EXHIBIT 10.6
SEMELE GROUP, INC.
QUALIFIED STOCK OPTION AGREEMENT
EXECUTIVE OPTION GRANT PROGRAM
THIS OPTION AGREEMENT is made as of the 30th day of December, 1997 by and
between SEMELE GROUP, INC. (the "Company"), and Xxxx X. Xxxxx (the "Optionee").
All definitions contained in the Semele Group, Inc. Amended 1994 Executive and
Director Stock Option Plan (the "Plan") are hereby incorporated by reference and
shall have the same meanings in this Agreement as are contained in the Plan.
WHEREAS, the Optionee is employed by the Company, its subsidiaries or
Banyan Management Corp. and in the course of this employment provides services
to the Company, its subsidiaries or Banyan Management Corp., and
WHEREAS, by affording an opportunity to purchase Shares (as defined
below), the Company desires to provide additional motivation to the Optionee to
achieve long-term growth in stockholder equity,
NOW, THEREFORE, in consideration of the premises, the mutual covenants
hereinafter set forth and other good and valuable consideration, the Company and
the Optionee agree as follows:
X. Xxxxx of Option. Subject to the terms and conditions of the Plan and
this Option Agreement, the Company hereby grants to the Optionee the option to
purchase an aggregate of 400,000 shares of the Company's Common Stock (the
"Shares"). The Options granted hereunder are designated as incentive stock
options as described in Section 422 of the Internal Revenue Code of 1986, as
amended (the "Code").
II. Purchase Price. The price per share at which Shares may be acquired on
exercise shall be $0.925, which is not less than 100% of the Fair Market Value
of a share of the Company's Common Stock on the date hereof.
III. Exercise Schedule. Subject to becoming exercisable earlier as
provided in the Plan, and subject to the provisions of Section 4 of this
Agreement, the Options granted hereunder shall vest and be exercisable in
installments as follows: (i) to the extent of 33.3% of the number of Shares
commencing on the first anniversary of the date of grant; (ii) to the extent of
an additional 33.3% of Shares commencing on the second anniversary of the date
of grant; and (iii) to the extent of an additional 33.4% of Shares commencing on
the third anniversary of the date of grant; provided, however, that if the
Optionee shall die or become permanently or totally disabled or retire in
accordance with the Company's retirement procedures, then all options granted
hereunder shall become immediately exercisable.
IV. Period and Cancellation. The exercise period of each Option shall
terminate ten years from the date of grant, unless sooner terminated as provided
in this Option Agreement or under
the Plan. The exercise period of each Option shall also terminate on the
Optionee's Termination of Employment except if:
1. the Termination of Employment is due to: (a) the death or
permanent and total disability of the Optionee; or (b) the retirement in
accordance with the Company's or Banyan Management Corp.'s retirement
practices; then any unexercised Options to acquire Shares will become
immediately exercisable (without regard to meeting or complying with the
other vesting provisions of this Option Agreement or the Plan) as of the
date of death, disability or retirement and may be exercised by the
Optionee, the Optionee's legal representative or the Optionee's
beneficiary(ies), as the case may be, at any time within one year in the
case of (a) and 90 days in the case of (b);
2. the Termination of Employment is due to any reason other than as
described in subsection (i) above, any unexercised Options which have
vested pursuant to the terms of this Option Agreement and the Plan on or
before the Termination of Employment must be exercised by the Optionee,
his legal representative or his beneficiary(ies) within 30 days after the
date of Termination of Employment; or
3. the Termination of Employment is due to a reason described in
subsection (i) above (other than death) and the Optionee dies prior to the
expiration of the applicable exercise period set forth therein, the
Options may be exercised by his legal representative or his
beneficiary(ies) within the remainder of the period that would have been
applicable to the Optionee prior to the Optionee's death.
Termination of the exercise period shall result in termination and
cancellation of the Options. For purposes of this Option Agreement, "disability"
of the Optionee shall be deemed to have occurred if the Optionee has suffered
permanent and total physical or mental illness, injury or infirmity of such a
nature, degree or effect as to render the Optionee substantially unable to
perform his or her duties at the same level as previously performed for the
Company, one of its subsidiaries or Banyan Management Corp. The Board shall
determine, according to the facts then available to it, whether and when
disability has occurred, and the date of disability shall be the date of any
such determination.
