Exhibit 10.2
STOCK OPTION AGREEMENT
AGREEMENT made as of the 10th day of January, 2002, by and
between LADENBURG XXXXXXXX FINANCIAL SERVICES INC., a Florida corporation (the
"Company"), and Xxxxxxx X. Xxxxxx (the "Director").
WHEREAS, on January 10, 2002 (the "Grant Date"), pursuant to
the terms and conditions of the Company's 1999 Performance Equity Plan (the
"Plan"), the Board of Directors of the Company authorized the grant to the
Director of an option (the "Option") to purchase an aggregate of 20,000 shares
of the authorized but unissued Common Stock of the Company, $.0001 par value
(the "Common Stock"), conditioned upon the Director's acceptance thereof upon
the terms and conditions set forth in this Agreement and subject to the terms of
the Plan; and
WHEREAS, the Director desires to acquire the Option on the
terms and conditions set forth in this Agreement and subject to the terms of the
Plan;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants
the Director the Option to purchase all or any part of an aggregate of 20,000
shares of Common Stock (the "Option Shares") on the terms and conditions set
forth herein and subject to the provisions of the Plan.
2. Non-Incentive Stock Option. The Option represented
hereby is not intended to be an option which qualifies as an "Incentive Stock
Option" under Section 422 of the Internal Revenue Code of 1986, as amended.
3. Exercise Price. The exercise price of the Option
shall be $0.88 per share, subject to adjustment as hereinafter provided.
4. Exercisability. This Option is exercisable,
subject to the terms and conditions of the Plan, on and after January 10, 2003.
After the Option becomes exercisable, it shall remain exercisable except as
otherwise provided herein, until the close of business on January 10, 2012 (the
"Exercise Period").
5. Termination Due to Death. Upon the death of the
Director, the portion of the Option, if any, that was exercisable as of the date
of death may thereafter be exercised by the legal representative of the estate
or by the legatee of the Director under the will of the Director, for a period
of one year from the date of such death or until the expiration of the Exercise
Period, whichever period is shorter. The portion of the Option, if any, that was
not exercisable as of the date of death shall immediately terminate upon death.
6. Withholding Tax. Not later than the date as of which
an amount first becomes includable in the gross income of the Director for
Federal income tax purposes with respect to the Option, the Director shall pay
to the Company, or make arrangements satisfactory to the Committee regarding the
payment of, any Federal, state and local taxes of any kind required by law to be
withheld or paid with respect to such amount. The obligations of the Company
under the Plan and pursuant to this Agreement shall be conditional upon such
payment or arrangements with the Company and the Company shall, to the extent
permitted by law, have the right to deduct any such taxes from any payment of
any kind otherwise due to the Director from the Company.
7. Adjustments. In the event of any merger,
reorganization, consolidation, recapitalization, dividend (other than cash
dividend), stock split, reverse stock split, or other change in corporate
structure affecting the number of issued shares of Common Stock, the Company
shall proportionally adjust the number and kind of Option Shares and the
exercise price of the Option in order to prevent the dilution or enlargement of
the Director's proportionate interest in the Company and her rights hereunder,
provided that the number of Option Shares shall always be a whole number.
8. Method of Exercise.
8.1. Notice to the Company. The Option shall
be exercised in whole or in part by written notice in substantially the form
attached hereto as Exhibit A directed to the Company at its principal place of
business accompanied by full payment as hereinafter provided of the exercise
price for the number of Option Shares specified in the notice.
8.2. Delivery of Option Shares. The Company
shall deliver a certificate for the Option Shares to the Director as soon as
practicable after payment therefor.
8.3. Payment of Purchase Price.
8.3.1. Cash Payment. The Director shall
make cash payments by wire transfer, certified or bank check or personal check,
in each case payable to the order of the Company; the Company shall not be
required to deliver certificates for Option Shares until the Company has
confirmed the receipt of good and available funds in payment of the purchase
price thereof.
8.3.2. Cashless Payment. At the election
of the Director, the purchase price for any or all of the Option Shares to be
acquired may be paid by the surrender of shares of Common Stock of the Company
held by or for the account of the Director with a "fair market value" equal to
the purchase price multiplied by the number of Option Shares to be purchased.
