EXHIBIT 10.10
FECHTOR, DETWILER, MITCHELL & CO.
STOCK OPTION AGREEMENT
This certifies that, for value received, George Simpkins ("Option Holder")
shall have the right set forth herein (the "Option"), subject to the terms and
conditions set forth below, to purchase from FECHTOR, DETWILER, MITCHELL & CO.
("FEDM"), in whole or in part that number of fully paid and nonassessable shares
(the "Shares") of Common Stock of FEDM set forth in Section I below and at a
purchase price per share (the "Exercise Price") set forth in Section I below.
The number, character and Exercise Price of such Shares are subject to
adjustment as provided in Section II(10) below and all references to "Shares"
and "Exercise Price" herein shall be deemed to include any such adjustment or
series of adjustments.
I. GRANT INFORMATION
Date of Grant: December 14, 2000
Name of Option Holder: George Simpkins
Type of Option: Nonstatutory ("NSO")
Number of Shares of Common
Stock Covered by the Option: 131,250
Exercise Price per Share: $0.6875 USD
Vesting Start Date: Date of Grant
Vesting Schedule: Subject to the attached Terms and Conditions,
131,250 of the Shares subject to the Option
shall vest 33.33% on the first and second
anniversaries of the Vesting Start Date and
33.34% of the Shares subject to the Option
shall vest on the third anniversary of the
Vesting Start Date, all in accordance with
the terms hereof. Accordingly, on the third
anniversary of the Vesting Start Date, 100%
of the Shares subject to the Option shall be
vested, provided all of the requirements for
vesting hereunder have been met.
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II. TERMS AND CONDITIONS
1. Vesting. Your Option vests during your Service on the dates specified
in the vesting schedule on the first page of this Stock Option Agreement.
Vesting will cease if your Service terminates for any reason.
2. Service; Leaves of Absence. Your Service shall cease when you cease to
be actively employed by, or a consultant or adviser to Detwiler, Mitchell & Co.
(UK) Limited (the "Company") (or any subsidiary), as determined in the sole
discretion of the FEDM Board. For purposes of your Option, your Service does not
terminate when you go on a bona fide leave of absence, that was approved by the
Company in writing, if the terms of the leave provide for continued service
crediting, or when continued service crediting is required by applicable law.
Your Service terminates in any event when the approved leave ends, unless you
immediately return to active work. The Company determines which leaves count
toward Service, and when your Service terminates for all purposes under the
Plan.
3. Term of Option. Your Option expires on the day before the fifth
anniversary of the Date of Grant, and will expire earlier if your Service
terminates as follows:
(a) Regular Termination. If your Service terminates for any
reason except death or Disability, then your Option will expire at the
close of business at Company headquarters on the date three (3) months
after your termination date. During that three-month period, you may
exercise that portion of your Option that was vested on the date that your
Service terminated.
(b) Cause. If your Service terminates for Cause, your Option
will expire immediately.
For purposes of this Section, "Cause" means (i) your continued failure
to perform substantially your duties as set by the Company at the date of
this Agreement (other than as a result of sickness, accident or similar
cause beyond your reasonable control) after your receipt of a written
warning and have been given thirty (30) days to improve; (ii) willful and
material misconduct, which is demonstrably and materially injurious to the
Company or any of its subsidiaries, including willful and material failure
to perform your duties as an officer or employee of the Company or any of
its subsidiaries or a material breach of this Agreement; (iii) conviction
of or plea of nolo contendere to a felony; and (iv) conviction of an act of
fraud against, or the misappropriation of property belonging to, the
Company or any of its subsidiaries, or any employee, customer, or supplier
of the Company or any of its subsidiaries.
(c) Death. If you die while in Service, then your Option will
expire at the close of business at Company headquarters on the date six (6)
months after the date of death. During that six-month period, your estate
or heirs may exercise that portion of your Option that was vested on the
date of death.
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(d) Disability. If your Service terminates because of your
Disability, then your Option will expire at the close of business at
Company headquarters on the date six (6) months after your termination
date. During that six-month period, you may exercise that portion of your
Option that was vested on the date of your Disability.
"Disability" means that you are unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment.
4. Exercise of Option.
(a) Legal Restrictions. By signing this Agreement, you agree
not to exercise this Option or sell any Common Stock acquired upon exercise
of this Option at a time when applicable laws, regulations or Company or
underwriter trading policies prohibit exercise or sale and to comply with
any such laws, regulations or policies deemed applicable to such exercise
or sale by counsel to the Company. In particular, the Company shall have
the right to designate one or more periods of time, each of which shall not
exceed 180 days in length, during which this Option shall not be
exercisable if the Company determines (in its sole discretion) that such
limitation on exercise could in any way facilitate a lessening of any
restriction on transfer pursuant to the Securities Act with respect to any
issuance of securities by the Company, facilitate the registration or
qualification of any securities by the Company under the Securities Act or
any state securities laws, or facilitate the perfection of any exemption
from the registration or qualification requirements of the Securities Act
for the issuance or transfer of any securities. Such limitation on exercise
shall not alter the vesting schedule set forth in this Agreement other than
to limit the periods during which this Option shall be exercisable.
Notwithstanding the foregoing, if a limitation is imposed and such
limitation would cause a forfeiture of your exercise right because your
option would expire during such limitation period, then the vesting
schedule and expiration date of your option shall be extended 30 days
beyond the limitation period to allow for exercise of your option.
(b) Method of Exercise. To exercise your Option, you must
execute the Notice of Exercise, attached hereto as Exhibit A. You must
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submit this form, together with full payment, at the address given on the
form. Your Notice of Exercise must specify how many shares you wish to
purchase. Your Notice of Exercise will be effective when it is received by
the Company. If someone else wants to exercise your Option after your
death, that person must prove to the Company's satisfaction that he or she
is entitled to do so.
(c) Form of Payment. When you submit Exhibit A, you must
---------
include payment of the aggregate Exercise Price for the Common Stock you
are purchasing. Payment may be made in one (or a combination) of the
following forms.
. Your personal cheque, a cashier's cheque or a money order.
. Shares of Common Stock which you have owned for six months and
which are surrendered to the Company. The value of such Common
-3-
Stock, determined as of the effective date of the Option
exercise, will be applied to the Exercise Price.
. To the extent that a public market for Common Stock exists as
determined by the Company, by delivery (on a form approved by the
Company) of an irrevocable direction to a securities broker to
sell Common Stock and to deliver all or part of the sale proceeds
to the Company in payment of the aggregate Exercise Price.
. To the extent that a public market for Common Stock exists as
determined by the Company, by delivery (on a form approved by the
Company) of an irrevocable direction to a securities broker or
lender to pledge Common Stock, as security for a loan, and to
deliver all or part of the loan proceeds to the Company in
payment of the aggregate Exercise Price.
. Any other form of legal consideration approved by the Board.
(d) Withholding Taxes. You will not be allowed to exercise your
Option unless you make acceptable arrangements to pay any withholding or
other taxes that may be due as a result of the exercise of, or other
dealing in, the Option or the sale of Common Stock acquired upon exercise
of your Option. As a condition of grant of the Option, you shall complete
an election in the form attached as Exhibit B (the "NICs Election")
---------
providing for the transfer to you of the employer's liability to secondary
national insurance contributions arising on the exercise of, or other
dealing in, the Option.
5. Market Stand-Off. In connection with any underwritten public offering
by the Company of its equity securities pursuant to an effective registration
statement filed under the US Securities Act of 1933, you shall not, directly or
indirectly, engage in any transaction prohibited by the underwriter, nor shall
you sell, make any short sale of, contract to sell, transfer the economic risk
of ownership in, loan, charge, pledge, grant any option for the purchase of, or
otherwise dispose of or transfer for value or agree to engage in any of the
foregoing transactions with respect to any Shares without the prior written
consent of the Company or its underwriters, for such period of time after the
effective date of such registration statement as may be requested by the Company
or such underwriters. Such period of time shall not exceed one hundred eighty
(180) days and may be required by the underwriter as a condition of the
offering. By signing this Stock Option Agreement you agree to execute and
deliver such other agreements as may be reasonably requested by the Company or
the underwriter which are consistent with the foregoing or which are necessary
to give further effect thereto. To enforce the provisions of this Section 5, the
Company may impose stop-transfer instructions with respect to the Shares until
the end of the applicable stand-off period.
6. Exercise of Option Before Vesting ("Early Exercise"). You may not
exercise your Option before it is fully vested.
7. Transfer of Option. Prior to your death, only you may exercise your
Option. You cannot transfer or assign your Option. For instance, you may not
sell your Option or use it as
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security for a loan. If you attempt to do any of these things, your Option will
immediately become invalid. You may, however, dispose of your Option in your
will.
Regardless of any marital property settlement agreement, the Company is not
obligated to honor a notice of exercise from your spouse or former spouse, nor
is the Company obligated to recognize such individual's interest in your Option
in any other way.
8. No Retention Rights. Your Option does not give you the right to be
retained by the Company (or any subsidiaries) in any capacity. The Company
reserves the right to terminate your Service at any time and for any reason.
9. Stockholder Rights. You, or your estate or heirs, have no rights as a
Stockholder of the Company until a certificate for your Common Stock has been
issued. No adjustments are made for dividends or other rights if the applicable
record date occurs before your stock certificate is issued, except as described
in the Plan.
10. Adjustments to Common Stock.
(a) Adjustments. In the event of a subdivision of the outstanding
Shares, a declaration of a dividend payable in Shares, a declaration of a
dividend payable in a form other than Shares in an amount that has a
material effect on the price of Shares, a combination or consolidation of
the outstanding Shares (by reclassification or otherwise) into a lesser
number of Shares, a recapitalization, a spin-off or a similar occurrence,
the Committee shall make such adjustments as it, in its sole discretion,
deems appropriate in one or more of:
(1) The number of shares subject to the Option; or
(2) The Exercise Price under the outstanding Option.
Except as provided in this Section 10, you shall have no rights whatsoever as a
result of any issue by the Company of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of shares
of stock of any class, the payment of any stock dividend or any other increase
or decrease in the number of shares of stock of any class.
(b) Dissolution or Liquidation. To the extent not previously
exercised, your Option shall terminate immediately prior to the dissolution
or liquidation of the Company.
(c) Reorganizations. If the Company is a party to a merger or other
reorganization, your Option shall be subject to the agreement of merger or
reorganization. Such agreement shall provide for one or more of the
following, in all cases without your consent being required:
(1) The continuation of the Option, if the Company is a surviving
corporation;
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(2) The assumption of the outstanding Option by the surviving
corporation or its parent or subsidiary;
(3) The substitution by the surviving corporation or its parent
or subsidiary of its own awards for the Option; or
(4) Full exercisability and/or vesting and/or accelerated
expiration of the Option.
(d) Reservation of Rights. Except as provided in this Section
10, you shall have no rights by reason of any subdivision or consolidation
of shares of stock of any class, the payment of any dividend or any other
increase or decrease in the number of shares of stock of any class. Any
issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to your Option. The grant of your Option
shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital
or business structure, to issue or sell any shares of stock of any class,
to merge or consolidate or to dissolve, liquidate, sell or transfer all or
any part of its business or assets.
11. Applicable Law. This Agreement will be interpreted and enforced under
the laws of England and Wales.
This Agreement constitutes the entire understanding between you and the
Company regarding your Option. Any prior agreements, commitments or
negotiations concerning your Option are superseded.
By signing below, you agree to all of the terms and conditions described in
this Stock Option Agreement, including the attached Notice of Exercise.
Option Holder: /s/ George Simpkins
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(Signature)
Company: /s/ Robert Jeffords
-----------------------------------------------------------------------
(Signature)
Title: Assistant Secretary
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FECHTOR, DETWILER, MITCHELL & CO.
STOCK OPTION AGREEMENT
This certifies that, for value received, George Simpkins ("Option Holder")
shall have the right set forth herein (the "Option"), subject to the terms and
conditions set forth below, to purchase from FECHTOR, DETWILER, MITCHELL & CO.
("FEDM"), in whole or in part that number of fully paid and nonassessable shares
(the "Shares") of Common Stock of FEDM set forth in Section I below and at a
purchase price per share (the "Exercise Price") set forth in Section I below.
The number, character and Exercise Price of such Shares are subject to
adjustment as provided in Section II(10) below and all references to "Shares"
and "Exercise Price" herein shall be deemed to include any such adjustment or
series of adjustments.
III. GRANT INFORMATION.
Date of Grant: December 14, 2000
Name of Option Holder: George Simpkins
Type of Option: Nonstatutory ("NSO")
Number of Shares of Common
Stock Covered by the Option: 306,250
Exercise Price per Share: $0.6875 USD
Vesting Start Date: Date of Grant
Vesting Schedule: Subject to the attached Terms and Conditions, 100%
of the 306,250 Shares will vest on the fifth
anniversary date of the date of grant.
Notwithstanding the immediately preceding
sentence, vesting of such Option shall accelerate
and such Shares shall vest in three equal, annual
installments commencing upon the conclusion of the
Start-up Period (as that term is defined in the
Agreement between FEDM and Option Holder entered
into on December 14, 2000 (the "FEDM Agreement")
(i.e., the first installment would vest on the
first anniversary of the conclusion of the Start-
up Period) if Commission Revenues (as that term is
defined in the FEDM Agreement) generated by the
Company (as defined below) as determined using the
first twelve individual months of the Start-up
Period (as that term is defined in the FEDM
Agreement) exceeds $5,000,000.
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IV. TERMS AND CONDITIONS
1. Vesting. Your Option vests during your Service on the dates specified
in the vesting schedule on the first page of this Stock Option Agreement.
Vesting will cease if your Service terminates for any reason.
2. Service; Leaves of Absence. Your Service shall cease when you cease to
be actively employed by, or a consultant or adviser to Detwiler, Mitchell & Co.
