1
EXHIBIT 10.4
KENT ELECTRONICS CORPORATION
2001 STOCK OPTION PLAN
KENT ELECTRONICS CORPORATION
2001 STOCK OPTION PLAN
ARTICLE 1
PLAN
1.1 PURPOSE. The Kent Electronics Corporation 2001 Stock Option Plan is
intended to provide a means whereby certain Employees of Kent Electronics
Corporation, a Texas corporation, and its Affiliates may develop a sense of
proprietorship and personal involvement in the development and financial success
of the Company, and to encourage them to remain with and devote their best
efforts to the business of the Company, thereby advancing the interests of the
Company and its shareholders. Accordingly, the Company may grant Options to
certain Employees in the form of Nonqualified Stock Options, subject to the
terms of the Plan.
1.2 EFFECTIVE DATE OF PLAN. The Plan is effective January 1, 2001, and
no Option shall be granted pursuant to the Plan after December 31, 2010.
ARTICLE 2
DEFINITIONS
The capitalized words and phrases defined in this Article shall have
the meaning set out in these definitions throughout the Plan, unless the context
in which any such word or phrase appears reasonably requires a broader, narrower
or different meaning.
2.1 "AFFILIATE" means any parent corporation and any subsidiary
corporation. The term "parent corporation" means any corporation (other than the
Company) in an unbroken chain of corporations ending with the Company if, at the
time of the action or transaction, each of the corporations other than the
Company owns stock possessing 50% or more of the total combined voting power of
all classes of stock in one of the other corporations in the chain. The term
"subsidiary corporation" means any corporation (other than the Company) in an
unbroken chain
2
of corporations beginning with the Company if, at the time of the action or
transaction, each of the corporations other than the last corporation in the
unbroken chain owns stock possessing 50% or more of the total combined voting
power of all classes of stock in one of the other corporations in the chain.
2.2 "BOARD OF DIRECTORS" or "BOARD" means the board of directors of the
Company.
2.3 "CHANGE OF CONTROL" means the happening of any of the following
events:
(i) a merger or consolidation of the Company with or into another
corporation in which the Company shall not be the surviving corporation
(for purposes hereof, the Company shall not be deemed the surviving
corporation in any such transaction if, as the result thereof, it
becomes a wholly-owned subsidiary of another corporation) or the Stock
is converted into other securities, cash or other property in
connection with such merger or consolidation;
(ii) any sale of all or substantially all of the assets of the
Company;
(iii) the complete liquidation of the Company; or
(iv) the acquisition of "beneficial ownership" (as defined in Rule
13d-3 under the 1934 Act) of securities of the Company representing
more than 30% of the combined voting power of the Company's then
outstanding securities (other than through a merger or consolidation or
an acquisition of securities directly from the Company) by any
"person," as such term is used in Sections 13 (d) and 14 (d) of the
1934 Act other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any entity
owned directly or indirectly by the stockholders of the Company in
substantially the same proportion as their ownership of stock of the
Company.
2.4 "CODE" means the Internal Revenue Code of 1986, as amended.
2.5 "COMMITTEE" means the Stock Option Committee of the Board of
Directors or such other committee designated by the Board of Directors.
2.6 "COMPANY" means Kent Electronics Corporation, a Texas corporation.
2.7 "EMPLOYEE" means any employee employed by the Company or any
Affiliate.
2.8 "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
2.9 "FAIR MARKET VALUE" means, on a particular date or on the most
recent prior date on which Stock was traded, the reported closing price per
share of the Stock of the Company as reported by the New York Stock Exchange,
Inc. or other principal exchange or market on which the Stock is traded; in the
event the Stock of the Company is not publicly traded at the time a
2
3
determination of its value is required to be made hereunder, the determination
of its Fair Market Value shall be made by the Committee in such manner as it
deems appropriate.
2.10 "INCENTIVE STOCK OPTION" means an option that satisfies the
requirements of Section 422 of the Code.
2.11 "NONQUALIFIED OPTION" means an option granted under the Plan which
shall not satisfy the requirements of Section 422 of the Code.
2.12 "OPTION" means a Nonqualified Option granted under the Plan to
purchase shares of Stock.
