EXHIBIT 10.2.1
CHEK, INC.
1999 STOCK OPTION PLAN
1. Purpose
The
purposes of the Plan are to advance the interests of the Company
and its shareholders, by providing a long-term incentive
compensation program that will be an incentive to the Key Employees
of the Company and its Subsidiaries whose contributions are
important to the continued success of the Company and its
Subsidiaries, and by enhancing their ability to attract and retain
in their employ highly qualified persons for the successful conduct
of their businesses.
2. Definitions
2.1
“Award Notice” means a written notice from the Company
to a Participant that sets forth the terms and conditions of Stock
Options or Restricted Stock awarded to the Participant under the
Plan in addition to those established by this Plan and by the
Committee’s exercise of its administrative powers.
2.2
“Board” means the Board of Directors of the
Company.
2.3
“Cause” means (i) the willful and continued
failure by a Key Employee to substantially perform his duties with
his employer after written warnings specifically identifying the
lack of substantial performance are delivered to him by his
employer, or (ii) the willful engaging by a Key Employee in
conduct which is materially and demonstrably injurious to the
Company or a Subsidiary.
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2.4
“Change in Control” shall be deemed to have occurred at
such time as, after the completion of the Company’s initial
public offering as contemplated by its registration statement filed
on Form S-1 (or any successor form to Form S-1) with, and declared
effective by, the Securities and Exchange Commission
(“Effective Date”), (i) any “person”
within the meaning of Section 14(d) of the Exchange Act, other than
the Company, a Subsidiary, or any employee benefit plan or plans
sponsored by the Company or any Subsidiary, is or has become the
“beneficial owner”, as defined in Rule 13d-3 under
the Exchange Act, directly or indirectly, of twenty percent (20%)
or more of the combined voting power of the outstanding securities
of the Company ordinarily having the right to vote at the election
of directors, or (ii) approval by the shareholders of the
Company of (a) any consolidation or merger of the Company in
which the Company is not the continuing or surviving corporation or
pursuant to which shares of stock of the Company would be converted
into cash, securities or other property, other than a consolidation
or merger of the Company in which the common shareholders of the
Company immediately prior to the consolidation or merger have
substantially the same proportionate ownership of common stock of
the surviving corporation immediately after the consolidation or
merger as immediately before, or (b) any consolidation or merger in
which the Company is the continuing or surviving corporation but in
which the common shareholders of the Company immediately prior to
the consolidation or merger do not hold at least a majority of the
outstanding common stock of the continuing or surviving corporation
(except where such holders of common stock hold at least a majority
of the common stock of the corporation which owns all of the common
stock of the Company), or (c) any sale, lease, exchange or
other transfer (in one
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transaction or a series of related transactions) of all or
substantially all the assets of the Company, or
(iii) individuals who constitute the Board on the Effective
Date (the “Incumbent Board”) have ceased for any reason
to constitute at least a majority thereof, provided that any person
becoming a director subsequent to the Effective Date whose
election, or nomination for election by the Company’s
shareholders, was approved by a vote of at least seventy-five
percent (75%) of the directors comprising the Incumbent Board
(either by specific vote or by approval of the proxy statement of
the Company in which such person is named as nominee for director
without objection to such nomination) shall be, for purposes of
this Plan, considered as though such person were a member of the
Incumbent Board.
2.5
“Code” means the Internal Revenue Code of 1986, as
amended from time to time.
2.6
“Committee” means the Compensation Committee of the
Board, or such other committee designated by the Board, authorized
to administer the Plan. The Committee shall consist of not less
than three members, each of whom shall be
“disinterested” as defined by Rule 16b-3 under the
Exchange Act as amended from time to time.
2.7
“Common Stock” means the common stock, $0.01 par value,
of the Company.
2.8
“Company” means CHEK, Inc., a New York
corporation.
2.9
“Exchange Act” means the Securities Exchange Act of
1934, as amended from time to time.
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2.10
“Fair Market Value” on any date means the average of
the high and low sales prices of a share of Common Stock as
reflected in the report of consolidated trading of the principal
public trading market for such shares for that date (or if no
shares of Common Stock were traded on the share’s principal
public trading market on that date, the next preceding date that
shares of Common Stock were so traded); provided, however, that if
no shares of Common Stock have been publicly traded for more than
ten (10) days immediately preceding such date, then the Fair
Market Value of a share of Common Stock shall be determined by the
Committee in such manner as it may deem appropriate.
