Exhibit 10.21
CDI GROUP, INC.
1995 STOCK OPTION PLAN
1. PURPOSE
This Plan is intended to encourage ownership of Stock by employees and
consultants of the Company and its Affiliates and to provide additional
incentives for them to promote the success of the Company's business. The Plan
is intended to be an incentive stock option plan within the meaning of Section
422 of the Code but not all Options granted hereunder are required to be
Incentive Options.
2. DEFINITIONS
As used in this Plan the following terms shall have the following
meanings:
2.1. ACT means the Securities Act of 1933, as amended.
2.2. AFFILIATE means a parent or subsidiary corporation of the Company,
as defined in Sections 424(e) and (f), respectively, of the Code.
2.3. BOARD means the Company's Board of Directors.
2.4. CODE means the Internal Revenue Code of 1986, as amended from time
to time, or any statute successor thereto, and any regulations issued from time
to time thereunder.
2.5. COMMITTEE means a committee appointed by the Board, responsible
for the administration of the Plan, as provided in Section 5 of the Plan. No
member of the Committee shall be eligible to receive an Option under the Plan,
and no individual shall be eligible for membership on the Committee within one
year of having received an Option under the Plan. For any period during which no
such committee is in existence all authority and responsibility assigned the
Committee under the Plan shall be exercised, if at all, by the Board.
2.6. COMPANY means CDI Group, Inc., a corporation organized under the
laws of the State of Delaware.
2.7. EMPLOYMENT AGREEMENT means an agreement, if any, between the
Company, or any of its subsidiaries, and an Optionee, setting forth, INTER ALIA,
conditions and restrictions upon the transfer of shares of Stock.
2.8. FAIR MARKET VALUE means the value of a share of Stock on any date
as determined by the Committee.
2.9. GRANT DATE means the date as of which an Option is granted, as
determined under Section 7.
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2.10. INCENTIVE OPTION means an Option which by its terms is to be
treated as an "incentive stock option" within the meaning of Section 422 of the
Code.
2.11. NONSTATUTORY OPTION means any Option that is not an Incentive
Option.
2.12. OPTION means an option to purchase shares of Stock granted under
the Plan.
2.13. OPTION AGREEMENT means an agreement between the Company and an
Optionee, setting forth the terms and conditions of an Option.
2.14. OPTION PRICE means the price paid by an Optionee for a share of
Stock upon exercise of an Option.
2.15. OPTIONEE means a person eligible to receive an Option, as
provided in Section 6, to whom an Option shall have been granted under the Plan.
2.16. PLAN means this 1995 Stock Option Plan of the Company, as amended
from time to time.
2.17. STOCK means Class A Voting Common Stock, par value $.00001 per
share, of the Company.
2.18. STOCK RESTRICTION AGREEMENT means an agreement between the
Company and the Optionee in such form as the Committee may prescribe in
connection with the grant of any Option, setting forth certain restrictions upon
the transfer of shares of Stock.
2.19. TEN PERCENT OWNER means a person who owns, or is deemed within
the meaning of Section 422(b)(6) of the Code to own, stock possessing more than
10% of the total combined voting power of all classes of stock of the Company
(or any Affiliate). Whether a person is a Ten Percent Owner shall be determined
with respect to each Option based on the facts existing immediately prior to the
Grant Date of such Option.
3. TERM OF THE PLAN
Options may be granted hereunder at any time in the period commencing
on the adoption of the Plan by the Board and ending immediately prior to the
tenth anniversary of the earlier of the adoption of the Plan by the Board or
approval of the Plan by the Company's shareholders. Options granted prior to
shareholder approval of the Plan are hereby expressly conditioned upon such
approval, and shall be void AB INITIO in the event the shareholders of the
Company shall fail to approve the Plan within twelve (12) months of the Board's
approval of the Plan.
4. STOCK SUBJECT TO THE PLAN
At no time shall the number of shares of Stock then outstanding which
are attributable to the exercise of Options granted under the Plan, PLUS the
number of shares then issuable upon exercise of outstanding Options granted
under the Plan, exceed 65,882 shares, SUBJECT, HOWEVER, to the provisions of
Section 17 of the Plan. Shares to be issued upon the exercise of Options
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granted under the Plan may be either authorized but unissued shares or shares
held by the Company in its treasury. If any Option expires, terminates, or is
cancelled for any reason without having been exercised in full, the shares not
purchased thereunder shall again be available for Options thereafter to be
granted.
