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EXHIBIT 4.1
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AMERICAN ENTERPRISES, INC. 1991 OFFICERS STOCK OPTION PLAN,
AS AMENDED
1. Purposes.
The AMERICAN ENTERPRISES, INC. 1991 OFFICERS STOCK OPTION PLAN (the
"Plan") is intended to provide the officers of American Enterprises, Inc. (the
"Company") with compensation for prior services rendered and an added incentive
to continue their services to the Company and to induce them to exert their
maximum efforts toward the Company's success. By thus encouraging officers and
promoting their continued association with the Company, the Plan may be expected
to benefit the Company and its Shareholders. The Plan allows the Company to
grant Incentive Stock Options ("ISOs") (as defined in Section 422(b) of the
Internal Revenue Code of 1986, as amended [the "Code"]), Non-Qualified Stock
Options ("NQSOs") not intended to qualify under Section 422(b) of the Code,
Stock Appreciation Rights ("SARs") and Stock Depreciation Rights ("SDRs")
(collectively the "Options").
2. Shares Subject to the Plan.
The total number of shares of Common Stock of the Company, $.01 par value
per share (the "Common Stock"), that may be subject to Options granted under the
Plan shall be 1,500,000 in the aggregate, subject to adjustment as provided in
Paragraph 8 of the Plan; however, the grant of any NQSO to an employee together
with a tandem SAR or SDR shall only require one share of Common Stock available
subject to the Plan to satisfy such joint Option. The Company shall at all times
while the Plan is in force reserve such number of shares of Common Stock as will
be sufficient to satisfy the requirement of outstanding Options granted under
the Plan. In the event any Option granted under the Plan shall expire or
terminate for any reason without having been exercised in full or shall cease
for any reason to be exercisable in whole or in part, the unpurchased shares
subject thereto shall again be available for granting of Options under the Plan.
3. Eligibility.
Options may be granted to officers of the Company or of a "subsidiary" or
"parent" of the Company, as the quoted terms are defined within Section 424 of
the Code. Options may be granted from time to time under the Plan to one or more
officers of the Company, including officers who have previously been granted
Options under the Plan.
4. Administration of the Plan.
The Plan shall be administered by the Board of Directors of the Company as
such Board of Directors may be composed from time to time or by a Stock Option
Committee (the "Committee") comprised of two disinterested persons (the term
"disinterested" having the meaning ascribed to it by Rule 16b-3 of the
Securities Exchange Act of 1934 [the "1934 Act"]) appointed by such Board of
Directors of the Company. As and to the extent authorized by the Board of
Directors of the Company, the Committee may exercise the power and authority
vested in
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the Board of Directors under the Plan. Within the limits of the express
provisions of the Plan, the Board of Directors shall have the authority, in its
discretion, to determine the individuals to whom, and the time or times at
which, Options shall be granted, the character of such Options (whether ISO,
NQSO and/or SAR or SDR in tandem with a NQSO) and the number of shares of Common
Stock to be subject to each Option, and to interpret the Plan, to prescribe,
amend and rescind rules and regulations relating to the Plan, to determine the
terms and provisions of Option agreements that may be entered into in connection
with Options (which need not be identical), subject to the limitation that
agreements granting ISOs must be consistent with requirements for the ISOs being
qualified as "incentive stock options" as provided in Section 422 of the Code,
and to make all other determinations and take all other actions necessary or
advisable for the administration of the Plan. In making such determinations, the
Board of Directors may take into account the nature of the services rendered by
such individuals, their present and potential contributions to the Company's
success, and such other factors as the Board of Directors, in its discretion,
shall deem relevant. The Board of Directors' determinations on the matters
referred to in this paragraph shall be conclusive.
