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EXHIBIT 10.1
AUTOMOTIVE ONE PARTS STORES, INC.
1997 STOCK OPTION PLAN
1. Purpose. The purpose of this Plan is to advance the interests of
Automotive One Parts Stores, Inc., a Florida corporation (the "Company"), by
providing an additional incentive to attract, retain and motivate qualified and
competent persons who are key to the Company and its Subsidiaries, including
employees, officers and directors, and upon whose efforts and judgment the
success of the Company is largely dependent, through the encouragement of stock
ownership in the Company by such persons.
2. Definitions. As used herein, the following terms shall have the
meaning indicated:
(a) "Affiliate" shall mean any corporation other than the
Company that is a member of an affiliated group of corporations, as defined in
Section 1504 (determined without regard to Section 1504(b)) of the Code, of
which the Company is a member.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
amended.
(d) "Committee" shall mean the committee appointed pursuant to
Section 13 hereof to administer the Plan.
(e) "Common Stock" shall mean the Company's Common Stock, par
value $0.01 per share.
(f) "Company" shall refer to Automotive One Parts Stores, Inc.
(g) "Covered Employee" shall mean any individual who, on the
last day of the taxable year of the Company, is (i) the Chief Executive Officer
of the Company or is acting in such capacity (the "CEO"), (ii) among the four
highest compensated officers of the Company and its Affiliates (other than the
CEO), or (iii) otherwise considered to be a "Covered Employee" within the
meaning of Section 162(m) of the Code and the regulations thereunder.
(h) "Director" shall mean a member of the Board or of the
Board of Directors of any Subsidiary.
(i) "Effective Date" shall mean May ___, 1997.
(j) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(k) "Fair Market Value" of a Share on any date of reference
shall be the "Closing Price" (as defined below) of the Common Stock on the
business day immediately preceding such date, unless the Committee in its sole
discretion shall determine otherwise in a fair and uniform manner. For the
purpose of determining Fair Market Value, the "Closing Price" of the Common
Stock on any business day shall be (i) if the Common Stock is listed or admitted
for trading on any United States
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national securities exchange, or if actual transactions are otherwise reported
on a consolidated transaction reporting system, the last reported sale price of
Common Stock on such exchange or reporting system, as reported in any newspaper
of general circulation, (ii) if the Common Stock is quoted on the National
Association of Securities Dealers Automated Quotations System ("Nasdaq"), or any
similar system of automated dissemination of quotations of securities prices in
common use, the last reported sale price of Common Stock for such day on such
system, or (iii) if neither clause (i) or (ii) is applicable, the mean between
the high bid and low asked quotations for the Common Stock as reported by the
National Quotation Bureau, Incorporated if at least two securities dealers have
inserted both bid and asked quotations for Common Stock on at least five of the
ten preceding days. If neither (i), (ii), or (iii) above is applicable, then
Fair Market Value shall be determined in good faith by the Committee in a fair
and uniform manner.
(l) "Incentive Stock Option" shall mean an incentive stock
option as defined in Section 422 of the Code.
(m) "Non-Employee Director" shall refer to a Director who is
not an employee of the Company or any Subsidiary.
(n) "Non-Qualified Stock Option" shall mean an Option which is
not an Incentive Stock Option.
(o) "Option" (when capitalized) shall mean any option granted
under this Plan.
(p) "Optionee" shall mean a person to whom a stock option is
granted under this Plan or any person who succeeds to the rights of such person
under this Plan by reason of the death of such person or otherwise.
(q) "Outside Director" shall mean a member of the Board who
(i) is not a current employee of the Company or any Affiliate, (ii) is not a
former employee of the Company or any Affiliate who receives compensation for
prior services (other than benefits under a tax-qualified retirement plan)
during the taxable year; (iii) has not been an officer of the Company or any
Affiliate; (iv) does not receive remuneration either directly or indirectly, in
any capacity other than as a director; and (v) satisfies any other conditions
that shall from time to time be required to qualify as an "outside director"
under Section 162(m) of the Code and the regulations thereunder and as a
"Non-Employee Director" under Rule 16b-3 promulgated under the Exchange Act. For
this purpose, "Remuneration" shall have the meaning afforded that term pursuant
to Treasury Regulations issued under Section 162(m) of the Code, and shall
exclude any de minimis remuneration excluded under those Treasury Regulations.
(r) "Plan" shall mean this 1997 Stock Option Plan for the
Company.
(s) "Share(s)" shall mean a share or shares of the Common
Stock.