5. ADMINISTRATION
The Plan shall be administered by the Committee. Subject to the
provisions of the Plan, the Committee shall have complete authority, in its
discretion, to make or to select the manner of making the following
determinations with respect to each Option to be granted by the Company in
addition to any other determination allowed the Committee under the Plan: (a)
the employee or consultant to receive the Option; (b) whether the Option (if
granted to an employee) will be an Incentive Option or Nonstatutory Option; (c)
the time of granting the Option; (d) the number of shares subject to the Option;
(e) the Option Price; (f) the Option period; (g) the Option exercise date or
dates; and (h) the effect of termination of employment or other association with
the Company and its Affiliates on the subsequent exercisability of the Option.
In making such determinations, the Committee may take into account the nature of
the services rendered by the respective employees and consultants, their present
and potential contributions to the success of the Company and its subsidiaries,
and such other factors as the Committee in its discretion shall deem relevant.
Subject to the provisions of the Plan, the Committee shall also have complete
authority to interpret the Plan, to prescribe, amend and rescind rules and
regulations relating to it, to determine the terms and provisions of the
respective Option Agreements (which need not be identical), and to make all
other determinations necessary or advisable for the administration of the Plan.
The Committee's determinations made in good faith on matters referred to in this
Plan shall be conclusive.
6. ELIGIBILITY: MAXIMUM GRANT PER INDIVIDUAL
An Option shall be granted only to an employee or consultant of one or
more of the Company or an Affiliate. A director of one or more of the Company or
any Affiliate who is not also an employee or consultant of one or more of the
Company or an Affiliate shall not be eligible to receive an Option. In no event
shall the number of shares with respect to which Options may be granted
hereunder to any one individual exceed 66 2/3% of the number of shares of Stock
subject to the Plan as set forth in Section 4, as the same may be adjusted from
time to time in accordance with Section 17.
7. TIME OF GRANTING OPTIONS
The granting of an Option shall take place at the time specified in the
Option Agreement. Only if expressly so provided in the Option Agreement shall
the Grant Date be the date on which an Option Agreement shall have been duly
executed and delivered by the Company and the Optionee.
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8. OPTION PRICE
The Option Price under each Incentive Option shall be not less than
100% of the Fair Market Value of Stock on the Grant Date, or not less than 110%
of the Fair Market Value of Stock on the Grant Date if the Optionee is a Ten
Percent Owner. The Option Price under each Nonstatutory Option shall not be so
limited solely by reason of this Section 8.
9. OPTION PERIOD
No Incentive Option may be exercised on or after the tenth anniversary
of the Grant Date, or on or after the fifth anniversary of the Grant Date, if
the Optionee is a Ten Percent Owner. The Option period under each Nonstatutory
Option shall not be so limited solely by reason of this Section 9. An Option may
be immediately exercisable or become exercisable in such installments,
cumulative or non-cumulative, as the Committee may determine. In the case of an
Option not otherwise immediately exercisable in full, the Committee may
accelerate the exercisability of such Option in whole or in part at any time,
provided the acceleration of the exercisability of any Incentive Option would
not cause the Option to fail to comply with the provisions of Section 422 of the
Code.
10. LIMIT ON INCENTIVE OPTION CHARACTERIZATION
An Incentive Option shall be considered to be an Incentive Option only
to the extent that the number of shares of Stock for which the Option first
becomes exercisable in a calendar year do not have an aggregate Fair Market
Value (as of the date of the grant of the Option) in excess of the "current
limit". The current limit for any Optionee for any calendar year shall be
$100,000 MINUS the aggregate Fair Market Value at the date of grant of the
number of shares of Stock available for purchase for the first time in the same
year under each other Incentive Option previously granted to the Optionee under
the Plan, and under each other incentive stock option previously granted to the
Optionee under any other incentive stock option plan of the Company and its
Affiliates, after December 31, 1986. Any shares of Stock which would cause the
foregoing limit to be violated shall be deemed to have been granted under a
separate Nonstatutory Option, otherwise identical in its terms to those of the
Incentive Option.