(UK) Limited (the "Company") (or any subsidiary), as determined in the sole
discretion of the FEDM Board. For purposes of your Option, your Service does not
terminate when you go on a bona fide leave of absence, that was approved by the
Company in writing, if the terms of the leave provide for continued service
crediting, or when continued service crediting is required by applicable law.
Your Service terminates in any event when the approved leave ends, unless you
immediately return to active work. The Company determines which leaves count
toward Service, and when your Service terminates for all purposes under the
Plan.
3. Term of Option. Your Option expires on the day before the sixth
anniversary of the Date of Grant, and will expire earlier if your Service
terminates as follows:
(a) Regular Termination. If your Service terminates for any
reason except death or Disability, then your Option will expire at the
close of business at Company headquarters on the date three (3) months
after your termination date. During that three-month period, you may
exercise that portion of your Option that was vested on the date that your
Service terminated.
(b) Cause. If your Service terminates for Cause, your Option
will expire immediately.
For purposes of this Section, "Cause" means (i) your continued failure
to perform substantially your duties as set by the Company at the date of
this Agreement (other than as a result of sickness, accident or similar
cause beyond your reasonable control) after your receipt of a written
warning and have been given thirty (30) days to improve; (ii) willful and
material misconduct, which is demonstrably and materially injurious to the
Company or any of its subsidiaries, including willful and material failure
to perform your duties as an officer or employee of the Company or any of
its subsidiaries or a material breach of this Agreement; (iii) conviction
of or plea of nolo contendere to a felony; and (iv) conviction of an act of
fraud against, or the misappropriation of property belonging to, the
Company or any of its subsidiaries, or any employee, customer, or supplier
of the Company or any of its subsidiaries.
(c) Death. If you die while in Service, then your Option will
expire at the close of business at Company headquarters on the date six (6)
months after the date of death. During that six-month period, your estate
or heirs may exercise that portion of your Option that was vested on the
date of death.
-2-
(d) Disability. If your Service terminates because of your
Disability, then your Option will expire at the close of business at
Company headquarters on the date six (6) months after your termination
date. During that six-month period, you may exercise that portion of your
Option that was vested on the date of your Disability.
"Disability" means that you are unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment.
4. Exercise of Option.
(a) Legal Restrictions. By signing this Agreement, you agree
not to exercise this Option or sell any Common Stock acquired upon exercise
of this Option at a time when applicable laws, regulations or Company or
underwriter trading policies prohibit exercise or sale and to comply with
any such laws, regulations or policies deemed applicable to such exercise
or sale by counsel to the Company. In particular, the Company shall have
the right to designate one or more periods of time, each of which shall not
exceed 180 days in length, during which this Option shall not be
exercisable if the Company determines (in its sole discretion) that such
limitation on exercise could in any way facilitate a lessening of any
restriction on transfer pursuant to the Securities Act with respect to any
issuance of securities by the Company, facilitate the registration or
qualification of any securities by the Company under the Securities Act or
any state securities laws, or facilitate the perfection of any exemption
from the registration or qualification requirements of the Securities Act
for the issuance or transfer of any securities. Such limitation on exercise
shall not alter the vesting schedule set forth in this Agreement other than
to limit the periods during which this Option shall be exercisable.
Notwithstanding the foregoing, if a limitation is imposed and such
limitation would cause a forfeiture of your exercise right because your
option would expire during such limitation period, then the vesting
schedule and expiration date of your option shall be extended 30 days
beyond the limitation period to allow for exercise of your option.
(b) Method of Exercise. To exercise your Option, you must
execute the Notice of Exercise, attached hereto as Exhibit A. You must
---------
submit this form, together with full payment, at the address given on the
form. Your Notice of Exercise must specify how many shares you wish to
purchase. Your Notice of Exercise will be effective when it is received by
the Company. If someone else wants to exercise your Option after your
death, that person must prove to the Company's satisfaction that he or she
is entitled to do so.
(c) Form of Payment. When you submit Exhibit A, you must
---------
include payment of the aggregate Exercise Price for the Common Stock you
are purchasing. Payment may be made in one (or a combination) of the
following forms.
. Your personal cheque, a cashier's cheque or a money order.
. Shares of Common Stock which you have owned for six months and
which are surrendered to the Company. The value of such Common
-3-
Stock, determined as of the effective date of the Option
exercise, will be applied to the Exercise Price.
. To the extent that a public market for Common Stock exists as
determined by the Company, by delivery (on a form approved by the
Company) of an irrevocable direction to a securities broker to
sell Common Stock and to deliver all or part of the sale proceeds
to the Company in payment of the aggregate Exercise Price.
. To the extent that a public market for Common Stock exists as
determined by the Company, by delivery (on a form approved by the
Company) of an irrevocable direction to a securities broker or
lender to pledge Common Stock, as security for a loan, and to
deliver all or part of the loan proceeds to the Company in
payment of the aggregate Exercise Price.
. Any other form of legal consideration approved by the Board.
(d) Withholding Taxes. You will not be allowed to exercise your
Option unless you make acceptable arrangements to pay any withholding or
other taxes that may be due as a result of the exercise of, or other
dealing in, the Option or the sale of Common Stock acquired upon exercise
of your Option. As a condition of grant of the Option, you shall complete
an election in the form attached as Exhibit B (the "NICs Election")
---------
providing for the transfer to you of the employer's liability to secondary
national insurance contributions arising on the exercise of, or other
dealing in, the Option.
5. Market Stand-Off. In connection with any underwritten public offering
by the Company of its equity securities pursuant to an effective registration
statement filed under the US Securities Act of 1933, you shall not, directly or
indirectly, engage in any transaction prohibited by the underwriter, nor shall
you sell, make any short sale of, contract to sell, transfer the economic risk
of ownership in, loan, charge, pledge, grant any option for the purchase of, or
otherwise dispose of or transfer for value or agree to engage in any of the
foregoing transactions with respect to any Shares without the prior written
consent of the Company or its underwriters, for such period of time after the
effective date of such registration statement as may be requested by the Company
or such underwriters. Such period of time shall not exceed one hundred eighty
(180) days and may be required by the underwriter as a condition of the
offering. By signing this Stock Option Agreement you agree to execute and
deliver such other agreements as may be reasonably requested by the Company or
the underwriter which are consistent with the foregoing or which are necessary
to give further effect thereto. To enforce the provisions of this Section 5, the
Company may impose stop-transfer instructions with respect to the Shares until
the end of the applicable stand-off period.
6. Exercise of Option Before Vesting ("Early Exercise"). You may not
exercise your Option before it is fully vested.
7. Transfer of Option. Prior to your death, only you may exercise your
Option. You cannot transfer or assign your Option. For instance, you may not
sell your Option or use it as
-4-
security for a loan. If you attempt to do any of these things, your Option will
immediately become invalid. You may, however, dispose of your Option in your
will.
Regardless of any marital property settlement agreement, the Company is not
obligated to honor a notice of exercise from your spouse or former spouse, nor
is the Company obligated to recognize such individual's interest in your Option
in any other way.
8. No Retention Rights. Your Option does not give you the right to be
retained by the Company (or any subsidiaries) in any capacity. The Company
reserves the right to terminate your Service at any time and for any reason.
9. Stockholder Rights. You, or your estate or heirs, have no rights as a
Stockholder of the Company until a certificate for your Common Stock has been
issued. No adjustments are made for dividends or other rights if the applicable
record date occurs before your stock certificate is issued, except as described
in the Plan.
10. Adjustments to Common Stock.
(a) Adjustments. In the event of a subdivision of the
outstanding Shares, a declaration of a dividend payable in Shares, a
declaration of a dividend payable in a form other than Shares in an amount
that has a material effect on the price of Shares, a combination or
consolidation of the outstanding Shares (by reclassification or otherwise)
into a lesser number of Shares, a recapitalization, a spin-off or a similar
occurrence, the Committee shall make such adjustments as it, in its sole
discretion, deems appropriate in one or more of:
(1) The number of shares subject to the Option; or
(2) The Exercise Price under the outstanding Option.
Except as provided in this Section 10, you shall have no rights whatsoever as a
result of any issue by the Company of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of shares
of stock of any class, the payment of any stock dividend or any other increase
or decrease in the number of shares of stock of any class.
(b) Dissolution or Liquidation. To the extent not previously
exercised, your Option shall terminate immediately prior to the dissolution
or liquidation of the Company.
(c) Reorganizations. If the Company is a party to a merger or
other reorganization, your Option shall be subject to the agreement of
merger or reorganization. Such agreement shall provide for one or more of
the following, in all cases without your consent being required:
(1) The continuation of the Option, if the Company is a
surviving corporation;
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(2) The assumption of the outstanding Option by the
surviving corporation or its parent or subsidiary;
(3) The substitution by the surviving corporation or its
parent or subsidiary of its own awards for the Option; or
(4) Full exercisability and/or vesting and/or accelerated
expiration of the Option.
(d) Reservation of Rights. Except as provided in this Section
10, you shall have no rights by reason of any subdivision or consolidation
of shares of stock of any class, the payment of any dividend or any other
increase or decrease in the number of shares of stock of any class. Any
issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to your Option. The grant of your Option
shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital
or business structure, to issue or sell any shares of stock of any class,
to merge or consolidate or to dissolve, liquidate, sell or transfer all or
any part of its business or assets.
11. Applicable Law. This Agreement will be interpreted and enforced under
the laws of England and Wales.
This Agreement constitutes the entire understanding between you and the
Company regarding your Option. Any prior agreements, commitments or
negotiations concerning your Option are superseded.
By signing below, you agree to all of the terms and conditions described in
this Stock Option Agreement, including the attached Notice of Exercise.
Option Holder: /s/ George Simpkins
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(Signature)
Company: /s/ Robert Jeffords
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(Signature)
Title: Assistant Secretary
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FECHTOR, DETWILER, MITCHELL & CO.
START-UP PERIOD STOCK OPTION AGREEMENT
This certifies that, for value received, George Simpkins ("Option Holder")
shall have the right set forth herein (the "Option"), subject to the terms and
conditions set forth below, to purchase from FECHTOR, DETWILER, MITCHELL & CO.
("FEDM"), in whole or in part that number of fully paid and nonassessable shares
(the "Shares") of Common Stock of FEDM set forth in Section I below and at a
purchase price per share (the "Exercise Price") set forth in Section I below.
The number, character and Exercise Price of such Shares are subject to
adjustment as provided in Section II(10) below and all references to "Shares"
and "Exercise Price" herein shall be deemed to include any such adjustment or
series of adjustments. All capitalized terms used but not defined herein shall
have the meanings set forth in Option Holder's Employment Agreement.
V. GRANT INFORMATION.
Date of Grant: December 14, 2000
Name of Option Holder: George Simpkins
Type of Option: Nonstatutory ("NSO")
Number of Shares of Common
Stock Covered by the Option: 437,500
Exercise Price per Share: $0.6875 USD
Vesting Start Date: Date of Grant
Vesting Schedule: Subject to the attached Terms and Conditions,
100% of the Shares subject to the Option shall
vest on the fifth anniversary of the Vesting
Start Date, provided, however, vesting of this
Option shall accelerate and such Shares shall
vest in three equal, annual installments
commencing upon the conclusion of the Start-up
Period (as defined below) (i.e., the first
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installment would vest on the first anniversary
of the conclusion of the Start-up Period) if
certain Commission Revenues are generated by
Detwiler, Mitchell & Co. (UK) Limited (the
"Company") over the 12 highest individual months
of the Start-up Period as follows:
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Commission Revenues Generated by Cumulative Number of Options to
the Company Over the 12 Highest Individual Purchase FEDM Stock :
Months of Start-up Period:
Equal to or greater than $5,000,000 218,750
but less than $6,000,000
Equal to or greater than $6,000,000 262,500
but less than $7,000,000
Equal or greater than $7,000,000 306,250
but less than $8,000,000
Equal to or greater than $8,000,000 350,000
but less than $9,000,000
Equal to or greater than $9,000,000 393,750
but less than $10,000,000
Greater than $10,000,000 437,500
The Commission Revenues (as defined in the Agreement between FEDM and Option
Holder entered into on December 14, 2000 (the "FEDM Agreement")) are determined
by using the twelve individual months within the Start-up Period (as defined
below) that have the highest Commission Revenues. In the event of acceleration
of vesting of any Shares pursuant to this schedule, no additional Shares shall
vest on the fifth anniversary of the Vesting Start Date. Start-up Period means
the eighteen month period commencing on the first day of the month which
immediately follows the date upon which the Company is able to commence its
sales activities pursuant to valid Licensing as defined in the FEDM Agreement.
VI. TERMS AND CONDITIONS
1. Vesting. Your Option vests during your Service on the dates specified
in the vesting schedule on the first page of this Stock Option Agreement.
Vesting will cease if your Service terminates for any reason.
2. Service; Leaves of Absence. Your Service shall cease when you cease
to be actively employed by, or a consultant or adviser to, the Company (or any
subsidiary) as determined in the sole discretion of the FEDM Board. For purposes
of your Option, your Service does not terminate when you go on a bona fide leave
of absence, that was approved by the Company in writing, if the terms of the
leave provide for continued service crediting, or when continued service
crediting is required by applicable law. Your Service terminates in any event
when the approved leave ends, unless you immediately return to active work. The
Company determines
-8-
which leaves count toward Service, and when your Service terminates for all
purposes under the Plan.
3. Term of Option. Your Option expires on the day before the sixth
anniversary of the Date of Grant, and will expire earlier if your Service
terminates as follows:
(a) Regular Termination. If your Service terminates for any
reason except death or Disability, then your Option will expire at the
close of business at Company headquarters on the date three (3) months
after your termination date. During that three-month period, you may
exercise that portion of your Option that was vested on the date that your
Service terminated.
(b) Cause. If your Service terminates for Cause, your Option
will expire immediately.