(t) "Subsidiary" shall mean any corporation (other than the
Company) in any unbroken chain of corporations beginning with the Company if, at
the time of the granting of the Option, each of the corporations other than the
last corporation in the unbroken chain owns stock possessing 50 percent or more
of the total combined voting power of all classes of stock in one of the other
corporations in such chain.
3. Shares and Options. The Committee may grant to Optionees from time
to time, Options to purchase an aggregate of up to 500,000 Shares from
authorized and unissued Shares. If any Option granted under the Plan shall
terminate, expire, or be canceled or surrendered as to any Shares, new Options
may thereafter be granted covering such Shares. An Option granted hereunder
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shall be either an Incentive Stock Option or a Non-Qualified Stock Option as
determined by the Committee at the time of the grant of such Option and shall
clearly state whether it is an Incentive Stock Option or Non-Qualified Stock
Option. All Incentive Stock Options shall be granted within 10 years from the
effective date of this Plan.
4. Dollar Limitation. Options otherwise qualifying as Incentive Stock
Options hereunder will not be treated as Incentive Stock Options to the extent
that the aggregate Fair Market Value (determined at the time the Option is
granted) of the Shares, with respect to which Options meeting the requirements
of Code Section 422(b) are exercisable for the first time by any individual
during any calendar year (under all plans of the Company and any Subsidiary),
exceeds $100,000.
5. Conditions for Grant of Options.
(a) Each Option shall be evidenced by an option agreement that
may contain any term deemed necessary or desirable by the Committee, provided
such terms are not inconsistent with this Plan or any applicable law. Optionees
shall be those persons selected by the Committee who are employees and/or
Directors of the Company or any Subsidiary.
(b) In granting Options, the Committee shall take into
consideration the contribution the person has made to the success of the Company
or its Subsidiaries and such other factors as the Committee shall determine. The
Committee shall also have the authority to consult with and receive
recommendations from officers and other personnel of the Company and its
Subsidiaries with regard to these matters. The Committee may, from time to time
in granting Options, prescribe such other terms and conditions concerning such
Options as it deems appropriate, including, without limitation, (i) prescribing
the date or dates on which the Option becomes exercisable, (ii) providing that
the Option rights accrue or become exercisable in installments over a period of
years, and/or upon the attainment of stated goals, or (iii) relating an Option
to the continued employment of the Optionee for a specified period of time,
provided that such terms and conditions are not more favorable to an Optionee
than those expressly permitted herein.
(c) The Options granted to employees under this Plan shall be
in addition to regular salaries, pension, life insurance or other benefits
related to their employment with the Company or its Subsidiaries. Neither the
Plan nor any Option granted under the Plan shall confer upon any person any
right to employment or continuance of employment by the Company or its
Subsidiaries.
(d) Notwithstanding any other provisions of the Plan to the
contrary, an Incentive Stock Option shall not be granted to any person owning
directly or indirectly (through attribution under Section 424(d) of the Code) at
the date of grant, stock possessing more than 10% of the total combined voting
power of all classes of stock of the Company (or of its parent or subsidiary, as
those terms are defined in Section 424 of the Code, at the date of grant) unless
the option price of such Option is at least 110% of the Fair Market Value of the
Shares subject to such Option on the date the Option is granted, and such Option
by its terms is not exercisable after the expiration of five years from the date
such Option is granted.
(e) Notwithstanding any other provision of this Plan, and in
addition to any other requirements of this Plan, the aggregate number of Shares
with respect to which Options may be granted to any one Optionee may not exceed
100,000, subject to adjustment as provided in Section 10(a) hereof.
(f) Notwithstanding any other provision of this Plan, and in
addition to any other requirements of this Plan, Options may not be granted to a
Covered Employee unless the grant of such Option is authorized by, and all of
the terms of such Options are determined by, a Committee that is appointed in
accordance with Section 13 of this Plan and all of whose members are Outside
Directors.
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(g) Incentive Stock Options may not be granted to any
Non-Employee Directors.
6. Option Price. The option price per Share of any Option shall be any
price determined by the Committee, but shall not be less than the par value per
Share; provided, however, that in no event shall the option price per Share of
any Incentive Stock Option be less than the Fair Market Value of the Shares
underlying such Option on the date such Option is granted.
