Exhibit 4.3
TBC CORPORATION
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2000 STOCK OPTION PLAN
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Effective April 26, 2000
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Table of Contents
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Page
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Section 1. Purpose...........................................................1
Section 2. Definitions.......................................................1
Section 3. Shares Subject to the Plan........................................2
Section 4. Administration....................................................3
Section 5. Eligibility.......................................................4
Section 6. Terms and Conditions of Options...................................4
Section 7. Certain Events Impacting Outstanding Options......................7
Section 8. Non-Assignability.................................................7
Section 9. Change of Control.................................................8
Section 10. Taxes............................................................8
Section 11. Compliance with Laws and Exchange Requirements...................9
Section 12. Amendment and Termination of Plan................................9
Section 13. Notices..........................................................9
Section 14. Benefits of Plan................................................10
Section 15. Stockholder Approval and Term of Plan...........................10
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TBC CORPORATION
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2000 STOCK OPTION PLAN
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Section 1. Purpose.
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The purposes of this 2000 Stock Option Plan (the "Plan") are (i) to
establish a means for providing incentives to key employees of the Company (as
hereinafter defined) upon whose judgment, initiative, and efforts the long-term
growth and success of the Company are largely dependent; (ii) to assist the
Company in attracting and retaining key employees of proven ability; and (iii)
to increase the identity of interests of the Company's key employees with those
of its stockholders by providing such employees with the opportunity to acquire
stock of the Company.
Section 2. Definitions.
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"Board" means the Board of Directors of the Company.
"Change of Control" means any change in control of the Company of a
nature that would be required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"); provided that, without limitation, a
Change of Control shall be deemed to have occurred if (i) any "person" (as
defined in Sections 13(d) and 14(d)(2) of the Exchange Act), other than any
entity then controlled by the Company, is or becomes the beneficial owner,
directly or indirectly, of securities of the Company representing 30% or more of
the combined voting power of the Company's then outstanding securities; (ii)
during any period of two consecutive years, individuals who at the beginning of
such period constitute the Board cease for any reason to constitute at least a
majority thereof unless the election, or the nomination for election by the
Company's stockholders, of each new director was approved by a vote of at least
two-thirds of the directors then still in office who were directors at the
beginning of the period; (iii) the Company merges or consolidates with another
corporation or entity and the Company or an entity controlled by the Company
immediately prior to the merger or consolidation is not the surviving entity; or
(iv) a sale, lease, exchange or other disposition of all or substantially all of
the assets of the Company takes place.
"Code" means the Internal Revenue Code of 1986, as now or hereafter
amended.
"Committee" means the committee referred to in Section 4.
"Company" means TBC Corporation and, when used with reference to
employment of a Participant, includes any Subsidiary.
"Employee" means any key employee of the Company or any Subsidiary.
"Fair Market Value" means the closing price of a Share on the NASDAQ
National Market System on the date the value of a Share is to be determined or,
in the event the Shares are
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listed on any exchange, the closing price on such exchange on the date the value
of a Share is to be determined. If there are no sales on any determination date,
the Fair Market Value of a Share shall equal the mean between the bid and asked
prices for a Share on such date on the NASDAQ National Market System or such
exchange.
"Incentive Stock Option" means an Option that is an Incentive Stock
Option, as defined in Section 422 of the Code.
"Nonqualified Stock Option" means an Option that is not an Incentive
Stock Option.
"Option" means a right to purchase Shares at a specified price;
"Optionee" means the holder of an Option.
"Participant" means an Employee selected to receive an Option.
"Reload Option" has the meaning ascribed to it in Section 6 hereof.
"Shares" means the shares of Common Stock of the Company.
"Subsidiary" means any entity more than 50% of the voting control of
which is held, directly or indirectly, by the Company.
"Tax Date" means the date as of which the amount of any withholding tax
payment with respect to the exercise of an Option is calculated.
Section 3. Shares Subject to the Plan.
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(a) Maximum Number - Aggregate. Subject to the remaining provisions of
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this Section 3, the maximum number of Shares that may be issued pursuant to
Options granted under the Plan shall be 2,000,000. Any Shares so issued may be
authorized and unissued Shares or Shares held in the Company's treasury.
(b) Terminated or Forfeited Options. If any Option granted under the
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Plan is terminated or forfeited prior to its exercise in full, the Shares that
would otherwise have been issued upon the exercise of the Option shall not be
charged against the maximum number of Shares available for issuance pursuant to
the Plan and may be used for new Option grants.
