Preliminary
Proxy Statement
|
¨
|
Confidential,
for Use of the Commission
|
||
Only
(as permitted by Rule 14a-6(e)(2))
|
||||
¨
|
Definitive
Proxy Statement
|
¨
|
Definitive
Additional Materials
|
|
¨
|
Soliciting
Materials Pursuant to §240.14a-12
|
x
|
No
fee required.
|
¨
|
Fee
computed on table below per Exchange Act Rules 14a-6(i)(1) and
0-11.
|
(1)
|
Title
of each class of securities to which transaction applies:
[inert]
|
(2)
|
Aggregate
number of securities to which transaction applies:
[inert]
|
(3)
|
Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11
|
(4)
|
Proposed
maximum aggregate value of
transaction:
|
(5)
|
Total
fee paid:
|
¨
|
Fee
paid previously with preliminary
materials.
|
¨
|
Check
box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for
which the offsetting fee was paid previously. Identify the previous filing
by registration statement number, or the Form or Schedule and the
date of its filing.
|
(1)
|
Amount
previously paid: [inert]
|
(2)
|
Form,
Schedule or Registration Statement
No.:
|
(3)
|
Filing
Party:
|
(4)
|
Date
Filed:
|
|
1.
|
Election
of six (6) directors.
|
|
2.
|
Approval
of an amendment and restatement of our 2007 Incentive Compensation Plan to
increase the maximum number of shares to be eligible for grant thereunder
by 6,000,000, up to an aggregate of
10,000,000.
|
|
3.
|
Approval
of the proposed issuance of up to 20,000,000 shares of our Common Stock in
exchange for and payment of an aggregate amount of up to $10,000,000 of
our outstanding debt.
|
|
4.
|
Approval
of the proposed issuance of shares of our Common Stock in payment of
$116,164.00 of liquidated damages.
|
|
5.
|
Approval
of a stock purchase plan to enable us to sell and issue up to $10,000,000
of shares of our Common Stock to our directors, officers, employees or
consultants.
|
|
6.
|
Approval
of a compensation plan to enable us to issue shares of our Common Stock to
our employees or independent consultants as a portion of their
compensation.
|
|
7.
|
Approval
of an amendment to our Articles of Incorporation to increase our number of
authorized shares of Common Stock and Preferred
Stock
|
|
8.
|
Ratification
of the selection of Rosen Seymour Shapss Martin & Company LLP,
successor to Miller, Ellin & Company, LLP, as our independent
registered public accounting firm for the fiscal year ended
December 31, 2008.
|
|
9.
|
Any
and all matters incident to the foregoing, and such other business as may
legally come before the meeting and any adjournments or postponements
thereof.
|
By
order of the Board of Directors
|
||
Steven
M. Rabinovici
|
||
Chairman
of the Board
|
|
1.
|
FOR
each of the persons nominated by the Board of Directors to serve as
directors.
|
|
2.
|
FOR
approval of the amendment and restatement of our 2007 Incentive
Compensation Plan.
|
|
3.
|
FOR
approval of the proposed issuance of up to 20,000,000 shares of our Common
Stock in exchange for and payment of an aggregate amount of up to
$10,000,000 of our outstanding
debt.
|
|
4.
|
FOR
approval of the proposed issuance of shares of our Common Stock in payment
of $116,164.00 of liquidated
damages.
|
|
5.
|
FOR
approval of a stock purchase plan to enable us to sell and issue up to
$10,000,000 of shares of our Common Stock to our directors, officers,
employees or consultants.
|
|
6.
|
FOR
approval of a compensation plan to enable us to issue shares of our Common
Stock to our employees or independent consultants as a portion of their
compensation.
|
|
7.
|
FOR
approval of an amendment to our Articles of Incorporation to increase our
number of authorized shares of Common Stock and Preferred
Stock.
|
|
8.
|
FOR
ratification of the selection of Rosen Seymour Shapss
Martin & Company LLP as the independent registered public
accounting firm for the fiscal year ended December 31,
2008.
|
Name
|
Age
|
Position
|
Director Since
|
|||
Donald
A. Wojnowski, Jr.
|
48
|
President,
Chief Executive Officer and Director
|
2004
|
|||
Steven
M. Rabinovici
|
56
|
Chairman of the Board and Director
|
2005
|
|||
Alan
Weichselbaum
|
[ ]
|
Chief
Financial Officer and Director
|
2008
|
|||
John
C. Rudy (1)(2)(3)
|
66
|
Director
|
2005
|
|||
Benjamin
J. Douek (1)(2)(3)
|
58
|
Director
|
2008
|
|||
Mark
A. Wilton (4)
|
62
|
Director
Nominee
|
(1)
|
Member
of the Audit Committee
|
(2)
|
Member
of the Compensation Committee
|
(3)
|
Member
of the Nominating/Corporate Governance
Committee
|
(4)
|
Upon
election as a member of our Board, Mr. Wilton will become a member of the
Audit Committee, the Compensation Committee and the Nominating/Corporate
Governance Committee
|
(i)
|
each
of our Named Executive officers (as defined in the Summary Compensation
Table below),
|
(ii)
|
each
of our directors and director
nominees
|
(iii)
|
all
of our directors and director nominees and executive officers as a group
and
|
(iv)
|
each
person known by us to beneficially own more than 5% of the total combined
voting power of all voting
securities.
|
Name of Beneficial Owner
(1)
|
Number of Shares
Beneficially Owned (2)
|
Percentage of
Outstanding
|
||||||
Donald
A. Wojnowski Jr. (3)
|
625,860 | 2.0 | % | |||||
Steven
M. Rabinovici (9, 10)
|
3,988,437 | 12.4 | % | |||||
John
C. Rudy (4)
|
235,000 | 0.7 | % | |||||
Benjamin
J. Douek (5)
|
100,000 | 0.3 | % | |||||
Alan
Weichselbaum (6)
|
4,576,029 | 14.3 | % | |||||
James
B. Fellus (7)
|
4,519,929 | 14.1 | % | |||||
James
M. Matthew (10)*
|
200,000 | 0.6 | % | |||||
Kevin
A. Carreno (11)**
|
— | — | ||||||
Stephen
J. DeGroat
|
— | — | ||||||
William
F. Moreno (12)
|
549,688 | 1.7 | % | |||||
The
Gagne First Revocable Trust (8,9)
|
1,026,097 | 3.2 | % | |||||
EFH
Partners, LLC (13,15)
|
3,788,437 | 11.8 | % | |||||
Steven
A. Horowitz (14)
|
3,990,937 | 12.4 | % | |||||
Paul
H. Brown (15)
|
3,342,984 | 10.4 | % | |||||
Daniel
J. Barnett (16)
|
1,240,680 | 3.9 | % | |||||
Harvey
McGrath (17)
|
1,240,680 | 3.9 | % | |||||
All
directors and executive officers as a group (ten
individuals)
|
14,794,943 | 46.1 | % |
*
|
Mr.
Matthew resigned from his position as Chief Financial Officer of Jesup
& Lamont, Inc. effective December 31,
2008.
|
**
|
Mr. Carreno
resigned from his position as Chief Operating Officer of Jesup &
Lamont, Inc. effective October 31,
2008.
|
(1)
|
The
addresses of the persons named in this table are as follows: Donald A.
Wojnowski, Steven M. Rabinovici, James M. Matthew, and Kevin A. Carreno,
2170 West State Road 434, Suite 100, Longwood, Florida 32779; John C.
Rudy, 245 Main Street, Suite 2N, Matawan, NJ 07747; Kevin Gagne, 1911 Lake
Markham Preserve Trail, Sanford, Fl 32771; Steven A. Horowitz, 400 Garden
City Plaza, Garden City, NY 11530; EFH Partners, LLC, 405 Park Avenue,
Suite 1401, New York, NY 10022; The Gagne First Revocable Trust, 1911 Lake
Markham Preserve Trail, Sanford, Fl 32771; James B. Fellus, Stephen J.