7. Exercise of Options. An Option shall be deemed exercised when (i)
the Company or the Committee has received written notice of such exercise in
accordance with the terms of the Option, (ii) full payment of the aggregate
option price of the Shares as to which the Option is exercised has been made,
and (iii) arrangements that are satisfactory to the Committee in its sole
discretion have been made for the Optionee's payment to the Company of the
amount that is necessary for the Company or Subsidiary employing the Optionee to
withhold in accordance with applicable Federal or state tax withholding
requirements. Unless further limited by the Committee in any Option, the option
price of any Shares purchased shall be paid (1) in cash, (2) by certified or
official bank check, (3) by money order, (4) with Shares owned by the Optionee
that have been owned by the Optionee for more than 6 months on the date of
surrender or such other period as may be required to avoid a charge to the
Company's earnings for financial accounting purposes, (5) by authorization for
the Company to withhold Shares issuable upon exercise of the Option, (6) by
arrangement with a broker that is acceptable to the Committee where payment of
the Option price is made pursuant to an irrevocable direction to the broker to
deliver all or part of the proceeds from the sale of the Option Shares to the
Company in payment of the Option price, or (7) any combination of the foregoing.
The Committee in its sole discretion may accept a personal check in full or
partial payment of any Shares. If the exercise price is paid in whole or in part
with Shares, the value of the Shares surrendered shall be their Fair Market
Value on the date the Option is exercised. The Company in its sole discretion
may, on an individual basis or pursuant to a general program established in
connection with this Plan, and subject to applicable law, lend money to an
Optionee, guarantee a loan to an Optionee, or otherwise assist an Optionee to
obtain the cash necessary to exercise all or a portion of an Option granted
hereunder or to pay any tax liability of the Optionee attributable to such
exercise. If the exercise price is paid in whole or part with Optionee's
promissory note, such note shall (i) provide for full recourse to the maker,
(ii) be collateralized by the pledge of the Shares that the Optionee purchases
upon exercise of such Option, (iii) bear interest at a rate no less than the
prime rate of the Company's principal lender, and (iv) contain such other terms
as the Board in its sole discretion shall reasonably require. No Optionee shall
be deemed to be a holder of any Shares subject to an Option unless and until a
stock certificate or certificates for such Shares are issued to such person(s)
under the terms of this Plan. No adjustment shall be made for dividends
(ordinary or extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to the date
such stock certificate is issued, except as expressly provided in Section 10
hereof.
8. Exercisability of Options. Except as otherwise provided in this
Section 8, any Option shall become exercisable in such amounts, at such
intervals and upon such terms as the Committee shall provide in such Option.
(a) The expiration date of an Option shall be determined by
the Committee at the time of grant, but in no event shall an Option be
exercisable after the expiration of 10 years from the date on which the Option
is granted.
(b) Unless otherwise provided in any Option, each outstanding
Option shall become immediately fully exercisable:
(i) if there occurs any transaction (which shall
include a series of transactions occurring within 60 days or
occurring pursuant to a plan), that has the
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result that stockholders of the Company immediately before
such transaction cease to own at least 51% of the voting stock
of the Company or of any entity that results from the
participation of the Company in a reorganization,
consolidation, merger, liquidation or any other form of
corporate transaction;
(ii) if the stockholders of the Company shall
approve a plan of merger, consolidation, reorganization,
liquidation or dissolution in which the Company does not
survive (unless the approved merger, consolidation,
reorganization, liquidation or dissolution is subsequently
abandoned); or
(iii) if the stockholders of the Company shall
approve a plan for the sale, lease, exchange or other
disposition of all or substantially all the property and
assets of the Company (unless such plan is subsequently
abandoned).
(c) The Committee may in its sole discretion accelerate the
date on which any Option may be exercised and may accelerate the vesting of any
Shares subject to any Option.
9. Termination of Option Period.
(a) The unexercised portion of any Option granted to an
Optionee shall automatically and without notice terminate and become null and
void at the time of the earliest to occur of the following:
(i) three months after the date on which the
Optionee's employment with the Company or any Subsidiary, or
service as a Director, is terminated or, in the case of a
Non-Qualified Stock Option and unless the Committee shall
otherwise determine in writing in its sole discretion, the
date on which the Optionee's employment with the Company or
any Subsidiary, or service as a Director, is terminated, in
either case for any reason other than by reason of (A) Cause,
which shall mean "Cause" under such Optionee's employment
agreement, if any, and which, solely for purposes of this
Plan, also shall mean the termination of the Optionee's
employment or the removal of the Optionee as a Director by
reason of the Optionee's willful misconduct or gross
negligence, (B) the Optionee's mental or physical disability
(within the meaning of Code Section 22(e)) as determined by a
medical doctor satisfactory to the Committee, or (C) the
Optionee's death;
(ii) immediately upon the termination of the
Optionee's employment with the Company or any Subsidiary, or
service as a Director, for Cause;
(iii) twelve months after the date on which the
Optionee's employment with the Company or any Subsidiary, or
service as a Director is terminated by reason of mental or
physical disability (within the meaning of Code Section 22(e))
as determined by a medical doctor satisfactory to the
Committee; or
(iv) (A) twelve months after the date of the
Optionee's death or (B) three months after the date of the
Optionee's death if such death shall occur during the twelve
month period specified in Subsection 10(a)(iii) hereof.