11. EXERCISE OF OPTION
An Option may be exercised by the Optionee giving written notice, in
the manner provided in Section 23, specifying the number of shares with respect
to which the Option is then being exercised. The notice shall be accompanied by
payment in the form of cash, or certified or bank check payable to the order of
the Company in an amount equal to the option price of the shares to be purchased
or, if the Committee had so authorized on the grant of any particular Option
hereunder (and subject to such conditions, if any, as the Committee may deem
necessary to avoid adverse accounting effects to the Company) by delivery of
that number of shares of Stock having a fair market value equal to the option
price of the shares to be purchased. Receipt by the Company of such notice and
payment shall constitute the exercise of the Option. Within 30 days thereafter
but subject to the remaining provisions of the Plan, the Company shall deliver
or cause to be delivered to the Optionee or his agent a certificate or
certificates for the number of shares
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then being purchased. Such shares shall be fully paid and nonassessable. Nothing
herein shall be construed to preclude the Company from participating in a
so-called "cashless exercise", provided the Optionee or other person exercising
the Option and each other party involved in any such exercise shall comply with
such procedures, and enter into such agreements, of indemnity or otherwise, as
the Company shall specify.
12. RESTRICTIONS ON ISSUE OF SHARES
12.1. VIOLATION OF LAW. Notwithstanding any other provision of the
Plan, if, at any time, in the reasonable opinion of the Company the issuance of
shares of Stock covered by the exercise of any Option may constitute a violation
of law, then the Company may delay such issuance and the delivery of a
certificate for such shares until (i) approval shall have been obtained from
such governmental agencies, other than the Securities and Exchange Commission,
as may be required under any applicable law, rule, or regulation; and (ii) in
the case where such issuance would constitute a violation of a law administered
by or a regulation of the Securities and Exchange Commission, one of the
following conditions shall have been satisfied:
(a) the shares with respect to which such Option has been
exercised are at the time of the issue of such shares effectively registered
under the Act; or
(b) the Company shall have received an opinion, in form and
substance satisfactory to the Company, from the Company's legal counsel to the
effect that the sale, transfer, assignment, pledge, encumbrance or other
disposition of such Shares or such beneficial interest, as the case may be, does
not require registration under the Act or any applicable state securities laws.
The Company shall make all reasonable efforts to bring about the occurrence of
said events.
12.2. EXECUTION OF STOCK RESTRICTION AGREEMENT; INTERPRETATION.
Whenever shares are to be issued pursuant to an Option, the Company shall be
under no obligation to issue such shares until such time, if ever, as the person
who exercises such Option, in whole or in part, shall have executed and
delivered to the Company the Stock Restriction Agreement specified by the
Committee in connection with the grant of such Option, if any. In the event of
any conflict between the provisions of this Plan and provisions of a Stock
Restriction Agreement or Employment Agreement, the provisions of the Stock
Restriction Agreement or Employment Agreement shall control, but insofar as
possible the provisions of the Plan and any such Agreement shall be construed so
as to give full force and effect to all such provisions.
12.3. PLACEMENT OF LEGENDS. Each certificate representing shares issued
upon the exercise of an Option will bear restrictive legends which may refer to
applicable restrictions under the Stock Restriction Agreement and Employment
Agreement, if any.
13. PURCHASE FOR INVESTMENT; SUBSEQUENT REGISTRATION
13.1. INVESTMENT REPRESENTATION. Unless the shares to be issued upon
exercise of an Option granted under the Plan have been effectively registered
under the Act, the Company shall
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be under no obligation to issue any shares covered by any Option unless the
person who exercises such Option, in whole or in part, shall give a written
representation to the Company which is satisfactory in form and substance to its
counsel and upon which the Company may reasonably rely, that he or she is
acquiring the shares issued pursuant to such exercise of the Option on his or
her own account for the purpose of investment and not with a view to, or for
sale in connection with, the distribution of any such shares.
13.2. REGISTRATION. If the Company shall deem it necessary or desirable
to register under the Act or other applicable statutes any shares with respect
to which an Option shall have been granted, or to qualify any such shares for
exemption from the Act or other applicable statutes, then the Company shall take
such action at its own expense. The Company may require from each Option holder,
or each holder of shares of Stock acquired pursuant to the Plan, such
information in writing for use in any registration statement, prospectus,
preliminary prospectus or offering circular as is reasonably necessary for such
purpose and may require reasonable indemnity to the Company and its officers and
directors from such holder against all losses, claims, damage and liabilities
arising from such use of the information so furnished and caused by any untrue
statement of any material fact therein or caused by the omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made. In addition, the Company may require of any such person that he or she
agree that, without the prior written consent of the Company or such managing
underwriter, he or she will not sell, make any short sale of, loan, grant any
option for the purchase of, pledge or otherwise encumber, or otherwise dispose
of, any shares of Stock during the 180 day period commencing on the effective
date of the registration statement relating to such underwritten public offering
of securities.
