o
|
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:
|
(2)
|
Aggregate
number of securities to which transaction
applies:
|
(3)
|
Per
unit price or other underlying value of transaction computed pursuant to
Exchange Act Rule 0-11 (set forth the amount on which the filing fee
is calculated and state how it was
determined):
|
(4)
|
Proposed
maximum aggregate value of
transaction:
|
(5)
|
Total
fee paid:
|
o
|
Fee
paid previously with preliminary
materials.
|
o
|
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:
|
(2)
|
Form,
Schedule or Registration Statement
No.:
|
(3)
|
Filing
Party:
|
(4)
|
Date
Filed:
|
NOTICE
OF ANNUAL MEETING OF SHAREHOLDERS TO BE HELD ON SEPTEMBER 24,
2010
|
|
PROXY
STATEMENT
|
1
|
PROPOSAL
I ELECTION OF DIRECTORS
|
6
|
PROPOSAL
II APPROVAL OF SALE AND ISSUANCE OF COMMON STOCK TO DIRECTORS AND
OFFICERS
|
9
|
PROPOSAL
III RATIFICATION OF APPOINTMENT OF EISNER LLP
|
10
|
By
Order of the Board of Directors
|
|
/s/
Richard J. Lampen,
|
|
President
and Chief Executive
Officer
|
|
•
|
the
election of eleven directors to hold office until the next annual meeting
of shareholders and until their successors are elected and
qualified;
|
|
•
|
the
approval of the issuance and sale of our common stock to certain of our
directors and officers;
|
|
•
|
the
ratification of the appointment of Eisner LLP as our independent
registered public accounting firm for fiscal 2010;
and
|
|
•
|
any
other business that may properly come before the
meeting.
|
|
•
|
FOR
the election as directors of the nominees listed below under
Proposal I;
|
|
•
|
FOR
the approval of the issuance and sale of our common stock to certain of
our directors and officers as described under Proposal II;
and
|
|
•
|
FOR
the ratification of the appointment of Eisner LLP as our independent
registered public accounting firm for fiscal 2010 as described under
Proposal III.
|
|
·
|
delivering
written notification of your revocation to our
secretary;
|
|
·
|
voting
in person at the meeting; or
|
|
·
|
delivering
another proxy bearing a later date.
|
•
|
your
identity by reviewing a valid form of photo identification, such as a
driver’s license; and
|
•
|
that
you were, or are validly acting for, a shareholder of record on the record
date by:
|
Ø
|
verifying
your name and stock ownership against our list of registered shareholders,
if you are the record holder of your
shares;
|
Ø
|
reviewing
other evidence of your stock ownership, such as your most recent brokerage
or bank statement, if you hold your shares in street name;
or
|
Ø
|
reviewing a written proxy that
shows your name and is signed by the shareholder you are representing, in
which case either the shareholder must be a registered shareholder or you
must have a brokerage or bank statement for that shareholder as described
above.
|
Beneficial ownership of our common stock
|
||||||||
Name and Address of Beneficial Owner
|
Number of Shares
|
Percent
|
||||||
Phillip
Frost, M.D. and related entities
4400
Biscayne Boulevard, 15th
Floor
Miami,
Florida 33137
|
57,067,130 | (1) | 30.73 | % | ||||
New
Valley LLC
100
S.E. Second Street
Miami,
FL 33131
|
13,891,205 | (2) | 7.66 | % | ||||
Howard
M. Lorber
|
3,951,674 | (3) | 2.17 | % | ||||
Mark
Zeitchick
|
3,457,900 | (4) | 1.89 | % | ||||
Richard
J. Rosenstock
|
3,199,670 | (5) | 1.76 | % | ||||
Richard
J. Lampen
|
1,893,631 | (6) | 1.04 | % | ||||
Saul
Gilinski
|
1,093,600 | (7) | * | |||||
Dr.