(b) The Board or the Committee in its sole discretion may by
giving written notice (the "Cancellation Notice") cancel, effective upon the
date of the consummation of any corporate transaction described in Subsections
8(b)(ii) or (iii) hereof, any Option that remains unexercised on such date. Such
Cancellation Notice shall be given a reasonable period of time prior to the
proposed date of such cancellation and may be given either before or after
approval of such corporate
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transaction.
10. Adjustment of Shares.
(a) If at any time while the Plan is in effect or unexercised
Options are outstanding, there shall be any increase or decrease in the number
or change in the nature of issued and outstanding Shares through the declaration
of a stock dividend or through any recapitalization resulting in a stock
split-up, combination or exchange of Shares, then and in such event:
(i) appropriate adjustment shall be made by the
Committee in the maximum number of Shares available for grant
under the Plan, and to any one Optionee, so that the same
percentage of the Company's issued and outstanding Shares
shall continue to be subject to being so optioned; and
(ii) appropriate adjustment shall be made by the
Committee in the number of Shares and the exercise price per
Share thereof then subject to any outstanding Option, so that
the same percentage of the Company's issued and outstanding
Shares shall remain subject to purchase at the same aggregate
exercise price.
(b) Unless otherwise provided in any Option or determined by
the Committee, the Committee may change the terms of Options outstanding under
this Plan, including with respect to the option price or the number of Shares
subject to the Options, or both, when, in the Committee's sole discretion, such
adjustments become appropriate by reason of a corporate transaction described in
Subsections 8(b)(ii) or (iii) hereof.
(c) Except as otherwise expressly provided herein, the
issuance by the Company of shares of its capital stock of any class, or
securities convertible into shares of capital stock of any class, either in
connection with direct sale or upon the exercise of rights or warrants to
subscribe therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made with respect to the number of or
exercise price of Shares then subject to outstanding Options granted under the
Plan.
(d) Without limiting the generality of the foregoing, the
existence of outstanding Options granted under the Plan shall not affect in any
manner the right or power of the Company to make, authorize or consummate (i)
any or all adjustments, recapitalizations, reorganizations or other changes in
the Company's capital structure or its business; (ii) any merger or
consolidation of the Company; (iii) any issue by the Company of debt securities
or preferred or preference stock that would rank above the Shares subject to
outstanding Options; (iv) the dissolution or liquidation of the Company; (v) any
sale, transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
11. Transferability of Options and Shares.
(a) No Incentive Stock Option, and unless the Committee's
prior written consent is obtained (which consent may be obtained at the time an
Option is granted) and the transaction does not violate the requirements of Rule
16b-3 promulgated under the Exchange Act no Non-Qualified Stock Option, shall be
subject to alienation, assignment, pledge, charge or other transfer other than
by the Optionee by will or the laws of descent and distribution, and any attempt
to make any such prohibited transfer shall be void. Each Option shall be
exercisable during the Optionee's lifetime only by the Optionee, or in the case
of a Non-Qualified Stock Option that has been assigned or otherwise transferred
with the Committee's prior written consent, only by the assignee consented to by
the Committee.
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(b) Unless the Committee's prior written consent is obtained
(which consent may be obtained at the time an Option is granted) and the
transaction does not violate the requirements of Rule 16b-3 promulgated under
the Exchange Act, no Shares acquired by an Officer, as that term is defined
under Rule 16b-3, of the Company or Director pursuant to the exercise of an
Option may be sold, assigned, pledged or otherwise transferred prior to the
expiration of the six-month period following the date on which the Option was
granted.
12. Issuance of Shares.
(a) Notwithstanding any other provision of this Plan, the
Company shall not be obligated to issue any Shares unless it is advised by
counsel of its selection that it may do so without violation of the applicable
Federal and State laws pertaining to the issuance of securities, and may require
any stock so issued to bear a legend, may give its transfer agent instructions,
and may take such other steps, as in its judgment are reasonably required to
prevent any such violation.