13.3. PLACEMENT OF LEGENDS; STOP ORDERS; ETC. Each share of Stock
issued pursuant to an Option granted under this Plan may bear a reference to the
investment representation made in accordance with Section 13.1 in addition to
any other applicable restriction under the Plan and the terms of the Option and
to the fact that no registration statement has been filed with the Securities
and Exchange Commission in respect to said Stock. All certificates for shares of
Stock or other securities delivered under the Plan shall be subject to such
stock-transfer orders and other restrictions as the Committee may deem advisable
under the rules, regulations, and other requirements of any stock exchange upon
which the Stock is then listed, and any applicable federal or state securities
law, and the Committee may cause a legend or legends to be put on any such
certificates to make appropriate reference to such restrictions.
14. WITHHOLDING; NOTICE OF DISPOSITION OF STOCK
PRIOR TO EXPIRATION OF SPECIFIED HOLDING PERIOD
14.1. TAX WITHHOLDING. Whenever shares are to be issued in satisfaction
of an Option granted hereunder, the Company shall have the right to require the
Optionee to remit to the Company an amount sufficient to satisfy federal, state,
local or other withholding tax requirements if and to the extent required by law
(whether so required to secure for the Company an otherwise available tax
deduction or otherwise) prior to the delivery of any certificate or certificates
for such shares.
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14.2. NOTIFICATION OF DISPOSITION. Each person exercising any Incentive
Option granted under the Plan shall be deemed to have covenanted with the
Company to report to the Company any disposition of such shares prior to the
expiration of the holding periods specified by Section 422(a)(1) of the Code
and, if and to the extent that the realization of income in such a disposition
imposes upon the Company federal, state, local or other withholding tax
requirements, or any such withholding is required to secure for the Company an
otherwise available tax deduction, to remit to the Company an amount in cash
sufficient to satisfy those requirements.
15. TERMINATION OF ASSOCIATION WITH THE COMPANY
Unless the Committee shall provide otherwise in the grant of a
particular Option under the Plan, if the Optionee's employment or other
association with the Company is terminated, whether voluntarily or otherwise,
the Option shall immediately cease to be exercisable in any respect. Military or
sick leave shall not be deemed a termination of employment or other association,
PROVIDED that it does not exceed the longer of 90 days or the period during
which the absent Optionee's reemployment rights, if any, are guaranteed by
statute or by contract.
16. TRANSFERABILITY OF OPTIONS
Options shall not be transferable, other than by will or the laws of
descent and distribution, and may be exercised during the life of the Optionee
only by the Optionee.
17. ADJUSTMENTS FOR CORPORATE TRANSACTIONS
17.1. STOCK DIVIDEND, ETC. In the event of any stock dividend payable
in Stock or any split-up or contraction in the number of shares of Stock after
the date of the Option Agreement and prior to the exercise in full of the
Option, the number of shares subject to such Option Agreement and the price to
be paid for each share subject to the Option shall be proportionately adjusted.
17.2. STOCK RECLASSIFICATION. In the event of any reclassification or
change of outstanding shares of Stock, shares of stock or other securities
equivalent in kind and value to those shares an Optionee would have received if
he or she had held the full number of shares of Stock subject to the Option
immediately prior to such reclassification or change and had continued to hold
those shares (together with all other shares, stock and securities thereafter
issued in respect thereof) to the time of the exercise of the Option shall
thereupon be subject to the Option.
17.3. CONSOLIDATION OR MERGER. Subject to the remainder of this Section
17.3, in the event of any consolidation or merger of the Company with or into
another company or in case of any sale or conveyance to another company or
entity of the property of the Company as a whole or substantially as a whole,
shares of stock or other securities equivalent in kind and value to those shares
and other securities an Optionee would have received if he or she had held the
full number of shares of Stock remaining subject to the Option immediately prior
to such consolidation, merger, sale or conveyance and had continued to hold
those shares (together with all other shares, stock and securities thereafter
issued in respect thereof) to the time of the exercise of the Option shall
thereupon be subject to the Option. However, unless any Option Agreement shall
provide
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different or additional terms, in any such transaction the Committee, in its
discretion, may provide instead that any outstanding Option shall terminate, to
the extent not exercised by the Optionee prior to termination, either (a) at the
close of a period of not less than ten (10) days specified by the Committee and
commencing on the Committee's delivery of written notice to the Optionee of its
decision to terminate such Option without payment of consideration as provided
in the following clause or (b) as of the date of the transaction, in
consideration of the Company's payment to the Optionee of an amount of cash
equal to the difference between the aggregate Fair Market Value of the shares of
Stock for which the Option is then exercisable and the aggregate exercise price
for such shares under the Option.