For purposes of this Section, "Cause" means (i) your continued
failure to perform substantially your duties as set by the Company at the
date of this Agreement (other than as a result of sickness, accident or
similar cause beyond your reasonable control) after your receipt of a
written warning and have been given thirty (30) days to improve; (ii)
willful and material misconduct, which is demonstrably and materially
injurious to the Company or any of its subsidiaries, including willful and
material failure to perform your duties as an officer or employee of the
Company or any of its subsidiaries or a material breach of this Agreement;
(iii) conviction of or plea of nolo contendere to a felony; and (iv)
conviction of an act of fraud against, or the misappropriation of property
belonging to, the Company or any of its subsidiaries, or any employee,
customer, or supplier of the Company or any of its subsidiaries.
(c) Death. If you die while in Service, then your Option will
expire at the close of business at Company headquarters on the date six (6)
months after the date of death. During that six-month period, your estate
or heirs may exercise that portion of your Option that was vested on the
date of death.
(d) Disability. If your Service terminates because of your
Disability, then your Option will expire at the close of business at
Company headquarters on the date six (6) months after your termination
date. During that six-month period, you may exercise that portion of your
Option that was vested on the date of your Disability.
"Disability" means that you are unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment.
4. Exercise of Option
(a) Legal Restrictions. By signing this Agreement, you agree not
to exercise this Option or sell any Common Stock acquired upon exercise of
this Option at a time when applicable laws, regulations or Company or
underwriter trading policies prohibit exercise or sale and to comply with
any such laws, regulations or policies deemed applicable to such exercise
or sale by counsel to the Company. In particular, the
-9-
Company shall have the right to designate one or more periods of time, each
of which shall not exceed 180 days in length, during which this Option
shall not be exercisable if the Company determines (in its sole discretion)
that such limitation on exercise could in any way facilitate a lessening of
any restriction on transfer pursuant to the Securities Act with respect to
any issuance of securities by the Company, facilitate the registration or
qualification of any securities by the Company under the Securities Act or
any state securities laws, or facilitate the perfection of any exemption
from the registration or qualification requirements of the Securities Act
for the issuance or transfer of any securities. Such limitation on exercise
shall not alter the vesting schedule set forth in this Agreement other than
to limit the periods during which this Option shall be exercisable.
Notwithstanding the foregoing, if a limitation is imposed and such
limitation would cause a forfeiture of your exercise right because your
option would expire during such limitation period, then the vesting
schedule and expiration date of your option shall be extended 30 days
beyond the limitation period to allow for exercise of your option.
(b) Method of Exercise. To exercise your Option, you must
execute the Notice of Exercise, attached hereto as Exhibit A. You must
---------
submit this form, together with full payment, at the address given on the
form. Your Notice of Exercise must specify how many shares you wish to
purchase. Your Notice of Exercise will be effective when it is received by
the Company. If someone else wants to exercise your Option after your
death, that person must prove to the Company's satisfaction that he or she
is entitled to do so.
(c) Form of Payment. When you submit Exhibit A, you must include
---------
payment of the aggregate Exercise Price for the Common Stock you are
purchasing. Payment may be made in one (or a combination) of the following
forms.
. Your personal cheque, a cashier's cheque or a money order.
. Shares of Common Stock which you have owned for six months and
which are surrendered to the Company. The value of such Common
Stock, determined as of the effective date of the Option
exercise, will be applied to the Exercise Price.
. To the extent that a public market for Common Stock exists as
determined by the Company, by delivery (on a form approved by the
Company) of an irrevocable direction to a securities broker to
sell Common Stock and to deliver all or part of the sale proceeds
to the Company in payment of the aggregate Exercise Price.
. To the extent that a public market for Common Stock exists as
determined by the Company, by delivery (on a form approved by the
Company) of an irrevocable direction to a securities broker or
lender to pledge Common Stock, as security for a loan, and to
deliver all or part of the loan proceeds to the Company in
payment of the aggregate Exercise Price.
. Any other form of legal consideration approved by the Board.
-10-
(d) Withholding Taxes. You will not be allowed to
exercise your Option unless you make acceptable arrangements to pay any
withholding or other taxes that may be due as a result of the exercise of,
or other dealing in, the Option or the sale of Common Stock acquired upon
exercise of your Option. As a condition of grant of the Option, you shall
complete an election in the form attached as Exhibit B (the "NICs
---------
Election") providing for the transfer to you of the employer's liability to
secondary national insurance contributions arising on the exercise of, or
other dealing in, the Option.
5. Market Stand-Off. In connection with any underwritten public offering
by the Company of its equity securities pursuant to an effective registration
statement filed under the US Securities Act of 1933, you shall not, directly or
indirectly, engage in any transaction prohibited by the underwriter, nor shall
you sell, make any short sale of, contract to sell, transfer the economic risk
of ownership in, loan, charge, pledge, grant any option for the purchase of, or
otherwise dispose of or transfer for value or agree to engage in any of the
foregoing transactions with respect to any Shares without the prior written
consent of the Company or its underwriters, for such period of time after the
effective date of such registration statement as may be requested by the Company
or such underwriters. Such period of time shall not exceed one hundred eighty
(180) days and may be required by the underwriter as a condition of the
offering. By signing this Stock Option Agreement you agree to execute and
deliver such other agreements as may be reasonably requested by the Company or
the underwriter which are consistent with the foregoing or which are necessary
to give further effect thereto. To enforce the provisions of this Section 5, the
Company may impose stop-transfer instructions with respect to the Shares until
the end of the applicable stand-off period.
6. Exercise of Option Before Vesting ("Early Exercise"). You may not
exercise your Option before it is fully vested.
7. Transfer of Option. Prior to your death, only you may exercise your
Option. You cannot transfer or assign your Option. For instance, you may not
sell your Option or use it as security for a loan. If you attempt to do any of
these things, your Option will immediately become invalid. You may, however,
dispose of your Option in your will.
Regardless of any marital property settlement agreement, the Company is not
obligated to honor a notice of exercise from your spouse or former spouse, nor
is the Company obligated to recognize such individual's interest in your Option
in any other way.
8. No Retention Rights. Your Option does not give you the right to be
retained by the Company (or any subsidiaries) in any capacity. The Company
reserves the right to terminate your Service at any time and for any reason.
9. Stockholder Rights. You, or your estate or heirs, have no rights as a
Stockholder of the Company until a certificate for your Common Stock has been
issued. No adjustments are made for dividends or other rights if the applicable
record date occurs before your stock certificate is issued, except as described
in the Plan.
10. Adjustments to Common Stock.
-11-
(a) Adjustments. In the event of a subdivision of the
outstanding Shares, a declaration of a dividend payable in Shares, a
declaration of a dividend payable in a form other than Shares in an amount
that has a material effect on the price of Shares, a combination or
consolidation of the outstanding Shares (by reclassification or otherwise)
into a lesser number of Shares, a recapitalization, a spin-off or a similar
occurrence, the Company shall make such adjustments as it, in its sole
discretion, deems appropriate in one or more of:
(1) The number of shares subject to the Option; or
(2) The Exercise Price under the outstanding Option.
Except as provided in this Section 10, you shall have no rights whatsoever as a
result of any issue by the Company of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of shares
of stock of any class, the payment of any stock dividend or any other increase
or decrease in the number of shares of stock of any class.
(b) Dissolution or Liquidation. To the extent not previously
exercised, your Option shall terminate immediately prior to the dissolution
or liquidation of the Company.
(c) Reorganizations. If the Company is a party to a merger or
other reorganization, your Option shall be subject to the agreement of
merger or reorganization. Such agreement shall provide for one or more of
the following, in all cases without your consent being required:
(1) The continuation of the Option, if the Company is a
surviving corporation;
(2) The assumption of the outstanding Option by the
surviving corporation or its parent or subsidiary;
(3) The substitution by the surviving corporation or its
parent or subsidiary of its own awards for the Option; or
(4) Full exercisability and/or vesting and/or accelerated
expiration of the Option.
(d) Reservation of Rights. Except as provided in this Section
10, you shall have no rights by reason of any subdivision or consolidation
of shares of stock of any class, the payment of any dividend or any other
increase or decrease in the number of shares of stock of any class. Any
issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to your Option. The grant of your Option
shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital
or business structure, to issue or sell any shares of stock of any
-12-
class, to merge or consolidate or to dissolve, liquidate, sell or transfer
all or any part of its business or assets.
11. Applicable Law. This Agreement will be interpreted and enforced under
the laws of England and Wales.
(Signatures on Page 7)
-13-
This Agreement constitutes the entire understanding between you and the
Company regarding your Option. Any prior agreements, commitments or
negotiations concerning your Option are superseded.
By signing below, you agree to all of the terms and conditions described in
this Stock Option Agreement, including the attached Notice of Exercise.
Option Holder: /s/George Simpkins
-----------------------------------------------------------------
(Signature)
Company: /s/Robert Jeffords
-----------------------------------------------------------------------
(Signature)
Title: Assistant Secretary
-------------------------------------------------------------------------
-14-
FECHTOR, DETWILER, MITCHELL & CO.
STOCK OPTION AGREEMENT
This certifies that, for value received, Philip Routledge ("Option Holder")
shall have the right set forth herein (the "Option"), subject to the terms and
conditions set forth below, to purchase from FECHTOR, DETWILER, MITCHELL & CO.
("FEDM"), in whole or in part that number of fully paid and nonassessable shares
(the "Shares") of Common Stock of FEDM set forth in Section I below and at a
purchase price per share (the "Exercise Price") set forth in Section I below.
The number, character and Exercise Price of such Shares are subject to
adjustment as provided in Section II(10) below and all references to "Shares"
and "Exercise Price" herein shall be deemed to include any such adjustment or
series of adjustments.
VII. GRANT INFORMATION.
Date of Grant: December 14, 2000
Name of Option Holder: Philip Routledge
Type of Option: Nonstatutory ("NSO")
Number of Shares of Common
Stock Covered by the Option: 15,000
Exercise Price per Share: $0.6875 USD
Vesting Start Date: Date of Grant
Vesting Schedule: Subject to the attached Terms and Conditions,
15,000 of the Shares subject to the Option shall
vest 33.33% on the first and second anniversaries
of the Vesting Start Date and 33.34% of the
Shares subject to the Option shall vest on the
third anniversary of the Vesting Start Date, all
in accordance with the terms hereof. Accordingly,
on the third anniversary of the Vesting Start
Date, 100% of the Shares subject to the Option
shall be vested, provided all of the requirements
for vesting hereunder have been met.
-1-
VIII. TERMS AND CONDITIONS
1. Vesting. Your Option vests during your Service on the dates
specified in the vesting schedule on the first page of this Stock Option
Agreement. Vesting will cease if your Service terminates for any reason.
2. Service; Leaves of Absence. Your Service shall cease when you cease
to be actively employed by, or a consultant or adviser to Detwiler, Mitchell &
Co. (UK) Limited (the "Company") (or any subsidiary) as determined in the sole
discretion of the FEDM Board. For purposes of your Option, your Service does not
terminate when you go on a bona fide leave of absence, that was approved by the
Company in writing, if the terms of the leave provide for continued service
crediting, or when continued service crediting is required by applicable law.
Your Service terminates in any event when the approved leave ends, unless you
immediately return to active work. The Company determines which leaves count
toward Service, and when your Service terminates for all purposes under the
Plan.
3. Term of Option. Your Option expires on the day before the fifth
anniversary of the Date of Grant, and will expire earlier if your Service
terminates as follows:
(a) Regular Termination. If your Service terminates for any
reason except death or Disability, then your Option will expire at the
close of business at Company headquarters on the date three (3) months
after your termination date. During that three-month period, you may
exercise that portion of your Option that was vested on the date that your
Service terminated.
(b) Cause. If your Service terminates for Cause, your Option
will expire immediately.
For purposes of this Section, "Cause" means (i) your continued
failure to perform substantially your duties as set by the Company at the
date of this Agreement (other than as a result of sickness, accident or
similar cause beyond your reasonable control) after your receipt of a
written warning and have been given thirty (30) days to improve; (ii)
willful and material misconduct, which is demonstrably and materially
injurious to the Company or any of its subsidiaries, including willful and
material failure to perform your duties as an officer or employee of the
Company or any of its subsidiaries or a material breach of this Agreement;
(iii) conviction of or plea of nolo contendere to a felony; and (iv)
conviction of an act of fraud against, or the misappropriation of property
belonging to, the Company or any of its subsidiaries, or any employee,
customer, or supplier of the Company or any of its subsidiaries.
(c) Death. If you die while in Service, then your Option will
expire at the close of business at Company headquarters on the date six (6)
months after the date of death. During that six-month period, your estate
or heirs may exercise that portion of your Option that was vested on the
date of death.
-2-
(d) Disability. If your Service terminates because of your
Disability, then your Option will expire at the close of business at
Company headquarters on the date six (6) months after your termination
date. During that six-month period, you may exercise that portion of your
Option that was vested on the date of your Disability.
"Disability" means that you are unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment.
4. Exercise of Option.
(a) Legal Restrictions. By signing this Agreement, you agree
not to exercise this Option or sell any Common Stock acquired upon exercise
of this Option at a time when applicable laws, regulations or Company or
underwriter trading policies prohibit exercise or sale and to comply with
any such laws, regulations or policies deemed applicable to such exercise
or sale by counsel to the Company. In particular, the Company shall have
the right to designate one or more periods of time, each of which shall not
exceed 180 days in length, during which this Option shall not be
exercisable if the Company determines (in its sole discretion) that such
limitation on exercise could in any way facilitate a lessening of any
restriction on transfer pursuant to the Securities Act with respect to any
issuance of securities by the Company, facilitate the registration or
qualification of any securities by the Company under the Securities Act or
any state securities laws, or facilitate the perfection of any exemption
from the registration or qualification requirements of the Securities Act
for the issuance or transfer of any securities. Such limitation on exercise
shall not alter the vesting schedule set forth in this Agreement other than
to limit the periods during which this Option shall be exercisable.