2.11
“Key Employee” means an officer or other key employee
of the Company or a Subsidiary as determined by the
Committee.
2.12
“Participant” means any individual to whom Stock
Options or Restricted Stock have been awarded by the Committee
under this Plan.
2.13
“Plan” means the CHEK, Inc. 1999 Stock Option
Plan.
2.14
“Restricted Stock” means an award of shares of Company
Common Stock subject to restrictions, pursuant to paragraph 9
hereof.
2.15
“Subsidiary” means a corporation or other business
entity in which the Company directly or indirectly has an ownership
interest of 50 percent or more.
3. Administration
The
Plan shall be administered by the Committee. The Committee shall
have the authority to : (a) interpret the Plan;
(b) establish such rules and regulations as it deems necessary
for the proper administration of the Plan; (c) select Key
Employees to receive Stock
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Options
and Restricted Stock under the Plan; (d) determine and modify
the form of Stock Options awarded under the Plan, whether
non-qualified or incentive stock options, the number of Stock
Options awarded to any Key Employee, and all the terms and
conditions of Stock Options awarded under the Plan, including the
time and conditions of exercise or vesting; (e) determine and
modify the number of shares of Restricted Stock awarded to any Key
Employee, and all the terms and conditions of Restricted Stock
awarded under the Plan, including the applicable restrictions
thereon and restriction period therefor; (f) grant waivers of
Plan terms and conditions, provided that such waivers are not
inconsistent with Section 16 of the Exchange Act and the rules
promulgated thereunder; (g) accelerate the vesting of any
Stock Option or lapse of restrictions on any shares of Restricted
Stock when any such action would be in the best interests of the
Company; and (h) take any and all other action it deems
advisable for the proper administration of the Plan. All
determinations of the Committee shall be made by a majority of its
members, and its determinations shall be final, binding and
conclusive. The Committee, in its discretion, may delegate its
authority and duties under the Plan to the Chief Executive Officer
or to other senior officers of the Company under such conditions as
the Committee may establish; provided, however, that to the extent
required by Section 16 and notwithstanding any other provision
of the Plan or an Award Notice only the Committee may select and
award Stock Options and Restricted Stock and render other decisions
as to the timing, pricing and amount of Stock Options and
Restricted Stock to Participants who are subject to Section 16
of the Exchange Act.
4. Eligibility
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Any Key
Employee is eligible to become a Participant in the Plan.
5. Shares
Available
The
maximum number of shares of Common Stock which shall be available
for award of Stock Options (including incentive stock options) and
Restricted Stock under the Plan during its term shall not exceed
3,000,000, the maximum number of shares of Common Stock with
respect to which Stock Options and Restricted Stock may be granted
to any individual Key Employee during any calendar year shall not
exceed 700,000; all subject to adjustment as provided in paragraph
12. Any shares of Common Stock related to Stock Options or
Restricted Stock which terminate by expiration, forfeiture,
cancellation or otherwise without the issuance of such shares, are
settled in cash in lieu of Common Stock, shall be available again
for award under the Plan. Further, if and to the extent permitted
in accordance with paragraph 8(d), any shares of Common Stock are
used by a Participant for the full or partial payment to the
Company of the purchase price of shares of Common Stock upon
exercise of a Stock Option, or for any withholding taxes due as a
result of such exercise, such shares shall again be available for
award under the Plan. The shares of Common Stock available for
issuance under the Plan may be authorized and unissued shares or
treasury shares.
6. Term
The
Plan shall become effective as of December 1, 1999. No Stock
Options shall be exercisable or payable and no restrictions on
shares Restricted Stock shall lapse before approval of the Plan has
been obtained from the Company’s shareholders. Stock Options
and Restricted Stock shall not be awarded pursuant to the Plan
after November 30, 2009.
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7. Participation
The
Committee shall select Participants, determine the type of awards,
including Stock Options and Restricted Stock, to be awarded, and
establish in the related Award Notices the applicable terms and
conditions of the Stock Options and Restricted Stock in addition to
those set forth in this Plan and any administrative rules issued by
the Committee.
8. Stock Options
(a)
General . Stock Options may be awarded to any Key Employee.
These Stock Options may be incentive stock options within the
meaning of Section 422 of the
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