(b) As a condition of any sale or issuance of Shares upon
exercise of any Option, the Committee may require such agreements or
undertakings, if any, as the Committee may deem necessary or advisable to assure
compliance with any such law or regulation including, but not limited to, the
following:
(i) a representation and warranty by the
Optionee to the Company, at the time any Option is exercised,
that he is acquiring the Shares to be issued to him for
investment and not with a view to, or for sale in connection
with, the distribution of any such Shares; and
(ii) a representation, warranty and/or agreement
to be bound by any legends that are, in the opinion of the
Committee, necessary or appropriate to comply with the
provisions of any securities law deemed by the Committee to be
applicable to the issuance of the Shares and are endorsed upon
the Share certificates.
13. Administration of the Plan.
(a) The Plan shall be administered by the Committee, which
shall consist of not less than two Directors, each of whom shall be Outside
Directors. The Committee shall have all of the powers of the Board with respect
to the Plan. Any member of the Committee may be removed at any time, with or
without cause, by resolution of the Board, and any vacancy occurring in the
membership of the Committee may be filled by appointment of the Board.
(b) The Board may reserve to itself the power to grant Options
to employees or Directors of the Company or any Subsidiary who are not Covered
Employees. If and to the extent that the Board reserves such powers, then all
references herein to the Committee shall refer to the Board with respect to the
Options granted by the Board.
(c) The Committee, from time to time, may adopt rules and
regulations for carrying out the purposes of the Plan. The Committee's
determinations and its interpretation and construction of any provision of the
Plan shall be final and conclusive.
(d) Any and all decisions or determinations of the Committee
shall be made either (i) by a majority vote of the members of the Committee at a
meeting or (ii) without a meeting by the unanimous written approval of the
members of the Committee.
14. Withholding or Deduction for Taxes. If at any time specified herein
for the making of
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any issuance or delivery of any Option or Common Stock to any Optionee, any law
or regulation of any governmental authority having jurisdiction in the premises
shall require the Company to withhold, or to make any deduction for, any taxes
or take any other action in connection with the issuance or delivery then to be
made, such issuance or delivery shall be deferred until such withholding or
deduction shall have been provided for by the Optionee or beneficiary, or other
appropriate action shall have been taken.
15. Interpretation.
(a) As it is the intent of the Company that the Plan comply in
all respects with Rule 16b-3 promulgated under the Exchange Act ("Rule 16b-3"),
any ambiguities or inconsistencies in construction of the Plan shall be
interpreted to give effect to such intention, and if any provision of the Plan
is found not to be in compliance with Rule 16b-3, such provision shall be deemed
null and void to the extent required to permit the Plan to comply with Rule
16b-3. The Board and the Committee each may from time to time adopt rules and
regulations under, and amend, the Plan in furtherance of the intent of the
foregoing.
(b) The Plan shall be administered and interpreted so that all
Incentive Stock Options granted under the Plan will qualify as Incentive Stock
Options under section 422 of the Code. If any provision of the Plan should be
held invalid for the granting of Incentive Stock Options or illegal for any
reason, such determination shall not affect the remaining provisions hereof, but
instead the Plan shall be construed and enforced as if such provision had never
been included in the Plan.
(c) This Plan shall be governed by the laws of the State of
Florida.
(d) Headings contained in this Plan are for convenience only
and shall in no manner be construed as part of this Plan.
(e) Any reference to the masculine, feminine, or neuter gender
shall be a reference to such other gender as is appropriate.
16. Amendment and Discontinuation of the Plan. The Board and the
Committee each may from time to time amend the Plan or any Option; provided,
however, that, except to the extent provided in Section 10, no such amendment
may, without approval by the stockholders of the Company, (i) increase the
number of securities which may be issued under the Plan pursuant to the exercise
of Incentive Stock Options, (ii) modify the requirements as to eligibility for
participation in the Plan or (iii) increase the aggregate number of Options that
may be granted to any one Optionee; and provided further, that, except to the
extent provided in Section 9, no amendment or suspension of the Plan or any
Option issued hereunder shall substantially impair any Option previously granted
to any Optionee without the consent of such Optionee. Shareholder approval also
shall be required for any amendment to the Plan if and to the extent such
approval is required by any federal or state law or regulation or the rules of
any stock exchange or automated quotation system on which the Common Stock may
then be listed or quoted.
17. Effective Date and Termination Date. The Plan shall be effective
upon the Effective Date and shall terminate on the 10th anniversary of the
Effective Date.
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