Richard M. Krasno
|
295,500 | (8) | * | |||||
Henry
C. Beinstein
|
182,835 | (9) | * | |||||
Robert
J. Eide
|
174,386 | (10) | * | |||||
Jeffrey
S. Podell
|
142,013 | (11) | * | |||||
Brian
S. Genson
|
130,000 | (12) | * | |||||
Brett
H. Kaufman
|
90,000 | (13) | * | |||||
All
directors and executive officers as a group (12 persons)
|
71,678,339 | (14) | 39.53 | % |
|
*
|
Less
than 1 percent.
|
(1)
|
Represents
(i) 9,683,699 shares of common stock held by Frost Gamma Investments
Trust, a trust organized under Florida law (“Gamma Trust”),
(ii) 43,013,431 shares of common stock held by Frost-Nevada
Investments Trust (“Nevada Trust”), a trust organized under Florida law,
(iii) 2,370,000 shares of common stock issuable upon exercise of
currently exercisable options held by Dr. Frost and (iv) 2,000,000
shares of Common Stock issuable upon exercise of currently exercisable
warrants held by Nevada Trust. Dr. Frost is the sole trustee of both
Gamma Trust and Nevada Trust. As the sole trustee of Gamma Trust and
Nevada Trust, Dr. Frost may be deemed the beneficial owner of all
shares owned by Gamma Trust and Nevada Trust, respectively, by virtue of
his power to vote or direct the vote of such shares or to dispose or
direct the disposition of such shares owned by such trusts.
Accordingly, solely for purposes of reporting beneficial ownership of such
shares pursuant to Section 13(d) of the Securities Exchange Act of
1934, each of Dr. Frost, Gamma Trust and Nevada Trust will be deemed to be
the beneficial owner of the shares held by any other such person. The
foregoing information was derived from a Schedule 13D filed with the
SEC on December 9, 1997, as amended, as well as from information made
known to us.
|
(2)
|
New
Valley LLC is wholly-owned by Vector Group Ltd. The business address of
New Valley LLC and Vector Group Ltd. is 100 S. E. Second Street,
Miami, Florida 33131.
|
(3)
|
Represents
(i) 2,669,580 shares of common stock held directly by
Mr. Lorber, (ii) 301,227 shares of common stock held by
Lorber Epsilon 1999 Limited Partnership, a Delaware limited partnership,
(iii) 220,800 shares of common stock held by Lorber
Alpha II Limited Partnership, a Nevada limited partnership,
(iv) 760,000 shares of common stock issuable upon exercise of
currently exercisable options held by Mr. Lorber and (v) 67 shares of
common stock held of record by Citibank N.A. as custodian for the benefit
of Howard Lorber Rollover IRA. Mr. Lorber indirectly exercises sole
voting power and sole dispositive power over the shares of common stock
held by the partnerships. Lorber Epsilon 1999 LLC, a Delaware limited
liability company, is the general partner of Lorber Epsilon 1999 Limited
Partnership. Lorber Alpha II Limited Partnership is the sole member
of, and Mr. Lorber is the manager of, Lorber Epsilon 1999 LLC. Lorber
Alpha II, Inc., a Nevada corporation, is the general partner of
Lorber Alpha II Limited Partnership. Mr. Lorber is the director,
officer and principal stockholder of Lorber Alpha II, Inc. Does not
include (i) the shares of common stock beneficially owned by New
Valley LLC, of which Mr. Lorber serves as an executive officer and
director of its parent, Vector Group Ltd., and
(ii) 590,824 shares of common stock held by the Lorber
Charitable Fund, a New York not-for-profit corporation, of which family
members of Mr. Lorber serve as directors and executive
officers.
|
(4)
|
Includes
(i) 1,732,900 shares of common stock held of record by MZ Trading
LLC, of which Mr. Zeitchick is the sole managing member,
(ii) 1,575,000 shares of common stock issuable upon exercise of
currently exercisable options held by MZ Trading and (iii)150,000 shares
of common stock issuable upon exercise of currently exercisable options
held by Mark Zeitchick.
