Exhibit 10.10
STOCK OPTION AGREEMENT
[Employee Incentive Under Plan]
AGREEMENT, made as of December 13, 1999 by and between GBI Capital
Management Corp., a Florida corporation (the "Company"), and Xxxxx Xxxxxxxx (the
"Employee").
WHEREAS, on December 13, 1999 ("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 or the Committee (as such term is defined in
the Plan) authorized the grant to the Employee of an option to purchase an
aggregate of 15,000 shares of the authorized but unissued common stock of the
Company, $.001 par value ("Common Stock"), conditioned upon the Employee's
acceptance thereof upon the terms and conditions set forth in this Agreement and
subject to the terms of the Plan (capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Plan); and
WHEREAS, the Employee desires to acquire the option on the terms and
conditions set forth in this Agreement.
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants to the Employee
the right and option ("Option") to purchase all or any part of an aggregate of
15,000 shares of Common Stock ("Option Shares") on the terms and conditions set
forth herein and subject to the provisions of the Plan.
2. Incentive Stock Option. The Option represented hereby is intended
to be an Option which qualifies as an "Incentive Stock Option" under Section 422
of the Internal Revenue Code of 1986, as amended ("Code").
3. Exercise Price. The exercise price ("Exercise Price") of the Option
shall be $3.00 per share, subject to adjustment as provided in the Plan.
4. Exercisability. This Option shall become exercisable, subject to
the terms and conditions of the Plan and this Agreement, as follows: (i) the
right to purchase 5,000 of the Option Shares shall be exercisable on and after
December 13, 2000, (ii) the right to purchase an additional 5,000 of the Option
Shares shall be exercisable on and after December 13, 2001, and (iii) the right
to purchase the remaining 5,000 of the Option Shares shall be exercisable on and
after December 13, 2002. After a portion of 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. Effect of Termination of Employment.
5.1 Termination Due to Death. If Employee's employment by the
Company terminates by reason of death, 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 Employee under the
will of the Employee, 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 expire.
5.2 Termination Due to Disability. If Employee's employment by the
Company terminates by reason of disability (as such term is defined in the
Plan), the portion of the Option, if any, that was exercisable as of the date of
disability may thereafter be exercised by the Employee or legal representative
for a period of one year from the date of such termination 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 termination shall
immediately expire.
5.3 Termination by the Company Without Cause and/or Due to
Retirement. If Employee's employment is terminated by the Company without cause
or due to the normal retirement of Employee after his 65th birthday, then the
portion of the Option which has vested by the date of termination of employment
may be exercised for a period of 30 days from termination of employment or until
the expiration of the Exercise Period, whichever is shorter. The portion of the
Option, if any, not yet exercisable on the date of termination of employment
shall immediately expire.
5.4 Other Termination.
5.4.1 If Employee's employment is terminated for any reason
other than (i) death, (ii) disability, (iii) normal retirement, or (iv) without
cause by the Company, the Option, whether or not then exercisable, shall expire
on the date of termination of employment.
5.4.2 In the event the Employee's employment is terminated for
cause, the Company may require the Employee to return to the Company the
economic benefit of any Option Shares purchased hereunder by the Employee within
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the six month period prior to the date of termination. In such event, the
Employee hereby agrees to remit to the Company, in cash, an amount equal to the
difference between the Fair Market Value (on the date of termination) of the
Option Shares so purchased by Employee (or the sales price of such Option Shares
if the Option Shares were sold during such six month period) and the Exercise
Price.
5.5 Competing With the Company. In the event that, within one year
after the date of termination of Employee's employment with the Company,
Employee accepts employment with, or becomes engaged as a consultant by, any
competitor of, or otherwise competes with, the Company, the Company, in its sole
discretion, may require such Employee to return to the Company the economic
value of any Option Shares purchased hereunder by the Employee within the
six-month period prior to the date of termination. In such event, Employee
agrees to remit the economic value to the Company in accordance with Section
5.4.2.