Notwithstanding the foregoing, if a limitation is imposed and such
limitation would cause a forfeiture of your exercise right because your
option would expire during such limitation period, then the vesting
schedule and expiration date of your option shall be extended 30 days
beyond the limitation period to allow for exercise of your option.
(b) Method of Exercise. To exercise your Option, you must
execute the Notice of Exercise, attached hereto as Exhibit A. You must
---------
submit this form, together with full payment, at the address given on the
form. Your Notice of Exercise must specify how many shares you wish to
purchase. Your Notice of Exercise will be effective when it is received by
the Company. If someone else wants to exercise your Option after your
death, that person must prove to the Company's satisfaction that he or she
is entitled to do so.
(c) Form of Payment. When you submit Exhibit A, you must include
---------
payment of the aggregate Exercise Price for the Common Stock you are
purchasing. Payment may be made in one (or a combination) of the following
forms.
. Your personal cheque, a cashier's cheque or a money order.
. Shares of Common Stock which you have owned for six months and
which are surrendered to the Company. The value of such Common
-3-
Stock, determined as of the effective date of the Option
exercise, will be applied to the Exercise Price.
. To the extent that a public market for Common Stock exists as
determined by the Company, by delivery (on a form approved by the
Company) of an irrevocable direction to a securities broker to
sell Common Stock and to deliver all or part of the sale proceeds
to the Company in payment of the aggregate Exercise Price.
. To the extent that a public market for Common Stock exists as
determined by the Company, by delivery (on a form approved by the
Company) of an irrevocable direction to a securities broker or
lender to pledge Common Stock, as security for a loan, and to
deliver all or part of the loan proceeds to the Company in
payment of the aggregate Exercise Price.
. Any other form of legal consideration approved by the Board.
(d) Withholding Taxes. You will not be allowed to exercise
your Option unless you make acceptable arrangements to pay any withholding
or other taxes that may be due as a result of the exercise of, or other
dealing in, the Option or the sale of Common Stock acquired upon exercise
of your Option. As a condition of grant of the Option, you shall complete
an election in the form attached as Exhibit B (the "NICs Election")
---------
providing for the transfer to you of the employer's liability to secondary
national insurance contributions arising on the exercise of, or other
dealing in, the Option.
5. Market Stand-Off. In connection with any underwritten public offering by
the Company of its equity securities pursuant to an effective registration
statement filed under the US Securities Act of 1933, you shall not, directly or
indirectly, engage in any transaction prohibited by the underwriter, nor shall
you sell, make any short sale of, contract to sell, transfer the economic risk
of ownership in, loan, charge, pledge, grant any option for the purchase of, or
otherwise dispose of or transfer for value or agree to engage in any of the
foregoing transactions with respect to any Shares without the prior written
consent of the Company or its underwriters, for such period of time after the
effective date of such registration statement as may be requested by the Company
or such underwriters. Such period of time shall not exceed one hundred eighty
(180) days and may be required by the underwriter as a condition of the
offering. By signing this Stock Option Agreement you agree to execute and
deliver such other agreements as may be reasonably requested by the Company or
the underwriter which are consistent with the foregoing or which are necessary
to give further effect thereto. To enforce the provisions of this Section 5, the
Company may impose stop-transfer instructions with respect to the Shares until
the end of the applicable stand-off period.
6. Exercise of Option Before Vesting ("Early Exercise"). You may not
exercise your Option before it is fully vested.
7. Transfer of Option. Prior to your death, only you may exercise your
Option. You cannot transfer or assign your Option. For instance, you may not
sell your Option or use it as
-4-
security for a loan. If you attempt to do any of these things, your Option will
immediately become invalid. You may, however, dispose of your Option in your
will.
Regardless of any marital property settlement agreement, the Company is not
obligated to honor a notice of exercise from your spouse or former spouse, nor
is the Company obligated to recognize such individual's interest in your Option
in any other way.
8. No Retention Rights. Your Option does not give you the right to be
retained by the Company (or any subsidiaries) in any capacity. The Company
reserves the right to terminate your Service at any time and for any reason.
9. Stockholder Rights. You, or your estate or heirs, have no rights as a
Stockholder of the Company until a certificate for your Common Stock has been
issued. No adjustments are made for dividends or other rights if the applicable
record date occurs before your stock certificate is issued, except as described
in the Plan.
10. Adjustments to Common Stock.
(a) Adjustments. In the event of a subdivision of the
outstanding Shares, a declaration of a dividend payable in Shares, a
declaration of a dividend payable in a form other than Shares in an amount
that has a material effect on the price of Shares, a combination or
consolidation of the outstanding Shares (by reclassification or otherwise)
into a lesser number of Shares, a recapitalization, a spin-off or a similar
occurrence, the Committee shall make such adjustments as it, in its sole
discretion, deems appropriate in one or more of:
(1) The number of shares subject to the Option; or
(2) The Exercise Price under the outstanding Option.
Except as provided in this Section 10, you shall have no rights whatsoever as a
result of any issue by the Company of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of shares
of stock of any class, the payment of any stock dividend or any other increase
or decrease in the number of shares of stock of any class.
(b) Dissolution or Liquidation. To the extent not
previously exercised, your Option shall terminate immediately prior to the
dissolution or liquidation of the Company.
(c) Reorganizations. If the Company is a party to a merger
or other reorganization, your Option shall be subject to the agreement of
merger or reorganization. Such agreement shall provide for one or more of
the following, in all cases without your consent being required:
(1) The continuation of the Option, if the Company is
a surviving corporation;
-5-
(2) The assumption of the outstanding Option by the
surviving corporation or its parent or subsidiary;
(3) The substitution by the surviving corporation or its
parent or subsidiary of its own awards for the Option; or
(4) Full exercisability and/or vesting and/or accelerated
expiration of the Option.
(d) Reservation of Rights. Except as provided in this Section
10, you shall have no rights by reason of any subdivision or consolidation
of shares of stock of any class, the payment of any dividend or any other
increase or decrease in the number of shares of stock of any class. Any
issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to your Option. The grant of your Option
shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital
or business structure, to issue or sell any shares of stock of any class,
to merge or consolidate or to dissolve, liquidate, sell or transfer all or
any part of its business or assets.
11. Applicable Law. This Agreement will be interpreted and enforced under
the laws of England and Wales.
This Agreement constitutes the entire understanding between you and the
Company regarding your Option. Any prior agreements, commitments or
negotiations concerning your Option are superseded.
By signing below, you agree to all of the terms and conditions described in
this Stock Option Agreement, including the attached Notice of Exercise.
Option Holder: /s/ Philip Routledge
-----------------------------------------------------------------
(Signature)
Company: /s/ Robert Jeffords
-----------------------------------------------------------------------
(Signature)
Title: Assistant Secretary
-------------------------------------------------------------------------
-6-
FECHTOR, DETWILER, MITCHELL & CO.
STOCK OPTION AGREEMENT
This certifies that, for value received, Philip Routledge ("Option Holder")
shall have the right set forth herein (the "Option"), subject to the terms and
conditions set forth below, to purchase from FECHTOR, DETWILER, MITCHELL & CO.
("FEDM"), in whole or in part that number of fully paid and nonassessable shares
(the "Shares") of Common Stock of FEDM set forth in Section I below and at a
purchase price per share (the "Exercise Price") set forth in Section I below.
The number, character and Exercise Price of such Shares are subject to
adjustment as provided in Section II(10) below and all references to "Shares"
and "Exercise Price" herein shall be deemed to include any such adjustment or
series of adjustments.
IX. GRANT INFORMATION.
Date of Grant: December 14, 2000
Name of Option Holder: Philip Routledge
Type of Option: Nonstatutory ("NSO")
Number of Shares of Common
Stock Covered by the Option: 35,000
Exercise Price per Share: $0.6875 USD
Vesting Start Date: Date of Grant
Vesting Schedule: Subject to the attached Terms and Conditions,
100% of the 35,000 will vest on the fifth
anniversary date of the date of grant.
Notwithstanding the immediately preceding
sentence, vesting of such Option shall accelerate
and such Shares shall vest in three equal, annual
installments commencing upon the conclusion of
the Start-up Period (as that term is defined in
the Agreement between FEDM and George Simpkins
entered into on December 14, 2000 (the "FEDM
Agreement") (i.e., the first installment would
vest on the first anniversary of the conclusion
of the Start-up Period) if Commission Revenues
(as that term is defined in the FEDM Agreement)
generated by the Company (as defined below) as
determined using the highest twelve individual
months of the Start-up Period (as that term is
defined in the FEDM Agreement) exceeds
$5,000,000.
-1-
X. TERMS AND CONDITIONS
1. Vesting. Your Option vests during your Service on the dates specified
in the vesting schedule on the first page of this Stock Option Agreement.
Vesting will cease if your Service terminates for any reason.
2. Service; Leaves of Absence. Your Service shall cease when you cease
to be actively employed by, or a consultant or adviser to Detwiler, Mitchell &
Co. (UK) Limited (the "Company") (or any subsidiary) as determined in the sole
discretion of the FEDM Board. For purposes of your Option, your Service does not
terminate when you go on a bona fide leave of absence, that was approved by the
Company in writing, if the terms of the leave provide for continued service
crediting, or when continued service crediting is required by applicable law.
Your Service terminates in any event when the approved leave ends, unless you
immediately return to active work. The Company determines which leaves count
toward Service, and when your Service terminates for all purposes under the
Plan.
3. Term of Option. Your Option expires on the day before the sixth
anniversary of the Date of Grant, and will expire earlier if your Service
terminates as follows:
(a) Regular Termination. If your Service terminates for any
reason except death or Disability, then your Option will expire at the
close of business at Company headquarters on the date three (3) months
after your termination date. During that three-month period, you may
exercise that portion of your Option that was vested on the date that your
Service terminated.
(b) Cause. If your Service terminates for Cause, your
Option will expire immediately.
For purposes of this Section, "Cause" means (i) your continued
failure to perform substantially your duties as set by the Company at the
date of this Agreement (other than as a result of sickness, accident or
similar cause beyond your reasonable control) after your receipt of a
written warning and have been given thirty (30) days to improve; (ii)
willful and material misconduct, which is demonstrably and materially
injurious to the Company or any of its subsidiaries, including willful and
material failure to perform your duties as an officer or employee of the
Company or any of its subsidiaries or a material breach of this Agreement;
(iii) conviction of or plea of nolo contendere to a felony; and (iv)
conviction of an act of fraud against, or the misappropriation of property
belonging to, the Company or any of its subsidiaries, or any employee,
customer, or supplier of the Company or any of its subsidiaries.
(c) Death. If you die while in Service, then your Option
will expire at the close of business at Company headquarters on the date
six (6) months after the date of death. During that six-month period, your
estate or heirs may exercise that portion of your Option that was vested on
the date of death.
-2-
(d) Disability. If your Service terminates because of your
Disability, then your Option will expire at the close of business at
Company headquarters on the date six (6) months after your termination
date. During that six-month period, you may exercise that portion of your
Option that was vested on the date of your Disability.
"Disability" means that you are unable to engage in any
substantial gainful activity by reason of any medically determinable
physical or mental impairment .
4. Exercise of Option
(a) Legal Restrictions. By signing this Agreement, you
agree not to exercise this Option or sell any Common Stock acquired upon
exercise of this Option at a time when applicable laws, regulations or
Company or underwriter trading policies prohibit exercise or sale and to
comply with any such laws, regulations or policies deemed applicable to
such exercise or sale by counsel to the Company. In particular, the Company
shall have the right to designate one or more periods of time, each of
which shall not exceed 180 days in length, during which this Option shall
not be exercisable if the Company determines (in its sole discretion) that
such limitation on exercise could in any way facilitate a lessening of any
restriction on transfer pursuant to the Securities Act with respect to any
issuance of securities by the Company, facilitate the registration or
qualification of any securities by the Company under the Securities Act or
any state securities laws, or facilitate the perfection of any exemption
from the registration or qualification requirements of the Securities Act
for the issuance or transfer of any securities. Such limitation on exercise
shall not alter the vesting schedule set forth in this Agreement other than
to limit the periods during which this Option shall be exercisable.
Notwithstanding the foregoing, if a limitation is imposed and such
limitation would cause a forfeiture of your exercise right because your
option would expire during such limitation period, then the vesting
schedule and expiration date of your option shall be extended 30 days
beyond the limitation period to allow for exercise of your option.
(b) Method of Exercise. To exercise your Option, you must
execute the Notice of Exercise, attached hereto as Exhibit A. You must
---------
submit this form, together with full payment, at the address given on the
form. Your Notice of Exercise must specify how many shares you wish to
purchase. Your Notice of Exercise will be effective when it is received by
the Company. If someone else wants to exercise your Option after your
death, that person must prove to the Company's satisfaction that he or she
is entitled to do so.
(c) Form of Payment. When you submit Exhibit A, you must
---------
include payment of the aggregate Exercise Price for the Common Stock you
are purchasing. Payment may be made in one (or a combination) of the
following forms.
. Your personal cheque, a cashier's cheque or a money order.
. Shares of Common Stock which you have owned for six months
and which are surrendered to the Company. The value of such
Common
-3-
Stock, determined as of the effective date of the Option
exercise, will be applied to the Exercise Price.
. To the extent that a public market for Common Stock exists as
determined by the Company, by delivery (on a form approved by the
Company) of an irrevocable direction to a securities broker to
sell Common Stock and to deliver all or part of the sale proceeds
to the Company in payment of the aggregate Exercise Price.
. To the extent that a public market for Common Stock exists as
determined by the Company, by delivery (on a form approved by the
Company) of an irrevocable direction to a securities broker or
lender to pledge Common Stock, as security for a loan, and to
deliver all or part of the loan proceeds to the Company in
payment of the aggregate Exercise Price.
. Any other form of legal consideration approved by the Board.
