EXHIBIT 10.12
SUMMIT BROKERAGE SERVICES, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR
XXXXXXXX X. XXXXX
AGREEMENT
1. Grant of Option. SUMMIT BROKERAGE SERVICES, INC. (the
"COMPANY") hereby grants, as of and effective March 22, 2002 (the "DATE OF
GRANT"), to XXXXXXXX X. XXXXX (the "OPTIONEE") an option (the "OPTION") to
purchase up to 7,000,000 shares of the Company's Common Stock, $.0001 par value
(the "STOCK"), at an exercise price per share equal to $0.25 (the "OPTION
PRICE"). The Option shall be subject to the terms and conditions set forth
herein. The Option is a nonqualified stock option, and not an incentive stock
option under Section 422 of the Internal Revenue Code of 1986, as amended (the
"CODE").
2. Exercise Schedule. Except as otherwise provided in Section 5
of this Agreement, the Option shall be exercisable in whole or in part
immediately.
3. Method of Exercise. This Option shall be exercisable in whole
or in part by written notice which shall state the election to exercise the
Option, the number of shares of Stock in respect of which the Option is being
exercised, and such other representations and agreements as is necessary to
assure compliance of the Option exercise and Stock issuance with applicable
Federal and state securities laws. Such written notice shall be signed by the
Optionee and shall be delivered in person or by certified mail to the Company.
The written notice shall be accompanied by payment of the exercise price. This
Option shall be deemed to be exercised after (a) receipt by the Company of such
written notice accompanied by the exercise price, and (b) arrangements that are
satisfactory to the Company in its sole discretion have been made for
Optionee's payment to the Company of the amount that is necessary to be
withheld in accordance with applicable Federal or state withholding
requirements. No shares of Stock will be issued pursuant to the Option unless
and until such issuance and such exercise shall comply with all relevant
provisions of applicable law, including the requirements of any stock exchange
upon which the Stock then may be traded.
4. Method of Payment. Payment of the exercise price shall be in
cash, by any of the following, or a combination thereof, at the election of the
Optionee: (a) cash, (b) check, (c) with shares of Company Common Stock that
have been held by the Optionee for at least 6 months (or such other shares as
the Company determines will not cause the Company to realize a financial
accounting charge), by delivery of a properly executed exercise notice together
with such other documentation as the Company shall require to effect an
exercise of the Option, or (d) such other consideration or in such other manner
as may be determined by the compensation committee of the Company's Board of
Directors (the "COMPENSATION COMMITTEE"), in its absolute discretion.
5. Termination of Option.
(a) Any unexercised portion of the Option shall automatically and
without notice terminate and become null and void at the time of the earliest
to occur of:
(i) immediately upon termination of the Optionee's
employment with the Company for "Cause," as such term is defined in
the employment agreement between the Company and the Optionee;
(ii) ninety (90) days after Optionee's voluntary
termination of his employment with the Company;
(iii) ninety (90) days after the date on which the
Optionee's employment with the Company is terminated by reason of a
mental or physical disability (within the meaning of Section 22(e) of
the Code) as determined by a medical doctor satisfactory to the
Company;
(iv) ninety (90) days after the date of termination of
the Optionee's employment with the Company by reason of the death of
the Optionee; or
(v) December 31, 2007;
(vi) provided however, if Optionee's employment with the
Company is terminated by the Company without Cause or by the Optionee
for Good Reason (as defined in Optionee's employment agreement), any
unvested portion of this Option shall become immediately vested and
exercisable on such date and the Option shall terminate on December
31, 2007.
All references herein to the termination of the Optionee's
employment shall, in the case of an Optionee who is not an employee of the
Company or a subsidiary, refer to the termination of the Optionee's service
with the Company.
(b) To the extent not previously exercised, the Option shall
terminate immediately in the event of (i) the liquidation or dissolution of the
Company, or (ii) any reorganization, merger, consolidation or other form of
corporate transaction in which the Company does not survive, unless the
successor corporation, or a parent or subsidiary of such successor corporation,
assumes the Option or substitutes an equivalent option or right pursuant to
Section 7(c) hereof. The Company shall give written notice of any proposed
transaction referred to in this Section 5(b) a reasonable period of time prior
to the closing date for such transaction (which notice may be given either
before or after approval of such transaction), in order that Optionee may have
a reasonable period of time prior to the closing date of such transaction
within which to exercise the Option if and to the extent that it then is
exercisable (including any portion of the Option that may become exercisable
upon the closing date of such transaction). The Optionee may condition his
exercise of the Option upon the consummation of a transaction referred to in
this Section 5(b).
