be
mailed to each person holding an Option under this Plan, which notice shall be
mailed not less than twenty days prior to the closing of the transfer books of
the Company or the record date for determination of the holders of Common Stock
of the Company entitled to participate in such dissolution, liquidation or
winding up, as the case may be, to the end that during such notice period the
holder of any Option, to the extent that the same is then exercisable by such
holder, subject to the terms of Article V hereof, may purchase Common Stock in
accordance with the terms of the Option and be entitled, in respect of the
number of shares so purchased, to all the rights of the other holders of Common
Stock of the Company with respect to such proposed dissolution, liquidation or
winding up of the affairs of the Company. Each Option at the time outstanding
and all rights thereunder shall terminate at the close of business on the
twentieth day after mailing of such notice to the holder of such Option or on
the record date for determination of holders of Common Stock entitled to
participate in such dissolution, liquidation or winding up, whichever date is
later.
(d) Exercise of Options. In the event that an Optionee
exercises an Option, such Optionee shall comply with all requirements set forth
in the option agreement for such Options in connection with the purchase of
shares of Common Stock under this Plan.
5.3 Incentive Stock Options.
(a) Annual Limitation. In no event shall any Optionee be
granted an Incentive Stock Option under this Plan or any other plan of the
Company or any Subsidiary if such option would, during the calendar year in
which the option first becomes exercisable when combined with other Incentive
Stock Options which first become exercisable in such calendar year, entitle such
Optionee, to purchase shares of Common Stock or shares of any Subsidiary having
an aggregate fair market value (determined as of the time such option or options
were granted) in excess of $100,000. In the event an option granted hereunder is
designated an Incentive Stock Option and exceeds the limitations set forth in
this Section 5.3(a), whether at the time of grant or thereafter, such option
shall be an Incentive Stock Option only to the extent permitted hereby and the
balance thereof shall be a Non-Statutory Option for the purposes of this Plan.
(b) Incentive Stock Options Granted to Ten Percent
Shareholders. No Incentive Stock Option shall be granted to any Employee who
owns, directly or indirectly pursuant to Section 425(d) of the Code, stock
possessing more than ten percent (10%) of the total combined voting power of all
classes of stock of the Company or any Subsidiary, unless at the time such
Incentive Stock Option
is granted, the price of the Incentive Stock Option is at least 110% of the Fair
Market Value of the Common Stock subject to the Incentive Stock Option and such
Incentive Stock Option, by its terms, is not exercisable after the expiration of
five (5) years from the date such Incentive Stock Option is granted.
(c) Notice. Each Optionee shall give prompt notice to the
Company of any disposition of shares acquired upon exercise of an Incentive
Stock Option if such disposition occurs within either two years after the date
of grant or one year after the date of transfer of such shares to the Optionee
upon the exercise of such Incentive Stock Option.
(d) Consent. To the extent appropriate to avoid a
"modification" or other event described in Section 425(h) of the Code, a
Optionee's rights under an Incentive Stock Option (including the rights to pay
the exercise price in Common Stock) shall be set forth in the option agreement
for such Option entered into at the date of grant, so as to preclude any
requirement that further Committee consent be given after the date of grant.
ARTICLE VI
Termination of Employment
6.1 Termination of Employment. Unless earlier terminated in accordance
with its terms, an Option shall terminate thirty (30) days after any termination
of the Optionee's employment with the Company or any Subsidiary for any reason
other than as a result of the death or disability of the Optionee or, in the
case of death or disability of any Optionee, 120 days after the death or the
termination of the Optionee's employment due to disability.
6.2 Employment. For all purposes of this Plan, and any Option granted
hereunder, "employment" shall be defined in accordance with the provisions of
Section 1.421-7(h) of the Income Tax Regulations (or any successor regulations).