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(c) Certain Reductions. If any Shares are tendered or withheld (by
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attestation as set forth in Section 6(e) or otherwise) in payment of all or part
of the Option price of Shares issuable upon the exercise of any Option granted
under the Plan or in satisfaction of withholding tax obligations with respect to
the exercise of any Option granted under the Plan, the number of Shares that
shall be charged against the maximum number of Shares available for issuance
pursuant to the Plan shall be reduced by the number of Shares so tendered in
payment or withheld.
(d) Maximum Number - Per Employee. Subject to the other provisions of
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this Section 3, no Employee shall be granted Options for more than 100,000
Shares in the aggregate in any fiscal year of the Company. The number of Shares
subject to Reload Options (as defined in Section 6(d) hereof) granted to an
Employee in any fiscal year shall be disregarded for purposes of this Section
3(d).
(e) Recapitalization Adjustment. In the event of any change affecting
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the Shares by reason of any stock dividend or split, recapitalization, merger,
consolidation, spin-off, combination or exchange of stock or other corporate
change, or any distribution to a holder of Shares other than ordinary cash
dividends, the Committee shall make such adjustment, if any, as it may deem
appropriate to avoid dilution in the number and kind of shares authorized for
issuance under the Plan, the number and kind of shares subject to Options, and
the Option price.
Section 4. Administration.
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(a) Committee. The Plan shall be administered by a Committee of the
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Board, comprised of three or more directors, who shall from time to time be
appointed by, and serve at the pleasure of, the Board. If any director serving
on the Committee is not a "non-employee director" within the meaning of Rule
16b-3 promulgated under the Exchange Act, the Board shall be responsible for the
grant of Options to any Employee who is an "officer" for purposes of Section 16
of the Exchange Act and all matters relating to such Options. In such event, all
references herein to the "Committee" shall refer to the Board acting in such
capacity.
(b) Authority. The Committee shall have and exercise all the power and
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authority granted to it under the Plan. Subject to the provisions of the Plan,
the Committee shall have authority in its sole discretion from time to time (i)
to designate the Employees who shall be granted Options, (ii) to prescribe such
limitations, restrictions and conditions upon any Option as the Committee shall
deem appropriate, (iii) to interpret the Plan and to adopt, amend and rescind
rules and regulations relating to the Plan, and (iv) to make all other
determinations and take all other actions necessary or advisable for the
implementation and administration of the Plan.
(c) Committee Actions. A majority of the Committee shall constitute a
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quorum, and the acts of a majority of the members present at a meeting at which
a quorum is present, or acts reduced to or approved in writing by all members of
the Committee, shall be acts of the Committee. All such actions shall be final,
conclusive, and binding. No member of the Committee shall be liable for any
action taken or decision made in good faith relating to the Plan or any Option
granted hereunder. In the performance of their duties, the members of the
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Committee shall be fully protected in relying in good faith upon information
provided by the Company's officers or auditors.
(d) No Repricing. Notwithstanding anything to the contrary set forth
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elsewhere in the Plan, the Committee shall have no authority to reprice any
Option granted under the Plan if such repricing has not been approved by the
stockholders of the Company.
Section 5. Eligibility.
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(a) Eligible Employees. The Committee may grant Options to any
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Employee.
(b) Committee Determinations. Determinations by the Committee with
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respect to matters relating to the Plan, including without limitation,
designation of Participants, the form, amount and timing of granting of Options,
the terms and provisions of Options, and the written agreements evidencing
Options, need not be uniform and may be made selectively among Employees who
receive, or are eligible to receive, Options, whether or not such Employees are
similarly situated.
(c) Employment. The Plan and the Options granted hereunder shall not
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confer upon any Employee the right to continued employment with the Company or
affect in any way the right of the Company to terminate the employment of any
Employee at any time and for any reason.
Section 6. Terms and Conditions of Options.
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(a) Provisions Applicable to All Options. All Options granted under
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the Plan shall be subject to the following terms and conditions:
(1) Written Agreement. The terms and conditions of each
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Option granted under the Plan shall be set forth in a written
agreement, the form of which shall be approved by the Committee.
(2) Option Price. The Option price per Share with respect to
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each Option shall be determined by the Committee but shall not be less
than the Fair Market Value per Share on the date the Option is granted.