V. Method of Option Exercise. The Optionee shall exercise Options by
delivering written notice of intent to exercise to the Company's Chief Operating
Officer at the Company's principal office located at Suite 2900, 000 Xxxxx
Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000 (or the office which is the successor main
office or which is otherwise designated as the office to which notice is to be
given as the Board may direct). Each notice shall: (i) state the Optionee's
election to exercise the Option and the number of Shares in respect of which the
Option is being exercised; (ii) be signed by the person or persons exercising
the Option; (iii) be accompanied by proof, reasonably satisfactory to the
Company's Chief Operating Officer, of the right of that person or persons to
exercise the Option if the Option is being exercised by any person or persons
other than the Optionee; and (iv) be accompanied by payment, in cash, Shares or
any other form of payment acceptable to the Board. An Option shall not have been
exercised unless all the preceding provisions of this paragraph shall have been
complied with and, for all purposes of this Option Agreement, the date of the
exercise of the Option with respect to any particular Shares shall be the date
on which the notice, proof (if required) and payment shall all have been
received by the Chief Operating Officer. The certificate or certificates for the
Shares as to which the Option shall have been so exercised shall be registered
in the name of the person or persons so exercising the Option and shall be
delivered to or upon the written order of the person or persons exercising the
Option as soon as practicable after receipt by the Chief Operating Officer of
the notice, proof (if required) and payment. Delivery of the certificate shall
be made at the place designated by the Optionee in the written notice of intent
to exercise.
VI. Change in Control. Notwithstanding the provisions of Section 3 of this
Agreement, if while unexercised Options remain outstanding under the Option
Agreement the Termination of Employment of the Optionee shall occur due to a
Change in Control (as defined below), all outstanding Options evidenced hereby
shall become exercisable from and after the date of Termination of Employment.
For the purposes of this Section 6, the term "Change in Control" shall
mean an occurrence whereby (i) any person, partnership, corporation, entity or
group (as that term is used in the Securities Exchange Act of 1934) shall, in
any single transaction or series of related transactions, directly or indirectly
acquire beneficial ownership of more than 50% of the Company's voting securities
or substantially all of the Company's assets or (ii) individuals who were
members of the Board immediately prior to a meeting of stockholders involving a
contest for the election of directors do not constitute a majority of the Board
following such election or (iii) the Optionee fails to be reelected a director
of the Company, unless the Optionee was not nominated for reelection with his
consent.
VII. No Rights as Stockholder. The Optionee shall have no rights as a
stockholder with respect to Shares covered by the Option until the date of
issuance of a stock certificate for the Shares; no adjustment for cash
dividends, or otherwise, shall be made if the record date therefor is prior to
the date of exercise of the Option.
VIII. Requirements of Law. The Company may issue or deliver certificates
for Shares prior to: (i) listing of the Shares on any stock exchange on which
the Shares may then be listed; or (ii) registering or qualifying the Shares
under federal or state law; provided, however, the Company shall not issue or
deliver certificates for Shares prior to the Optionee tendering to the Company
those documents or payments as the Board may deem necessary to satisfy any
applicable withholding obligation for the Company to obtain a deduction on its
federal, state or local tax return with respect to the exercise of an Option. If
the disposition of Shares acquired on exercise of any Option is not covered by a
then current registration statement under the Securities Act of 1933, as amended
(the "Securities Act") and is not otherwise exempt from registration, (i) the
acquired Shares shall be restricted against transfer to the extent required by
the Securities Act or regulations thereunder;(ii) on demand by the Board, the
individual exercising an Option shall state in writing, as a condition precedent
to each exercise, that the Optionee is acquiring the Shares for investment only
and not for resale or with a view to distribution; and (iii) any certificates
for Shares issued pursuant to the terms of this Option Agreement or the Plan
shall bear the following or similar legend:
The shares of common stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended, or under the
securities laws of any state and may not be sold or transferred except
upon
registration or receipt by the Company of an opinion of counsel
satisfactory to the Company, in form and substance satisfactory to the
Company, that registration is not required for sale or transfer.
IX. Cause to be Registered Under the Act. The Board may, in its
discretion, register the Shares acquired by the Optionee under the Securities
Act. Further, if at any time the Company proposes to register any of its equity
securities under the Securities Act, whether or not for its own account, and
there exist Shares which cannot be sold under an existing registration statement
or Rule 144(k) (or any similar provision then enforced), then the Company shall
give written notice of the proposed filing to the holder of the Shares at least
20 days before the anticipated filing date. This notice shall offer the holder
the opportunity to register the Shares. The Company shall register all Shares
with respect to which the Company has received a written request for inclusion
therein within 15 business days after notice has been duly given to the
applicable holder. The holder of restricted Shares shall be permitted to
withdraw all or any part of the restricted Shares from this registration at any
time prior to the effective date of the registration.
