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Exhibit 4(c)
ACORN PRODUCTS, INC.
SECOND AMENDED AND RESTATED
1997 NONEMPLOYEE DIRECTOR STOCK OPTION PLAN
1. ESTABLISHMENT AND PURPOSE OF THE PLAN. This 1997 Nonemployee
Director Stock Option Plan (the "Plan") is established by Acorn Products, Inc.,
a Delaware corporation (the "Company"), as of December 9, 1997, as may be
amended from time to time. The Plan is designed to enable the Company to attract
and retain persons to serve as nonemployee directors of the Company, UnionTools,
Inc., a Delaware corporation ("UnionTools"), or the Company's other direct and
indirect subsidiaries. The Plan provides for the grant of options ("Options")
that do not qualify as incentive stock options under Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code"), for the grant of stock
appreciation rights ("Stock Appreciation Rights") and for the sale or grant of
restricted stock ("Restricted Stock").
2. STOCK SUBJECT TO THE PLAN. The maximum number of shares of stock
that may be subject to Options or Stock Appreciation Rights granted hereunder
and the number of shares of stock that may be sold as Restricted Stock
hereunder, shall not in the aggregate exceed 500,000 shares of common stock,
$0.001 par value (the "Shares," and individually, a "Share"), of the Company,
subject to adjustment under Section 11 hereof. Anything contained herein to the
contrary notwithstanding, the aggregate number of Shares with respect to which
Options or stock appreciation rights may be granted during any calendar year to
any individual shall be limited to 500,000. The Shares that may be subject to
Options granted under the Plan, and Restricted Stock sold or granted under the
Plan, may be authorized and unissued Shares or Shares reacquired by the Company
and held as treasury stock.
Shares that are subject to the unexercised portions of any Options that
expire, terminate or are canceled, and Shares that are not required to satisfy
the exercise of any Stock Appreciation Rights that expire, terminate or are
canceled, and Shares of Restricted Stock that are reacquired by the Company
pursuant to the restrictions thereon, may again become available for the grant
of Options or Stock Appreciation Rights and the sale or grant of Restricted
Stock under the Plan. If a Stock Appreciation Right is exercised, any Option or
portion thereof that is surrendered in connection with such exercise shall
terminate and the Shares theretofore subject to the Option or portion thereof
shall not be available for further use under the Plan.
3. ADMINISTRATION OF THE PLAN. The Plan shall be administered by the
Management Development and Compensation Committee (the "Committee") consisting
of not less than two members appointed by the Board of Directors (the "Board")
of the Company. If no persons are designated by the Board to serve on the
Committee, the Plan shall be administered by the Board and all references herein
to the Committee shall refer to the Board. From time to time, the Board shall
have the discretion to add, remove or replace members of the Committee and shall
have the sole authority to fill vacancies on the Committee. All actions of the
Committee shall comply with the provisions of Rule 16b-3 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and Section 162(m) of the
Code.
All actions of the Committee shall be authorized by a majority vote
thereof at a duly called meeting. The Committee shall have the sole authority,
in its absolute discretion, to adopt, amend, and rescind such rules and
regulations as, in its opinion, may be advisable in the administration of the
Plan, to construe and interpret the Plan, the rules and regulations, and the
agreements and other instruments evidencing Options and Stock Appreciation
Rights granted and Restricted Stock sold or granted under the Plan and to make
all other determinations deemed necessary or advisable for the administration of
the Plan. All decisions, determinations, and interpretations of the Committee
shall be final and conclusive upon the Eligible Directors, as hereinafter
defined. Notwithstanding the foregoing, any dispute arising under any Agreement
(as defined below) shall be resolved pursuant to the dispute resolution
mechanism (if any) set forth in such Agreement.