5. Terms of Options.
The Board or the Committee may grant either ISOs or NQSOs or SARs and/or
SDRs in tandem with NQSOs. An ISO or an NQSO enables the optionee to purchase
from the Company, at any time during a specified exercise period, a specified
number of shares of Common Stock at a specified price (the "Option Price"). The
optionee, if granted a SAR in tandem with a NQSO, may receive from the Company,
in lieu of exercising his option to purchase shares pursuant to his NQSO, at one
of the certain specified times during the exercise period of the NQSO as set by
the Board or the Committee, the excess of the fair market value upon such
exercise (as determined in accordance with subparagraph (b) of this Paragraph 5)
of one share of Common Stock over the Option Price per share specified upon
grant of the NQSO/SAR multiplied by the number of shares of Common Stock covered
by the SAR so exercised. The optionee, if granted a SDR in tandem with a NQSO,
may receive from the Company at such date after the optionee's exercise of the
NQSO with which the SDR is in tandem and the SDR itself, which date shall be
determined by the Board or the Committee in its sole discretion, the excess of
the fair market value of one share of Common Stock upon the optionee's exercise
of the NQSO with which the SDR is in tandem over the greater of the (i) fair
market value on the date six months and one day after the exercise of such NQSO
and (ii) the option price paid on the exercise thereof, multiplied by the number
of shares of Common Stock covered by the NQSO/SDR so exercised. The character
and terms of each Option granted under the Plan shall be determined by the Board
of Directors consistent with the provisions of the Plan, including the
following:
(a) An Option granted under the Plan must be granted within 10 years
from the date the Plan is adopted, or the date the Plan is approved by the
Shareholders of the Company, whichever is earlier.
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(b) The Option Price of the shares of Common Stock subject to each ISO
shall not be less than the fair market value of such shares of Common Stock at
the time such ISO is granted. Such fair market value shall be determined by the
Board of Directors and, if the shares of Common Stock are listed on a national
securities exchange or traded on the over-the-counter market, the fair market
value shall be the closing price on such exchange, or the mean of the closing
bid and asked prices of the shares of Common Stock on the over-the-counter
market, as reported by the National Association of Securities Dealers Automated
Quotation System (NASDAQ), the National Association of Securities Dealers OTC
Bulletin Board or the National Quotation Bureau, Inc., as the case may be, on
the day on which the Option is granted or, if there is no closing price or bid
or asked price on that day, the closing price or mean of the closing bid and
asked prices on the most recent day preceding the day on which the Option is
granted for which such prices are available. If an ISO is granted to any
individual who, immediately before the ISO is to be granted, owns (directly or
through attribution) more than 10% of the total combined voting power of all
classes of capital stock of the Company or a subsidiary or parent of the
Company, the Option Price of the shares of Common Stock subject to such ISO
shall not be less than 110% of the fair market value per share of the shares of
Common Stock at the time such ISO is granted.
(c) The Option Price of the shares of Common Stock subject to an NQSO or
a SAR or SDR in tandem with a NQSO granted pursuant to the Plan shall be
determined by the Board of Directors or the Committee, in its sole discretion.
(d) In no event shall any Option granted under the Plan have an
expiration date later than 10 years from the date of its grant, and all Options
granted under the Plan shall be subject to earlier termination as expressly
provided in Paragraph 6 hereof. If an ISO is granted to any individual who,
immediately before the ISO is granted, owns (directly or through attribution)
more that 10% of the total combined voting power of all classes of capital stock
of the Company or of a subsidiary or parent of the Company, such ISO shall by
its terms expire and shall not be exercisable after the expiration of five (5)
years from the date of its grant.
(e) An SAR may be exercised at any time after six months of the date of
the grant thereof during the exercise period of the NQSO with which it is
granted in tandem and prior to the exercise of such NQSO, but only within the
specified 10 business day period referred to in subsection (e)(3) of Rule 16b-3
of the 1934 Act (generally, the 10 business days immediately following the
publication of the Company's quarterly financial information). The exercise of
an SAR granted in tandem with an NQSO shall be deemed to cancel such number of
shares subject to the unexercised Option as were subject to the exercised SAR.