2.13 "OPTION AGREEMENT" means the written agreement provided for in
connection with an Option setting forth the terms and conditions of the Option.
Such Agreement may contain any other provisions that the Committee, in its sole
discretion, shall deem advisable which are not inconsistent with the terms of
the Plan.
2.14 "PLAN" means the Kent Electronics Corporation 2001 Stock Option
Plan, as set out in this document and as it may be amended from time to time.
2.15 "SECTION 16 REPORTING PERSON" means any person subject to the
reporting requirements under Section 16 of the Exchange Act.
2.16 "STOCK" means the voting common stock of the Company, without par
value, or in the event that the outstanding shares of voting common stock are
later changed into or exchanged for a different class of stock or securities of
the Company or another corporation, that other stock or security.
ARTICLE 3
ELIGIBILITY
All Employees shall be eligible to receive Options as determined by the
Committee from time to time; provided, however, that at least a majority of the
shares of Stock underlying Options granted under the Plan, during both the
three-year period commencing on the date the Plan is adopted and the term of the
Plan, shall be granted to Employees who are not Section 16 Reporting Persons.
ARTICLE 4
GENERAL PROVISIONS RELATING TO OPTIONS
4.1 AUTHORITY TO GRANT OPTIONS. The Committee may grant Options to
those Employees as it shall determine from time to time under the terms and
conditions of the Plan. Subject only to any applicable limitations set out in
the Plan, the amount of any Option and the
3
4
number of shares of Stock to be covered by any Option to be granted to an
Employee shall be as determined by the Committee. Each Option shall be evidenced
by an Option Agreement which shall set forth the terms and conditions of the
Option. An Employee who has received an Option in any year may receive an
additional Option or Options in the same year or in subsequent years.
4.2 DEDICATED SHARES. The total number of shares of Stock with respect
to which Options may be granted under the Plan shall be 750,000 shares. The
shares of Stock may be treasury shares or authorized but unissued shares. The
numbers of shares of Stock stated in this Section 4.2 shall be subject to
adjustment in accordance with the provisions of Section 4.5.
In the event that any Option shall expire or terminate for any reason
or any Option is surrendered, the shares of Stock allocable to that Option may
again be subject to an Option under the Plan.
4.3 NON-TRANSFERABILITY. Except as set forth below, the Options granted
hereunder shall not be transferable by the Employee otherwise than by will or
operation of the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined in the Code or Title I of the Employee
Retirement Income Security Act of 1974, as amended, or the rules thereunder. The
Committee may grant Options that are transferable, without payment of
consideration, to immediate family members of the Employee or to trusts or
partnerships for such family members; the Committee may also amend outstanding
Options to provide for such transferability.
4.4 REQUIREMENTS OF LAW. The Company shall not be required to sell or
issue any Stock under any Option if issuing that Stock would constitute or
result in a violation by the Employee or the Company of any provision of any
law, statute, or regulation of any governmental authority. Specifically, in
connection with any applicable statute or regulation relating to the
registration of securities, the Company shall not be required to issue any Stock
unless the Committee has received evidence satisfactory to it to the effect that
the holder of that Option will not transfer the Stock except in accordance with
applicable law, including receipt of an opinion of counsel satisfactory to the
Company to the effect that any proposed transfer complies with applicable law.
The determination by the Committee on this matter shall be final, binding and
conclusive. The Company may, but shall in no event be obligated to, register any
Stock covered by the Plan pursuant to applicable securities laws of any country
or any political subdivision. In the event the Stock issuable pursuant to an
Option is not registered, the Company may imprint on the certificate evidencing
the Stock any legend that counsel for the Company considers necessary or
advisable to comply with applicable law. The Company shall not be obligated to
take any other affirmative action in order to cause the exercise of, or the
issuance of shares under, an Option to comply with any law or regulation of any
governmental authority.