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Subject to the express provisions of the Plan, the Committee shall
determine the number of Shares subject to grants or sales and the terms thereof,
including the provisions relating to the exercisability of Options and Stock
Appreciation Rights, lapse and non-lapse restrictions upon the Shares obtained
or obtainable under the Plan and the termination and/or forfeiture of Options
and Stock Appreciation Rights and Restricted Stock under the Plan. The terms
upon which Options and Stock Appreciation Rights are granted and Restricted
Stock is sold or granted shall be evidenced by a written agreement executed by
the Company and the Participant (as defined below) to whom such Options, Stock
Acquisition Rights and Restricted Stock are sold or granted (the "Agreement").
4. ELIGIBILITY. Persons who shall be eligible for grants of Options or
Stock Appreciation Rights or sales or grants of Restricted Stock hereunder
("Eligible Directors") shall be directors of the Company who are not employees
of the Company, UnionTools or the Company's other direct or indirect
subsidiaries ("Participant").
5. TERMS AND CONDITIONS OF OPTIONS. No Option shall be granted for a
term of more than ten years and thirty days. Options may, in the discretion of
the Committee, be granted with associated Stock Appreciation Rights or be
amended so as to provide for associated Stock Appreciation Rights. The Agreement
may contain such other terms, provisions and conditions as may be determined by
the Committee as long as such terms, conditions and provisions are not
inconsistent with the Plan.
6. EXERCISE PRICE OF OPTIONS. The exercise price per share for each
Option granted hereunder shall be set forth in the Agreement. Payment for Shares
purchased upon exercise of any Option granted hereunder shall be in cash at the
time of exercise, except that, if either the Agreement so provides or the
Committee so permits, and if the Company is not then prohibited from purchasing
or acquiring Shares, such payment may be made in whole or in part with Shares.
The Committee also may on an individual basis permit payment or agree to permit
payment by such other alternative means as may be lawful, including by delivery
of an executed exercise notice together with irrevocable instructions to a
broker promptly to deliver to the Company the amount of sale or loan proceeds
required to pay the exercise price.
7. DETERMINATION OF FAIR MARKET VALUE. The Fair Market Value of a Share
for the purposes of the Plan shall mean the average of the high and low sale
prices of a Share on the date such determination is required herein, or if there
were no sales on such date, the average of the closing bid and asked prices, as
reported on the principal United States securities exchange on which the Shares
are listed or, in the absence of such listing, on the Nasdaq SmallCap Market or,
if Shares are not at the time listed on a national securities exchange or traded
on the Nasdaq SmallCap Market, the value of a Share on such date as determined
in good faith by the Committee.
8. NON-TRANSFERABILITY. Except to the extent provided otherwise in the
Agreement, any Option granted under the Plan shall by its terms be
nontransferable by the Participant other than by will or the laws of descent and
distribution (in which case such descendant or beneficiary shall be subject to
all terms of the Plan applicable to Participants) and is exercisable during the
Participant's lifetime only by the Participant or by the Participant's guardian
or legal representative.
9. STOCK APPRECIATION RIGHTS. The Committee may, under such terms and
conditions as it deems appropriate, grant to any Eligible Director selected by
the Committee, Stock Appreciation Rights, which may or may not be associated
with Options. Upon exercise of a Stock Appreciation Right, the Participant shall
be entitled to receive payment of an amount equal to the excess of the Fair
Market Value of the underlying Shares on the date of exercise over the exercise
price of the Stock Appreciation Rights. Such payment may be made in additional
Shares valued at their Fair Market Value on the date of exercise or in cash, or
partly in Shares and partly in cash, as the Committee may designate. The
Committee may require that any Stock Appreciation Right shall be subject to the
condition that the Committee may at any time, in its absolute discretion, not
allow the exercise of such Stock Appreciation Right. The Committee may further
impose such conditions on the exercise of Stock Appreciation Rights as may be
necessary or desirable to comply with Rule 16b-3 under the Exchange Act.
