Exhibit 4.1
AMENDED AND RESTATED
ENESCO GROUP, INC.
1999 NON-EMPLOYEE DIRECTOR STOCK PLAN
AS OF MAY 19, 2004
1. Purposes.
The purposes of the Amended and Restated Enesco Group, Inc. 1999
Non-Employee Director Stock Plan are (i) to align the interests of the
stockholders of Enesco Group, Inc. (the "Company") and non-employee members of
the Board by increasing their proprietary interest in the Company's growth and
success, (ii) to advance the interests of the Company by attracting and
retaining non-employee directors and (iii) to motivate non-employee directors to
act in the long-term best interests of the Company's stockholders.
2. Definitions.
As used in this Plan, the following words and phrases shall have the
meanings indicated:
(a) "Board" shall mean the Board of Directors of the Company.
(b) "Change in Control" means a Change in Control of a nature that
would, in the opinion of the Company counsel, be required to be reported in
response to Item 6(e) of Schedule 14A of Regulation 14A promulgated under the
Exchange Act; provided that, without limitation, such a Change in Control shall
be deemed to have occurred if: (i) any "Person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act (other than the Company or any
subsidiary of the Company, any trustee or fiduciary holding securities under an
employee benefit plan of the Company or any of its subsidiaries or a corporation
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of the stock of the
Company)) becomes the "beneficial owner" (as defined in Rule 13d-3 of the
Exchange Act), directly or indirectly, of securities of the Company representing
25% or more of the combined voting power of the Company's then outstanding
securities; or (ii) during any period of two consecutive years (not including
any period prior to the effective date of this Plan), individuals who at the
beginning of such period constitute the Board and any new director (other than a
director designated by a Person who has entered into an agreement with the
Company to effect a transaction described in clause (i), (iii), or (iv) of this
paragraph) whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds (2/3) of
the directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
approved cease for any reason to constitute a majority thereof; or (iii) the
stockholders of the Company approve a merger or consolidation of the Company
with any other corporation, other than (A) a merger or consolidation which would
result in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity), in combination with
the ownership of any trustee or other fiduciary holding securities under an
employee benefit plan of the Company, at least 75% of the combined voting power
of the voting securities of the Company or such surviving entity outstanding
immediately after such merger or
consolidation, or (B) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no Person
acquires 25% or more of the combined voting power of the Company's then
outstanding securities; or (iv) the stockholders of the Company approve a plan
of complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the Company's assets.
(c) "Code" shall mean the Internal Revenue Code of 1986, as in effect at
the time of reference, or any successor revenue code which may hereafter be
adopted in lieu thereof and reference to any specific provision of the code
shall refer to corresponding provisions of the Code as it may hereafter be
amended or replaced.
(d) "Committee" shall mean the Compensation and Stock Option Committee
of the Board or any other committee appointed by the Board which is invested by
the Board with the responsibility for the administration of the Plan which
committee shall be composed of not less than three (3) directors of the Company
elected or to be elected as member of the Committee from time to time by the
Board. Each Committee member shall meet any applicable stock exchange
requirements.
(e) "Company" shall mean Enesco Group, Inc., a corporation organized
under the laws of Illinois, or any successor corporation.
(f) "Exchange Act" shall mean the Securities Exchange Act of 1934, as in
effect at the time of reference, or any successor law which may hereafter be
adopted in lieu thereof, and any reference to any specific provisions of the
Exchange Act shall refer to corresponding provisions of the Exchange Act as it
may hereafter be amended or replaced.