PART III
ADMINISTRATION, AMENDMENT AND TERMINATION
OF PLAN; MISCELLANEOUS
ARTICLE VII
Administration of Plan
7.1 The Committee. This Plan shall be administered by the Board or a
Committee of the Board consisting of two or more directors, each of whom shall
be a "Non-Employee Director" within the meaning of Rule 16b-3(b)(3)(i) of the
Securities and Exchange Commission and shall be appointed by, and serve at the
pleasure of, the Board. A majority of the Committee shall constitute a quorum
thereof and the actions of a majority of the Committee at a meeting at which a
quorum is present, or actions unanimously approved in writing by all members of
the Committee, shall be the actions of the Committee. Vacancies occurring on the
Committee shall be filled by the Board. The Committee shall have full and final
authority to interpret this Plan and the agreements evidencing Options granted
hereunder (which agreements need not be identical), to prescribe, amend and
rescind rules and regulations, if any, relating to this Plan and to make all
determinations necessary or advisable for the administration of this Plan. The
Committee's determination in all matters referred to herein shall be conclusive
and binding for all purposes and upon all persons including, but without
limitation, the Company, the shareholders of the Company, the Committee and each
of the members thereof, and the Employees and the Optionees, and their
respective personal representatives, heirs and assigns.
7.2 Liability of Committee. No member of the Committee shall be liable
for anything done or omitted to be done by such member or by any other member of
the Committee in connection with this Plan, except for the willful misconduct or
gross negligence of such member. The Committee shall have power to engage
outside consultants, auditors or other professional help to assist in the
fulfillment of the Committee's duties under this Plan at the Company's expense.
7.3 Determinations of the Committee. In making its determinations
concerning the Employees, who shall receive Options as well as the number of
shares to be covered thereby and time or times at which they shall be granted,
the Committee shall take into account the nature of the services rendered by the
respective Employees and their past, present, and potential contribution to the
Company's success and such other factors as the Committee may deem relevant. The
Committee shall also determine the form of option agreements to be issued under
this Plan and the terms and conditions to be included therein, provided such
terms and conditions are not inconsistent with the terms of this Plan. In its
discretion or in accordance with a direction from the Board, the Committee may
waive any provisions of any option agreement, provided such waiver is not
inconsistent with the terms of this Plan as then in effect.
ARTICLE VIII
Amendment and Termination of Plan
8.1 Amendment of Plan.
(a) Generally. The Plan may be amended at any time and from
time to time by the Board of Directors of the Company but no amendment which (i)
increases the aggregate number of shares of Common Stock which may be issued and
sold under this Plan other than adjustments pursuant to Section 9.3, (ii)
decreases the minimum option price provided in this Plan, (iii) extends the
period during which Options may be granted under this Plan, or (vi) changes the
class of Employees eligible to receive Options, shall be effective unless and
until the same is approved by the affirmative vote, in person or by proxy, of
the holders of a majority of the shares of Common Stock of the Company present
and entitled to vote at a meeting held to take such action at which a quorum is
present. No termination or amendment of this Plan, without the consent of the
holder of any Option then existing, may terminate such holder's Option or
materially and adversely affect such holder's rights thereunder.
(b) Amendments Relating to Incentive Stock Options. To the
extent applicable, this Plan is intended to permit the issuance of Incentive
Stock Options in accordance with the provisions of Section 422A of the Code. The
Plan may be modified or amended at any time, both prospectively and
retroactively, and in such manner as to affect Incentive Stock Options
previously granted (after taking into account Section 425(h) of the Code,
relating to "modifications," etc.), if such amendment or modification is
necessary for this Plan and the Incentive Stock Options granted hereunder to
qualify under said provisions of the Code.
8.2 Termination. The Board of Directors of the Company may at any time
terminate this Plan as of any date specified in a resolution adopted by the
Board. If not earlier terminated, this Plan shall terminate on the tenth
anniversary of the effective date of the Plan. No Options may be granted after
this Plan has terminated. After this Plan shall terminate, the function of the
Committee will be limited to supervising the administration of Options
previously granted.