DeGroat and William F. Moreno, Jesup & Lamont Securities Corporation,
650 Fifth Avenue New York, NY 10019; Paul H. Brown, Le Panorama AB, 57 Rue
Grimaldi, MC 98000, Monaco; Daniel J. Barnett, 297 Asharoken Avenue,
Northport, NY 11768; Harvey McGrath, c/o Windels Marx Lane &
Mittendorf LLP, 156 West 56th Street, New York, NY 10019; Alan
Weichselbaum, 50 Sealy Drive, Lawrence, NY 11559; and Benjamin Douek, 11
Hillview Drive, Scarsdale,
NY 10583.
|
(2)
|
A
person is deemed to be a beneficial owner of securities that can be
acquired by such person within 60 days from November 3, 2008 upon the
exercise of options and warrants or conversion of convertible securities.
Each beneficial owner's percentage ownership is determined by
assuming that options, warrants and convertible securities that are held
by such person (but not held by any other person) and that are exercisable
or convertible within 60 days from November 3, 2008 have been
exercised or converted. Except as otherwise indicated, and subject to
applicable community property and similar laws, each of the persons named
has sole voting and investment power with respect to the shares shown as
beneficially owned. All percentages are determined based on the
number of all shares, including those underlying options, warrants and
convertible securities exercisable or convertible within 60 days from
November 3, 2008 held by the named individual, divided by 25,489,569
outstanding shares on November 3, 2008 plus those shares underlying
options, warrants and convertible securities exercisable or convertible
within 60 days from November 3, 2008 held by the named individual or
the group. Certain securities shown as beneficially owned are
securities subscribed but not yet issued that the holder is legally
entitled to pursuant to executed and fully paid subscription
agreements.
|
(3)
|
Mr. Wojnowski
owns options to purchase 425,000 shares of common stock at $2.00 per
share, all of which are exercisable within 60 days from November 3,
2008. Mr. Wojnowski also owns 64,844 shares of restricted common
stock, all of which are vested within 60 days from November 3,
2008.
|
(4)
|
Mr. Rudy
owns options that are currently eligible to purchase 50,000 shares of our
common stock at $2.05 per share, 10,000 shares at $2.82 per share, 75,000
shares of our common stock at $1.42 per share, and 100,000 shares of our
common stock at $1.07 per share, all of which are exercisable within 60
days from November 3, 2008.
|
(5)
|
Mr. Douek
owns options that are currently eligible to purchase 100,000 shares of our
common stock at $1.07 per share, all of which are exercisable within 60
days from November 3, 2008.
|
(6)
|
Mr. Weichselbaum’s
beneficial ownership includes the following securities: (a) 3,869,969
shares of common stock owned by Wexus Capital LLC; (b) 484,848 shares of
our common stock due but have not been issued to Gimmel Partners LP; (c)
warrants due but have not been issued to Gimmel Partners LP, currently
exercisable to purchase 121,212 shares of our common stock at $1.20 per
share; and (d) options currently exercisable, to purchase 100,000 shares
of our common stock at $1.07 per share. Gimmel Partners LP is legally
entitled to those securities pursuant to executed and fully paid
subscription agreements. Mr. Weichselbaum disclaims beneficial
ownership of securities owned by Gimmel Partners LP, except to the extent
of his pecuniary interest therein, if
any.
|
(7)
|
Mr. Fellus’s
beneficial ownership includes the following securities: (a) 3,869,969
shares of common stock owned by Joab Capital LLC; (b) 484,848 shares of
our common stock due but have not been issued to Joab Partners LP; (c)
warrants due but have not been issued to Joab Partners LP, currently
exercisable to purchase 121,212 shares of our common stock at $1.20 per
share; (d) 8,500 shares of our common stock owned directly; and (e) 35,400
shares of our common stock owned by the James B. Fellus IRA. Joab Capital
LLC is legally entitled to these securities pursuant to executed and fully
paid subscription agreements. Mr. Fellus disclaims beneficial
ownership of securities owned by Joab Capital LLC, except to the extent of
his pecuniary interest therein, if
any.
|
(8)
|
Investment
making authority for the Gagne First Revocable Trust is vested in Kevin M.
Gagne, Trustee. Mr. Gagne is a former chief executive officer and
director of Empire Financial Holding Company. The Gagne First Revocable
Trust is record owner of 663,497 shares of our common stock, and 150,000
of those shares are subject to options granted by The Gagne First
Revocable Trust to EFH Partners, LLC, to purchase each of those shares at
an exercise price of $2.25 per share. The 150,000 shares underlying those
options are also covered by irrevocable proxies, dated May 20, 2005,
delivered by The Gagne First Revocable Trust to EFH Partners, LLC, which
permit EFH Partners, LLC to vote these shares on all matters, except that
without the approval of The Gagne First Revocable Trust, these shares may
not be voted in favor of (i) the sale of all or substantially all of our
assets, (ii) our merger with any other entity or (iii) the authorization
of a new employee stock option plan or an increase in the number of shares
of our common stock available under any existing employee stock option
plan. In addition, the Gagne First Revocable Trust's beneficial ownership
includes 7,062 shares of Series C Preferred Stock, currently
convertible into 353,100 shares of our common stock, and warrants,
currently exercisable, to purchase 9,500 shares of our common stock at
$5.46 per share.
|
(9)
|
Includes
options, currently exercisable, to purchase 200,000 shares of our common
stock at $2.00 per share. As one of two Managing Members of EFH Partners,
LLC, jointly with Steven M. Horowitz, Steven M. Rabinovici also has shared
dispositive and voting power with respect to 3,378,437 shares of our
common stock owned of record by EFH Partners, LLC, and shared dispositive
power with respect to (a) warrants currently exercisable to purchase
60,000 shares of our common stock at $1.50 per share; (b) warrants
currently exercisable to purchase 200,000 shares of our common stock at
$2.00 per share; and (c) options to purchase 150,000 shares of our common
stock, at an exercise price of $2.25 per share. Mr. Rabinovici also
has shared voting power with respect to the shares underlying (c) above,
which are covered by irrevocable proxies, dated May 20, 2005,
delivered by The Gagne First Revocable Trust to EFH Partners, LLC, which
permit EFH Partners, LLC to vote theses shares on all matters, except that
without the approval of the Gagne First Revocable Trust, these shares may
not be voted in favor of (i) the sale of all or substantially all of our
assets, (ii) our merger with any other entity or (iii) the authorization
of a new employee stock option plan or an increase in the number of shares
of our common stock available under any existing employee stock option
plan. (See footnote 5 above and footnotes 11 and 12 below). Warrants or
options for a total of 610,000 of these shares are exercisable within 60
days from November 3, 2008. Mr. Rabinovici disclaims beneficial
ownership of any share beneficially owned by EFH Partners, LLC, except to
the extent of his pecuniary interest in such
shares.
|
(10)
|
Mr. Matthew
owns options to purchase 50,000 shares of common stock at $4.85 per share
and 150,000 shares at $3.38 per share, all of which are exercisable within
60 days from November 3, 2008.
|
(11)
|
Mr. Carreno
owns options to purchase 200,000 shares of common stock at $1.21 per
share, none of which are exercisable within 60 days from November 3,
2008. Mr. Carreno also owns 100,000 shares of restricted common
stock, none of which are vested within 60 days from November 3,
2008.
|
(12)
|
Mr. Moreno
owns options to purchase 300,000 shares of common stock at $1.50 per
share, all of which are exercisable within 60 days from November 3,
2008.
|
(13)
|
Includes
warrants currently exercisable to purchase 60,000 shares of our common
stock at $1.50 per share and 200,000 shares of our common stock at $2.00
per share. Also includes options, currently exercisable, to purchase
150,000 shares of our common stock, at an exercise price of $2.25 per
share. The shares underlying these options are held of record by The Gagne
First Revocable Trust, and are also covered by irrevocable proxies, dated
May 20, 2005, delivered by The Gagne First Revocable Trust to EFH
Partners, LLC, which permit EFH Partners, LLC to vote these shares on all
matters, except that without the approval of The Gagne First Revocable
Trust, these shares may not be voted in favor of (i) the sale of all or
substantially all of our assets, (ii) our merger with any other entity or
(iii) the authorization of a new employee stock option plan or an increase
in the number of shares of our common stock available under any existing
employee stock option plan. EFH Partners, LLC is an affiliated entity and
a major shareholder. Steven M. Rabinovici, our Chairman, is one of its two
managing members. Investment making authority for the EFH Partners, LLC is
vested in Steven M. Rabinovici and Steven M. Horowitz, managing members.