(g) "Fair Market Value" shall mean with respect to the Shares, (i) the
closing price of the Shares on the New York Stock Exchange or such other
exchange on which Shares are then traded or admitted to trading, on the last
business day prior to the date on which the value is to be determined, (ii) if
no sale takes place on such day on any such exchange, the average of the last
reported closing bid and asked prices on such day as officially quoted on any
such exchange, or (iii) if the Shares are not then listed or admitted to trading
on any such exchange, the average of the last reported closing bid and asked
prices on such day on the over-the-counter market; provided, however, if there
shall be no public market for the Shares the price shall be the fair market
value determined in good faith by the Board, or the Committee if one has been
appointed, in its discretion, which determination may, but need not, be based on
(i) the advice of an independent financial advisor or (ii) the last known price
per Share paid by a purchaser in an arm's length transaction. For purposes of
(i) above, the National Association of Securities Dealers National Market System
shall be deemed a principal stock exchange. If there shall be a public market
for the Shares, and the foregoing references are unavailable or inapplicable,
then the Fair Market Value shall be determined on the basis of the appropriate
substitute public market price indicator as determined by the Committee, in its
sole discretion.
(h) "Non-Qualified Stock Option" shall mean any Option other than one
that is intended to meet the requirements and contains the limitations and
restrictions set forth in Section 422 of the Code.
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(i) "Option" shall mean the right to purchase the number of Shares
specified in Section 5 of the Plan on the terms and conditions set forth in the
Plan.
(j) "Participant" shall mean a non-employee member of the Board.
(k) "Plan" shall mean this Amended and Restated 1999 Enesco Group, Inc.
Non-Employee Director Stock Plan, as amended from time to time.
(l) "Plan Year" shall mean the calendar year.
(m) "Rule 16b-3" shall mean Rule 16b-3 of the General Rules and
Regulations of the Securities and Exchange Commission as in effect at the time
of reference, or any successor rules or regulations which may hereafter be
adopted in lieu thereof, and any reference to any specific provisions of Rule
16b-3 shall refer to corresponding provisions of Rule 16b-3 as it may hereafter
be amended or replaced.
(n) "Shares" shall mean the common stock of the Company, par value
$0.125 per share.
(o) "Trading Day" shall mean a day on which the Company's common stock
may be traded on a stock exchange or, if the Company's common stock is not
listed on any exchange in the over-the-counter market.
3. Available Shares.
The aggregate number of Shares reserved which may be issued to
Participants pursuant to Sections 4 or 5 of the Plan shall not exceed three
hundred thousand (300,000) Shares, subject to adjustment as provided in Section
6 hereof. Such Shares shall be either authorized and unissued Shares or issued
Shares that have been reacquired by the Company. Any Shares subject to issuance
upon exercise of Options, but which are not issued because of a surrender,
lapse, expiration, forfeiture or termination of any such Option prior to
issuance of the Shares shall once again be available for issuance to
Participants in accordance with the terms of the Plan.
4. Grants of Shares.
An individual who is a Participant on the day following the Annual meeting
of the stockholders of the Company during a Plan Year, commencing in 1999, shall
receive on such day and for such Plan Year a grant of a number of Shares,
increased to the nearest whole Share, having an aggregate Fair Market Value
equal to the dollar amount designated by the Board from time to time for
purposes of this Plan as part of the Board remuneration policy of the Company.
An individual who becomes a Participant at any later time during a Plan Year
shall receive a prorated grant of Shares for that Plan Year in which he or she
becomes a Participant. The grant shall be prorated based on the date the
Participant becomes eligible under the Plan through the end of the Plan Year.
5. Options.
In addition to the grants made to Participants under Section 4 above, each
individual who is a Participant on the day following the Annual meeting of the
stockholders of the Company
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during a Plan Year, commencing in 2004, shall receive an Option on the terms set
forth in this Section 5.
(a) Grant of Options. On the day following each Annual Stockholders'
Meeting, commencing in 2004, each person who is a Participant immediately after
such meeting shall automatically be granted an Option to purchase 2,000 Shares.
All such Options shall be Non-Qualified Stock Options. The price at which each
Share covered by such Options shall be purchased shall be the greater of (i)
100% of the Fair Market Value of the Company's common stock on the date the
Option is granted, or (ii) the par value of the Company's common stock subject
to the Option.
(b) Exercise of Options.