(d) Withholding Taxes. You will not be allowed to exercise your
Option unless you make acceptable arrangements to pay any withholding or
other taxes that may be due as a result of the exercise of, or other
dealing in, the Option or the sale of Common Stock acquired upon exercise
of your Option. As a condition of grant of the Option, you shall complete
an election in the form attached as Exhibit B (the "NICs Election")
---------
providing for the transfer to you of the employer's liability to secondary
national insurance contributions arising on the exercise of, or other
dealing in, the Option.
5. Market Stand-Off. In connection with any underwritten public offering by
the Company of its equity securities pursuant to an effective registration
statement filed under the US Securities Act of 1933, you shall not, directly or
indirectly, engage in any transaction prohibited by the underwriter, nor shall
you sell, make any short sale of, contract to sell, transfer the economic risk
of ownership in, loan, charge, pledge, grant any option for the purchase of, or
otherwise dispose of or transfer for value or agree to engage in any of the
foregoing transactions with respect to any Shares without the prior written
consent of the Company or its underwriters, for such period of time after the
effective date of such registration statement as may be requested by the Company
or such underwriters. Such period of time shall not exceed one hundred eighty
(180) days and may be required by the underwriter as a condition of the
offering. By signing this Stock Option Agreement you agree to execute and
deliver such other agreements as may be reasonably requested by the Company or
the underwriter which are consistent with the foregoing or which are necessary
to give further effect thereto. To enforce the provisions of this Section 5, the
Company may impose stop-transfer instructions with respect to the Shares until
the end of the applicable stand-off period.
6. Exercise of Option Before Vesting ("Early Exercise"). You may not
exercise your Option before it is fully vested.
7. Transfer of Option. Prior to your death, only you may exercise your
Option. You cannot transfer or assign your Option. For instance, you may not
sell your Option or use it as
-4-
security for a loan. If you attempt to do any of these things, your Option will
immediately become invalid. You may, however, dispose of your Option in your
will.
Regardless of any marital property settlement agreement, the Company is not
obligated to honor a notice of exercise from your spouse or former spouse, nor
is the Company obligated to recognize such individual's interest in your Option
in any other way.
8. No Retention Rights. Your Option does not give you the right to be
retained by the Company (or any subsidiaries) in any capacity. The Company
reserves the right to terminate your Service at any time and for any reason.
9. Stockholder Rights. You, or your estate or heirs, have no rights as a
Stockholder of the Company until a certificate for your Common Stock has been
issued. No adjustments are made for dividends or other rights if the applicable
record date occurs before your stock certificate is issued, except as described
in the Plan.
10. Adjustments to Common Stock.
(a) Adjustments. In the event of a subdivision of the
outstanding Shares, a declaration of a dividend payable in Shares, a
declaration of a dividend payable in a form other than Shares in an amount
that has a material effect on the price of Shares, a combination or
consolidation of the outstanding Shares (by reclassification or otherwise)
into a lesser number of Shares, a recapitalization, a spin-off or a similar
occurrence, the Committee shall make such adjustments as it, in its sole
discretion, deems appropriate in one or more of:
(1) The number of shares subject to the Option; or
(2) The Exercise Price under the outstanding Option.
Except as provided in this Section 10, you shall have no rights whatsoever as a
result of any issue by the Company of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of shares
of stock of any class, the payment of any stock dividend or any other increase
or decrease in the number of shares of stock of any class.
(b) Dissolution or Liquidation. To the extent not
previously exercised, your Option shall terminate immediately prior to the
dissolution or liquidation of the Company.
(c) Reorganizations. If the Company is a party to a merger
or other reorganization, your Option shall be subject to the agreement of
merger or reorganization. Such agreement shall provide for one or more of
the following, in all cases without your consent being required:
(1) The continuation of the Option, if the Company is a
surviving corporation;
-5-
(2) The assumption of the outstanding Option by the
surviving corporation or its parent or subsidiary;
(3) The substitution by the surviving corporation or its
parent or subsidiary of its own awards for the Option; or
(4) Full exercisability and/or vesting and/or accelerated
expiration of the Option.
(d) Reservation of Rights. Except as provided in this
Section 10, you shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class, the payment of any dividend
or any other increase or decrease in the number of shares of stock of any
class. Any issue by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall not affect,
and no adjustment by reason thereof shall be made with respect to, the
number or Exercise Price of Shares subject to your Option. The grant of
your Option shall not affect in any way the right or power of the Company
to make adjustments, reclassifications, reorganizations or changes of its
capital or business structure, to issue or sell any shares of stock of any
class, to merge or consolidate or to dissolve, liquidate, sell or transfer
all or any part of its business or assets.
11. Applicable Law. This Agreement will be interpreted and enforced under
the laws of England and Wales.
This Agreement constitutes the entire understanding between you and the
Company regarding your Option. Any prior agreements, commitments or
negotiations concerning your Option are superseded.
By signing below, you agree to all of the terms and conditions described in
this Stock Option Agreement, including the attached Notice of Exercise.
Option Holder: /s/ Philip Routledge
----------------------------------------------------------------
(Signature)
Company: /s/ Robert Jeffords
----------------------------------------------------------------------
(Signature)
Title: Assistant Secretary
------------------------------------------------------------------------
-6-
FECHTOR, DETWILER, MITCHELL & CO.
START-UP PERIOD STOCK OPTION AGREEMENT
This certifies that, for value received, Philip Routledge ("Option Holder")
shall have the right set forth herein (the "Option"), subject to the terms and
conditions set forth below, to purchase from FECHTOR, DETWILER, MITCHELL & CO.
("FEDM"), in whole or in part that number of fully paid and nonassessable shares
(the "Shares") of Common Stock of FEDM set forth in Section I below and at a
purchase price per share (the "Exercise Price") set forth in Section I below.
The number, character and Exercise Price of such Shares are subject to
adjustment as provided in Section II(10) below and all references to "Shares"
and "Exercise Price" herein shall be deemed to include any such adjustment or
series of adjustments. All capitalized terms used but not defined herein shall
have the meanings set forth in Option Holder's Employment Agreement.
XI. GRANT INFORMATION.
Date of Grant: December 14, 2000
Name of Option Holder: Philip Routledge
Type of Option: Nonstatutory ("NSO")
Number of Shares of Common
Stock Covered by the Option: 50,000
Exercise Price per Share: $0.6875 USD
Vesting Start Date: Date of Grant
Vesting Schedule: Subject to the attached Terms and Conditions, 100%
of the Shares subject to the Option shall vest on
the fifth anniversary of the Vesting Start Date,
provided, however, vesting of this Option shall
accelerate and such Shares shall vest in three
equal, annual installments commencing upon the
conclusion of the Start-up Period (as defined
below) (i.e., the first installment would vest on
----
the first anniversary of the conclusion of the
Start-up Period) if certain Commission Revenues
are generated by Detwiler, Mitchell & Co. (UK)
Limited (the "Company") over the 12 highest
individual months of the Start-up Period as
follows:
-1-
Commission Revenues Generated by Cumulative Number of Options to
the Company Over the 12 Highest Individual Purchase FEDM Stock:
Months of Start-up Period:
Equal to or greater than $5,000,000 25,000
but less than $6,000,000
Equal to or greater than $6,000,000 30,000
but less than $7,000,000
Equal or greater than $7,000,000 35,000
but less than $8,000,000
Equal to or greater than $8,000,000 40,000
but less than $9,000,000
Equal to or greater than $9,000,000 45,000
but less than $10,000,000
Greater than $10,000,000 50,000
The Commission Revenues (as defined in the Agreement between FEDM and George
Simpkins entered into on December 14, 2000 (the "FEDM Agreement")) are
determined by using the twelve individual months within the Start-up Period (as
defined below) that have the highest Commission Revenues. In the event of
acceleration of vesting of any Shares pursuant to this schedule, no additional
Shares shall vest on the fifth anniversary of the Vesting Start Date. Start-up
Period means the eighteen month period commencing on the first day of the month
which immediately follows the date upon which the Company is able to commence
its sales activities pursuant to valid Licensing as defined in the FEDM
Agreement.
XII. TERMS AND CONDITIONS
1. Vesting. Your Option vests during your Service on the dates specified
in the vesting schedule on the first page of this Stock Option Agreement.
Vesting will cease if your Service terminates for any reason.
2. Service; Leaves of Absence. Your Service shall cease when you cease
to be actively employed by, or a consultant or adviser to, the Company (or any
subsidiary) as determined in the sole discretion of the FEDM Board. For purposes
of your Option, your Service does not terminate when you go on a bona fide leave
of absence, that was approved by the Company in writing, if the terms of the
leave provide for continued service crediting, or when continued service
crediting is required by applicable law. Your Service terminates in any event
when the approved leave ends, unless you immediately return to active work. The
Company determines
-2-
which leaves count toward Service, and when your Service terminates for all
purposes under the Plan.
3. Term of Option. Your Option expires on the day before the sixth
anniversary of the Date of Grant, and will expire earlier if your Service
terminates as follows:
(a) Regular Termination. If your Service terminates for
any reason except death or Disability, then your Option will expire at the
close of business at Company headquarters on the date three (3) months
after your termination date. During that three-month period, you may
exercise that portion of your Option that was vested on the date that your
Service terminated.
(b) Cause. If your Service terminates for Cause, your
Option will expire immediately.
For purposes of this Section, "Cause" means (i) your continued failure
to perform substantially your duties as set by the Company at the date of
this Agreement (other than as a result of sickness, accident or similar
cause beyond your reasonable control) after your receipt of a written
warning and have been given thirty (30) days to improve; (ii) willful and
material misconduct, which is demonstrably and materially injurious to the
Company or any of its subsidiaries, including willful and material failure
to perform your duties as an officer or employee of the Company or any of
its subsidiaries or a material breach of this Agreement; (iii) conviction
of or plea of nolo contendere to a felony; and (iv) conviction of an act of
fraud against, or the misappropriation of property belonging to, the
Company or any of its subsidiaries, or any employee, customer, or supplier
of the Company or any of its subsidiaries.
(c) Death. If you die while in Service, then your Option
will expire at the close of business at Company headquarters on the date
six (6) months after the date of death. During that six-month period, your
estate or heirs may exercise that portion of your Option that was vested on
the date of death.
(d) Disability. If your Service terminates because of your
Disability, then your Option will expire at the close of business at
Company headquarters on the date six (6) months after your termination
date. During that six-month period, you may exercise that portion of your
Option that was vested on the date of your Disability.
"Disability" means that you are unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment.
4. Exercise of Option
(a) Legal Restrictions. By signing this Agreement, you
agree not to exercise this Option or sell any Common Stock acquired upon
exercise of this Option at a time when applicable laws, regulations or
Company or underwriter trading policies prohibit exercise or sale and to
comply with any such laws, regulations or policies deemed applicable to
such exercise or sale by counsel to the Company. In particular, the
-3-
Company shall have the right to designate one or more periods of time, each
of which shall not exceed 180 days in length, during which this Option
shall not be exercisable if the Company determines (in its sole discretion)
that such limitation on exercise could in any way facilitate a lessening of
any restriction on transfer pursuant to the Securities Act with respect to
any issuance of securities by the Company, facilitate the registration or
qualification of any securities by the Company under the Securities Act or
any state securities laws, or facilitate the perfection of any exemption
from the registration or qualification requirements of the Securities Act
for the issuance or transfer of any securities. Such limitation on exercise
shall not alter the vesting schedule set forth in this Agreement other than
to limit the periods during which this Option shall be exercisable.
Notwithstanding the foregoing, if a limitation is imposed and such
limitation would cause a forfeiture of your exercise right because your
option would expire during such limitation period, then the vesting
schedule and expiration date of your option shall be extended 30 days
beyond the limitation period to allow for exercise of your option.
(b) Method of Exercise. To exercise your Option, you must
execute the Notice of Exercise, attached hereto as Exhibit A. You must
---------
submit this form, together with full payment, at the address given on the
form. Your Notice of Exercise must specify how many shares you wish to
purchase. Your Notice of Exercise will be effective when it is received by
the Company. If someone else wants to exercise your Option after your
death, that person must prove to the Company's satisfaction that he or she
is entitled to do so.
(c) Form of Payment. When you submit Exhibit A, you must include
---------
payment of the aggregate Exercise Price for the Common Stock you are
purchasing. Payment may be made in one (or a combination) of the following
forms .
. Your personal cheque, a cashier's cheque or a money order.
. Shares of Common Stock which you have owned for six months and
which are surrendered to the Company. The value of such Common
Stock, determined as of the effective date of the Option
exercise, will be applied to the Exercise Price.
. To the extent that a public market for Common Stock exists as
determined by the Company, by delivery (on a form approved by the
Company) of an irrevocable direction to a securities broker to
sell Common Stock and to deliver all or part of the sale proceeds
to the Company in payment of the aggregate Exercise Price.
. To the extent that a public market for Common Stock exists as
determined by the Company, by delivery (on a form approved by the
Company) of an irrevocable direction to a securities broker or
lender to pledge Common Stock, as security for a loan, and to
deliver all or part of the loan proceeds to the Company in
payment of the aggregate Exercise Price.
. Any other form of legal consideration approved by the Board.
-4-
(d) Withholding Taxes. You will not be allowed to exercise
your Option unless you make acceptable arrangements to pay any withholding
or other taxes that may be due as a result of the exercise of, or other
dealing in, the Option or the sale of Common Stock acquired upon exercise
of your Option. As a condition of grant of the Option, you shall complete
an election in the form attached as Exhibit B (the "NICs Election")
---------
providing for the transfer to you of the employer's liability to secondary
national insurance contributions arising on the exercise of, or other
dealing in, the Option.