10. RESTRICTED STOCK. The Committee may sell or grant Restricted Stock
under the Plan (either independently or in connection with the exercise of
options or Stock Appreciation Rights under the Plan) to Eligible Directors
selected by the Committee. The Committee shall in each case determine the number
of Shares of
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Restricted Stock to be sold or granted, the price at which such Shares are to be
sold, if applicable, and the terms or duration of the restrictions to be imposed
upon those Shares.
11. ADJUSTMENTS. If at any time the class of Shares subject to the Plan
is changed into or exchanged for a different number or kind of shares or
securities, as the result of any one or more reorganizations, recapitalizations,
stock splits, reverse stock splits, stock dividends or similar events, or in the
event of a rights offering to purchase Shares at a price substantially below
Fair Market Value, an appropriate adjustment consistent with such change,
exchange or offering shall be made in the number, exercise or sale price and/or
type of shares or securities for which Options or Stock Appreciation Rights may
thereafter be granted and Restricted Stock may thereafter be sold or granted
under the Plan in such manner as the Committee may deem equitable to prevent
substantial dilution or enlargement of the rights granted to, or available for,
participants in the Plan. Any such adjustment in outstanding Options or in
outstanding rights to purchase Restricted Stock shall be made without changing
the aggregate exercise price applicable to the unexercised portions of such
Options or the aggregate purchase price of such Restricted Stock, as the case
may be.
12. CHANGE OF CONTROL. Notwithstanding any provision of this Plan to
the contrary, in the event of a Change of Control (as defined below), all
Options and Stock Appreciation Rights that have been granted by the Board as of
the date thereof shall vest and become exercisable, as the case may be,
immediately prior to the effective time of any Change of Control and all
conditions to exercise thereof shall be deemed to have been met.
For purposes of this Section 12, the following terms shall have the
following meanings:
"Affiliate" of any specified Person (as defined in Section 13(d) of the
Exchange Act) shall mean (i) any other Person, directly or indirectly,
controlling or controlled by or under direct or indirect common control with
such specified Person or (ii) any Person who is a director or officer (a) of
such Person, (b) of any subsidiary of such Person or (c) of any Person described
in clause (i) above. For purposes of this definition, "control" when used with
respect to any Person means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meaning correlative to the foregoing.
"Change of Control" shall mean: (i) the acquisition by any Person (as
defined in Section 13(d) of the Exchange Act) other than TCW or Oaktree, of
beneficial ownership (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange
Act, except such Person shall be deemed to have "beneficial ownership" of all
securities that such Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time) of securities of the
Company (a) having 25% or more of the total voting power of the then outstanding
voting securities of the Company and (b) having more voting power than the
securities of the Company beneficially owned by Oaktree; (ii) during any twelve
month period, a change in the Board occurs such that Incumbent Members do not
constitute a majority of the Board; (iii) a sale of all or substantially all of
the assets of the Company or UnionTools; or (iv) the consummation of a merger or
consolidation of the Company with any other Person, provided, however, that no
Change of Control shall have occurred pursuant to this clause (iv) if (A) after
such merger or consolidation the voting securities of the Company prior to such
merger or consolidation continue to represent more than 50% of the combined
voting power of such Person or (B) if such merger or consolidation does not
result in a material change in the beneficial ownership of the Company's voting
securities.
"Incumbent Members" shall mean the members of the Board on the date
immediately preceding the commencement of a twelve-month period, provided that
any person becoming a Director during such twelve-month period whose election or
nomination for election was approved by a majority of the Directors who, on the
date of such election or nomination for election, comprised the Incumbent
Members shall be considered one of the Incumbent Members in respect of such
twelve-month period.
"Oaktree" shall mean Oaktree Capital Management, LLC and its
Affiliates, including any partnerships, separate accounts or other entities
managed by Oaktree.
"TCW" shall mean: TCW Special Credits Plus Fund; TCW Special Credits
Fund III; TCW Special Credits Fund IIIb; TCW Special Credits Fund IV; TCW
Special Credits Trust; TCW Special Credits Trust IIIb; TCW Special Credits Trust
IV; TCW Special Credits Trust IV; TCW Special Credits, as investment manager of
Delaware
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State Employees' Retirement Fund, Weyerhauser Company Pension Trust and The
Common Fund for Bond Investments; and any of their respective Affiliates.