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6. Transferability. The Option may be transferred by the
Optionee only upon the written consent of the Corporation, with consent shall
not be unreasonably withheld. Any such transferee shall agree in writing to be
bound by the terms of this Agreement with respect to any portion of the Option
so transferred. In addition to any such transferees, the terms of this Option
shall also be binding upon the executors, administrators, heirs, successors and
assigns of the Optionee.
7. Adjustment of Shares.
(a) If at any time while this Agreement is in effect, there shall
be any increase or decrease in the number of issued and outstanding shares of
Common Stock through the declaration of a stock dividend or through any
recapitalization resulting in a stock split-up, combination or exchange of
shares, then and in such event appropriate adjustment shall be made by the
Company in the number of shares of Stock and the Option Price per share thereof
then subject to any outstanding Options, so that the same percentage of the
Company's issued and outstanding shares of Stock shall remain subject to
purchase at the same aggregate exercise price.
(b) The Compensation Committee may change the terms of this
Option with respect to the Option Price or the number of shares of Stock
subject to the Option, or both, when, in the Company's sole discretion, such
adjustments become appropriate so as to preserve but not increase the benefits
under the Option.
(c) In the event of a proposed sale of all or substantially all
of the Company's assets or any reorganization, merger, consolidation or other
form of corporate transaction in which the Company does not survive, where the
securities of the successor corporation, or its parent company, are issued to
the Company's shareholders, then the successor corporation or a parent of the
successor corporation may, with the consent of the Company, assume each
outstanding Option or substitute an equivalent option or right. If the
successor corporation, or its parent, does not cause such an assumption or
substitution to occur, or the Company does not consent to such an assumption or
substitution, then each Option shall terminate pursuant to Section 5(b) hereof
upon the consummation of sale, merger, consolidation or other corporate
transaction.
(d) Except as otherwise expressly provided herein, the issuance
by the Company of shares of its capital stock of any class, or securities
convertible into shares of capital stock of any class, either in connection
with a direct sale or upon the exercise of rights or warrants to subscribe
therefor, or upon conversion of shares or obligations of the Company
convertible into such shares or other securities, shall not affect, and no
adjustment by reason thereof shall be made to, the number of or Option Price
for shares of Stock then subject to outstanding Options granted under this
Agreement.
(e) Without limiting the generality of the foregoing, the
existence of outstanding Options granted under this Agreement shall not affect
in any manner the right or power of the Company to make, authorize or
consummate (i) any or all adjustments, recapitalizations, reorganizations or
other changes in the Company's capital structure or its business; (ii) any
merger or consolidation of the Company; (iii) any issue by the Company of debt
securities, or preferred or preference stock that would rank above the Common
Stock subject to outstanding
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Options; (iv) the dissolution or liquidation of the Company; (v) any sale,
transfer or assignment of all or any part of the assets or business of the
Company; or (vi) any other corporate act or proceeding, whether of a similar
character or otherwise.
8. No Rights of Stockholders. Neither the Optionee nor any
personal representative (or beneficiary) shall be, or shall have any of the
rights and privileges of, a stockholder of the Company with respect to any
shares of Stock purchasable or issuable upon the exercise of the Option, in
whole or in part, prior to the date of exercise of the Option.
9. Provision for Taxes. If at any time specified herein for the
making of any issuance or delivery of any Option or Common Stock to the
Optionee or any beneficiary, any law or regulation of any governmental
authority having jurisdiction in the premises shall require the Company to
withhold, or to make any deduction for, any taxes or take any other action in
connection with the issuance or delivery then to be made, such issuance or
delivery shall be deferred until such withholding or deduction shall have been
provided for by the Optionee or beneficiary, or other appropriate action shall
have been taken.