An SDR may be exercised at any time prior to the expiration date of the NQSO
granted in tandem with the SDR and after 6 months from the exercise of the NQSO
granted in tandem with the SDR. The Board or the Committee has discretion to
determine and impose conditions on SDRs such as setting the time of payment at
the date six months and one day following the date of exercise, the date of the
sale of the Common
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Stock received upon the exercise of the NQSO which was granted in tandem with
the SDR, or some other date (but not later than the expiration date of the
option), and reducing the amount of the distribution to take into account
appreciation in the fair market value of the aforementioned Common Stock prior
to the payment of the distribution. The Board or the Committee also has the
discretion to alter the terms of the SDRs if necessary to comply with Federal or
state securities law. Amounts to be paid by the Company in connection with an
SAR or SDR may, in the Board's or the Committee's discretion, be made in cash,
Common Stock or a combination thereof. An NQSO granted in tandem with an SAR or
SDR may not be exercised within six months of the grant thereof.
(f) Unless otherwise provided in any Option agreement under the Plan, an
Option granted under the Plan shall become exercisable, in whole at any time or
in part from time to time, but in no case may an Option (i) be exercised as to
less than one hundred (100) shares of Common Stock at any one time, or the
remaining shares of Common Stock covered by the Option if less than one hundred
(100), and (ii) become fully exercisable more than five years from the date of
its grant nor shall less than 20% of the Option become exercisable in any of the
first five years of the Option.
(g) An Option granted under the Plan shall be exercised by the delivery
by the holder thereof to the Company at its principal office (to the attention
of the Secretary) of written notice of the number of full shares of Common Stock
with respect to which the Option is being exercised, accompanied by payment in
full, in cash or by certified check payable to the order of the Company, of the
Option Price of such shares of Common Stock, or, at the discretion of the
Committee or the Board, by the delivery of shares of Common Stock having a fair
market value equal to the Option Price (provided, in order to qualify as an ISO,
more than one year shall have passed since the date of grant and one year from
the date of exercise), or at the option of the Committee or the Board, by a
combination of cash and such shares (subject to the restriction above) held by
the employee that have a fair market value together with such cash that shall
equal the Option Price, and at the discretion of the Committee or Board by
having the Company withhold from the shares of Common Stock to be issued upon
exercise of the Option that number of shares having a fair market value equal to
the tax withholding amount due, or in the event an employee is granted a NQSO in
tandem with an SAR and/or SDR and desires to exercise such SAR or SDR, such
written notice shall so state such intention.
(h) The holder of an Option shall have none of the rights of a
Shareholder with respect to the shares of Common Stock covered by such holder's
Option until such shares of Common Stock shall be issued to such holder upon the
exercise of the Option.
(i) An ISO granted under the Plan shall not be transferable otherwise
than by will or the laws of descent and distribution, and any ISO granted under
the Plan may be exercised during the lifetime of the
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holder thereof only by the holder. No Option granted under the Plan shall be
subject to execution, attachment or other process.
(j) The aggregate fair market value, determined as of the time any ISO
is granted and in the manner provided for by subparagraph (b) of this Paragraph
5, of the shares of Common Stock with respect to which ISOs granted under the
Plan are exercisable for the first time during any calendar year and under
incentive stock options qualifying as such in accordance with Section 422 of the
Code granted under any other Incentive Stock Option plan maintained by the
Company or its parent or subsidiary corporations, shall not exceed $100,000.
6. Death or Termination of Employment.
(a) If the employment of a holder of an ISO under the Plan shall be
terminated voluntarily by the employee or for cause, such holder's ISO shall
expire within thirty (30) days after such termination. If such employment shall
terminate for any reason other than death, voluntary termination by the employee
or for cause, then such ISO may be exercised at any time within three (3) months
after such termination, subject to the provisions of subparagraph (f) of this
Paragraph 6. For the purposes of this subparagraph (a), the retirement of an
individual either pursuant to a pension or retirement plan adopted by the
Company or at the normal retirement date prescribed from time to time by the
Company shall be deemed to be a termination of such individual's employment
other than voluntarily by the employee or for cause.