EFH Partners, LLC, purchased the stock in the ordinary course of business,
and at the time of purchase of the stock to be resold, had no agreements
or understandings directly or indirectly with any person to sell the
stock.
|
(14)
|
Steven
A. Horowitz, as one of two Managing Members of EFH Partners, LLC, jointly
with Steven M. Rabinovici, has shared dispositive and voting power with
respect to 3,378,437 shares of our common stock owned of record by EFH
Partners, LLC, and shared dispositive power with respect to (a) warrants
currently exercisable to purchase 60,000 shares of our common stock at
$1.50 per share; (b) warrants currently exercisable to purchase 200,000
shares of our common stock at $2.00 per share; and (c) options to purchase
150,000 shares of our common stock, at an exercise price of $2.25 per
share. Mr. Horowitz also has shared voting power with respect to the
shares underlying (c) above, which are covered by irrevocable proxies,
dated May 20, 2005, delivered by The Gagne First Revocable Trust to
EFH Partners, LLC, which permit EFH Partners, LLC to vote theses shares on
all matters, except that without the approval of the Gagne First Revocable
Trust, these shares may not be voted in favor of (i) the sale of all or
substantially all of our assets, (ii) our merger with any other entity or
(iii) the authorization of a new employee stock option plan or an increase
in the number of shares of our common stock available under any existing
employee stock option plan. (See footnotes 9 and 13 above). Warrants or
options for a total of 410,000 of these shares are exercisable within 60
days from November 3, 2008. Mr. Horowitz, jointly with Lynn
Diamond, as trustees of 3111 Broadway Reality Corp. Charitable Remainder
Trust, has dispositive power with respect to warrants, currently
exercisable to purchase 140,000 shares of our common stock at $3.10 per
share, and warrants, currently exercisable, to purchase 62,500 shares of
our common stock at $5.46 per share, beneficially owned by 3111 Broadway
Reality Corp. Charitable Remainder Trust. Mr. Horowitz disclaims
beneficial ownership of any shares beneficially owned by EFH Partners, LLC
and 3111 Broadway Reality Corp. Charitable Remainder Trust, except to the
extent of his pecuniary interest in such
shares.
|
(15)
|
Mr. Brown's
beneficial ownership includes the following securities: (a) 574,416 shares
of common stock owned by Sofisco Nominees Limited; (b) warrants, currently
exercisable, to purchase 287,208 shares of common stock at $1.40 per
share, owned by Sofisco Nominees Limited; (c) 844 shares of Series G
Preferred Stock, currently convertible into 1,240,680 shares of common
stock owned by Impala Nominees Limited; and (d) warrants to purchase
1,240,680 shares of common stock at $0.816 per share, owned by Impala
Nominees Limited. Mr. Brown, as the sole director of Sofisco Nominees
Limited and Impala Nominees Limited, has voting and investment authority
with respect to securities owned by those entities, and therefore may be
deemed to be the indirect beneficial owner of those securities.
Mr. Brown disclaims beneficial ownership of securities owned by
Sofisco Nominees Limited and Impala Nominees Limited, except to the extent
of his pecuniary interest therein, if
any.
|
(16)
|
Mr. Barnett's
beneficial ownership includes the following securities owned by Harvco,
LLC: 422 shares of Series G Preferred Stock, currently convertible
into 620,340 shares of common stock and warrants to purchase 620,340
shares of common stock at $0.816 per share. Mr. Barnett, as the sole
member and manager of Harvco, LLC, has voting and investment authority
with respect to securities owned by that entity, and therefore may be
deemed to be the indirect beneficial owner of those
securities.
|
(17)
|
Mr. McGrath's
beneficial ownership includes the following
securities:
|
Name
|
Age
|
Position
|
||
James
B. Fellus
|
43
|
Chief
Executive Officer of Jesup & Lamont Securities
Corporation
|
||
[Vladimir
Uchenik]
|
[ ]
|
Chief
Operating
Officer
|
Name
and
Principal
Position
|
Year
|
Salary
($)
|
Bonus
($)
|
Stock
Awards
($)
|
Option
Awards
(7)
($)
|
Non-Equity
Incentive
Plan
Compensation
($)
|
Nonqualified
Deferred
Compensation
Earnings
($)
|
All
Other
Compensation
($)
|
Total
($)
|
|||||||||||||
Donald
A. Wojnowski Jr.
|
2008
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
358,330
|
|||||||||||||
President,
CEO &
|
2007
|
|
257,500
|
|
382,588
|
|
9,366
|
|
—
|
|
—
|
|
—
|
|
8,692
|
|
658,146
|
|||||
Director
(1)
|
2006
|
240,000
|
187,150
|
—
|
134,178
|
—
|
—
|
6,947
|
568,275
|
|||||||||||||
|
||||||||||||||||||||||
James
M. Matthew
|
2008
|
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
191,389
|
||||||||||||
CFO
& Secretary (2)
|
2007
|
|
199,992
|
—
|
—
|
162,240
|
—
|
—
|
1,666
|
363,898
|
||||||||||||
2006
|
93,750
|
19,339
|
—
|
66,521
|
—
|
—
|
11,181
|
190,791
|
||||||||||||||
|
||||||||||||||||||||||
Kevin
A. Carreno
|
2008
|
—
|
|
—
|
—
|
—
|
—
|
—
|
—
|
202,209
|
||||||||||||
COO
(3)
|
2007
|
62,500
|
—
|
6,111
|
6,210
|
—
|
—
|
—
|
74,821
|
|||||||||||||
|
||||||||||||||||||||||
Stephen
J. DeGroat
|
2008
|
—
|
—
|
|
—
|
—
|
—
|
—
|
—
|
76,546
|
||||||||||||
Chairman
& CEO of
|
2007
|
240,000
|
799,514
|
|
—
|
441,763
|
—
|
—
|
16,345
|
1,497,622
|
||||||||||||
Jesup (4)
|
2006
|
40,000
|
—
|
—
|
124,483
|
—
|
—
|
2,687
|
167,170
|
|||||||||||||
|
||||||||||||||||||||||
William
F. Moreno
|
2008
|
123,475
|
—
|
—
|
|
30,000
|
—
|
—
|
—
|
153,475
|
||||||||||||
President
of Jesup (5)
|
2007
|
231,250
|
—
|
—
|
236,210
|
—
|
—
|
16,556
|
484,016
|
|||||||||||||
2006
|
35,000
|
—
|
—
|
67,030
|
—
|
—
|
2,760
|
104,790
|
||||||||||||||
Steven
M. Rabinovici
|
2008
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
110,471
|
|||||||||||||
Chairman
& Director (6)
|
2007
|
165,000
|
40,000
|
—
|
—
|
—
|
—
|
6,166
|
211,166
|
|||||||||||||
2006
|
120,000
|
60,772
|
—
|
63,144
|
—
|
—
|
2,319
|
246,235
|
(1)
|
Mr. Wojnowski
served as Vice President of Business Development from September 1999
through February 2004 and was elected as President in June 2004
and elected Chief Executive Officer in July 2005. The bonus amount
for Mr. Wojnowski includes commissions totaling $342,588 and $187,150
for 2007 and 2006 respectively, resulting from trading revenues. All other
compensation for Mr. Wojnowski consists of Company paid health care
insurance and 401K contribution.