For so long as Optionee is deemed an employee of the Company,
the Company hereby agrees to pay the amount of Optionee's income tax liability
incurred by him upon exercise of the Stock Option or any portion thereof that
is directly related to such exercise; provided, however, that the Company's
obligation to pay such tax shall not exceed the amount of the tax benefit the
Company receives as a direct result of the Optionee's exercise of the Stock
Option or any portion thereof. Coverage of such tax by the Company shall be
made in the form of a bonus to the Optionee, which will be also subject to the
same tax coverage by the Company, up to a maximum amount of the Company's tax
benefit derived from such bonus. The amount of the total tax liability of the
Optionee (and, therefore, the Company's liability, up to a maximum of the tax
benefit to the Company in connection with the foregoing) shall be calculated by
the Company at the time of exercise of the Stock Option or any portion thereof
pursuant to the following convergence formula recognized by the Internal
Revenue Service as applicable to calculating such tax liability: I divided by
(1 - X) multiplied by X (where "I" is the amount deemed compensation pursuant
to option exercise and where "X" is the Optionee's highest marginal income tax
bracket). For example, assuming the compensation resulting from option exercise
is $1,000,000, and the Optionee was in the 40% tax bracket, the calculation for
the total tax liability would be as follows:
Income x .40 = amount of tax liability
------------
1 - .40
$1,000,000 x .40 = $1,000,000 x .40 = $666,666.67 (total tax liability)
---------------- ----------------
1 - .40 .60
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10. No Right to Continued Employment. Neither the Option nor this
Agreement shall confer upon the Optionee any right to continued employment or
service with the Company.
11. Governing Law; Jurisdiction and Venue. This Agreement shall
be governed in accordance with and governed by the internal laws of the State
of Florida. EACH PARTY HERETO AGREES TO SUBMIT TO THE PERSONAL JURISDICTION AND
VENUE OF THE STATE AND/OR FEDERAL COURTS LOCATED IN PALM BEACH COUNTY, FLORIDA
FOR RESOLUTION OF ALL DISPUTES ARISING OUT OF, IN CONNECTION WITH, OR BY REASON
OF THE INTERPRETATION, CONSTRUCTION, AND ENFORCEMENT OF THIS AGREEMENT, AND
HEREBY WAIVES THE CLAIM OR DEFENSE THEREIN THAT SUCH COURTS CONSTITUTE AN
INCONVENIENT FORU
12. Interpretation. The Optionee accepts the Option subject to
all the terms and provisions of this Agreement. The undersigned Optionee hereby
accepts as binding, conclusive and final all decisions or interpretations of
the Company upon any questions arising under this Agreement.
13. Notices. Any notice under this Agreement shall be in writing
and shall be deemed to have been duly given when delivered personally or when
deposited in the United States mail, registered, postage prepaid, and
addressed, in the case of the Company, to the Company's offices at 00 Xxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxx 00000, or if the Company should move its principal
office, to such principal office, and, in the case of the Optionee, to the
Optionee's last permanent address as shown on the Company's records, subject to
the right of either party to designate some other address at any time hereafter
in a notice satisfying the requirements of this Section.
14. Tax Consequences. Set forth below is a brief summary as of
the date of this Option of certain of the federal tax consequences of exercise
of this Option and disposition of the shares of Stock under the law in effect
as of the date of grant. THIS SUMMARY IS NECESSARILY INCOMPLETE, AND THE TAX
LAWS AND REGULATIONS ARE SUBJECT TO CHANGE. OPTIONEE SHOULD CONSULT A TAX
ADVISER BEFORE EXERCISING THIS OPTION OR DISPOSING OF THE SHARES.
There may be a regular federal income tax liability upon the
exercise of the Option. Optionee will be treated as having received
compensation income (taxable at ordinary income tax rates) equal to the excess,
if any, of the fair market value of the shares of Stock on the date of exercise
over the Option Price. If Optionee is an employee, the Company will be required
to withhold from Optionee's compensation or collect from Optionee and pay to
the applicable taxing authorities an amount equal to a percentage of this
compensation income at the time of exercise. Any gain realized on disposition
of the shares of Stock will be treated as short-term or long-term capital gain
for federal income tax purposes, depending upon whether the shares of Stock
have been held for at least one year following exercise of the Option.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
and effective the date first written above.
COMPANY:
SUMMIT BROKERAGE SERVICES, INC.,
a Florida corporation
By: Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, CEO and Chairman
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0PTIONEE'S ACKNOWLEDGEMENT
Optionee represents that he is familiar with the terms and provisions
thereof, and hereby accepts this Option subject to all of the terms and
provisions thereof. Optionee has reviewed this Option in its entirety, has had
an opportunity to obtain the advice of counsel prior to executing this Option,
and fully understands all provisions of the Option.
OPTIONEE:
By: Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx
Address:
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