(3) Term and Exercise of Options. Subject to Section 6(b)(1),
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the term of each Option shall be not more than ten years after the date
of grant. At the time an Option is granted, the Committee may provide
that the Option may be exercised in full or in part only after the
passage of a specified period or periods of time following the date of
grant or only if specified conditions have been satisfied. Except as
set forth in Section 7, an Option may be exercised only if the Optionee
has been continuously employed by the Company since the date of grant.
(4) Other Terms. At the time an Option is granted, the
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Committee may specify such other terms, restrictions or limitations as
it may deem appropriate in addition to
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those set forth herein, including without limitation, restrictions on the
transferability of the Shares issuable upon the exercise of the Option.
(5) Procedure for Exercise of Options and Payment. The holder
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of an Option granted under the Plan may exercise the Option in full or
in part (but for full Shares only) by giving written notice of exercise
to the Committee. At the time such notice is given, the Option price
for the Shares purchased must be paid in full either in cash or by
delivery of Shares owned by the Optionee or any combination of cash and
already-owned Shares. In any case in which payment of the Option price
is to be made by delivery of already-owned Shares, the attestation
procedure set forth in Section 6(e) may be used, subject to the
limitations described therein. An Option shall be deemed exercised on
the date the Committee receives written notice of the exercise,
together with full payment for the Shares purchased. In the event
already-owned Shares are used to pay all or a portion of the Option
price, such Shares must have been held by the Option holder for at
least six months prior to their delivery to the Company. The amount
credited to payment of the Option price shall be the Fair Market Value
of the already-owned Shares on the date the Option is exercised.
(b) Additional Provisions Applicable to Incentive Stock Options. The
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following additional terms and provisions shall apply to all Incentive Stock
Options granted under the Plan, notwithstanding any other provisions of this
Section 6 to the contrary:
(1) Certain Optionees. No Incentive Stock Option shall be
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granted to any Employee who possesses, directly or indirectly (as
provided in Section 424(d) of the Code), at the time of grant, more
than 10% of the combined voting power of all classes of stock of the
Company, any Subsidiary or any parent corporation (as defined in the
Code), unless (i) the option price is at least 110% of the Fair Market
Value of the Shares subject to the Option on the date such Option is
granted, and (ii) such Option is not exercisable after the expiration
of five years from the date of grant.
(2) $100,000 Limitation. The aggregate Fair Market Value
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(determined as of the time the Option is granted) of Shares with
respect to which Incentive Stock Options granted under the Plan and all
other plans of the Company, any Subsidiary, and any parent corporation
are exercisable for the first time by any individual in any calendar
year shall not exceed $100,000, or such other maximum amount then
permitted by the Code.
(3) No Grants After Ten Years. No Incentive Stock Option may
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be granted on or after the tenth anniversary of the adoption of the
Plan by the Board.
(c) Fractional Shares. No fractional Shares shall be issued pursuant
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to the exercise of an Option, nor shall any cash payment be made in lieu of
fractional Shares.
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(d) Reload Option Feature. At the time any Option is granted under the
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Plan or at any time prior to its exercise, the Committee may decide to
incorporate into the Option a feature providing for the grant of a Reload Option
subject to and in accordance with the provisions of this Section 6(d). If an
Option granted under the Plan contains a reload feature, the holder of that
Option (the "Original Option") shall be granted a new Nonqualified Stock Option
(the "Reload Option") for that number of Shares equal to the number of Shares
used by the Optionee (whether by attestation as set forth in Section 6(e) or
otherwise) in full or partial payment of the Option price for such Original
Option, plus the number of Shares used for purposes of tax withholding in
accordance with Section 10 hereof. The following additional terms and provisions
shall apply to Reload Options granted under the Plan:
(1) Reload Grant and Date. The Reload Option shall be granted
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automatically, without any further action of the Committee, on the date
of exercise of the Original Option (the "Reload Date").
(2) Option Price. The Option price per Share covered by any
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Reload Option shall be an amount equal to the Fair Market Value per
Share on the Reload Date.
(3) Expiration Date. The Reload Option shall expire on, and
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the Reload Option shall no longer be exercisable after, the date the
Original Option would have expired if it had not been exercised.
(4) Vesting Period. Subject to Section 6(d)(3), the Reload
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Option shall vest and become exercisable with respect to all Shares
covered thereby on the first anniversary of the Reload Date or such
earlier date as the Committee shall specify.
(5) Active Employee. No Reload Option shall be granted to
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any person who is not an Employee at the time of exercise of the
Original Option.