4.5 CHANGES IN THE COMPANY'S CAPITAL STRUCTURE. The existence of the
Plan and the Options granted hereunder shall not affect or authorize any
adjustment, recapitalization, reorganization or other change in the Company's
capital structure or its business, any merger or consolidation of the Company,
any issue of bonds, debentures, preferred or prior preference stocks ahead of or
affecting the Stock or the rights thereof, the dissolution or liquidation of the
4
5
Company, or any sale or transfer of all or any part of its assets or business,
or any other corporate act or proceeding, whether of similar character or
otherwise.
In the event of any change in the outstanding shares of Stock of the
Company by reason of any stock split, stock dividend, split-up, split-off,
spin-off, recapitalization, merger, consolidation, liquidation, rights offering,
share offering, reorganization, combination or exchange of shares, a sale by the
Company of all or part of its assets, any distribution to shareholders other
than a normal cash dividend, or other extraordinary or unusual event, if the
Committee shall determine, in its discretion, that such change equitably
requires an adjustment in the terms of any Option or the number of shares of
Stock available for Options, such adjustment may be made by the Committee and
shall be final, conclusive and binding for all purposes of the Plan.
4.6 TERMINATION OF EMPLOYMENT. Except as specifically provided herein,
the Committee shall set forth in the Option Agreement the status of any Option
or shares of Stock underlying any Option upon the termination of the Employee's
employment for any reason.
4.7 . ELECTION UNDER SECTION 83(b) OF THE CODE. No Employee shall
exercise the election permitted under Section 83(b) of the Code without written
approval of the Committee. Any Employee doing so shall forfeit all Options
issued to the Employee under the Plan.
ARTICLE 5
OPTIONS
5.1 TYPE OF OPTION. The Committee shall grant only Nonqualified Options
under the Plan. The Committee shall not grant any Incentive Stock Options under
the Plan.
5.2 OPTION PRICE. The price per share at which shares of Stock may be
purchased under an Option shall not be less than the greater of: (a) 100% of the
Fair Market Value per share of Stock on the date the Option is granted or (b)
the per share par value of the Stock on the date the Option is granted. The
Committee in its discretion may provide that the price per share at which shares
of Stock may be purchased shall be more than 100% of Fair Market Value per
share.
5.3 DURATION OF OPTIONS. No Option shall be exercisable after the
expiration of ten years from the date the Option is granted.
5.4 AMOUNT EXERCISABLE. Each Option may be exercised from time to time,
in whole or in part, in the manner and subject to the conditions the Committee,
in its discretion, may provide in the Option Agreement, as long as the Option is
valid and outstanding.
5.5 EXERCISE OF OPTIONS. Subject to the tax withholding requirements
set forth in Section 8.3 herein, Options shall be exercised by the delivery of
written notice to the Company
5
6
setting forth the number of shares with respect to which the Option is to be
exercised and the address to which the certificates representing shares of Stock
issuable upon the exercise of such Option shall be mailed, together with: (a)
cash, check, certified check, bank draft, or postal or express money order
payable to the order of the Company for an amount equal to the Option Price of
the shares, (b) either through actual delivery of shares of Stock or through
attestation, shares of Stock at its Fair Market Value equal to the Option Price
of the shares on the date of exercise, (c) an irrevocable authorization
directing a brokerage firm acceptable to the Company to sell shares of Stock (or
a sufficient portion of the shares) acquired upon exercise of the Option and
remit to the Company a sufficient portion of the sale proceeds to pay the entire
purchase price and any tax withholding resulting from such exercise, and/or (d)
any other form of payment which is acceptable to the Committee. In order to
enable an Employee to have sufficient funds to pay the Option Price, the
Committee may, to the extent permitted by law, cause the Company to loan funds
to the Employee, to guarantee a loan by a third party to the Employee or to take
such other action as the Committee deems appropriate. No fractional shares shall
be issued under the Plan.
Subject to the tax withholding requirements set forth in Section 8.3
herein, as promptly as practicable after receipt of written notification and
payment, the Company or a stock transfer agent of the Company shall deliver to
the Employee certificates for the number of shares with respect to which the
Option has been exercised, issued in the Employee's name. If shares of Stock are
used in payment, the Fair Market Value of the shares of Stock tendered must be
less than the Option Price of the shares being purchased, and the difference
must be paid by check. Delivery shall be deemed effected for all purposes when
the Company or a stock transfer agent of the Company shall have deposited the
certificates in the United States mail, addressed to the optionee, at the
address specified by the Employee.