ARTICLE IX
Miscellaneous Provisions
9.1 Restrictions Upon Grant of Options. The registration or
qualification under any Federal or state law of any shares of Common Stock
issuable upon the exercise of Options granted pursuant to this Plan (whether to
permit the grant of Options or the resale or other disposition of any such
shares of Common Stock by or on behalf of the Optionees receiving such shares)
may be necessary or desirable and, in any such event, delivery of the
certificates for such shares of Common Stock shall, if the Board of Directors,
in its sole discretion, shall determine, not be made until such listing,
registration or qualification shall have been completed.
9.2 Restrictions upon Resale of Unregistered Stock. If the shares of
Common Stock that have been transferred to a Optionee pursuant to the terms of
this Plan are not registered under the 1933 Act, pursuant to an effective
registration statement, such Optionee, if the Committee shall deem it
advisable, may be required to represent and agree in writing (i) that any shares
of Common Stock acquired by such Optionee pursuant to this Plan will not be sold
except pursuant to an effective registration statement under the 1933 Act, or
pursuant to an exemption from registration under the 1933 Act and (ii) that such
Optionee is acquiring such shares of Common Stock for such Optionee's own
account and not with a view to the distribution thereof.
9.3 Adjustments. In the event of any change whether through
recapitalization, merger, consolidation, stock dividend, split-up, or amount of
the Company's capital stock (or any other transaction described in Section
425(a) of the Code) after any Option is granted hereunder and prior to the
exercise thereof, the Option, to the extent that it has not been exercised,
shall entitle the holder to such number and kind of securities as such holder
would have been entitled to had such holder actually owned the stock subject to
the Option at the time of the occurrence of such change. If any such event
should occur, the number of shares subject to Options which are authorized to be
issued hereunder, but which have not been issued, shall be similarly adjusted.
If any other event shall occur, prior to the exercise of an Option granted to an
Optionee hereunder, which shall increase or decrease the amount of capital stock
outstanding and which the Committee, in its sole discretion, shall determine
equitably requires an adjustment in the number of shares which the holder should
be permitted to acquire, such adjustment as the Committee shall determine may be
made, and when so made shall be effective and binding for all purposes of this
Plan.
9.4 Withholding of Taxes. Each Optionee who exercises an Option to
purchase Common Stock shall, prior to the issuance of any shares, pay to the
Company, or make arrangements (including withholding of shares of Common Stock
purchased upon exercise of the Option at the Fair Market Value thereof)
satisfactory to the Committee regarding payment of, any taxes of any kind
required by law to be withheld with respect to the transfer to such Optionee of
such shares of Common Stock and/or amounts upon exercise of such Option.
9.5 Use of Proceeds. The proceeds from the sale of Common Stock
pursuant to Options granted under this Plan shall constitute general funds of
the Company and may be used for such corporate purposes as the Company may
determine.
9.6 Other Grants. Options may be granted under this Plan from time to
time in substitution for stock options held by employees of other corporations
who are or are about to become employees of the Company or a Subsidiary as the
result of a merger or consolidation of the employing corporation with the
Company or a Subsidiary, or the acquisition by the Company or a Subsidiary of
the assets of the employing corporation, or the acquisition by the Company or a
Subsidiary of stock of the employing corporation as the result of which it
becomes a Subsidiary of the Company. The terms and conditions of the substituted
Options so granted may vary from the terms and conditions set forth in Part II
to such extent as the Committee may deem appropriate to conform, in whole or in
part, to the provisions of the substituted stock incentives.
9.7 Other Benefits. Nothing contained herein shall prevent the Company
from establishing other incentive plans in which Employees under the Plan may
also participate. No award under this Plan shall be considered as compensation
in calculating any insurance, pension or other benefit for which the recipient
is eligible unless any such insurance, pension or other benefit is granted under
a plan
which expressly provides that compensation under this Plan (and specifying the
type of such compensation) shall be considered as compensation under such plan.