(1) Except as otherwise provided herein, including, without
limitation, the vesting provisions set forth below, an Option granted to
the Participant may be exercised only after six months of continued
service as a Director of the Company following the date the Option is
granted, and only during the continuance of the Participant serving on the
Board and such additional period as is provided for below. The Option may
be exercised by the Participant or his or her guardian or legal
representative(s) during the period that the Participant remains a member
of the Board and with respect to vested Options for a period of three
years thereafter, subject to the conditions of exercise set forth below in
subsection 5(c) and, provided further, that in no event shall the Option
be exercisable more than ten years after the date of grant.
Notwithstanding the foregoing, in the event a Participant is removed as a
member for cause (as defined by the Board) all outstanding Options shall
be forfeited and canceled. Subject to the foregoing, unless determined
otherwise by the Board, the Options will vest on the earlier of (i)
twenty-five percent (25%) of the total number of Shares subject to an
Option will vest and become exercisable on the first four anniversary
dates of the grant, and (ii) as to 50% of the Shares subject to the
Option, if the fair market value of the Shares is at or above 125% of the
exercise price on each of at least ten consecutive Trading Days and, as to
the remaining 50% of the Shares if, at any time at or after the initial
50% of the Shares becomes exercisable, the fair market value of the Shares
is at or above 150% of the exercise price on each of at least ten
consecutive Trading Days.
(2) Notwithstanding the foregoing and subject to the provisions of
Section 5(d), upon the Participant's service as a Director of the Company
terminating at any time for any reason, all outstanding Options granted
within the last six months prior to the Participant's termination shall
thereupon be forfeited by the Participant and canceled by the Company.
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(c) Exercise of Rights Under Options.
(1) Notice of Exercise. A Participant entitled to exercise an
Option shall do so by delivery of a written notice to that effect
specifying the number of Shares with respect to which the Option is being
exercised and any other relevant information the Committee may require.
The notice shall be accompanied by payment in full of the purchase price
of any Shares to be purchased, which payment may be made in cash or, with
the Committee's approval, in Shares held by the Participant for at least
six months and that are held free and clear of all liens and encumbrances
valued at Fair Market Value at the time of exercise or a combination
thereof. No Shares shall be issued upon exercise of an Option until full
payment has been made therefor. All notices or requests provided for
herein shall be delivered to the Company's Secretary, or such other person
as the Committee may designate.
(2) Cashless Exercise Procedures. The Company, in its sole
discretion, may establish procedures whereby a Participant, subject to the
requirements of Rule 16b-3, Regulation T, federal income tax laws, and
other federal, state and local tax and securities laws, can exercise an
Option or a portion thereof without making a direct payment of the
exercise price to the Company; provided, however, that these cashless
exercise procedures shall not apply to any Option granted to a Participant
where the utilization of the cashless exercise procedure would be deemed a
violation of Section 13(k) of the Exchange Act. If the Company so elects
to establish a cashless exercise program, the Company shall determine, in
its sole discretion, and from time to time, such administrative procedures
and policies as it deems appropriate and such procedures and policies
shall be binding on any Participant wishing to utilize the cashless
exercise program.
(d) Acceleration of Options. In the event of a consolidation or merger
in which the Company is not the surviving corporation or of a Change in Control
including, but not limited to, Changes in Control in which the Company is the
surviving corporation, the Board may, in its discretion terminate each Option
outstanding under the provisions of this Section 5 upon consummation of the
merger, consolidation or Change in Control, provided that prior to the effective
date of any such consolidation, merger, or "Change in Control", the Participant
shall be entitled to exercise any outstanding Options in full without regard to
any vesting limitations.
(e) Nontransferability. No Option granted hereunder shall be
transferable other than: (i) by will or the laws of descent and distribution,
and an Option subject to exercise may be exercised, during the lifetime of the
holder of the Option, only by the holder of the Option or in the event of death,
the holder's successor, or in the event of disability, the holder's personal
representative, (ii) as otherwise permitted under Rule 16b-3 under the Exchange
Act from time to time and allowed by the Board, or (iii) pursuant to a qualified
domestic relations order, as defined in the Code or ERISA or the rules
thereunder.