6. Withholding Tax. Not later than the date as of which an amount
first must be included in the gross income of the Employee for Federal income
tax purposes with respect to the Option, the Employee shall pay to the Company
(or other entity identified by the Company), or make arrangements satisfactory
to the Company (or other entity identified by the Company) regarding the payment
of, any Federal, state, local or foreign taxes of any kind required by law to be
withheld with respect to such amount ("Withholding Tax"). With the prior
approval of the Company, in its sole discretion, withholding obligations may be
settled with Common Stock, including Common Stock underlying the subject option,
provided that any applicable requirements under Section 16 of the Exchange Act
are satisfied so as to avoid liability thereunder. The obligations of the
Company under the Plan and pursuant to this Agreement shall be conditioned upon
such payment or arrangements with the Company and the Company shall, to the
extent permitted by law, have the right to deduct any Withholding Taxes from any
payment of any kind otherwise due to the Employee from the Company.
7. Method of Exercise.
7.1 Notice to the Company. The Option may be exercised in whole
or in part by written notice in 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 and of the Withholding Taxes, if any.
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7.2 Delivery of Option Shares. The Company shall deliver a
certificate for the Option Shares to the Employee as soon as practicable after
payment therefor.
7.3 Payment of Purchase Price.
7.3.1 Cash Payment. The Employee 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.
7.3.2 Payment through Bank or Broker. The Company, in its
sole discretion, may permit the Employee to make arrangements satisfactory to
the Company with a bank or a broker who is member of the National Association of
Securities Dealers, Inc. to either (a) sell on the exercise date a sufficient
number of the Option Shares being purchased so that the net proceeds of the sale
transaction will at least equal the Exercise Price multiplied by the number of
Option Shares being purchased pursuant to such exercise, plus the amount of the
Withholding Tax and pursuant to which the bank or broker undertakes irrevocably
to deliver the full Exercise Price multiplied by the number of Option Shares
being purchased pursuant to such exercise, plus the amount of the Withholding
Tax to the Company on a date satisfactory to the Company, but no later than the
date on which the sale transaction would settle in the ordinary course of
business or (b) obtain a "margin commitment" from the bank or broker pursuant to
which the bank or broker undertakes irrevocably to deliver the full Exercise
Price multiplied by the number of Option Shares being purchased pursuant to such
exercise, plus the amount of the Withholding Tax to the Company, immediately
upon receipt of the Option Shares.
7.3.3 Stock Payment. The Company, in its sole discretion, may
allow Employee to use Common Stock of the Company owned by him to make any
required payments 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.
7.3.4 Payment of Withholding Tax. Any required Withholding
Tax may be paid in cash or with Common Stock in accordance with Sections 7.3.1
and 7.3.2, respectively, and Section 6.
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7.3.5 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.
8. Security Interest in Option Shares Collateralizing Obligations Owed
to the Company. Notwithstanding anything in this Agreement to the contrary, the
Employee hereby grants the Company a security interest in the Option Shares as
follows: in the event that the Employee owes the Company any sum including
without limitation amounts owed pursuant to a loan made by the Company to the
Employee ("Amount Due"), the Company shall have a security interest in the
Option Shares. The Employee hereby agrees to execute, promptly upon request by
the Company, such instruments and to take such action as may be useful for the
Company to perfect and/or exercise such security interest, and hereby
irrevocably grants the Company the right to retain, in full or partial payment
of the Amount Due, up to the following number of Option Shares upon any whole or
partial exercise of the Option: a fraction, the numerator of which is the Amount
Due, and the denominator of which is the Fair Market Value of the Company's
common stock (as defined in the Plan) as of the date of such exercise; provided
that the fraction set forth in the preceding clause shall be rounded up to the
nearest whole number. The security interest set forth herein shall be cumulative
to all, and not in lieu of any, other remedies to available to the Company with
respect to any Amount Due.
9. Nonassignability. The Option shall not be sold, pledged, assigned,
hypothecated, transferred or disposed of in any manner, except by will or by the
laws of descent and distribution in the event of the death of the Employee. No
transfer of the Option by the Employee 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/or
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 Employee that:
(1) 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
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(2) the Option Shares, when issued and delivered by the Company
to the Employee in accordance with the terms and conditions hereof, will be duly
and validly issued and fully paid and non-assessable.