(b) If the holder of an ISO under the Plan dies (i) while employed by
the Company or a subsidiary or parent corporation or (ii) within three (3)
months after the termination of such holder's employment other than voluntarily
by the employee or for cause, such ISO may, subject to the provisions of
subparagraph (f) of this Paragraph 6, be exercised by a legatee or legatees of
such Option under such individual's last will or by such individual's personal
representatives or distributees at any time within one year after the
individual's death.
(c) If the employment of a holder of an NQSO or SAR or SDR under the
Plan shall be terminated voluntarily by the employee or for cause, then such
holder's NQSO, SAR or SDR shall expire within thirty (30) days after such
termination. If such employment shall terminate for any reason other than death,
voluntary termination by the employee or for cause, then such NQSO, SAR or SDR
may be exercised at any time within three (3) months after the date of such
termination, subject to the provisions of subparagraph (f) of this Paragraph 6.
For the purposes of this subparagraph (c), the retirement of an individual
either pursuant to a pension or retirement plan adopted by the Company or at the
normal retirement date prescribed from time to time by the Company shall be
deemed to be a voluntary termination of such individual's employment by the
employee.
(d) If the holder of an NQSO, SAR or SDR under the Plan dies (i) while
employed by the Company or a subsidiary or parent corporation
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or (ii) within three (3) months after the termination of his employment either
voluntarily or for cause, such NQSO, SAR or SDR may, subject to the provisions
of subparagraph (f) of this Paragraph 6, be exercised by a legatee or legatees
of such NQSO, SAR or SDR under such individual's last will or by such
individual's personal representatives or distributees at any time within one
year after the individual's death.
(e) If the holder of an Option under the Plan becomes disabled within
the definition of section 104(d) of the Code while employed by the Company or a
subsidiary or parent corporation, such Option may, subject to the provisions of
subparagraph (f) of this Paragraph 6, be exercised at any time within one year
after such holder's termination of employment due to the disability.
(f) An Option may not be exercised pursuant to this Paragraph 6 except
to the extent that the holder was entitled to exercise the Option at the time of
termination of employment or death, and in any event may not be exercised after
the original expiration date of the Option.
7. Leave of Absence.
For the purposes of the Plan, an individual who is on military or sick
leave or other bona fide leave of absence (such as temporary employment by the
Government) shall be considered as remaining in the employ of the Company or of
a subsidiary or parent corporation for ninety (90) days or such longer period as
such individual's right to reemployment is guaranteed either by statute or by
contract.
8. Adjustment Upon Changes in Capitalization.
(a) In the event that the outstanding shares of Common Stock are
hereafter changed by reason of recapitalization, reclassification, stock
split-up, combination or exchange of shares of Common Stock or the like, or by
the issuance of dividends payable in shares of Common Stock, an appropriate
adjustment shall be made by the Board of Directors in the aggregate number of
shares of Common Stock available under the Plan and in the number of shares of
Common Stock and price per share subject to outstanding Options. In the event of
the proposed dissolution, liquidation, merger or sale of substantially all of
the assets of the Company, all outstanding Options under the Plan will
automatically terminate, unless otherwise provided by the Board of Directors.
The Board of Directors or the Committee may in its discretion make provision for
accelerating the exercisability of Options under the Plan in such circumstances.
(b) Any adjustment in the number of shares of Common Stock shall apply
proportionately to only the unexercised portion of the Options granted
hereunder. If fractions of shares of Common Stock would result from any such
adjustment, the adjustment shall be revised to the next lower whole number of
shares of Common Stock.
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9. Further Conditions of Exercise.