X. Non-transferability. The Option shall not be assigned, transferred
(except as herein provided), pledged, or hypothecated in any way (whether by
operation of law or otherwise), other than by will or the laws of descent and
distribution. The Option is exercisable during an Optionee's lifetime only by
the Optionee or the appointed guardian or legal representative of the Optionee,
and no Option shall be subject to execution, attachment, or similar process. Any
attempted assignment, transfer, pledge, hypothecation, or other disposition
contrary to the provisions hereof, and the levy of any attachment or similar
process upon the Option shall be null and void and without effect. The Company
shall have the right to terminate the Option upon any assignment, transfer,
pledge, hypothecation, other disposition of the Option, or levy of attachment or
similar process, by notice to that effect to the person then entitled to
exercise the Option; provided, however, that termination of the Option hereunder
shall not prejudice any rights or remedies which the Optionee, the Company or
any subsidiary of the Company may have under this Option Agreement or otherwise.
XI. Changes in Company's Capital Structure. The existence of the Option
shall not affect in any way the right or authority of the Company or its
stockholders to make or authorize any or all adjustments, recapitalizations,
reorganizations or other changes in the Company's capital structure or its
business, or any merger or consolidation of the Company, or any issue of bonds,
debentures, preferred or prior preference stock ahead of or affecting the Common
Stock or the rights thereof, or the dissolution or liquidation of the Company,
or any sale or transfer of all or any part of its assets or business, or any
other corporate act or proceeding, whether of a similar character or otherwise.
XII. Board Action Final. Any dispute or disagreement which shall arise
under, as a result of, or in any way relate to the interpretation or
construction of this Option Agreement or the Plan shall be determined by the
Board. Any such determination made hereunder shall be final, binding, and
conclusive for all purposes.
XIII. Withholding. The Optionee and Company agree that the Company shall
have no obligation to issue or transfer Shares upon the exercise of the Option,
unless and until the
Optionee or beneficiary shall have reasonably satisfied the obligation of the
Company and any of its subsidiaries or Banyan Management Corp. with respect to
the withholding of federal, state or local taxes, or in order to reasonably
sustain a right of the Company to a tax deduction under federal, state or local
law with respect to the exercise of an Option. At the election of the Optionee
or the beneficiary, as the case may be, the Company's or Banyan Management
Corp.'s withholding obligation may be satisfied by the Optionee or beneficiary
tendering cash, or Shares previously owned by the Optionee or directing that a
number of Shares be withheld from issuance upon the exercise of an Option (or
any combination of any of the foregoing) as the Board reasonably determines
necessary to satisfy the obligation of the Company or any of its subsidiaries,
or Banyan Management Corp.'s, or in order to sustain a right of the Company or
Banyan Management Corp.'s to a tax deduction under federal, state or local law
with respect to the exercise of an Option.
XIV. Condition of Employment. The Plan, this Option Agreement and any
Option granted under the Plan and this Option Agreement shall not confer upon
any Optionee any right to continued employment by the Company, its subsidiaries
or Banyan Management Corp., nor shall they interfere in any way with the right
of the Company, its subsidiaries or Banyan Management Corp., to, subject to
other agreements with the Optionee, terminate an Optionee's employment at any
time.
XV. Plan Controlling. This Option Agreement is executed pursuant to the
provisions of the Plan and is subject to all of the provisions of the Plan which
shall be controlling.
XVI. Successors and Assigns. This Option Agreement shall inure to the
benefit of and be binding upon each successor and assign of the Company. All
obligations imposed upon the Optionee or his beneficiary and all rights granted
to the Company hereunder or as stipulated in the Plan shall be binding upon the
Optionee's or the beneficiary's heirs, legal representatives and successors.
XVII. Choice of Laws. This Agreement shall be construed and enforced
according to the internal laws of the State of Delaware.
IN WITNESS WHEREOF, the Company has caused this Option Agreement to be
executed by its duly authorized officer, and the Optionee has hereunto set his
hand and seal, as of the day and year first above written.
SEMELE GROUP, INC.
By: _________________________________
Its: Chairman of the Board
_____________________________________
(Optionee)