|
(5)
|
Represents
(i) 243,562 shares of common stock held directly by
Mr. Rosenstock, (ii) 2,286,346 shares of common stock held of
record by The Richard J. Rosenstock Revocable Living Trust Dated
3/5/96, of which Mr. Rosenstock is the sole trustee and beneficiary,
(iii) 50,000 shares of common stock held of record by the
NFS/FMTC Rollover IRA for the benefit of Richard J. Rosenstock,
(iv) 5,000 shares of common stock held of record by the NFS/FMTC
IRA for the benefit of Richard J. Rosenstock, (v) 5,000 shares
of common stock held of record by the NFS/FMTC IRA for the benefit of Roni
L. Rosenstock, Mr. Rosenstock’s wife, (vi) 280,000 shares
of common stock issuable upon exercise of currently exercisable options
held by Mr. Rosenstock and (vii) 329,762 shares of common
stock issuable upon exercise of currently exercisable warrants held by
Roni L. Rosenstock.
|
(6)
|
Includes 1,320,000 shares
of common stock issuable upon exercise of currently exercisable options
held by Mr. Lampen. Does not include the shares of common stock
beneficially owned by New Valley LLC, of which Mr. Lampen serves as
an executive officer of its parent, Vector Group
Ltd.
|
(7)
|
Includes
80,000 shares of common stock issuable upon exercise of currently
exercisable options held by
Mr. Gilinski.
|
(8)
|
Includes
80,000 shares of common stock issuable upon exercise of currently
exercisable options held by Dr.
Krasno.
|
(9)
|
Includes
(i) 1,532 shares of common stock held of record in the
individual retirement account of Mr. Beinstein’s spouse and
(ii) 160,000 shares of common stock issuable upon exercise of
currently exercisable options held by
Mr. Beinstein.
|
(10)
|
Includes
100,000 shares of common stock issuable upon exercise of currently
exercisable options held by
Mr. Eide.
|
(11)
|
Includes
100,000 shares of common stock issuable upon exercise of currently
exercisable options held by
Mr. Podell.
|
(12)
|
Includes
100,000 shares of common stock issuable upon exercise of currently
exercisable options held by
Mr. Genson.
|
(13)
|
Includes
75,000 shares of common stock issuable upon exercise of currently
exercisable options held by Mr.
Kaufman.
|
(14)
|
Includes
9,479,762 shares of common stock issuable upon exercise of currently
exercisable options and warrants.
|
Henry
C. Beinstein, 67
Director
since 2001
|
Mr.
Beinstein has been a director of Vector Group Ltd., a New York Stock
Exchange listed holding company, since 1994. Vector Group is engaged
principally in the tobacco business through its Liggett Group LLC
subsidiary and in the real estate and investment business through its New
Valley LLC subsidiary. New Valley owns 50% of Douglas Elliman Realty, LLC,
which operates the largest residential brokerage company in the New York
metropolitan area. Mr. Beinstein has been a director of Castle Brands
Inc., an NYSE Amex listed company which markets and imports premium
spirits, since January 2009. Since January 2005,
Mr. Beinstein has been a partner of Gagnon Securities, LLC, a
broker-dealer and a FINRA member firm, and has been a money manager and an
analyst and registered representative of such firm since August 2002.
Mr. Beinstein retired in August 2002 as the executive director of
Schulte Roth & Zabel LLP, a New York-based law firm, a position he had
held since August 1997. Before that, Mr. Beinstein had served as the
managing director of Milbank, Tweed, Hadley & McCloy LLP, a New
York-based law firm, commencing in November 1995. From April 1985
through October 1995, Mr. Beinstein was the executive director of
Proskauer Rose LLP, a New York-based law firm. Mr. Beinstein is a
certified public accountant in New York and New Jersey and prior to
joining Proskauer was a partner and national director of finance and
administration at Coopers & Lybrand. Mr. Beinstein previously
served as a director of New Valley Corporation. Mr. Beinstein’s
pertinent experience, qualifications, attributes and skills include
financial literacy and expertise, managerial experience through his years
at Coopers & Lybrand, Proskauer Rose LLP, Milbank, Tweed, Hadley &
McCloy LLP and Schulte Roth & Zabel LLP, and the knowledge and
experience he has attained through his service as a director of ours and
other publicly traded
corporations.
|
Robert J. Eide,
57
Director
since 2001
|
Mr.