|
(2)
|
Mr. Matthew
was elected as Chief Financial Officer and Secretary in May 2006. All
other compensation for Mr. Matthew consists of Company paid health
care insurance and relocation expenses. Mr. Matthew resigned from his
position effective December 31,
2008.
|
(3)
|
Mr. Carreno
joined Jesup in November 2007 and resigned from his position
effective October 31, 2008.
|
(4)
|
Mr. DeGroat
joined Jesup in November 2006 through the acquisition of JLSC. The
bonus amount for Mr. DeGroat for 2007 includes commissions totaling
$799,514 resulting from investment banking revenues. All other
compensation for Mr. DeGroat consists of Company paid health care
insurance and car allowance.
|
(5)
|
Mr. Moreno
joined Jesup in November 2006 through the acquisition of JLSC. All
other compensation for Mr. Moreno consists of car
allowance.
|
(6)
|
Mr. Rabinovici
was elected Director of Empire Financial Holding Company pursuant to a
stock purchase agreement of March 8, 2005 and took office as Director
on May 23, 2005. He was elected Chairman of the Board in July, 2005
and in that position acts in a similar capacity to Jesup’s Chief Executive
Officer.
|
(7)
|
The
amounts in this column reflect the expense recognized for financial
statement reporting purposes for the fiscal years ended December 31,
2007 and 2006, in accordance with FAS 123(R), of outstanding stock options
granted as part of the stock option plan, including the effects for which
would have been calculated under FAS 123(R) had it been adopted prior to
2007. The amounts reflected for Messrs DeGroat and Moreno were included in
the purchase price of JLSC under the purchase accounting method. The
assumptions used in calculating these amounts, as well as a description of
our stock option plan, are set forth in the Footnotes to our Financial
Statements for the year ended December 31, 2007, of our Annual Report
on Form 10-KSB. Compensation cost is generally recognized over the
vesting period of the award.
|
OPTIONS AWARDS
|
STOCK AWARDS
|
||||||||||||||||||||||||||||||||
Name
|
Number of
Securities
Underlying
Unexercised
Options
(#)
|
Number of
Securities
Underlying
Unexercised
Option
(#)
Unexercisable
(1)
|
Equity
Incentive
Plan Awards:
Number of
Securities
Underlying
Unexercised
Unearned
Options
(#)
|
Option
Exercise
Price
($)
|
Option
Expiration
Date
|
Number of
Shares or
Units of
Stock
That
Have
Not
Vested
(#)
|
Market
Value
of
Shares
or
Units
of
Stock
That
Have
Not
Vested
($)(2)
|
Equity
Incentive
Plan
Awards:
Number of
Unearned
Shares,
Units or
Other
Rights
That
Have
Not
Vested
(#)
|
Equity
Incentive
Plan
Awards:
Market or
Payout
Value of
Unearned
Shares,
Units or
Other
Rights
That
Have
Not
Vested
(#)
|
||||||||||||||||||||||||
Donald
A. Wojnowski
Jr.
|
125,000 | — | — | 2.00 |
6/15/2013
|
64,844 | 40,203 | — | — | ||||||||||||||||||||||||
300,000 | — | — | 2.00 |
6/1/2015
|
— | — | — | — | |||||||||||||||||||||||||
James
M. Matthew
|
25,000 | 25,000 | — | 4.85 |
5/9/2011
|
— | — | — | — | ||||||||||||||||||||||||
75,000 | 75,000 | — | 3.38 |
8/24/2011
|
— | — | — | — | |||||||||||||||||||||||||
Kevin
A. Carreno
|
— | 200,000 | — | 1.21 |
11/7/2012
|
100,000 | 62,000 | — | — | ||||||||||||||||||||||||
Stephen
J. DeGroat
|
108,333 | 216,667 | — | 4.67 |
11/10/2016
|
— | — | — | — | ||||||||||||||||||||||||
— | 40,639 | — | 2.73 |
2/28/2012
|
— | — | — | — | |||||||||||||||||||||||||
William
F. Moreno
|
58,333 | 116,667 | — | 4.67 |
11/10/2016
|
— | — | — | — | ||||||||||||||||||||||||
— | 19,361 | — | 2.73 |
2/28/2012
|
— | — | — | — | |||||||||||||||||||||||||
100,000 | 200,000 | — | 1.50 |
6/18/2013
|
— | — | — | — | |||||||||||||||||||||||||
Steven
M. Rabinovici
|
200,000 | — | — | 2.00 |
6/1/2015
|
— | — | — | — | ||||||||||||||||||||||||
Alan
Weichselbaum
|
100,000 | — | — | 1.07 |
4/30/2013
|
— | — | — | — |
(1)
|
The
unexercisable options generally vest over a 2 - 3 year period from date of
grant.
|
(2)
|
The
market value is based on $0.62 per share which was the closing price of
Jesup's stock on March 12, 2008. The unvested portion of stock awards
vest from 1 - 3 years.
|
Name
|
Year
|
Fees
Earned
or
Paid in
Cash
($)
|
Stock
Awards
($)
|
Options
Awards
($)(1)
|
Non-Equity
Incentive
Plan
Compensations
($)
|
Non-Qualified
Deferred
Compensation
Earnings
($)
|
All
Other
Compensation
($)
|
Total
($)
|
||||||||||||||||||||||
Bradley
L. Gordon
|
2008
|
3,167 | — | — | — | — | — | 3,167 | ||||||||||||||||||||||
(2)
|
2007
|
9,000 | — | 56,959 | — | — | — | 65,959 | ||||||||||||||||||||||
John
C. Rudy
|
2008
|
36,000 | — | 32,100 | — | — | — | 68,100 | ||||||||||||||||||||||
2007
|
9,000 | — | 57,235 | — | — | — | 66,235 | |||||||||||||||||||||||
Kirk
M. Warshaw
|
2008
|
3,167 | — | — | — | — | — | 3,167 | ||||||||||||||||||||||
(2)
|
2007
|
9,000 | — | 57,235 | — | — | — | 66,235 | ||||||||||||||||||||||
Benjamin
J. Douek
|
2008
|
15,500 | — | 32,100 | — | — | — | 47,600 | ||||||||||||||||||||||
(3)
|
2007
|
— | — | — | — | — | — | — | ||||||||||||||||||||||
Alan
Weichselbaum
|
2008
|
3,500 | — | 32,100 | — | — | — | 35,600 | ||||||||||||||||||||||
(4)
|
2007
|
— | — | — | — | — | — | — | ||||||||||||||||||||||
Steven
M.
|
2008
|
— | — | — | — | — | — | — | ||||||||||||||||||||||
Rabinovici
|
2007
|
— | — | — | — | — | — | — | ||||||||||||||||||||||
Donald
A.
|
2008
|
— | — | — | — | — | — | — | ||||||||||||||||||||||
Wojnowski,
Jr.
|
2007
|
— | — | — | — | — | — | — |
(1)
|
The
amounts in this column reflect the expense recognized for financial
statement reporting purposes for the fiscal year ended December 31,
2007, in accordance with FAS 123(R), of outstanding stock options granted
as part of the stock option plan, including the effects for which would
have been calculated under FAS 123(R) had it been adopted prior to 2007.
The assumptions used in calculating these amounts, as well as a
description of our stock option plan, are set forth in the Footnotes to
our Financial Statements for the year ended December 31, 2007, of our
Annual Report on Form 10-KSB. Compensation cost is generally
recognized over the vesting period of the
award.
|
(2)
|
Mr. Warshaw
resigned from the Board of Directors effective January 11, 2008, and
Mr. Gordon resigned from the Board of Directors effective
January 27, 2008.
|
(3)
|
Mr.
Douek became a member of the Board of Directors in April
2008.
|
(4)
|
Mr.