17.4. DISSOLUTION OR LIQUIDATION. Upon dissolution or liquidation of
the Company, the Option shall terminate, but the Optionee (if at the time in the
employ of or otherwise associated with the Company or any of its Affiliates)
shall have the right, immediately prior to such dissolution or liquidation, to
exercise the Option to the extent exercisable on the date of such dissolution or
liquidation.
17.5. RELATED MATTERS. Any adjustment required by this Section 17 shall
be determined and made by the Committee. No fraction of a share shall be
purchasable or deliverable upon exercise, but in the event any adjustment
hereunder of the number of shares covered by the Option shall cause such number
to include a fraction of a share, such number of shares shall be adjusted to the
nearest smaller whole number of shares. In the event of changes in the
outstanding Stock by reason of any stock dividend, split-up, contraction,
reclassification, or change of outstanding shares of Stock of the nature
contemplated by this Section 17, the number of shares of Stock available for the
purposes of the Plan as stated in Section 4 shall be correspondingly adjusted.
18. RESERVATION OF STOCK
The Company shall at all times during the term of the Plan and any
outstanding Options granted hereunder reserve or otherwise keep available such
number of shares of Stock as will be sufficient to satisfy the requirements of
the Plan (if then in effect) and such Options and shall pay all fees and
expenses necessarily incurred by the Company in connection therewith.
19. LIMITATION OF RIGHTS IN STOCK;
NO SPECIAL EMPLOYMENT OR OTHER RIGHTS
The Optionee shall not be deemed for any purpose to be a stockholder of
the Company with respect to any of the shares of Stock covered by an Option,
except to the extent that the Option shall have been exercised with respect
thereto and, in addition, a certificate shall have been issued therefor and
delivered to the Optionee or his agent. Any Stock issued pursuant to the Option
shall be subject to all restrictions upon the transfer thereof which may be now
or hereafter imposed by the Certificate of Incorporation, the By-laws of the
Company, the Stock Restriction Agreement and the Employment Agreement. Nothing
contained in the Plan or in any Option shall confer upon any Optionee any right
with respect to the continuation of his or her employment or other association
with the Company (or any Affiliate), or interfere in any way with the right of
the Company (or any Affiliate), subject to the terms of any separate employment
or consulting
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agreement or provision of law or corporate articles or by-laws to the contrary,
at any time to terminate such employment or consulting agreement or to increase
or decrease the compensation of the Optionee from the rate in existence at the
time of the grant of an Option.
20. NONEXCLUSIVITY OF THE PLAN
Neither the adoption of the Plan by the Board nor the submission of the
Plan to the shareholders of the Company shall be construed as creating any
limitations on the power of the Board to adopt such other incentive arrangements
as it may deem desirable, including without limitation, the granting of stock
options other than under the Plan, and such arrangements may be either
applicable generally or only in specific cases.
21. TERMINATION AND AMENDMENT OF THE PLAN
The Board may at any time terminate the Plan or make such modifications
of the Plan as it shall deem advisable. No termination or amendment of the Plan
may, without the consent of the Optionee to whom any Option shall theretofore
have been granted, adversely affect the rights of such Optionee under such
Option.
22. NOTICES AND OTHER COMMUNICATIONS
Any notice, demand, request or other communication hereunder to any
party shall be deemed to be sufficient if contained in a written instrument
delivered in person or duly sent by first class registered, certified or
overnight mail, postage prepaid, or telecopied with a confirmation copy by
regular, certified or overnight mail, addressed or telecopied, as the case may
be, (i) if to the Optionee, at his or her residence address last filed with the
Company and (ii) if to the Company, at 251 Industrial Parkway, Somerville, New
Jersey 08876, Attention: President, Telecopier: (908) 722-8700, or to such other
address or telecopier number, as the case may be, as the addressee may have
designated by notice to the addressor. All such notices, requests, demands and
other communications shall be deemed to have been received: (i) in the case of
personal delivery, on the date of such delivery; (ii) in the case of mailing,
when received by the addressee; and (iii) in the case of facsimile transmission,
when confirmed by facsimile machine report.
23. GOVERNING LAW
The Plan and all Options and actions taken thereunder shall be
governed, interpreted and enforced in accordance with the laws of the State of
Delaware, without regard to the conflict of laws principles thereof.
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The following does not form part of this Plan but is included solely for
informational purposes:
Date of Board Approval: January 30, 1995