"Fair market value" of the Common Stock means, as of the exercise date: (i) if
the Common Stock is listed on a national securities exchange or quoted on the
Nasdaq National Market or Nasdaq SmallCap Market, the last sale price of the
Common Stock in the principal trading market for the Common Stock on the last
day trading day preceding such date, as reported by the exchange or Nasdaq, as
the case may be; (ii) if the Common Stock is not listed on a national securities
exchange or quoted on the Nasdaq National Market or Nasdaq SmallCap Market, but
is traded in the over-the-counter market, the closing bid price of the Common
Stock on the last trading day preceding such date for which such quotations are
reported by the National Quotation Bureau, Incorporated or similar publisher of
such quotations; and (iii) if the fair market value of the Common Stock cannot
be determined pursuant to clause (i) or (ii) above, such price as the Company
shall determine, in good faith. The Company shall issue a certificate or
certificates evidencing the Option Shares as soon as practicable after the
notice and payment is received. The certificate or certificates evidencing the
Option Shares shall be registered in the name of the person or persons so
exercising the Option.
8.3.3. Payment Price of Withholding Tax.
Any required withholding tax may be paid in cash or with Common Stock in
accordance with Sections 8.3.1. and 8.3.2.
8.3.4. Exchange Act Compliance.
Notwithstanding the foregoing, the Company shall have the right to reject
payment in the form of Common Stock if in the opinion of counsel for the
Company, (i) it could result in an event of "recapture" under Section 16(b) of
the Securities Exchange Act of 1934, as amended ("Exchange Act"); (ii) such
shares of Common Stock may not be sold or transferred to the Company; or (iii)
such transfer could create legal difficulties for the Company.
9. Nonassignability. The Option shall not be assignable
or transferable except by will or by the laws of descent and distribution in the
event of the death of the Director. No transfer of the Option by the Director by
will or by the laws of descent and distribution shall be effective to bind the
Company unless the Company shall have been furnished with written notice thereof
and a copy of the will and such other evidence as the Company may deem necessary
to establish the validity of the transfer and the acceptance by the transferee
or transferees of the terms and conditions of the Option.
10. Company Representations. The Company hereby
represents and warrants to the Director that:
(i) the Company, by appropriate and all required
action, is duly authorized to enter into
this Agreement and consummate all of the
transactions contemplated hereunder; and
(ii) the Option Shares, when issued and delivered
by the Company to the Director in accordance
with the terms and conditions hereof, will
be duly and validly issued and fully paid
and non-assessable.
11. Director Representations. The Director hereby
represents and warrants to the Company that:
(i) he is acquiring the Option and shall acquire
the Option Shares for his own account and
not with a view towards the distribution
thereof;
(ii) he has received a copy of all reports and
documents required to be filed by the
Company with the Commission pursuant to the
Exchange Act within the last 12 months and
all reports issued by the Company to its
stockholders;
(iii) he understands that he must bear the
economic risk of the investment in the
Option Shares, which cannot be sold by him
or her unless they are registered under the
Securities Act of 1933, as amended (the
"1933 Act") or an exemption therefrom is
available thereunder and that the Company is
under no obligation to register the Option
Shares for sale under the 1933 Act;
(iv) in his position with the Company, he has had
both the opportunity to ask questions and
receive answers from the officers and
directors of the Company and all persons
acting on its behalf concerning the terms
and conditions of the offer made hereunder
and to obtain any additional information to
the extent the Company possesses or may
possess such information or can acquire it
without unreasonable effort or expense
necessary to verify the accuracy of the
information obtained pursuant to clause (ii)
above;
(v) he is aware that the Company shall place
stop transfer orders with its transfer agent
against the transfer of the Option Shares in
the absence of registration under the 1933
Act or an exemption therefrom as provided
herein; and
(vi) the certificates evidencing the Option
Shares shall bear the following legends:
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of January 10, 2002, a copy of which is on file
with the Company, and may not be transferred, pledged
or disposed of except in accordance with the terms
and conditions thereof."
12. Restriction on Transfer of Option Shares. Anything in
this Agreement to the contrary notwithstanding, the Director hereby agrees that
he or she shall not sell, transfer by any means or otherwise dispose of the
Option Shares acquired by him or her without registration under the 1933 Act, or
in the event that they are not so registered, unless (i) an exemption from the
1933 Act registration requirements is available thereunder, and (ii) the
Director has furnished the Company with notice of such proposed transfer and the
Company's legal counsel, in its reasonable opinion, shall deem such proposed
transfer to be so exempt.
13. Miscellaneous.
13.1. Notices. All notices, requests,
deliveries, payments, demands and other communications which are required or
permitted to be given under this Agreement shall be in writing and shall be
either delivered personally or sent by registered or certified mail, or by
private courier, return receipt requested, postage prepaid to the Company at its
principal executive office and to the Director at his address set forth below,
or to such other address as either party shall have specified by notice in
writing to the other. Notice shall be deemed duly given hereunder when delivered
or mailed as provided herein.