(e) Attestation Procedure. If a holder desires to pay the Option price
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by delivery of already-owned Shares, the holder may either physically deliver
already-owned Shares or follow the attestation procedure set forth in this
Section 6(e). To attest to the ownership of already-owned Shares, the holder
shall submit to the Company a signed statement at the time of exercise of an
Option that (i) sets forth the number of Shares already-owned by the holder that
are to be used in payment of the Option price (the "Payment Shares"), (ii)
confirms that the holder is the owner of the Payment Shares, and (iii) if the
Payment Shares are registered in the holder's name, sets forth the certificate
number(s) of the Payment Shares. The Payment Shares shall be treated as having
been delivered to the Company by the holder on the date of exercise, and the
Company shall issue to the holder a certificate for the number of Shares being
purchased, less the number of Payment Shares. The Committee shall have the
authority to amend the foregoing procedure from time to time or to limit its use
in such manner as the Committee may in its discretion determine.
Section 7. Certain Events Impacting Outstanding Options.
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(a) Leaves of Absence. Whether authorized leave of absence or absence
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for military or governmental service constitutes a termination of employment for
purposes of any Option shall be determined by the Committee, after consideration
of any applicable regulations issued under the Code.
(b) Termination of Employment. Subject to the limitation set forth in
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Section 7(d), at the time an Option is granted, or at such other time as the
Committee may determine, with respect to all or a portion of the Options as the
Committee may determine, the Committee may provide that if the Optionee ceases
to be employed by the Company for any reason (including retirement or
disability) other than death, then the Option will continue to be exercisable by
the Optionee (to the extent it was exercisable on the date the Optionee ceased
to be employed) for such additional period (not to exceed the remaining term of
such Option) after termination of employment as the Committee may provide.
(c) Death. At the time an Option is granted or at such other time as
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the Committee may determine, the Committee may provide that if the Optionee dies
while employed by the Company or while entitled to the benefits of any
additional exercise period established by the Committee with respect to such
Option in accordance with Section 7(b), then the Option will continue to be
exercisable by the person or persons (including the holder's estate) to whom the
holder's rights with respect to such Option have passed by will or by the laws
of descent and distribution or the holder's designated beneficiary, for such
additional period after death (not to exceed the remaining term of such Option)
as the Committee may provide.
(d) Limitation on Exercise. Except in the case of death, disability or
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retirement, or under such other circumstances as the Committee may from time to
time determine, no Option shall be exercisable prior to the first anniversary of
its date of grant.
Section 8. Non-Assignability.
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(a) General Rule. Except as provided in Section 8(b) with respect to
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Nonqualified Stock Options, no Option granted under the Plan shall be sold,
assigned, transferred, pledged, or otherwise encumbered by the Participant, or
be made subject to execution, attachment or similar process, otherwise than by
will, by the laws of descent and distribution, or by the Participant's
designation, in a writing delivered to the Company before the Participant's
death, of a beneficiary or beneficiaries to whom the Participant's rights in the
Option will be transferred upon the Participant's death. Except as provided in
Section 8(b) with respect to Nonqualified Stock Options, each Option shall be
exercisable during the Participant's lifetime only by the Participant or, if
permissible under applicable law, by the Participant's guardian or legal
representative.
(b) Special Provisions Applicable to Nonqualified Stock Options. Any
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Option granted as a Nonqualified Stock Option and such other Options as the
Committee may determine and any rights thereunder may be assigned or transferred
pursuant to a qualified domestic relations order (as defined in the Code or the
Employee Retirement Income Security Act of 1974). In addition, the Committee may
permit any Optionee holding an Option granted as a Nonqualified Stock Option and
such other Options as the Committee may determine, either before or after the
date of grant, to transfer the Option during the Optionee's lifetime to one or
more members of the
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Optionee's family, to one or more trusts for the benefit of one or more members
of the Optionee's family, or to a partnership or partnerships of members of the
Optionee's family, if no consideration is paid for the transfer and such
transfer would not result in the loss of any exemption under Rule 16b-3 for any
Option granted under any plan of the Company. The transferee of an Option shall
be subject to all restrictions, terms and conditions applicable to the Option
prior to its transfer. The Committee may impose on any transferable Option and
on the Shares to be issued upon the exercise thereof such limitations and
conditions as the Committee deems appropriate.
Section 9. Change of Control.