Weichselbaum became a member of the Board of Directors in May 2008 and
became an employee of Jesup in November
2008.
|
Number of securities to
be issued upon exercise
of outstanding options,
warrants and rights
(a)
|
Weighted-average
exercise price of
outstanding options,
warrants and rights
(b)
|
Number of securities
remaining available
for future issuance
under equity
compensation plans
(excluding securities
reflected in column (a))
(c)
|
||||||||||
Equity
compensation plans approved by security holders
|
4,835,666 | $ | 2.83 | 3,164,334 | ||||||||
Equity
compensation plans not approved by security holders
|
— | — | — | |||||||||
Total
|
4,835,666 | $ | 2.83 | 3,164,334 |
|
·
|
An
aggregate amount of $1,638,895 of unsecured notes, due October 1,
2011, payable to ten former shareholders of Jesup & Lamont Holding
Corporation. We issued the notes on November 10, 2006 as part of the
acquisition price for our broker-dealer subsidiary Jesup & Lamont
Securities Corporation, as disclosed in our Current Report on
Form 8-K filed on November 14, 2006. The notes accrue interest
at four percent, payable
annually.
|
|
·
|
A
note payable to Fifth
Third Bank in the amount of $1,149,450,
due January 29, 2009.
The
note carries interest, payable monthly, at the Bank's Prime Rate plus 4%
(9% at September 30, 2008). 100% of the stock of Empire Financial
Group and Jesup & Lamont Securities Corporation is pledged as
collateral to this note, which contains certain restrictions and requires
pre-approval from Fifth Third Bank for certain events, including but not
limited to divesture of business assets. Repayments of principal are due
as follows:
|
Due Date
|
Amount
|
|||
January 29,
2009
|
$ | 1,149,450 |
Number of securities to
be issued upon exercise
of outstanding options,
warrants and rights
(a)
|
Weighted-average
exercise price of
outstanding options,
warrants and rights
(b)
|
Number of securities
remaining available
for future issuance
under equity
compensation plans
(excluding securities
reflected in column (a))
(c)
|
||||||||||
Equity
compensation plans approved by security holders
|
4,835,666 | $ | 2.83 | 3,164,334 | ||||||||
Equity
compensation plans not approved by security holders
|
— | — | — | |||||||||
Total
|
4,835,666 | $ | 2.83 | 3,164,334 |
Number of securities to
be issued upon exercise
of outstanding options,
warrants and rights
(a)
|
Weighted-average
exercise price of
outstanding options,
warrants and rights
(b)
|
Number of securities
remaining available
for future issuance
under equity
compensation plans
(excluding securities
reflected in column (a))
(c)
|
||||||||||
Equity
compensation plans approved by security holders
|
4,835,666 | $ | 2.83 | 3,164,334 | ||||||||
Equity
compensation plans not approved by security holders
|
— | — | — | |||||||||
Total
|
4,835,666 | $ | 2.83 | 3,164,334 |
Type of Fee
|
Fiscal Year 2007
|
Fiscal Year 2006
|
||||||
Audit
Fees (a)
|
$ | 263,694 | $ | 77,294 | ||||
Audit-Related
Fees (b)
|
$ | 35,634 | $ | 134,672 | ||||
Tax
Fees (c)
|
$ | 78,798 | $ | 29,434 | ||||
All
Other Fees (d)
|
— | $ | 31,021 |
By
order of the Board of Directors
|
||
Steven
M. Rabinovici
|
||
Chairman
of the
Board
|
1.
|
DEFINITIONS:
As used herein, the following definitions shall
apply:
|
(a)
|
"Administrator"
shall mean the Board of Directors or the Committee if the Board of
Directors, in its sole discretion, designates the Committee to administer
the Plan.
|
(b)
|
"Board
of Directors" shall mean the Board of Directors of the
Corporation.
|
(c)
|
"Committee"
shall mean the Compensation Committee designated by the Board of Directors
of the Corporation, or such other committee as shall be specified by the
Board of Directors to perform the functions and duties of the Committee
under the Plan; provided, however, that the Committee shall comply with
the requirements of (i) Rule 16b-3 of the Rules and Regulations under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
(ii) Section 162(m) of the Internal Revenue Code of 1986, as amended
(the "Code"), and the regulations
thereunder.
|
(d)
|
"Corporation"
shall mean Jesup & Lamont, Inc., a Florida corporation, or any
successor thereof.
|
(e)
|
"Director"
shall mean a member of the Board of Directors or a member of the board of
directors of any Related
Entity.
|
(f)
|
"Discretion"
shall mean in the sole discretion of the Administrator, with no
requirement whatsoever that the Administrator follow past practices, act
in a manner consistent with past practices, or treat a key employee,
consultant or advisor in a manner consistent with the treatment afforded
other key employees, consultants or advisors with respect to the
Plan.
|
(g)
|
"Eligible
Participant" shall mean an employee of the Corporation or any Related
Entity, Director (including, without limitation, an Outside Director),
Officer, or consultant or advisor of the Corporation; provided, however,
that any such consultant or advisor must be a natural person who has
provided bona fide services to the Corporation and such services are not
in connection with the offer or sale of securities in a capital raising
transaction and do no directly or indirectly promote or maintain a market
for the Corporation's
securities.
|
(h)
|
"Incentive
Option" shall mean an option to purchase Common Stock of the Corporation
which meets the requirements set forth in the Plan and also meets the
definition of an incentive stock option within the meaning of
Section 422 of the Code; provided, however, that Incentive Options
may only be granted to persons who are employees of the Corporation or of
a subsidiary corporation in which the Corporation owns, directly or
indirectly, 50% or more of the combined voting power of all classes of
stock of the subsidiary corporation. The stock option agreement for an
Incentive Option shall state that the option is intended to be an
Incentive Option.
|
(i)
|
"Nonqualified
Option" shall mean an option to purchase Common Stock of the Corporation
which meets the requirements set forth in the Plan but does not meet the
definition of an incentive stock option within the meaning of
Section 422 of the Code. The stock option agreement for a
Nonqualified Option shall state that the option is intended to be a
Nonqualified Option.
|
(j)
|
"Officer"
shall mean the Corporation's Chairman of the Board, President, Chief
Executive Officer, principal financial officer, principal accounting
officer, any vice-president of the Corporation in charge of a principal
business unit, division or function (such as sales, administration or
finance), any other officer who performs a policy-making function, or any
other person who performs similar policy-making functions for the
Corporation. Officers of Related Entities shall be deemed Officers of the
Corporation if they perform such policy-making functions for the
Corporation. As used in this paragraph, the phrase "policy-making
function" does not include policy-making functions that are not
significant. If pursuant to Item 401(b) of Regulation S-K (17 C.F.R.
ss. 229.401(b)) the Corporation identifies a person as an "executive
officer," the person so identified shall be deemed an "Officer" even
though such person may not otherwise be an "Officer" pursuant to the
foregoing provisions of this
paragraph.
|
(k)
|
"Outside
Director" shall mean a member of the Board of Directors who qualifies as
an "outside director" under Section 162(m) of the Code and the
regulations thereunder and as a "Non-Employee Director" under
Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as
amended.
|
(l)
|
"Participant"
shall mean any Eligible Participant who is designated by the Administrator
under Paragraph 6 to participate in the
Plan.
|
(m)
|
"Plan"
shall mean this Jesup & Lamont, Inc. 2007 Incentive Compensation
Plan.
|
(n)
|
"Related
Entity" shall mean any Subsidiary, and any business, corporation,
partnership, limited liability company or other entity in which the
Corporation and its Subsidiaries now owns or hereafter acquires equity
interests possessing 50% or more of the total combined voting power,
directly or indirectly.
|
(o)
|
"Restricted
stock award" shall mean a grant of Common Stock of the Corporation which
is subject to forfeiture, restrictions against transfer, and such other
terms and conditions determined by the Administrator, as provided in
Paragraph 18.
