Stock Option Agreement - Ladenburg Thalmann Financial Services Inc. and Salvatore Giardina
STOCK OPTION AGREEMENT
AGREEMENT, made as of December 17, 2003, by and between Ladenburg
Thalmann Financial Services Inc., a Florida corporation (the "Company"), and
Salvatore Giardina (the "Employee").
WHEREAS, by written consent dated as of December 17, 2003, pursuant to
the terms and conditions of the Company's 1999 Performance Equity Plan (the
"Plan"), the Compensation Committee ("Committee") of the Company's Board of
Directors authorized the grant to the Employee of an option to purchase an
aggregate of 30,000 shares of the authorized but unissued shares of the
Company's common stock, par value $0.0001 per share ("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
30,000 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 $0.45 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 10,000 of the Option Shares shall be exercisable on and after
December 17, 2004, (ii) the right to purchase an additional 10,000 of the Option
1
<PAGE>
Shares shall be exercisable on and after December 17, 2005, and (iii) the right
to purchase the remaining 10,000 of the Option Shares shall be exercisable on
and after December 17, 2006. After a portion of the Option becomes exercisable,
it shall remain exercisable except as otherwise provided herein, until the close
of business on December 16, 2013 (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.
2
<PAGE>
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 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
eighteen months 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.
3
<PAGE>
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.
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
4
<PAGE>
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.
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 (as defined in the
Plan) of the Company's Common Stock 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.
Notwithstanding the foregoing, the Employee, with the approval of the Committee,
may transfer the Option (i) (A) by gift, for no consideration, or (B) pursuant
to a domestic relations order, in either case, to or for the benefit of the
Employee's Immediate Family (as defined in the Plan), or (ii) to an entity in
which the Employee and/or members of the Employee's Immediate Family own more
than fifty percent of the
5
<PAGE>
voting interest, in exchange for an interest in that entity, provided that such
transfer is being made for estate, tax and/or personal planning purposes and
will not have adverse tax consequences to the Company and subject to such limits
as the Committee may establish and the execution of such documents as the
Committee may require. In such event, the transferee shall remain subject to all
the terms and conditions applicable to the Option prior to such transfer.
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
(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
shareholders;
(4) he or she understands that he or she is subject to the
Company's Insider Trading 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
6
<PAGE>
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 (3) above;
(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."
"The shares represented by this certificate have been
acquired pursuant to a Stock Option Agreement, dated
as of December 17, 2003, 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.
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.
7
<PAGE>
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 Insider Trading 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
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 SHAREHOLDER RIGHTS. The Employee 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. 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.
8
<PAGE>
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).
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.
9
<PAGE>
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the day and year first above written:
Ladenburg Thalmann Financial Services Inc. Address: 590 Madison Avenue
New York, NY 10022
By: /s/ Victor M. Rivas
--------------------------------------------------------
Victor M. Rivas, President and Chief Executive Officer
Employee: Address:
-----------------------
-----------------------
-----------------------
/s/ Salvatore Giardina
------------------------------------
10
<PAGE>
EXHIBIT A
FORM OF NOTICE OF EXERCISE OF OPTION
----------------------------
DATE
Ladenburg Thalmann Financial Services Inc.
590 Madison Avenue
New York, New York 10022
Attention: Board of Directors
Re: PURCHASE OF OPTION SHARES
Gentlemen:
In accordance with my Stock Option Agreement dated as of
December 17, 2003 with Ladenburg Thalmann 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 resale.
As payment for my shares, enclosed is (check and complete
applicable box[es]):
o a [personal check] [certified check] [bank check]
payable to the order of the Company in the sum of
$_________;
o confirmation of wire transfer in the amount of
$_____________;
o 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
o 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 shareholders;
11
<PAGE>
(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
Insider Trading 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 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 17,
2003, 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)
------------------------------------
(Social Security Number)
12