5. Market Stand-Off. In connection with any underwritten public offering
by the Company of its equity securities pursuant to an effective registration
statement filed under the US Securities Act of 1933, you shall not, directly or
indirectly, engage in any transaction prohibited by the underwriter, nor shall
you sell, make any short sale of, contract to sell, transfer the economic risk
of ownership in, loan, charge, pledge, grant any option for the purchase of, or
otherwise dispose of or transfer for value or agree to engage in any of the
foregoing transactions with respect to any Shares without the prior written
consent of the Company or its underwriters, for such period of time after the
effective date of such registration statement as may be requested by the Company
or such underwriters. Such period of time shall not exceed one hundred eighty
(180) days and may be required by the underwriter as a condition of the
offering. By signing this Stock Option Agreement you agree to execute and
deliver such other agreements as may be reasonably requested by the Company or
the underwriter which are consistent with the foregoing or which are necessary
to give further effect thereto. To enforce the provisions of this Section 5, the
Company may impose stop-transfer instructions with respect to the Shares until
the end of the applicable stand-off period.
6. Exercise of Option Before Vesting ("Early Exercise"). You may not
exercise your Option before it is fully vested.
7. Transfer of Option. Prior to your death, only you may exercise your
Option. You cannot transfer or assign your Option. For instance, you may not
sell your Option or use it as security for a loan. If you attempt to do any of
these things, your Option will immediately become invalid. You may, however,
dispose of your Option in your will.
Regardless of any marital property settlement agreement, the Company is not
obligated to honor a notice of exercise from your spouse or former spouse, nor
is the Company obligated to recognize such individual's interest in your Option
in any other way.
8. No Retention Rights. Your Option does not give you the right to be
retained by the Company (or any subsidiaries) in any capacity. The Company
reserves the right to terminate your Service at any time and for any reason.
9. Stockholder Rights. You, or your estate or heirs, have no rights as a
Stockholder of the Company until a certificate for your Common Stock has been
issued. No adjustments are made for dividends or other rights if the applicable
record date occurs before your stock certificate is issued, except as described
in the Plan.
10. Adjustments to Common Stock.
-5-
(a) Adjustments. In the event of a subdivision of the
outstanding Shares, a declaration of a dividend payable in Shares, a
declaration of a dividend payable in a form other than Shares in an amount
that has a material effect on the price of Shares, a combination or
consolidation of the outstanding Shares (by reclassification or otherwise)
into a lesser number of Shares, a recapitalization, a spin-off or a similar
occurrence, the Company shall make such adjustments as it, in its sole
discretion, deems appropriate in one or more of:
(1) The number of shares subject to the Option; or
(2) The Exercise Price under the outstanding Option.
Except as provided in this Section 10, you shall have no rights whatsoever as a
result of any issue by the Company of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of shares
of stock of any class, the payment of any stock dividend or any other increase
or decrease in the number of shares of stock of any class.
(b) Dissolution or Liquidation. To the extent not
previously exercised, your Option shall terminate immediately prior to the
dissolution or liquidation of the Company.
(c) Reorganizations. If the Company is a party to a merger
or other reorganization, your Option shall be subject to the agreement of
merger or reorganization. Such agreement shall provide for one or more of
the following, in all cases without your consent being required:
(1) The continuation of the Option, if the Company is a
surviving corporation;
(2) The assumption of the outstanding Option by the
surviving corporation or its parent or subsidiary;
(3) The substitution by the surviving corporation or its
parent or subsidiary of its own awards for the Option; or
(4) Full exercisability and/or vesting and/or accelerated
expiration of the Option.
(d) Reservation of Rights. Except as provided in this
Section 10, you shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class, the payment of any dividend
or any other increase or decrease in the number of shares of stock of any
class. Any issue by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall not affect,
and no adjustment by reason thereof shall be made with respect to, the
number or Exercise Price of Shares subject to your Option. The grant of
your Option shall not affect in any way the right or power of the Company
to make adjustments, reclassifications, reorganizations or changes of its
capital or business structure, to issue or sell any shares of stock of any
-6-
class, to merge or consolidate or to dissolve, liquidate, sell or transfer
all or any part of its business or assets.
11. Applicable Law. This Agreement will be interpreted and enforced under
the laws of England and Wales.
(Signatures on Page 7)
-7-
This Agreement constitutes the entire understanding between you and the
Company regarding your Option. Any prior agreements, commitments or
negotiations concerning your Option are superseded.
By signing below, you agree to all of the terms and conditions described in
this Stock Option Agreement, including the attached Notice of Exercise.
Option Holder: /s/ Philip Routledge
----------------------------------------------------------------
(Signature)
Company: /s/Robert Jeffords
----------------------------------------------------------------------
(Signature)
Title: Assistant Secretary
------------------------------------------------------------------------
-8-
FECHTOR, DETWILER, MITCHELL & CO.
STOCK OPTION AGREEMENT
This certifies that, for value received, Dena Morrison ("Option Holder")
shall have the right set forth herein (the "Option"), subject to the terms and
conditions set forth below, to purchase from FECHTOR, DETWILER, MITCHELL & CO.
("FEDM"), in whole or in part that number of fully paid and nonassessable shares
(the "Shares") of Common Stock of FEDM set forth in Section I below and at a
purchase price per share (the "Exercise Price") set forth in Section I below.
The number, character and Exercise Price of such Shares are subject to
adjustment as provided in Section II(10) below and all references to "Shares"
and "Exercise Price" herein shall be deemed to include any such adjustment or
series of adjustments.
XIII. GRANT INFORMATION.
Date of Grant: December 14, 2000
Name of Option Holder: Dena Morrison
Type of Option: Nonstatutory ("NSO")
Number of Shares of Common
Stock Covered by the Option: 3,750
Exercise Price per Share: $0.6875 USD
Vesting Start Date: Date of Grant
Vesting Schedule: Subject to the attached Terms and Conditions,
3,750 of the Shares subject to the Option shall
vest 33.33% on the first and second anniversaries
of the Vesting Start Date and 33.34% of the Shares
subject to the Option shall vest on the third
anniversary of the Vesting Start Date, all in
accordance with the terms hereof. Accordingly, on
the third anniversary of the Vesting Start Date,
100% of the Shares subject to the Option shall be
vested, provided all of the requirements for
vesting hereunder have been met.
-1-
XIV. TERMS AND CONDITIONS
1. Vesting. Your Option vests during your Service on the dates specified
in the vesting schedule on the first page of this Stock Option Agreement.
Vesting will cease if your Service terminates for any reason.
2. Service; Leaves of Absence. Your Service shall cease when you cease
to be actively employed by, or a consultant or adviser to Detwiler, Mitchell &
Co. (UK) Limited (the "Company") (or any subsidiary) as determined in the sole
discretion of the FEDM Board. For purposes of your Option, your Service does not
terminate when you go on a bona fide leave of absence, that was approved by the
Company in writing, if the terms of the leave provide for continued service
crediting, or when continued service crediting is required by applicable law.
Your Service terminates in any event when the approved leave ends, unless you
immediately return to active work. The Company determines which leaves count
toward Service, and when your Service terminates for all purposes under the
Plan.
3. Term of Option. Your Option expires on the day before the fifth
anniversary of the Date of Grant, and will expire earlier if your Service
terminates as follows:
(a) Regular Termination. If your Service terminates for
any reason except death or Disability, then your Option will expire at the
close of business at Company headquarters on the date three (3) months
after your termination date. During that three-month period, you may
exercise that portion of your Option that was vested on the date that your
Service terminated.
(b) Cause. If your Service terminates for Cause, your
Option will expire immediately.
For purposes of this Section, "Cause" means (i) your continued failure
to perform substantially your duties as set by the Company at the date of
this Agreement (other than as a result of sickness, accident or similar
cause beyond your reasonable control) after your receipt of a written
warning and have been given thirty (30) days to improve; (ii) willful and
material misconduct, which is demonstrably and materially injurious to the
Company or any of its subsidiaries, including willful and material failure
to perform your duties as an officer or employee of the Company or any of
its subsidiaries or a material breach of this Agreement; (iii) conviction
of or plea of nolo contendere to a felony; and (iv) conviction of an act of
fraud against, or the misappropriation of property belonging to, the
Company or any of its subsidiaries, or any employee, customer, or supplier
of the Company or any of its subsidiaries.
(c) Death. If you die while in Service, then your Option
will expire at the close of business at Company headquarters on the date
six (6) months after the date of death. During that six-month period, your
estate or heirs may exercise that portion of your Option that was vested on
the date of death.
-2-
(d) Disability. If your Service terminates because of your
Disability, then your Option will expire at the close of business at
Company headquarters on the date six (6) months after your termination
date. During that six-month period, you may exercise that portion of your
Option that was vested on the date of your Disability.
"Disability" means that you are unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment.
4. Exercise of Option.
(a) Legal Restrictions. By signing this Agreement, you
agree not to exercise this Option or sell any Common Stock acquired upon
exercise of this Option at a time when applicable laws, regulations or
Company or underwriter trading policies prohibit exercise or sale and to
comply with any such laws, regulations or policies deemed applicable to
such exercise or sale by counsel to the Company. In particular, the Company
shall have the right to designate one or more periods of time, each of
which shall not exceed 180 days in length, during which this Option shall
not be exercisable if the Company determines (in its sole discretion) that
such limitation on exercise could in any way facilitate a lessening of any
restriction on transfer pursuant to the Securities Act with respect to any
issuance of securities by the Company, facilitate the registration or
qualification of any securities by the Company under the Securities Act or
any state securities laws, or facilitate the perfection of any exemption
from the registration or qualification requirements of the Securities Act
for the issuance or transfer of any securities. Such limitation on exercise
shall not alter the vesting schedule set forth in this Agreement other than
to limit the periods during which this Option shall be exercisable.
Notwithstanding the foregoing, if a limitation is imposed and such
limitation would cause a forfeiture of your exercise right because your
option would expire during such limitation period, then the vesting
schedule and expiration date of your option shall be extended 30 days
beyond the limitation period to allow for exercise of your option.
(b) Method of Exercise. To exercise your Option, you must
execute the Notice of Exercise, attached hereto as Exhibit A. You must
---------
submit this form, together with full payment, at the address given on the
form. Your Notice of Exercise must specify how many shares you wish to
purchase. Your Notice of Exercise will be effective when it is received by
the Company. If someone else wants to exercise your Option after your
death, that person must prove to the Company's satisfaction that he or she
is entitled to do so.
(c) Form of Payment. When you submit Exhibit A, you must
---------
include payment of the aggregate Exercise Price for the Common Stock you
are purchasing. Payment may be made in one (or a combination) of the
following forms.
. Your personal cheque, a cashier's cheque or a money order.
. Shares of Common Stock which you have owned for six months
and which are surrendered to the Company. The value of such
Common
-3-
Stock, determined as of the effective date of the Option
exercise, will be applied to the Exercise Price.
. To the extent that a public market for Common Stock exists
as determined by the Company, by delivery (on a form
approved by the Company) of an irrevocable direction to a
securities broker to sell Common Stock and to deliver all or
part of the sale proceeds to the Company in payment of the
aggregate Exercise Price.
. To the extent that a public market for Common Stock exists
as determined by the Company, by delivery (on a form
approved by the Company) of an irrevocable direction to a
securities broker or lender to pledge Common Stock, as
security for a loan, and to deliver all or part of the loan
proceeds to the Company in payment of the aggregate Exercise
Price.
. Any other form of legal consideration approved by the Board.
(d) Withholding Taxes. You will not be allowed to exercise
your Option unless you make acceptable arrangements to pay any withholding
or other taxes that may be due as a result of the exercise of, or other
dealing in, the Option or the sale of Common Stock acquired upon exercise
of your Option. As a condition of grant of the Option, you shall complete
an election in the form attached as Exhibit B (the "NICs Election")
---------
providing for the transfer to you of the employer's liability to secondary
national insurance contributions arising on the exercise of, or other
dealing in, the Option.
5. Market Stand-Off. In connection with any underwritten public offering
by the Company of its equity securities pursuant to an effective registration
statement filed under the US Securities Act of 1933, you shall not, directly or
indirectly, engage in any transaction prohibited by the underwriter, nor shall
you sell, make any short sale of, contract to sell, transfer the economic risk
of ownership in, loan, charge, pledge, grant any option for the purchase of, or
otherwise dispose of or transfer for value or agree to engage in any of the
foregoing transactions with respect to any Shares without the prior written
consent of the Company or its underwriters, for such period of time after the
effective date of such registration statement as may be requested by the Company
or such underwriters. Such period of time shall not exceed one hundred eighty
(180) days and may be required by the underwriter as a condition of the
offering. By signing this Stock Option Agreement you agree to execute and
deliver such other agreements as may be reasonably requested by the Company or
the underwriter which are consistent with the foregoing or which are necessary
to give further effect thereto. To enforce the provisions of this Section 5, the
Company may impose stop-transfer instructions with respect to the Shares until
the end of the applicable stand-off period.
6. Exercise of Option Before Vesting ("Early Exercise"). You may not
exercise your Option before it is fully vested.
7. Transfer of Option. Prior to your death, only you may exercise your
Option. You cannot transfer or assign your Option. For instance, you may not
sell your Option or use it as
-4-
security for a loan. If you attempt to do any of these things, your Option will
immediately become invalid. You may, however, dispose of your Option in your
will.
Regardless of any marital property settlement agreement, the Company is not
obligated to honor a notice of exercise from your spouse or former spouse, nor
is the Company obligated to recognize such individual's interest in your Option
in any other way.
8. No Retention Rights. Your Option does not give you the right to be
retained by the Company (or any subsidiaries) in any capacity. The Company
reserves the right to terminate your Service at any time and for any reason.
9. Stockholder Rights. You, or your estate or heirs, have no rights as a
Stockholder of the Company until a certificate for your Common Stock has been
issued. No adjustments are made for dividends or other rights if the applicable
record date occurs before your stock certificate is issued, except as described
in the Plan.