13. INVESTMENT REPRESENTATION. Each Agreement may provide that, upon
demand by the Committee for such a representation, the Optionee shall deliver to
the Committee at the time of any exercise of an Option a written representation
that the Shares to be acquired upon such exercise are to be acquired for
investment and not for resale or with a view to the distribution thereof. Upon
such demand, delivery of such representation prior to the delivery of any Shares
issued upon exercise of an Option shall be a condition precedent to the right of
the Optionee or such other person to purchase any Shares.
14. DURATION OF THE PLAN. Options and Stock Appreciation Rights may not
be granted and Restricted Stock may not be sold or granted under the Plan after
December 9, 2007.
15. AMENDMENT AND TERMINATION OF THE PLAN. The Board may at any time
alter, amend, suspend or terminate the Plan. The Committee may amend the Plan or
any Agreement issued hereunder to the extent necessary for any Option or Stock
Appreciation Right granted or Restricted Stock sold or granted under the Plan to
comply with applicable tax or securities laws.
No Option or Stock Appreciation Right may be granted or Restricted
Stock sold or granted during any suspension or after the termination of the
Plan. No amendment, suspension or termination of the Plan or of any Agreement
issued hereunder shall, without the consent of the affected holder of such
Option or Stock Appreciation Right or Restricted Stock, alter or impair any
rights or obligations in any Option or Stock Appreciation Right or Restricted
Stock theretofore granted or sold to such holder under the Plan.
16. NATURE OF THE PLAN. The grant, exercise or sale of securities under
the Plan is intended to qualify for the exemption from short swing profits
liability under Section 16(b) of the Exchange Act, provided by Rule 16b-3
promulgated thereunder, as such Rule is now in effect or hereafter amended.
17. CANCELLATION OF OPTIONS. Any Option granted under the Plan may be
canceled at any time with the consent of the holder and a new Option may be
granted to such holder in lieu thereof.
18. WITHHOLDING TAXES. Whenever Shares are to be issued with respect to
the exercise of Options or amounts are to be paid or income earned with respect
to Stock Appreciation Rights or Restricted Stock under the Plan, the Committee
in its discretion may require the Participant to remit to the Company, prior to
the delivery of any certificate or certificates for such Shares or the payment
of any such amounts, all or any part of the amount determined in the Committee's
discretion to be sufficient to satisfy federal, state and local withholding tax
obligations (the "Withholding Obligation") that the Company or its counsel
determines may arise with respect to such exercise, issuance or payment.
Pursuant to a procedure established by the Committee, the Participant may (i)
request the Company to withhold delivery of a sufficient number of Shares or a
sufficient amount of the Participant's compensation or (ii) deliver a sufficient
number of previously-issued Shares, to satisfy the Withholding Obligation.
19. NO RIGHTS AS STOCKHOLDER. No Participant shall have any rights as a
Stockholder with respect to any Shares subject to his or her Option or Stock
Appreciation Right prior to the date of issuance to him or her of a certificate
or certificate for such Shares.
20. COMPLIANCE WITH GOVERNMENT LAW AND REGULATIONS. The Plan, the grant
and exercise of Options and Stock Appreciation Rights, and the grant and sale of
Restricted Stock thereunder, and the obligation of the Company to sell and
deliver Shares under such Options and Stock Appreciation Rights, shall be
subject to all applicable laws, rules and regulations and to such approvals by
any government or regulatory agency that may be required. The Company shall not
be required to issue or deliver any certificates for Shares prior to (i) the
listing of such Shares on any stock exchange on which Shares may then be listed
and (ii) the completion of any registration or qualification of such Shares
under any state or federal law, or any ruling or regulation of any governmental
body which the Company shall, in its sole discretion, determine to be necessary
or advisable.