Whenever an Option is exercised by exchanging shares of Stock owned by
the Employee, the Employee shall deliver to the Company certificates registered
in the name of the Employee representing a number of shares of Stock legally and
beneficially owned by the Employee, free of all liens, claims, and encumbrances
of every kind, accompanied by stock powers duly endorsed in blank by the record
holder of the shares represented by the certificates (with signature guaranteed
by the Company or a commercial bank or trust company or by a brokerage firm
having a membership on a registered national stock exchange). The delivery of
certificates upon the exercise of Options is subject to the condition that the
person exercising the Option provide the Company with the information the
Company might reasonably request pertaining to exercise, sale or other
disposition.
5.6 SUBSTITUTION OPTIONS. Options may be granted under the Plan from
time to time in substitution for stock options held by employees of other
corporations who are about to become employees of or affiliated with the Company
or any Affiliate as the result of a merger or consolidation of the employing
corporation with the Company or any Affiliate, or the acquisition by the Company
or any Affiliate of the assets of the employing corporation, or the acquisition
by the Company or any Affiliate of stock of the employing corporation as the
result of which it becomes an Affiliate of the Company. The terms and conditions
of the substitute Options granted may vary from the terms and conditions set out
in the Plan to the extent the Committee,
6
7
at the time of grant, may deem appropriate to conform, in whole or in part, to
the provisions of the stock options in substitution for which they are granted.
5.7 NO RIGHTS AS STOCKHOLDER. No Employee shall have any rights as a
stockholder with respect to Stock covered by an Option until the date a stock
certificate is issued for the Stock.
5.8 CHANGE OF CONTROL. On a date at least 30 days prior to the
effective date of a Change of Control, any limitations as to the amount
exercisable each year may be modified at the discretion of the Committee so that
all Options from and after such date shall, if the Committee in its discretion
so determines, be exercisable in full. In addition, with respect to any event
described in clauses (i) through (iv) of the definition of Change of Control,
either (a) after the effective date of such Change of Control, each holder of an
outstanding Option shall be entitled, upon exercise of such Option, to receive,
in lieu of shares of Stock, shares of such stock or other securities of the
Company or the surviving or acquiring corporation or such other property at the
same rate per share as the holders of shares of Stock received pursuant to the
Change of Control, or (b) all outstanding Options may be canceled by the Board
as of the effective date of the Change of Control, provided that notice of such
cancellation shall be given to each holder of an Option and each holder of an
Option shall have the right to exercise such Options in full (without regard to
any limitations that might be set forth in the Option Agreement) during a 30-day
period preceding the effective date of the Change of Control.
ARTICLE 6
ADMINISTRATION
The Plan shall be administered by the Committee. All questions of
interpretation and application of the Plan and Options granted hereunder shall
be subject to the determination of the Committee. A majority of the members of
the Committee shall constitute a quorum. All determinations of the Committee
shall be made by a majority of its members at a meeting at which a quorum is
present or by unanimous written consent. Any decision or determination reduced
to writing and signed by a majority of the members shall be as effective as if
it had been made by a majority vote at a meeting properly called and held. In
carrying out its authority under the Plan, the Committee shall have full and
final authority and discretion, including but not limited to the following
rights, powers and authorities, to:
(a) determine the Employees to whom and the time or times at
which Options will be made,
(b) determine the number of shares and the purchase price of
Stock or dollar amount of cash covered in each Option, subject to the
terms of the Plan,
(c) determine the terms, provisions and conditions of each
Option, which need not be identical,
7
8
(d) define the effect, if any, on an Option of the death,
disability, retirement, or termination of employment of the Employee,
(e) prescribe, amend and rescind rules and regulations
relating to administration of the Plan, and
(f) make all other determinations and take all other actions
deemed necessary, appropriate, or advisable for the proper
administration of the Plan.
The Committee may at any time offer to buy out for a payment in cash or
shares of Stock, an Option previously granted, based on such terms and
conditions as the Committee shall establish and communicate to the optionee at
the time that such offer is made; provided, however, that the optionee shall
have no obligation by virtue of this provision to accept the offer.