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In order to maintain a Participant's rights with respect to any Option
in the event of a Change of Control, the Committee may, in its sole discretion,
take any one or more of the following actions, either at the time that the
Option is granted or at any time thereafter:
(a) Acceleration. Provide for the acceleration of any time periods
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relating to the exercise of any Option, so that the Option may be exercised in
full on or before a date fixed by the Committee.
(b) Purchase. Provide for the purchase of any Option by the Company for
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an amount of cash equal to the amount that could have been attained upon the
exercise of such Option had such Option been currently exercisable and had the
Shares received upon the exercise thereof been immediately sold by the
Participant.
(c) Adjustment. Make such adjustment to any Option as the Committee
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deems appropriate to reflect a Change of Control.
(d) Assumption. Cause any Option to be assumed, or new rights
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substituted therefore, by the acquiring or surviving corporation, if any, in
connection with a Change of Control.
Section 10. Taxes.
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(a) Withholding for Taxes. The Company shall be entitled, if necessary
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or desirable, to withhold from any cash compensation otherwise payable to the
holder of any Option, the amount of any required federal, state and local
withholding tax attributable to the Shares to be issued upon exercise of the
Option, or the Company may defer issuing any Shares upon exercise of any Option
if any such tax, charge, or assessment is pending until the Company is
indemnified to the Committee's satisfaction.
(b) Use of Shares to Pay Withholding Taxes. The holder of a
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Nonqualified Stock Option may elect to have the Company retain from the Shares
to be issued upon the exercise of the Option Shares having a Fair Market Value
on the Tax Date equal to the required federal, state and local withholding tax
payments to be made by the holder with respect thereto, in lieu of making such
payments in cash. The Committee may from time to time establish rules or
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limitations with respect to the right of a holder to elect to have the Company
retain Shares in satisfaction of withholding payments.
Section 11. Compliance With Laws and Exchange Requirements.
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No Option shall be granted and no Shares shall be issued in connection
with any Option unless the grant of the Option and the issuance and delivery of
Shares pursuant thereto shall comply with all relevant provisions of state and
federal law, including without limitation, the Securities Act of 1933, the
Exchange Act, the rules and regulations promulgated thereunder, and the
requirements of the NASDAQ National Market System or any stock exchange upon
which the Shares may then be listed.
Section 12. Amendment and Termination of Plan.
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(a) Amendment. The Board may from time to time amend the Plan, or any
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provision thereof, in such respects as the Board may deem advisable except that
it may not amend the Plan without stockholder approval so as to: increase the
maximum number of Shares that may be issued under the Plan except in accordance
with Section 3(e); permit the granting of Options with exercise prices lower
than that specified in Section 6(a)(2); materially modify the requirements as to
eligibility for participation in the Plan; or reprice any outstanding Options
granted pursuant to the Plan.
(b) Termination. The Board may terminate the Plan at any time.
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(c) Effect of Amendment or Termination. Any amendment or the
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termination of the Plan shall not adversely affect any Option previously
granted. Options outstanding at the time the Plan is terminated shall remain in
full force and effect as if the Plan had not been terminated.
Section 13. Notices.
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Each notice relating to the Plan shall be in writing and delivered in
person or by certified or registered mail to the proper address. Each notice to
the Committee shall be addressed as follows: TBC Corporation, 4770 Hickory Hill
Drive, Post Office Box 18342, Memphis, Tennessee 38181-0342, Attention:
Compensation Committee. Each notice to a Participant shall be addressed to the
Participant at the address of the Participant maintained by the Company on its
books and records or to such other address as the Participant may designate by
written notice to the Company to that effect.
Section 14. Benefits of Plan.
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The Plan shall inure to the benefit of and be binding upon each
successor of the Company. All rights and obligations imposed upon a Participant
and all rights granted to the
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Company under the Plan shall be binding upon the Participant's heirs, legal
representatives and successors.
Section 15. Stockholder Approval and Term of Plan.
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(a) Adoption and Approval. The Plan shall become effective upon its
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adoption by the Board; provided, however, that if the Plan is not approved by
the affirmative vote of the holders of a majority of the outstanding Shares
present, in person or by proxy, and entitled to vote at the 2000 Annual Meeting
of the Stockholders of the Company, the Plan shall terminate automatically on
the date of such Annual Meeting.
(b) Term. If approved by the stockholders of the Company as provided in
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Section 15(a), the Plan shall continue in effect until terminated pursuant to
Section 12.
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