|
(p)
|
"Stock
appreciation right" shall mean a right to receive the appreciation in
value, or a portion of the appreciation in value, of a specified number of
shares of the Common Stock of the Corporation, as provided in Paragraph
12.
|
(q)
|
"Subsidiary"
shall mean any corporation or similar entity in which the Corporation
owns, directly or indirectly, stock or other equity interest ("Stock")
possessing more than 25% of the combined voting power of all classes of
Stock; provided, however, that an Incentive Option may be granted to an
employee of a Subsidiary only if the Subsidiary is a corporation and the
Corporation owns, directly or indirectly, 50% or more of the total
combined voting power of all classes of Stock of the
Subsidiary.
|
2.
|
PURPOSE
OF PLAN: The purpose of the Plan is to provide Eligible Participants with
an increased incentive to make significant and extraordinary contributions
to the long-term performance and growth of the Corporation and its
Subsidiaries, to join the interests of Eligible Participants with the
interests of the shareholders of the Corporation, and to facilitate
attracting and retaining employees, consultants and advisors of
exceptional ability.
|
3.
|
ADMINISTRATION:
The Plan shall be administered by the Administrator. Subject to the
provisions of the Plan, the Administrator shall determine, from among the
Eligible Participants, the persons to be granted stock options, stock
appreciation rights and restricted stock, the amount of stock or rights to
be optioned or granted to each such person, and the terms and conditions
of any stock options, stock appreciation rights and restricted stock.
Subject to the provisions of the Plan, the Administrator is authorized to
interpret the Plan, to make, amend and rescind rules and regulations
relating to the Plan and to make all other determinations necessary or
advisable for the Plan's administration. Interpretation and construction
of any provision of the Plan by the Administrator shall, unless otherwise
determined by the Board of Directors in cases where the Committee is the
Administrator, be final and conclusive. A majority of the Administrator
shall constitute a quorum, and the acts approved by a majority of the
members present at any meeting at which a quorum is present, or acts
approved in writing by a majority of the Administrator, shall be the acts
of the Administrator.
|
4.
|
INDEMNIFICATION
OF THE BOARD OF DIRECTORS AND COMMITTEE MEMBERS: In addition to such other
rights of indemnification as they may have, the members of the Board of
Directors and the Committee shall be indemnified by the Corporation in
connection with any claim, action, suit or proceeding relating to any
action taken or failure to act under or in connection with the Plan or any
option, stock appreciation right or restricted stock granted hereunder to
the full extent provided for under the Corporation's Bylaws with respect
to indemnification of directors of the
Corporation.
|
5.
|
MAXIMUM
NUMBER OF SHARES SUBJECT TO PLAN; MAXIMUM PER PERSON AWARD LIMIT: The
maximum number of shares with respect to which stock options or stock
appreciation rights may be granted or which may be awarded as restricted
stock under the Plan shall be 10,000,000 shares in the aggregate of Common
Stock of the Corporation. The number of shares with respect to which a
stock appreciation right is granted, but not the number of shares which
the Corporation delivers or could deliver to a Participant upon exercise
of a stock appreciation right, shall be charged against the aggregate
number of shares remaining available under the Plan; provided, however,
that in the case of a stock appreciation right granted in conjunction with
a stock option under circumstances in which the exercise of the stock
appreciation right results in termination of the stock option and vice
versa, only the number of shares subject to the stock option shall be
charged against the aggregate number of shares remaining available under
the Plan. If a stock option or stock appreciation right expires or
terminates for any reason (other than termination as a result of the
exercise of a related right) without having been fully exercised, or if
shares of restricted stock are forfeited, the number of shares with
respect to which the stock option or stock appreciation right was not
exercised at the time of its expiration or termination, and the number of
forfeited shares of restricted stock, shall again become available for the
grant of stock options or stock appreciation rights, or the award of
restricted stock, under the Plan, unless the Plan shall have been
terminated.
|
6.
|
PARTICIPANTS:
The Administrator shall determine and designate from time to time, in its
Discretion, from among the Eligible Participants, those persons who shall
receive stock options, stock appreciation rights, or restricted stock who,
in the judgment of the Administrator, are or will become responsible for
the direction and financial success of the Corporation or any Subsidiary;
provided, however, that Incentive Options may be granted only to persons
who are employees of the Corporation or a Subsidiary, and in the case of a
Subsidiary only if (i) the Corporation owns, directly or indirectly, 50%
or more of the total combined voting power of all classes of Stock of the
Subsidiary and (ii) the Subsidiary is a corporation. For the purposes of
the Plan, eligible employees who may receive Incentive Options shall
include Officers and Directors who are also employees of the Corporation
or any Subsidiary.
|
7.
|
WRITTEN
AGREEMENT: Each stock option, stock appreciation right and restricted
stock award shall be evidenced by a written agreement (each a
"Corporation-Participant Agreement") containing such provisions as may be
approved by the Administrator. Each such Corporation-Participant Agreement
shall constitute a binding contract between the Corporation and the
Participant and every Participant, upon acceptance of such Agreement,
shall be bound by the terms and restrictions of the Plan and of such
Agreement. The terms of each such Corporation-Participant Agreement shall
be in accordance with the Plan, but each Agreement may include such
additional provisions and restrictions determined by the Administrator, in
its Discretion, provided that such additional provisions and restrictions
are not inconsistent with the terms of the
Plan.
|
8.
|
ALLOTMENT
OF SHARES: Subject to the terms of the Plan, the Administrator shall
determine and fix, in its Discretion, the number of shares of Common Stock
with respect to which a Participant may be granted stock options and stock
appreciation rights and the number of shares of restricted stock which a
Participant may be awarded.
|
9.
|
STOCK
OPTIONS: Subject to the terms of the Plan, the Administrator, in its
Discretion, may grant to Participants either Incentive Options or
Nonqualified Options or any combination thereof. Each option granted under
the Plan shall designate the number of shares covered thereby, if any,
with respect to which the option is an Incentive Option, and the number of
shares covered thereby, if any, with respect to which the option is a
Nonqualified Option.
|
10.
|
STOCK
OPTION PRICE: Subject to the rules set forth in this Paragraph, at the
time any stock option is granted, the Administrator, in its Discretion,
shall establish the price per share for which the shares covered by the
option may be purchased. With respect to an Incentive Option, such option
price shall not be less than 100% of the fair market value of the stock on
the date on which such option is granted; provided, however, that with
respect to an Incentive Option granted to an employee who at the time of
the grant owns (after applying the attribution rules of
Section 424(d) of the Code) more than 10% of the total combined
voting stock of the Corporation or of any parent or subsidiary, the option
price shall not be less than 110% of the fair market value of the stock on
the date such option is granted. Fair market value of a share shall be
determined by the Administrator. The option price shall be subject to
adjustment in accordance with the provisions of Paragraph
5.
|
11.
|
PAYMENT
OF STOCK OPTION PRICE: To exercise in whole or in part any stock option
granted hereunder, payment of the option price in full in cash or, with
the consent of the Administrator, in Common Stock of the Corporation or by
a promissory note payable to the order of the Corporation in a form
acceptable to the Administrator, shall be made by the Participant for all
shares so purchased. Such payment may, with the consent of the
Administrator, also consist of a cash down payment and delivery of such
promissory note in the amount of the unpaid exercise price. In the
Discretion of and subject to such conditions as may be established by the
Administrator, payment of the option price may also be made by the
Corporation retaining from the shares to be delivered upon exercise of the
stock option that number of shares having a fair market value on the date
of exercise equal to the option price of the number of shares with respect
to which the Participant exercises the stock option. Such payment may also
be made in such other manner as the Administrator determines is
appropriate, in its Discretion. No Participant shall have any of the
rights of a shareholder of the Corporation under any stock option until
the actual issuance of shares to said Participant, and prior to such
issuance no adjustment shall be made for dividends, distributions or other
rights in respect of such shares, except as provided in Paragraph
5.