(f) Rights of Holders. The holder of an Option shall not have any rights
as a stockholder with respect to Shares subject to purchase under an Option
except that stockholder rights with respect to any Option shall arise at the
time and to the extent that one or more certificates for such Shares shall be
delivered to the holder upon the due exercise of the Option.
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6. Effect of Certain Changes.
In the event of any stock dividend, stock split, combination or exchange
of shares, recapitalization, reclassification, merger, consolidation,
separation, reorganization, partial or complete liquidation, or similar events,
or in the event of extraordinary cash or non-cash dividends being declared with
respect to the Shares, or other similar transaction having the same effect of
the foregoing, the number and kind of shares available for grant under the Plan
or any Option granted hereunder may be equitably adjusted by the Board, in its
sole discretion, to reflect such event.
7. No Rights to Continuance as Director.
Nothing in the Plan or in any grant made pursuant hereto shall confer upon
any Participant the right to continue to serve as a member of the Board or to be
entitled to any remuneration or benefits not set forth in the Plan, provided,
however, that each Participant shall be entitled to fees for meetings attended,
in accordance with the Board remuneration policy of the Company.
8. Administration.
The Board shall be invested with the responsibility for the administration
of the Plan; provided, however, the Board may appoint a Committee which shall be
invested with the responsibility for the administration of the Plan. The
Committee shall have the authority to make such interpretations and
constructions of the Plan as are necessary to administer the Plan in accordance
with, and subject to, the Plan's provisions. All determinations of the Committee
shall be made by a majority of its members either present in person or
participating by conference telephone at a meeting or by unanimous written
consent. All decisions, determinations and interpretations of the Committee
shall be final and binding on all persons, including the Company, the
Participant (or any person claiming any rights under the Plan from or through
any Participant) and any stockholder of the Company.
9. Taxes.
(a) Right to Withhold Required Taxes. The Company shall have the right
to require a person entitled to receive Shares pursuant to the exercise of an
Option under the Plan to pay the Company the amount of any taxes which the
Company is or will be required to withhold with respect to such Shares before
the certificate for such Shares is delivered pursuant to the Option.
Furthermore, the Company may elect to deduct such taxes from any other amounts
then payable in cash or in Shares or from any other amounts payable any time
thereafter to the Participant.
(b) Participant Election to Withhold Shares. Subject to Board approval,
a Participant may elect to satisfy his tax liability with respect to the
exercise of an Option by having the Company withhold Shares otherwise issuable
upon exercise of the Option; provided, however, that if a Participant is subject
to Section 16(b) of the Exchange Act, such election must satisfy the
requirements of Rule 16b-3.
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10. Amendment and Termination of the Plan.
The Board at any time and from time to time may suspend, terminate, modify
or amend the Plan, provided, however, no amendment to the Plan or any Option may
be made without stockholder approval that increases the maximum number of Shares
subject to the Plan, decreases the price at which Options may be granted, or
increases or decreases any option price after the date of grant and provided
further, that an amendment which requires stockholder approval in order for the
Plan to comply with any law, regulation or stock exchange requirement shall not
be effective unless approved by the requisite vote of stockholders of the
Company. Except as provided in Section 6 hereof, no suspension, termination,
modification or amendment of the Plan may adversely affect any grant previously
made, unless the written consent of the Participant is obtained.
11. Governing Law.
The Plan and the rights of all persons claiming hereunder shall be
construed and determined in accordance with the laws of Illinois without giving
effect to the choice of law principles thereof, except to the extent that such
law is preempted by federal law.
12. Term.
The Plan shall take effect upon approval by the stockholders of the
Company, and shall remain in effect until January 20, 2009 or on such earlier
date if suspended or terminated by the Board, as permitted by law.
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