11. Employee Representations. The Employee hereby represents and
warrants to the Company that:
(1) he or she is acquiring the Option and shall acquire the
Option Shares for his own account and not with a view towards the distribution
thereof;
(2) he or she has received a copy of the Plan as in effect as of
the date of this Agreement;
(3) he or she has received a copy of all reports and documents
required to be filed by the Company with the Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended, within the last 24
months and all reports issued by the Company to its stockholders;
(4) he or she understands that he or she is subject to the
Company's Xxxxxxx Xxxxxxx Policy and has received a copy of such policy as of
the date of this Agreement;
(5) he or she understands that he or she must bear the economic
risk of the investment in the Option Shares, which cannot be sold by him 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;
(6) 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 (iii) above;
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(7) 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
(8) if, at the time of issuance of the Option Shares, the
issuance of such shares have not been registered under the 1933 Act, the
certificates evidencing the Option Shares shall bear the following legend:
"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."
12. Restriction on Transfer of Option Shares.
12.1 Anything in this Agreement to the contrary notwithstanding,
Employee hereby agrees that he shall not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by him 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 Employee 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.
12.2 Anything in this Agreement to the contrary notwithstanding,
Employee hereby agrees that he shall not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by him except in accordance with
Company's Xxxxxxx Xxxxxxx Policy regarding the sale and disposition of
securities owned by employees and/or directors of the Company.
13. Adjustments. The number of shares subject to the Option, the
Exercise Price, the Exercise Period and the vesting of the Option shall all be
subject to adjustment under Section 3.2 of the Plan.
14. Miscellaneous.
14.1 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 to the
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parties at their respective addresses set forth herein, or to such other address
as either shall have specified by notice in writing to the other. Notice shall
be deemed duly given hereunder when delivered or mailed as provided herein.
14.2 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.
14.3 Employee and Stockholder Rights. The Employee 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. Nothing
contained in this Agreement shall be deemed to confer upon Employee any right to
continued employment with the Company or any subsidiary thereof, nor shall it
interfere in any way with the right of the Company to terminate Employee in
accordance with the provisions regarding such termination set forth in
Employee's written employment agreement with the Company, or if there exists no
such agreement, to terminate Employee at will.
14.4 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.
14.5 Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supercedes any and all prior agreements with respect to the Option. This
Agreement may not be amended except by writing executed by the Employee and the
Company.
14.6 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.
14.7 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).
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14.8 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:
GBI Capital Management Corp. Address: 0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
By:
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Xxxxxxx X. Xxxxxxxxxx, President
EMPLOYEE: Address: _____________________
_____________________
_____________________
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EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
----------------------------
DATE
GBI Capital Management Corp.
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Stock Option Committee of
the Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of December 13,
1999 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 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 the Company in the sum of $_________;
|_| confirmation of wire transfer in the amount of
$_____________;
|_| with the consent of the Company, a 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 Agreement of
$_________; and/or
|_| with the consent of the Company, through broker payment as
provided in Section 7.3.2 (see broker letter attached).
I hereby represent and warrant to, and agree with, the Company that:
(i) I am acquiring the Option and shall acquire the Option
Shares for my own account, for investment, and not with a view towards
the distribution thereof;
(ii) I have received a copy of the Plan and all reports and
documents required to be filed by the Company with the Commission
pursuant to the Exchange Act within the last 24 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) I understand I am subject to the Company's Xxxxxxx
Xxxxxxx Policy and have received a copy of such policy as of the date
of this Agreement;
(v) I agree that I will not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by me hereby except in
accordance with Company's policy, if any, regarding the sale and
disposition of securities owned by employees and/or directors of the
Company;
(vi) 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;
(vii) 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; and
(viii) My rights with respect to the Option Shares, in all
respects, be subject to the terms and conditions of this Company's
1999 Performance Equity Plan and this Agreement; and
(ix) if, at the time of issuance of the Option Shares, the
issuance of such shares have not been registered under the 1933 Act,
the certificates evidencing the Option Shares shall bear the following
legend:
"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."
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)
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(Social Security Number)
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