The actions of the Committee in exercising all of the rights, powers,
and authorities set out in this Article and all other Articles of the Plan, when
performed in good faith and in its sole judgment, shall be final, conclusive and
binding on all parties.
ARTICLE 7
AMENDMENT OR TERMINATION OF PLAN
The Board may amend, terminate or suspend the Plan at any time, in its
sole and absolute discretion; provided, however, that no amendment, suspension
or termination of the Plan shall alter or impair any Option without consent of
the holder thereof.
ARTICLE 8
MISCELLANEOUS
8.1 NO ESTABLISHMENT OF A TRUST FUND. No property shall be set aside
nor shall a trust fund of any kind be established to secure the rights of any
Employee under the Plan. All Employees shall at all times rely solely upon the
general credit of the Company for the payment of any benefit which becomes
payable under the Plan.
8.2 NO EMPLOYMENT OBLIGATION. The granting of any Option shall not
constitute an employment contract, express or implied, nor impose upon the
Company or any Affiliate any obligation to employ or continue to employ any
Employee. The right of the Company or any Affiliate to terminate the employment
of any person shall not be diminished or affected by reason of the fact that an
Option has been granted to him.
8.3 TAX WITHHOLDING. The Company or any Affiliate shall be entitled to
deduct from other compensation payable to each Employee any sums required by
federal, state, or local tax
8
9
law to be withheld with respect to the grant or exercise of an Option, or in
lieu thereof, to retain, or sell without notice, a sufficient number of such
shares to cover the amount required to be withheld. In the alternative, the
Company may require the Employee (or other person exercising the Option) to pay
the sum directly to the employer corporation. If the Employee (or other person
exercising the Option) is required to pay the sum directly, payment in cash or
by check of such sums for taxes shall be delivered on the date of exercise. The
Company shall have no obligation upon exercise of any Option until payment has
been received, unless withholding as of or prior to the date of exercise of
Stock is sufficient to cover all sums due with respect to that exercise of
Stock. The Company and its Affiliates shall not be obligated to advise an
Employee of the existence of the tax or the amount which the employer
corporation will be required to withhold.
8.4 FORFEITURE FOR DISHONESTY. Notwithstanding anything to the contrary
in the Plan, if the Committee finds, after full consideration of the facts
presented on behalf of both the Company and the Employee, that the Employee has
been engaged in fraud, embezzlement, theft, commission of a felony or dishonesty
in the course of his employment by the Company which damaged the Company or an
Affiliate, or for disclosing trade secrets of the Company or an Affiliate, the
Employee shall forfeit all unexercised Options and all exercised Options under
which the Company has not yet delivered the certificates. The decision of the
Committee shall be final. No decision of the Committee, however, shall affect
the finality of the discharge of such Employee by the Company in any manner.
8.5 INDEMNIFICATION OF THE COMMITTEE AND THE BOARD OF DIRECTORS. With
respect to administration of the Plan, the Company shall indemnify each present
and future member of the Committee and the Board of Directors, and each member
of the Committee and the Board of Directors shall be entitled without further
act on his part to indemnity from the Company to the fullest extent allowed
under the Texas Business Corporation Act.
8.6 GENDER. If the context requires, words of one gender when used in
the Plan shall include the others and words used in the singular or plural shall
include the other.
8.7 HEADINGS. Headings of Articles and Sections are included for
convenience of reference only and do not constitute part of the Plan and shall
not be used in construing the terms of the Plan.
8.8 OTHER COMPENSATION PLANS. The adoption of the Plan shall not
preclude the Company from establishing any other forms of incentive or other
compensation for employees of the Company or any Affiliate.
8.9 OTHER OPTIONS. The grant of an Option shall not confer upon the
Employee the right to receive any future or other Options under the Plan,
whether or not Options may be granted to similarly situated Employees, or the
right to receive future Options upon the same terms or conditions as previously
granted.
9
10
8.10 GOVERNING LAW. The provisions of the Plan shall be construed,
administered, and governed under the laws of the State of Texas.
10