|
12.
|
STOCK
APPRECIATION RIGHTS: Subject to the terms of the Plan, the Administrator
may grant stock appreciation rights to Participants either in conjunction
with, or independently of, any stock options granted under the Plan. A
stock appreciation right granted in conjunction with a stock option may be
an alternative right wherein the exercise of the stock option terminates
the stock appreciation right to the extent of the number of shares
purchased upon exercise of the stock option and, correspondingly, the
exercise of the stock appreciation right terminates the stock option to
the extent of the number of shares with respect to which the stock
appreciation right is exercised. Alternatively, a stock appreciation right
granted in conjunction with a stock option may be an additional right
wherein both the stock appreciation right and the stock option may be
exercised. A stock appreciation right may not be granted in conjunction
with an Incentive Option under circumstances in which the exercise of the
stock appreciation right affects the right to exercise the Incentive
Option or vice versa, unless the stock appreciation right, by its terms,
meets all of the following
requirements:
|
(a)
|
the
stock appreciation right will expire no later than the Incentive
Option;
|
(b)
|
the
stock appreciation right may be for no more than the difference between
the option price of the Incentive Option and the fair market value of the
shares subject to the Incentive Option at the time the stock appreciation
right is exercised;
|
(c)
|
the
stock appreciation right is transferable only when the Incentive Option is
transferable, and under the same
conditions;
|
(d)
|
the
stock appreciation right may be exercised only when the Incentive Option
is eligible to be exercised;
and
|
(e)
|
the
stock appreciation right may be exercised only when the fair market value
of the shares subject to the Incentive Option exceeds the option price of
the Incentive Option.
|
13.
|
GRANTING
AND EXERCISING OF STOCK OPTIONS AND STOCK APPRECIATION RIGHTS: Subject to
the provisions of this Paragraph, each stock option and stock appreciation
right granted hereunder shall be exercisable at any such time or times or
in any such installments as may be determined by the Administrator at the
time of the grants; provided, however, no stock option or stock
appreciation right may be exercisable prior to the expiration of six
months from the date of grant unless the Participant dies or becomes
disabled prior thereto. In addition, the aggregate fair market value
(determined at the time the option is granted) of the Common Stock with
respect to which Incentive Options are exercisable for the first time by a
Participant during any calendar year under any plan maintained by the
Corporation (or any parent or subsidiary corporation of the Corporation)
shall not exceed $100,000.
|
14.
|
NON-TRANSFERABILITY
OF INCENTIVE STOCK OPTIONS: No Incentive Stock Option granted under the
Plan to a Participant shall be transferable by such Participant otherwise
than by will or by the laws of descent and distribution, and Incentive
Stock Options shall be exercisable, during the lifetime of the
Participant, only by the
Participant.
|
15.
|
TERM
OF STOCK OPTIONS AND STOCK APPRECIATION RIGHTS: If not sooner terminated,
each stock option and stock appreciation right granted hereunder shall
expire not more than 10 years from the date of the granting thereof;
provided, however, that with respect to an Incentive Option or a related
stock appreciation right granted to a Participant who, at the time of the
grant, owns (after applying the attribution rules of Section 424(d)
of the Code) more than 10% of the total combined voting stock of all
classes of stock of the Corporation or of any parent or subsidiary, such
option and stock appreciation right shall expire not more than five years
after the date of granting thereof.
|
16.
|
CONTINUATION
OF EMPLOYMENT: The Administrator may require, in its Discretion, that any
Participant under the Plan to whom a stock option or stock appreciation
right shall be granted shall agree in writing as a condition of the
granting of such stock option or stock appreciation right to remain in the
employ of the Corporation or a Subsidiary as an employee, consultant or
advisor for a designed minimum period from the date of the granting of
such stock option or stock appreciation right as shall be fixed by the
Administrator.
|
17.
|
TERMINATION
OF EMPLOYMENT: If the employment or consultancy of a Participant by the
Corporation or a Subsidiary shall terminate, the Administrator may, in its
Discretion, permit the exercise of stock options and stock appreciation
rights granted to such Participant (i) for a period not to exceed three
months following termination of employment with respect to Incentive
Options or related stock appreciation rights if termination of employment
is not due to death or permanent disability of the Participant, (ii) for a
period not to exceed one year following termination of employment with
respect to Incentive Options or related stock appreciation rights if
termination of employment is due to the death or permanent disability of
the Participant, and (iii) for a period not to extend beyond the
expiration date with respect to Nonqualified Options or related or
independently granted stock appreciation rights. In no event, however,
shall a stock option or stock appreciation right be exercisable subsequent
to its expiration date and, furthermore, unless the Administrator in its
Discretion determine otherwise, a stock option or stock appreciation right
may only be exercised after termination of a Participant's employment or
consultancy to the extent exercisable on the date of such termination or
to the extent exercisable as a result of the reason for such termination.
The period of time, if any, a Participant shall have to exercise stock
options or stock appreciation rights upon termination of employment or
consultancy shall be set forth in the Corporation-Participant Agreement,
subject to extension of such time period by the Administrator in its
Discretion.
|
18.
|
RESTRICTED
STOCK AWARDS: Subject to the terms of the Plan, the Administrator may
award shares of restricted stock to Participants. All shares of restricted
stock granted to Participants under the Plan shall be subject to the
following terms and conditions (and to such other terms and conditions
prescribed by the Administrator):
|
(a)
|
At
the time of each award of restricted shares, there shall be established
for the shares a restricted period, which shall be no less than three
months and no greater than five years. Such restricted period may differ
among Participants and may have different expiration dates with respect to
portions of shares covered by the same
award.
|
(b)
|
Shares
of restricted stock awarded to Participants may not be sold, assigned,
transferred, pledged, hypothecated or otherwise encumbered during the
restricted period applicable to such shares. Except for such restrictions
on transfer, a Participant shall have all of the rights of a shareholder
in respect of restricted shares awarded to him or her including, but not
limited to, the right to receive any dividends on, and the right to vote,
the shares.
|
(c)
|
If
the employment of a Participant as an employee, consultant or advisor of
the Corporation or a Subsidiary terminates for any reason (voluntary or
involuntary, and with or without cause) other than death or permanent
disability, all shares theretofore awarded to the Participant which are
still subject to the restrictions imposed by Paragraph 18(b) shall upon
such termination of employment be forfeited and transferred back to the
Corporation, without payment of any consideration by the Corporation. In
the event such employment is terminated by action of the Corporation or a
Subsidiary without cause or by agreement between the Corporation or a
Subsidiary and the Participant, however, the Administrator may, in its
Discretion, release some or all of the shares from the
restrictions.
|
(d)
|
If
the employment of a Participant as an employee, consultant or advisor of
the Corporation or a Subsidiary terminates by reason of death or permanent
disability, the restrictions imposed by Paragraph 18(b) shall lapse with
respect to shares then subject to such restrictions, unless otherwise
determined by the
Administrator.
|
(e)
|
Stock
certificates shall be issued in respect of shares of restricted stock
awarded hereunder and shall be registered in the name of the Participant.