10. Adjustments to Common Stock.
(a) Adjustments. In the event of a subdivision of the
outstanding Shares, a declaration of a dividend payable in Shares, a
declaration of a dividend payable in a form other than Shares in an amount
that has a material effect on the price of Shares, a combination or
consolidation of the outstanding Shares (by reclassification or otherwise)
into a lesser number of Shares, a recapitalization, a spin-off or a similar
occurrence, the Committee shall make such adjustments as it, in its sole
discretion, deems appropriate in one or more of:
(1) The number of shares subject to the Option; or
(2) The Exercise Price under the outstanding Option.
Except as provided in this Section 10, you shall have no rights whatsoever as a
result of any issue by the Company of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of shares
of stock of any class, the payment of any stock dividend or any other increase
or decrease in the number of shares of stock of any class.
(b) Dissolution or Liquidation. To the extent not
previously exercised, your Option shall terminate immediately prior to the
dissolution or liquidation of the Company.
(c) Reorganizations. If the Company is a party to a merger
or other reorganization, your Option shall be subject to the agreement of
merger or reorganization. Such agreement shall provide for one or more of
the following, in all cases without your consent being required:
(1) The continuation of the Option, if the Company is a
surviving corporation;
-5-
(2) The assumption of the outstanding Option by the
surviving corporation or its parent or subsidiary;
(3) The substitution by the surviving corporation or its
parent or subsidiary of its own awards for the Option; or
(4) Full exercisability and/or vesting and/or accelerated
expiration of the Option.
(d) Reservation of Rights. Except as provided in this
Section 10, you shall have no rights by reason of any subdivision or
consolidation of shares of stock of any class, the payment of any dividend
or any other increase or decrease in the number of shares of stock of any
class. Any issue by the Company of shares of stock of any class, or
securities convertible into shares of stock of any class, shall not affect,
and no adjustment by reason thereof shall be made with respect to, the
number or Exercise Price of Shares subject to your Option. The grant of
your Option shall not affect in any way the right or power of the Company
to make adjustments, reclassifications, reorganizations or changes of its
capital or business structure, to issue or sell any shares of stock of any
class, to merge or consolidate or to dissolve, liquidate, sell or transfer
all or any part of its business or assets.
11. Applicable Law. This Agreement will be interpreted and enforced under
the laws of England and Wales.
This Agreement constitutes the entire understanding between you and the
Company regarding your Option. Any prior agreements, commitments or
negotiations concerning your Option are superseded.
By signing below, you agree to all of the terms and conditions described in
this Stock Option Agreement, including the attached Notice of Exercise.
Option Holder: /s/ Dena Morrison
----------------------------------------------------------------
(Signature)
Company: /s/ Robert Jeffords
----------------------------------------------------------------------
(Signature)
Title: Assistant Secretary
------------------------------------------------------------------------
-6-
FECHTOR, DETWILER, MITCHELL & CO.
STOCK OPTION AGREEMENT
This certifies that, for value received, Dena Morrison ("Option Holder")
shall have the right set forth herein (the "Option"), subject to the terms and
conditions set forth below, to purchase from FECHTOR, DETWILER, MITCHELL & CO.
("FEDM"), in whole or in part that number of fully paid and nonassessable shares
(the "Shares") of Common Stock of FEDM set forth in Section I below and at a
purchase price per share (the "Exercise Price") set forth in Section I below.
The number, character and Exercise Price of such Shares are subject to
adjustment as provided in Section II(10) below and all references to "Shares"
and "Exercise Price" herein shall be deemed to include any such adjustment or
series of adjustments.
XV. GRANT INFORMATION.
Date of Grant: December 14, 2000
Name of Option Holder: Dena Morrison
Type of Option: Nonstatutory ("NSO")
Number of Shares of Common
Stock Covered by the Option: 8,750
Exercise Price per Share: $0.6875 USD
Vesting Start Date: Date of Grant
Vesting Schedule: Subject to the attached Terms and Conditions, 100%
of the 8,750 Shares will vest on the fifth
anniversary date of the date of grant.
Notwithstanding the immediately preceding
sentence, vesting of such Option shall accelerate
and such Shares shall vest in three equal, annual
installments commencing upon the conclusion of the
Start-up Period (as that term is defined in the
Agreement between FEDM and George Simpkins entered
into on December 14, 2000 (the "FEDM Agreement")
(i.e., the first installment would vest on the
first anniversary of the conclusion of the Start-
up Period) if Commission Revenues (as that term is
defined in the FEDM Agreement) generated by the
Company (as defined below) as determined using the
highest twelve individual months of the Start-up
Period (as that term is defined in the FEDM
Agreement) exceeds $5,000,000.
-1-
XVI. TERMS AND CONDITIONS
1. Vesting. Your Option vests during your Service on the dates specified
in the vesting schedule on the first page of this Stock Option Agreement.
Vesting will cease if your Service terminates for any reason.
2. Service; Leaves of Absence. Your Service shall cease when you cease
to be actively employed by, or a consultant or adviser to Detwiler, Mitchell &
Co. (UK) Limited (the "Company") (or any subsidiary) as determined in the sole
discretion of the FEDM Board. For purposes of your Option, your Service does not
terminate when you go on a bona fide leave of absence, that was approved by the
Company in writing, if the terms of the leave provide for continued service
crediting, or when continued service crediting is required by applicable law.
Your Service terminates in any event when the approved leave ends, unless you
immediately return to active work. The Company determines which leaves count
toward Service, and when your Service terminates for all purposes under the
Plan.
3. Term of Option. Your Option expires on the day before the sixth
anniversary of the Date of Grant, and will expire earlier if your Service
terminates as follows:
(a) Regular Termination. If your Service terminates for
any reason except death or Disability, then your Option will expire at the
close of business at Company headquarters on the date three (3) months
after your termination date. During that three-month period, you may
exercise that portion of your Option that was vested on the date that your
Service terminated.
(b) Cause. If your Service terminates for Cause, your
Option will expire immediately.
For purposes of this Section, "Cause" means (i) your continued failure
to perform substantially your duties as set by the Company at the date of
this Agreement (other than as a result of sickness, accident or similar
cause beyond your reasonable control) after your receipt of a written
warning and have been given thirty (30) days to improve; (ii) willful and
material misconduct, which is demonstrably and materially injurious to the
Company or any of its subsidiaries, including willful and material failure
to perform your duties as an officer or employee of the Company or any of
its subsidiaries or a material breach of this Agreement; (iii) conviction
of or plea of nolo contendere to a felony; and (iv) conviction of an act of
fraud against, or the misappropriation of property belonging to, the
Company or any of its subsidiaries, or any employee, customer, or supplier
of the Company or any of its subsidiaries.
(c) Death. If you die while in Service, then your Option
will expire at the close of business at Company headquarters on the date
six (6) months after the date of death. During that six-month period, your
estate or heirs may exercise that portion of your Option that was vested on
the date of death.
-2-
(d) Disability. If your Service terminates because of your
Disability, then your Option will expire at the close of business at
Company headquarters on the date six (6) months after your termination
date. During that six-month period, you may exercise that portion of your
Option that was vested on the date of your Disability.
"Disability" means that you are unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment.
4. Exercise of Option
(a) Legal Restrictions. By signing this Agreement, you
agree not to exercise this Option or sell any Common Stock acquired upon
exercise of this Option at a time when applicable laws, regulations or
Company or underwriter trading policies prohibit exercise or sale and to
comply with any such laws, regulations or policies deemed applicable to
such exercise or sale by counsel to the Company. In particular, the Company
shall have the right to designate one or more periods of time, each of
which shall not exceed 180 days in length, during which this Option shall
not be exercisable if the Company determines (in its sole discretion) that
such limitation on exercise could in any way facilitate a lessening of any
restriction on transfer pursuant to the Securities Act with respect to any
issuance of securities by the Company, facilitate the registration or
qualification of any securities by the Company under the Securities Act or
any state securities laws, or facilitate the perfection of any exemption
from the registration or qualification requirements of the Securities Act
for the issuance or transfer of any securities. Such limitation on exercise
shall not alter the vesting schedule set forth in this Agreement other than
to limit the periods during which this Option shall be exercisable.
Notwithstanding the foregoing, if a limitation is imposed and such
limitation would cause a forfeiture of your exercise right because your
option would expire during such limitation period, then the vesting
schedule and expiration date of your option shall be extended 30 days
beyond the limitation period to allow for exercise of your option.
(b) Method of Exercise. To exercise your Option, you must
execute the Notice of Exercise, attached hereto as Exhibit A. You must
submit this form, together with full payment, at the address given on the
form. Your Notice of Exercise must specify how many shares you wish to
purchase. Your Notice of Exercise will be effective when it is received by
the Company. If someone else wants to exercise your Option after your
death, that person must prove to the Company's satisfaction that he or she
is entitled to do so.
(c) Form of Payment. When you submit Exhibit A, you must
include payment of the aggregate Exercise Price for the Common Stock you
are purchasing. Payment may be made in one (or a combination) of the
following forms.
. Your personal cheque, a cashier's cheque or a money order.
. Shares of Common Stock which you have owned for six months
and which are surrendered to the Company. The value of such
Common
-3-
Stock, determined as of the effective date of the Option
exercise, will be applied to the Exercise Price.
. To the extent that a public market for Common Stock exists
as determined by the Company, by delivery (on a form
approved by the Company) of an irrevocable direction to a
securities broker to sell Common Stock and to deliver all or
part of the sale proceeds to the Company in payment of the
aggregate Exercise Price.
. To the extent that a public market for Common Stock exists
as determined by the Company, by delivery (on a form
approved by the Company) of an irrevocable direction to a
securities broker or lender to pledge Common Stock, as
security for a loan, and to deliver all or part of the loan
proceeds to the Company in payment of the aggregate Exercise
Price.
. Any other form of legal consideration approved by the Board.
(d) Withholding Taxes. You will not be allowed to exercise
your Option unless you make acceptable arrangements to pay any withholding
or other taxes that may be due as a result of the exercise of, or other
dealing in, the Option or the sale of Common Stock acquired upon exercise
of your Option. As a condition of grant of the Option, you shall complete
an election in the form attached as Exhibit B (the "NICs Election")
providing for the transfer to you of the employer's liability to secondary
national insurance contributions arising on the exercise of, or other
dealing in, the Option.
5. Market Stand-Off. In connection with any underwritten public offering
by the Company of its equity securities pursuant to an effective registration
statement filed under the US Securities Act of 1933, you shall not, directly or
indirectly, engage in any transaction prohibited by the underwriter, nor shall
you sell, make any short sale of, contract to sell, transfer the economic risk
of ownership in, loan, charge, pledge, grant any option for the purchase of, or
otherwise dispose of or transfer for value or agree to engage in any of the
foregoing transactions with respect to any Shares without the prior written
consent of the Company or its underwriters, for such period of time after the
effective date of such registration statement as may be requested by the Company
or such underwriters. Such period of time shall not exceed one hundred eighty
(180) days and may be required by the underwriter as a condition of the
offering. By signing this Stock Option Agreement you agree to execute and
deliver such other agreements as may be reasonably requested by the Company or
the underwriter which are consistent with the foregoing or which are necessary
to give further effect thereto. To enforce the provisions of this Section 5, the
Company may impose stop-transfer instructions with respect to the Shares until
the end of the applicable stand-off period.
6. Exercise of Option Before Vesting ("Early Exercise"). You may not
exercise your Option before it is fully vested.
7. Transfer of Option. Prior to your death, only you may exercise your
Option. You cannot transfer or assign your Option. For instance, you may not
sell your Option or use it as
-4-
security for a loan. If you attempt to do any of these things, your Option will
immediately become invalid. You may, however, dispose of your Option in your
will.
Regardless of any marital property settlement agreement, the Company is not
obligated to honor a notice of exercise from your spouse or former spouse, nor
is the Company obligated to recognize such individual's interest in your Option
in any other way.
8. No Retention Rights. Your Option does not give you the right to be
retained by the Company (or any subsidiaries) in any capacity. The Company
reserves the right to terminate your Service at any time and for any reason.
9. Stockholder Rights. You, or your estate or heirs, have no rights as a
Stockholder of the Company until a certificate for your Common Stock has been
issued. No adjustments are made for dividends or other rights if the applicable
record date occurs before your stock certificate is issued, except as described
in the Plan.
10. Adjustments to Common Stock.
(a) Adjustments. In the event of a subdivision of the
outstanding Shares, a declaration of a dividend payable in Shares, a
declaration of a dividend payable in a form other than Shares in an amount
that has a material effect on the price of Shares, a combination or
consolidation of the outstanding Shares (by reclassification or otherwise)
into a lesser number of Shares, a recapitalization, a spin-off or a similar
occurrence, the Committee shall make such adjustments as it, in its sole
discretion, deems appropriate in one or more of:
(1) The number of shares subject to the Option; or
(2) The Exercise Price under the outstanding Option.
Except as provided in this Section 10, you shall have no rights whatsoever as a
result of any issue by the Company of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of shares
of stock of any class, the payment of any stock dividend or any other increase
or decrease in the number of shares of stock of any class.
(b) Dissolution or Liquidation. To the extent not previously
exercised, your Option shall terminate immediately prior to the dissolution
or liquidation of the Company.
(c) Reorganizations. If the Company is a party to a merger or
other reorganization, your Option shall be subject to the agreement of
merger or reorganization. Such agreement shall provide for one or more of
the following, in all cases without your consent being required:
(1) The continuation of the Option, if the Company is a
surviving corporation;
-5-
(2) The assumption of the outstanding Option by the surviving
corporation or its parent or subsidiary;
(3) The substitution by the surviving corporation or its
parent or subsidiary of its own awards for the Option; or
(4) Full exercisability and/or vesting and/or accelerated
expiration of the Option.