(a) Unless the shares of Common Stock issuable upon the exercise of an
Option under the Plan have been registered with the Securities and Exchange
Commission pursuant to the Securities Act of 1933, as amended, prior to the
exercise of the Option, the notice of exercise shall be accompanied by a
representation or agreement of the individual exercising the Option to the
Company to the effect that such shares of Common Stock are being acquired for
investment and not with a view to the resale or distribution thereof or such
other documentation as may be required by the Company, unless in the opinion of
counsel to the Company such representation, agreement or documentation is not
necessary to comply with said Act.
(b) The Company shall not be obligated to deliver any shares of Common
Stock until they have been listed on each securities exchange on which the
shares of Common Stock may then be listed or until there has been qualification
under or compliance with such state or federal laws, rules or regulations as the
Company may deem applicable. The Company shall use reasonable efforts to obtain
such listing, qualification and compliance.
(c) The Board or Committee may make such provisions and take such steps
as it may deem necessary or appropriate for the withholding of any taxes that
the Company is required by any law or regulation of any governmental authority,
whether federal, state or local, domestic or foreign, to withhold in connection
with the exercise of any Option, including, but not limited to, (i) the
withholding of payment of all or any portion of such Option and/or SAR and/or
SDR until the holder reimburses the Company for the amount the Company is
required to withhold with respect to such taxes, or (ii) the cancelling of any
number of shares of Common Stock issuable upon exercise of such Option and/or
SAR and/or SDR in an amount sufficient to reimburse the Company for the amount
it is required to so withhold, or (iii) the selling of any property contingently
credited by the Company for the purpose of exercising such Option, in order to
withhold or reimburse the Company for the amount it is required to so withhold.
10. Termination, Modification and Amendment.
The Plan (but not Options previously granted under the Plan) shall
terminate ten (10) years from the earliest of the date of its adoption by the
Board of Directors, or the date the Plan is approved by the Shareholders of the
Company, or such date of termination, as hereinafter provided, and no Option
shall be granted after termination of the Plan.
The Plan may from time to time be terminated, modified or amended by the
affirmative vote of the holders of a majority of the outstanding shares of
capital stock of the Company entitled to vote thereon.
The Board of Directors of the Company may at any time, prior to ten (10)
years from the earlier of the date of the adoption of the
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Plan by such Board of Directors or the date the Plan is approved by the
Shareholders, terminate the Plan or from time to time make such modifications or
amendments of the Plan as it may deem advisable; provided, however, that the
Board of Directors shall not, without approval by the affirmative vote of the
holders of a majority of the outstanding shares of capital stock of the Company
entitled to vote thereon, increase (except as provided by Paragraph 8) the
maximum number of shares of Common Stock as to which Options may be granted
under the Plan, materially change the standards of eligibility under the Plan or
materially increase the benefits which may accrue to participants under the
Plan. Any amendment to the Plan which, in the opinion of counsel to the Company,
will be deemed to result in the adoption of a new Plan, will not be effective
until approved by the affirmative vote of the holders of a majority of the
outstanding shares of capital stock of the Company entitled to vote thereon.
No termination, modification or amendment of the Plan may adversely affect
the rights under any outstanding Option without the consent of the individual to
whom such Option shall have been previously granted.
11. Effective Date of the Plan.
The Plan shall become effective upon adoption by the Board of Directors of
the Company. The Plan shall be subject to approval by the affirmative vote of
the holders of a majority of the outstanding shares of capital stock of the
Company entitled to vote thereon.
12. Not a Contract of Employment.
Nothing contained in the Plan or in any option agreement executed pursuant
hereto shall be deemed to confer upon any individual to whom an Option is or may
be granted hereunder any right to remain in the employ of the Company or of a
subsidiary or parent of the Company or in any way limit the right of the
Company, or of any parent or subsidiary thereof, to terminate the employment of
any employee.
13. Other Compensation Plans.
The adoption of the Plan shall not affect any other stock option plan,
incentive plan or any other compensation plan in effect for the officers of the
Company, nor shall the Plan preclude the Company from establishing any other
form of stock option plan, incentive plan or any other compensation plan for
officers of the Company.
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