13.2. Plan Paramount; Conflicts with Plan. This
Agreement and the Option shall, in all respects, be subject to the terms and
conditions of the Plan, whether or not stated herein. In the event of a conflict
between the provisions of the Plan and the provisions of this Agreement, the
provisions of the Plan shall in all respects be controlling.
13.3. Shareholder Rights. The Director shall
not have any of the rights of a shareholder with respect to the Option Shares
until such shares have been issued after the due exercise of the Option.
13.4. Waiver. The waiver by any party hereto
of a breach of any provision of this Agreement shall not operate or be construed
as a waiver of any other or subsequent breach.
13.5. Entire Agreement. This Agreement
constitutes the entire agreement between the parties with respect to the subject
matter hereof. This Agreement may not be amended except by writing executed by
the Director and the Company.
13.6. Binding Effect; Successors. This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and, to the extent not prohibited herein, their respective heirs, successors,
assigns and representatives. Nothing in this Agreement, expressed or implied, is
intended to confer on any person other than the parties hereto and as provided
above, their respective heirs, successors, assigns and representatives any
rights, remedies, obligations or liabilities.
13.7. Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(without regard to choice of law provisions).
13.8. Headings. The headings contained herein
are for the sole purpose of convenience of reference, and shall not in any way
limit or affect the meaning or interpretation of any of the terms or provisions
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written.
Director: Ladenburg Xxxxxxxx Financial Services Inc.
/s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxx
President and Chief Executive Officer
Address of Director
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
--------------------
DATE
Ladenburg Xxxxxxxx Financial Services Inc.
Attention: Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of January
10, 2002 ("Agreement") with Ladenburg Xxxxxxxx Financial Services Inc. (the
"Company"), I hereby irrevocably elect to exercise the right to purchase
_________ shares of the Company's common stock, par value $.0001 per share
("Common Stock"), which are being purchased for investment and not for resale.
As payment for my shares, enclosed is (check and complete
applicable box[es]):
|_| a [personal check] [certified check] [bank check] payable to the order
of "Ladenburg Xxxxxxxx Financial Services Inc." in the sum of
$_________;
|_| confirmation of wire transfer in the amount of $_____________; and/or
|_| certificate for ____ shares of the Company's Common Stock, free and
clear of any encumbrances, duly endorsed, having a Fair Market Value
(as such term is defined in the Company's 1999 Performance Equity Plan)
of $_________.
I hereby represent, warrant to, and agree with, the Company that:
(i) I am acquiring the Option Shares for my own account and
not with a view towards the distribution thereof;
(ii) I have received a copy of all reports and documents
required to be filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended, within the last 12 months and all
reports issued by the Company to its stockholders;
(iii) I understand that I must bear the economic risk of the
investment in the Option Shares, which cannot be sold by me unless they are
registered under the Securities Act of 1933 (the "1933 Act") or an exemption
therefrom is available thereunder and that the Company is under no obligation to
register the Option Shares for sale under the 1933 Act;
(iv) in my position with the Company, I have had both the
opportunity to ask questions and receive answers from the officers and directors
of the Company and all persons acting on its behalf concerning the terms and
conditions of the offer made hereunder and to obtain any additional information
to the extent the Company possesses or may possess such information or can
acquire it without unreasonable effort or expense necessary to verify the
accuracy of the information obtained pursuant to clause (ii) above;
(v) I am aware that the Company shall place stop transfer
orders with its transfer agent against the transfer of the Option Shares in the
absence of registration under the 1933 Act or an exemption therefrom as provided
herein;
(vi) my rights with respect to the Option Shares shall, in all
respects, be subject to the terms and conditions of this Company's 1999
Performance Equity Plan and this Agreement; and
(vii) the certificates evidencing the Option Shares shall bear
the following legends:
"The shares represented by this certificate have been
acquired for investment and have not been registered under
the Securities Act of 1933. The shares may not be sold or
transferred in the absence of such registration or an
exemption therefrom under said Act."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated as of
January 10, 2002, a copy of which is on file with the
Company, and may not be transferred, pledged or disposed
of except in accordance with the terms and conditions
thereof."
Kindly forward to me my certificate at your earliest convenience.
Very truly yours,
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(Signature) (Address)
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(Print Name) (Address)
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(Social Security Number)