(d) Reservation of Rights. Except as provided in this Section
10, you shall have no rights by reason of any subdivision or consolidation
of shares of stock of any class, the payment of any dividend or any other
increase or decrease in the number of shares of stock of any class. Any
issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to your Option. The grant of your Option
shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital
or business structure, to issue or sell any shares of stock of any class,
to merge or consolidate or to dissolve, liquidate, sell or transfer all or
any part of its business or assets.
11. Applicable Law. This Agreement will be interpreted and enforced under
the laws of England and Wales.
This Agreement constitutes the entire understanding between you and the
Company regarding your Option. Any prior agreements, commitments or
negotiations concerning your Option are superseded.
By signing below, you agree to all of the terms and conditions
described in this Stock Option Agreement, including the attached
Notice of Exercise.
Option Holder: /s/ Dena Morrison
-----------------------------------------------------------------
(Signature)
Company: /s/ Robert Jeffords
-----------------------------------------------------------------------
(Signature)
Title: Assistant Secretary
-------------------------------------------------------------------------
-6-
FECHTOR, DETWILER, MITCHELL & CO.
START-UP PERIOD STOCK OPTION AGREEMENT
This certifies that, for value received, Dena Morrison ("Option Holder")
shall have the right set forth herein (the "Option"), subject to the terms and
conditions set forth below, to purchase from FECHTOR, DETWILER, MITCHELL & CO.
("FEDM"), in whole or in part that number of fully paid and nonassessable shares
(the "Shares") of Common Stock of FEDM set forth in Section I below and at a
purchase price per share (the "Exercise Price") set forth in Section I below.
The number, character and Exercise Price of such Shares are subject to
adjustment as provided in Section II(10) below and all references to "Shares"
and "Exercise Price" herein shall be deemed to include any such adjustment or
series of adjustments. All capitalized terms used but not defined herein shall
have the meanings set forth in Option Holder's Employment Agreement.
XVII. GRANT INFORMATION.
Date of Grant: December 14, 2000
Name of Option Holder: Dena Morrison
Type of Option: Nonstatutory ("NSO")
Number of Shares of Common
Stock Covered by the Option: 12,500
Exercise Price per Share: $0.6875 USD
Vesting Start Date: Date of Grant
Vesting Schedule: Subject to the attached Terms and Conditions,
100% of the Shares subject to the Option
shall vest on the fifth anniversary of the
Vesting Start Date, provided, however,
vesting of this Option shall accelerate and
such Shares shall vest in three equal, annual
installments commencing upon the conclusion
of the Start-up Period (as defined below)
(i.e., the first installment would vest on
----
the first anniversary of the conclusion of
the Start-up Period) if certain Commission
Revenues are generated by Detwiler, Mitchell
& Co. (UK) Limited (the "Company") over the
12 highest individual months of the Start-up
Period as follows:
-1-
Commission Revenues Generated by Cumulative Number of Options to
the Company Over the 12 Highest Individual Purchase FEDM Stock:
Months of Start-up Period:
Equal to or greater than $5,000,000 6,250
but less than $6,000,000
Equal to or greater than $6,000,000 7,500
but less than $7,000,000
Equal or greater than $7,000,000 8,750
but less than $8,000,000
Equal to or greater than $8,000,000 10,000
but less than $9,000,000
Equal to or greater than $9,000,000 11,250
but less than $10,000,000
Greater than $10,000,000 12,500
The Commission Revenues (as defined in the Agreement between FEDM and George
Simpkins entered into on December 14, 2000 (the "FEDM Agreement")) are
determined by using the twelve individual months within the Start-up Period (as
defined below) that have the highest Commission Revenues. In the event of
acceleration of vesting of any Shares pursuant to this schedule, no additional
Shares shall vest on the fifth anniversary of the Vesting Start Date. Start-up
Period means the eighteen month period commencing on the first day of the month
which immediately follows the date upon which the Company is able to commence
its sales activities pursuant to valid Licensing as defined in the FEDM
Agreement.
XVIII. TERMS AND CONDITIONS
1. Vesting. Your Option vests during your Service on the dates
specified in the vesting schedule on the first page of this Stock Option
Agreement. Vesting will cease if your Service terminates for any reason.
2. Service; Leaves of Absence. Your Service shall cease when you cease
to be actively employed by, or a consultant or adviser to, the Company (or any
subsidiary) as determined in the sole discretion of the FEDM Board. For purposes
of your Option, your Service does not terminate when you go on a bona fide leave
of absence, that was approved by the Company in writing, if the terms of the
leave provide for continued service crediting, or when continued service
crediting is required by applicable law. Your Service terminates in any event
when the approved leave ends, unless you immediately return to active work. The
Company determines
-2-
which leaves count toward Service, and when your Service terminates for all
purposes under the Plan.
3. Term of Option. Your Option expires on the day before the sixth
anniversary of the Date of Grant, and will expire earlier if your Service
terminates as follows:
(a) Regular Termination. If your Service terminates for any
reason except death or Disability, then your Option will expire at the
close of business at Company headquarters on the date three (3) months
after your termination date. During that three-month period, you may
exercise that portion of your Option that was vested on the date that your
Service terminated.
(b) Cause. If your Service terminates for Cause, your Option
will expire immediately.
For purposes of this Section, "Cause" means (i) your continued failure
to perform substantially your duties as set by the Company at the date of
this Agreement (other than as a result of sickness, accident or similar
cause beyond your reasonable control) after your receipt of a written
warning and have been given thirty (30) days to improve; (ii) willful and
material misconduct, which is demonstrably and materially injurious to the
Company or any of its subsidiaries, including willful and material failure
to perform your duties as an officer or employee of the Company or any of
its subsidiaries or a material breach of this Agreement; (iii) conviction
of or plea of nolo contendere to a felony; and (iv) conviction of an act of
fraud against, or the misappropriation of property belonging to, the
Company or any of its subsidiaries, or any employee, customer, or supplier
of the Company or any of its subsidiaries.
(c) Death. If you die while in Service, then your Option will
expire at the close of business at Company headquarters on the date six (6)
months after the date of death. During that six-month period, your estate
or heirs may exercise that portion of your Option that was vested on the
date of death.
(d) Disability. If your Service terminates because of your
Disability, then your Option will expire at the close of business at
Company headquarters on the date six (6) months after your termination
date. During that six-month period, you may exercise that portion of your
Option that was vested on the date of your Disability.
"Disability" means that you are unable to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment.
4. Exercise of Option
(a) Legal Restrictions. By signing this Agreement, you agree not to
exercise this Option or sell any Common Stock acquired upon exercise of
this Option at a time when applicable laws, regulations or Company or
underwriter trading policies prohibit exercise or sale and to comply with
any such laws, regulations or policies deemed applicable to such exercise
or sale by counsel to the Company. In particular, the
-3-
Company shall have the right to designate one or more periods of time, each
of which shall not exceed 180 days in length, during which this Option
shall not be exercisable if the Company determines (in its sole discretion)
that such limitation on exercise could in any way facilitate a lessening of
any restriction on transfer pursuant to the Securities Act with respect to
any issuance of securities by the Company, facilitate the registration or
qualification of any securities by the Company under the Securities Act or
any state securities laws, or facilitate the perfection of any exemption
from the registration or qualification requirements of the Securities Act
for the issuance or transfer of any securities. Such limitation on exercise
shall not alter the vesting schedule set forth in this Agreement other than
to limit the periods during which this Option shall be exercisable.
Notwithstanding the foregoing, if a limitation is imposed and such
limitation would cause a forfeiture of your exercise right because your
option would expire during such limitation period, then the vesting
schedule and expiration date of your option shall be extended 30 days
beyond the limitation period to allow for exercise of your option.
(b) Method of Exercise. To exercise your Option, you must
execute the Notice of Exercise, attached hereto as Exhibit A. You must
---------
submit this form, together with full payment, at the address given on the
form. Your Notice of Exercise must specify how many shares you wish to
purchase. Your Notice of Exercise will be effective when it is received by
the Company. If someone else wants to exercise your Option after your
death, that person must prove to the Company's satisfaction that he or she
is entitled to do so.
(c) Form of Payment. When you submit Exhibit A, you must
--------------- ---------
include payment of the aggregate Exercise Price for the Common Stock you
are purchasing. Payment may be made in one (or a combination) of the
following forms.
. Your personal cheque, a cashier's cheque or a money order.
. Shares of Common Stock which you have owned for six months and
which are surrendered to the Company. The value of such Common
Stock, determined as of the effective date of the Option
exercise, will be applied to the Exercise Price.
. To the extent that a public market for Common Stock exists as
determined by the Company, by delivery (on a form approved by the
Company) of an irrevocable direction to a securities broker to
sell Common Stock and to deliver all or part of the sale proceeds
to the Company in payment of the aggregate Exercise Price.
. To the extent that a public market for Common Stock exists as
determined by the Company, by delivery (on a form approved by the
Company) of an irrevocable direction to a securities broker or
lender to pledge Common Stock, as security for a loan, and to
deliver all or part of the loan proceeds to the Company in
payment of the aggregate Exercise Price.
. Any other form of legal consideration approved by the Board.
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(d) Withholding Taxes. You will not be allowed to exercise your
Option unless you make acceptable arrangements to pay any withholding or
other taxes that may be due as a result of the exercise of, or other
dealing in, the Option or the sale of Common Stock acquired upon exercise
of your Option. As a condition of grant of the Option, you shall complete
an election in the form attached as Exhibit B (the "NICs Election")
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providing for the transfer to you of the employer's liability to secondary
national insurance contributions arising on the exercise of, or other
dealing in, the Option.
5. Market Stand-Off. In connection with any underwritten public offering
by the Company of its equity securities pursuant to an effective registration
statement filed under the US Securities Act of 1933, you shall not, directly or
indirectly, engage in any transaction prohibited by the underwriter, nor shall
you sell, make any short sale of, contract to sell, transfer the economic risk
of ownership in, loan, charge, pledge, grant any option for the purchase of, or
otherwise dispose of or transfer for value or agree to engage in any of the
foregoing transactions with respect to any Shares without the prior written
consent of the Company or its underwriters, for such period of time after the
effective date of such registration statement as may be requested by the Company
or such underwriters. Such period of time shall not exceed one hundred eighty
(180) days and may be required by the underwriter as a condition of the
offering. By signing this Stock Option Agreement you agree to execute and
deliver such other agreements as may be reasonably requested by the Company or
the underwriter which are consistent with the foregoing or which are necessary
to give further effect thereto. To enforce the provisions of this Section 5, the
Company may impose stop-transfer instructions with respect to the Shares until
the end of the applicable stand-off period.
6. Exercise of Option Before Vesting ("Early Exercise"). You may not
exercise your Option before it is fully vested.
7. Transfer of Option. Prior to your death, only you may exercise your
Option. You cannot transfer or assign your Option. For instance, you may not
sell your Option or use it as security for a loan. If you attempt to do any of
these things, your Option will immediately become invalid. You may, however,
dispose of your Option in your will.
Regardless of any marital property settlement agreement, the Company is not
obligated to honor a notice of exercise from your spouse or former spouse, nor
is the Company obligated to recognize such individual's interest in your Option
in any other way.
8. No Retention Rights. Your Option does not give you the right to be
retained by the Company (or any subsidiaries) in any capacity. The Company
reserves the right to terminate your Service at any time and for any reason.
9. Stockholder Rights. You, or your estate or heirs, have no rights as a
Stockholder of the Company until a certificate for your Common Stock has been
issued. No adjustments are made for dividends or other rights if the applicable
record date occurs before your stock certificate is issued, except as described
in the Plan.
10. Adjustments to Common Stock.
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(a) Adjustments. In the event of a subdivision of the
outstanding Shares, a declaration of a dividend payable in Shares, a
declaration of a dividend payable in a form other than Shares in an amount
that has a material effect on the price of Shares, a combination or
consolidation of the outstanding Shares (by reclassification or otherwise)
into a lesser number of Shares, a recapitalization, a spin-off or a similar
occurrence, the Company shall make such adjustments as it, in its sole
discretion, deems appropriate in one or more of:
(1) The number of shares subject to the Option; or
(2) The Exercise Price under the outstanding Option.
Except as provided in this Section 10, you shall have no rights whatsoever as a
result of any issue by the Company of stock of any class or securities
convertible into stock of any class, any subdivision or consolidation of shares
of stock of any class, the payment of any stock dividend or any other increase
or decrease in the number of shares of stock of any class.
(b) Dissolution or Liquidation. To the extent not previously
exercised, your Option shall terminate immediately prior to the dissolution
or liquidation of the Company.
(c) Reorganizations. If the Company is a party to a merger or
other reorganization, your Option shall be subject to the agreement of
merger or reorganization. Such agreement shall provide for one or more of
the following, in all cases without your consent being required:
(1) The continuation of the Option, if the Company is a
surviving corporation;
(2) The assumption of the outstanding Option by the surviving
corporation or its parent or subsidiary;
(3) The substitution by the surviving corporation or its
parent or subsidiary of its own awards for the Option; or
(4) Full exercisability and/or vesting and/or accelerated
expiration of the Option.
(d) Reservation of Rights. Except as provided in this Section
10, you shall have no rights by reason of any subdivision or consolidation
of shares of stock of any class, the payment of any dividend or any other
increase or decrease in the number of shares of stock of any class. Any
issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of Shares subject to your Option. The grant of your Option
shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital
or business structure, to issue or sell any shares of stock of any
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class, to merge or consolidate or to dissolve, liquidate, sell or transfer
all or any part of its business or assets.
11. Applicable Law. This Agreement will be interpreted and enforced under
the laws of England and Wales .
(Signatures on Page 7)
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This Agreement constitutes the entire understanding between you and the
Company regarding your Option. Any prior agreements, commitments or
negotiations concerning your Option are superseded.
By signing below, you agree to all of the terms and conditions
described in this Stock Option Agreement, including the attached
Notice of Exercise.
Option Holder: /s/ Dena Morrison
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(Signature)
Company: /s/ Robert Jeffords
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(Signature)
Title: Assistant Secretary
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