Such certificates shall be deposited with the Corporation or its designee,
together with a stock power endorsed in blank, and, in the Discretion of
the Administrator, a legend shall be placed upon such certificates
reflecting that the shares represented thereby are subject to restrictions
against transfer and
forfeiture.
|
(f)
|
At
the expiration of the restricted period applicable to the shares, the
Corporation shall deliver to the Participant or the legal representative
of the Participant's estate the stock certificates deposited with it or
its designee and as to which the restricted period has expired. If a
legend has been placed on such certificates, the Corporation shall cause
such certificates to be reissued without the
legend.
|
19.
|
INVESTMENT
PURPOSE: If the Administrator in its Discretion determines that as a
matter of law such procedure is or may be desirable, it may require a
Participant, upon any acquisition of Common Stock hereunder (whether by
reason of the exercise of stock options or stock appreciation rights or
the award of restricted stock) and as a condition to the Corporation's
obligation to issue or deliver certificates representing such shares, to
execute and deliver to the Corporation a written statement, in form
satisfactory to the Administrator, representing and warranting that the
Participant's acquisition of shares of stock shall be for such person's
own account, for investment and not with a view to the resale or
distribution thereof and that any subsequent offer for sale or sale of any
such shares shall be made either pursuant to (a) a registration statement
on an appropriate form under the Securities Act of 1933, as amended (the
"Securities Act"), which registration statement has become effective and
is current with respect to the shares being offered and sold, or (b) a
specific exemption from the registration requirements of the Securities
Act, but in claiming such exemption the Participant shall, prior to any
offer for sale or sale of such shares, obtain a favorable written opinion
from counsel for or approved by the Corporation as to the availability of
such exemption. The Corporation may endorse an appropriate legend
referring to the foregoing restriction upon the certificate or
certificates representing any shares issued or transferred to a
Participant under the Plan.
|
20.
|
RIGHTS
TO CONTINUED EMPLOYMENT: Nothing contained in the Plan or in any stock
option, stock appreciation right or restricted stock granted or awarded
pursuant to the Plan, nor any action taken by the Administrator hereunder,
shall confer upon any Participant any right with respect to continuation
of employment as an employee, consultant or advisor of the Corporation or
a Subsidiary nor interfere in any way with the right of the Corporation or
a Subsidiary to terminate such person's employment at any
time.
|
21.
|
WITHHOLDING
PAYMENTS: If upon the exercise of a Nonqualified Option or stock
appreciation right, or upon the award of restricted stock or the
expiration of restrictions applicable to restricted stock, or upon a
disqualifying disposition (within the meaning of Section 422 of the
Code) of shares acquired upon exercise of an Incentive Option, there shall
be payable by the Corporation or a Subsidiary any amount for income tax
withholding, in the Administrator's Discretion, either the Corporation
shall appropriately reduce the amount of Common Stock or cash to be
delivered or paid to the Participant or the Participant shall pay such
amount to the Corporation or Subsidiary to reimburse it for such income
tax withholding. The Administrator may, in its Discretion, permit
Participants to satisfy such withholding obligations, in whole or in part,
by electing to have the amount of Common Stock delivered or deliverable by
the Corporation upon exercise of a stock option or stock appreciation
right or upon award of restricted stock appropriately reduced, or by
electing to tender Common Stock back to the Corporation subsequent to
exercise of a stock option or stock appreciation right or award of
restricted stock, to reimburse the Corporation or a Subsidiary for such
income tax withholding (any such election being irrevocable), subject to
such rules and regulations as the Administrator may adopt, including such
rules as it determines appropriate with respect to Participants subject to
the reporting requirements of Section 16(a) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), to effect such tax
withholding in compliance with the Rules established by the Securities and
Exchange Commission (the "Commission") under Section 16 to the
Exchange Act and the positions of the staff of the Commission thereunder
expressed in no-action letters exempting such tax withholding from
liability under Section 16(b) of the Exchange Act. The Administrator
may make such other arrangements with respect to income tax withholding as
it shall determine.
|
22.
|
EFFECTIVENESS
OF PLAN: The Plan is effective as of January 27, 2009 and has been
approved by the Board of Directors of the Corporation. Stock options,
stock appreciation rights and restricted stock may be granted or awarded
prior to shareholder approval of the Plan, but each such stock option,
stock appreciation right or restricted stock grant or award shall be
subject to shareholder approval of the Plan. No stock option or stock
appreciation right may be exercised prior to shareholder approval, and any
restricted stock awarded is subject to forfeiture if such shareholder
approval is not obtained.
|
23.
|
TERMINATION,
DURATION AND AMENDMENTS OF PLAN: The Plan may be abandoned or terminated
at any time by the Board of Directors of the Corporation. Unless sooner
terminated, the Plan shall terminate on the date ten years after its
adoption by the Board of Directors, and no stock options, stock
appreciation rights or restricted stock may be granted or awarded
thereafter. The termination of the Plan shall not affect the validity of
any stock option, stock appreciation right or restricted stock outstanding
on the date of termination.
|
|
:
|
Please mark
your votes
like this
|
ý
|
|||||
FOR election
of
all
nominees
|
WITHHOLD
vote
from all
nominees
|
FOR all
nominees,
EXCEPT for
nominee(s)
listed
below from whom
Vote
is withheld.
|
FOR
|
AGAINST
|
ABSTAIN
|
|||
1.ELECTION
OF DIRECTORS
|
¨
|
¨
|
¨
|
2. Approval
of the amendment and restatement of our 2007 Incentive Compensation Plan
to increase the maximum number of shares to be eligible for grant under
the Plan by 6,000,000, up to an aggregate of 10,000,000.
|
¨
|
¨
|
¨
|
|
Donald
A. Wojnowski, Jr., Steven M. Rabinovici, John C. Rudy, Alan Weichselbaum,
Benjamin J. Douek,
Mark
A. Wilton
|
FOR
|
AGAINST
|
ABSTAIN
|
|||||
(INSTRUCTION:
To withhold authority to vote for any individual nominee, write that
nominee’s name in the space provided below.)
|
3.
Approval of the proposed issuance of up to 20,000,000 shares of our Common
Stock in exchange for and payment of an aggregate amount of up to
$10,000,000 of our outstanding debt.
|
¨
|
¨
|
¨
|
||||
FOR
|
AGAINST
|
ABSTAIN
|
||||||
4.
Approval of the proposed issuance of Common Stock in payment of
$116,164.00 of
liquidated damages.
|
¨
|
¨
|
¨
|
|||||
FOR
|
AGAINST
|
ABSTAIN
|
||||||
5.
Approval of a stock purchase plan to enable us to sell and issue up
to $10,000,000 of shares of our Common Stock to our directors, officers,
employees or consultants.
|
¨
|
¨
|
¨
|
|||||
FOR
|
AGAINST
|
ABSTAIN
|
||||||
6. Approval
of a compensation plan to enable us to issue shares of our Common Stock to
our employees or independent consultants as a portion of their
compensation.
|
¨
|
¨
|
¨
|
|||||
FOR
|
AGAINST
|
ABSTAIN
|
||||||
7.
Approval of an amendment to our Articles of Incorporation to increase our
number of authorized shares of Common Stock and Preferred
Stock.
|
¨
|
¨
|
¨
|
|||||
FOR
|
AGAINST
|
ABSTAIN
|
||||||
8.
Confirmation of the appointment of Rosen Seymour Shapss Martin &
Company LLP as Jesup's independent registered public accounting firm for the fiscal year
ending December 31, 2008.
|
¨
|
¨
|
¨
|
|||||
The
shares represented by this Proxy, when this Proxy is properly signed, will
be voted as directed or if no direction is indicated, will be voted FOR
all nominees for director and FOR each of the
proposals.
|
||||||||
The
undersigned hereby acknowledges receipt of the Notice of, and Proxy
Statement for, the aforesaid Annual Meeting.
|
||||||||
IMPORTANT
- PLEASE FILL IN, DATE, SIGN AND RETURN PROMPTLY USING THE ENCLOSED
ENVELOPE.
|
||||||||
Company
ID:
|
||||||||
Proxy
Number:
|
||||||||
Account
Number:
|
||||||||
Signature of Shareholder
|
Signature of Shareholder
|
Date | ||||||
NOTE:
When shares are held by joint tenants, both should sign. When signing as
attorney, executor, administrator, trustee, or guardian, please give full
title as such. If a corporation, please sign in full corporate name by
President or other authorized officer. If a partnership, please sign in
partnership name by an authorized person.
IMPORTANT
- PLEASE FILL IN, DATE, SIGN AND RETURN PROMPTLY USING THE ENCLOSED
ENVELOPE.
|