Exhibit 10.9
STOCK OPTION AGREEMENT
[Director and Consultant Non-Qualified]
AGREEMENT made as of the 13th day of December 1999, by and
between GBI CAPITAL MANAGEMENT CORP., a Florida corporation (the "Company"), and
_____________ (the "Director").
WHEREAS, on December 13th, 1999 (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 $3.00 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 December 13, 1999. After the Option
becomes exercisable, it shall remain exercisable except as otherwise provided
herein, until the close of business on December 12, 2009 (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. Provided that prior approval of the
Company has been obtained, the Director may use Common Stock of the Company
owned by him or her to pay the purchase price for the Option Shares by delivery
of stock certificates in negotiable form which are effective to transfer good
and valid title thereto to the Company, free of any liens or encumbrances.
Shares of Common Stock used for this purpose shall be valued at the Fair Market
Value.
2
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; (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 or she is acquiring the Option and shall acquire the
Option Shares for his or her own account and not with a view towards
the distribution thereof;
(ii) he or she 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 or she understands that he or she must bear the
economic risk of the investment in the Option Shares, which cannot be
3
sold by him or her 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 obli gation to register
the Option Shares for sale under the 1933 Act;
(iv) in his or her position with the Company, he or she 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 or she 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 trans ferred 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 December 13, 1999, 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.
4
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. Stockholder Rights. The Director shall not have any of the
rights of a stockholder 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.
5
IN WITNESS WHEREOF, the parties hereto have signed this Agreement as
of the day and year first above written.
DIRECTOR: GBI Capital Management Corp.
____________________________ By:______________________
Xxxxxx Xxxxxxx
Chairman of the Board and
Chief Executive Officer
Address of Director:
___________________________
___________________________
6
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
-----------------
DATE
GBI Capital Management Corp.
Attention: Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of December 13,
2000 ("Agreement") with GBI Capital Management Corp. (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 "GBI Capital Management Corp." in the sum of
$_________;
|_| confirmation of wire transfer in the amount of
$_____________; and/or
|_| [If prior approval of the Company has been obtained,]
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 Exchange
Act 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 December 13, 1999, 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,
------------------------------ ------------------------------
(Signature) (Address)
------------------------------ ------------------------------
(Print Name) (Address)
------------------------------
(Social Security Number)
2