Eide has been the chairman and chief executive officer of Aegis Capital
Corp., a broker-dealer and a FINRA member firm, since 1984. Mr. Eide
also serves as a director of Nathan’s Famous, Inc., a chain of fast food
restaurants, and Vector Group. Mr. Eide has been a member of the New
York State Bar Association since 1979. Mr. Eide’s pertinent
experience, qualifications, attributes and skills include financial
literacy and expertise, industry knowledge, managerial experience, and the
knowledge and experience he has attained through his service as a director
of publicly-traded corporations.
|
|
Phillip
Frost, M.D., 73
Director
since 2004
|
Dr.
Frost has served as chairman of our board of directors since
July 2006. He also served as a member of our board of directors from
May 2001 until July 2002. In March 2010, Dr. Frost was
named chairman of the board of Teva Pharmaceutical Industries Ltd., a
pharmaceutical company, and had previously served as vice chairman of the
board of directors since January 2006. Since March 2007, he has
served as chairman of the board and chief executive officer of OPKO
Health, Inc., a specialty healthcare company focused on the development of
agents for ophthalmic disease and diagnostic imaging systems that
complement OPKO’s therapeutic products. From 1972 to 1990, Dr. Frost was
the chairman of the Department of Dermatology at Mt. Sinai Medical Center
of Greater Miami, Miami Beach, Florida. From 1972 to 1986, Dr. Frost
was chairman of the board of directors of Key Pharmaceuticals, Inc., and
from 1987 to January 2006, he served as chairman of the board of
directors and chief executive officer of IVAX Corporation. Dr. Frost
also serves as chairman of the board of directors of PROLOR Biotech, Inc.,
a development stage biopharmaceutical company. Dr. Frost is a
currently a director of Continucare Corporation, a provider of outpatient
healthcare services, and Castle Brands Inc. He also serves as Chairman of
Temple Emanu-El, as a member of the Board of Regents of the Smithsonian
Institution, as a director of the Florida Council of 100 and as a trustee
of each of the University of Miami, the Scripps Research Institute, the
Miami Jewish Home for the Aged, and the Mount Sinai Medical Center.
Dr. Frost previously served as a director for Northrop Grumman Corp.,
Ideation Acquisition Corp., Protalix Bio Therapeutics, Inc., and Cellular
Technical Services Company, Inc. (now SafeStitch Medical, Inc.), as
chairman of Ivax Diagnostics, Inc. and as governor and co-vice-chairman of
the American Stock Exchange (now NYSE Amex). Dr. Frost’s pertinent
experience, qualifications, attributes and skills include financial
literacy and expertise, industry knowledge, managerial experience, and the
knowledge and experience he has attained through his service as a director
of publicly-traded corporations.
|
|
Brian S. Genson,
61
Director
since 2004
|
Mr.
Genson has been president of Pole Position Investments, a company engaged
in the motor sport business, since 1989. Mr. Genson also serves as a
managing director of F1Collectors.com and F1 Action located in
Buntingford, England, which is engaged in investing in the motor sport
industry. Mr. Genson was also responsible for introducing Ben and Jerry’s
Ice Cream Company to the Japanese market. Mr. Genson also serves as a
director of Nathan’s Famous. Mr. Genson’s pertinent experience,
qualifications, attributes and skills include managerial experience and
experience he has attained through his service as a director of
publicly-traded corporations.
|
|
Saul Gilinski,
55
Director
since 2006
|
Mr.
Gilinski has served as president and a director of Osmopharm S.A., a
Swiss-based manufacturer of modified release pharmaceutical active
ingredients, since 1999. He has served as the chairman of C.I.
Farmacapsulas S.A., a manufacturer of pharmaceutical capsules, since 1985.
Since December 2003, Mr. Gilinski has served as chairman of
Capscanada Corporation, a Canada-based manufacturer of pharmaceutical
capsules. Since 1994, he has served as chairman of Ajix, Inc., a
distribution import/export company. He is also a director of Premier
Commercial Realty, Inc., a commercial property developer in South Florida.
Mr. Gilinski’s pertinent experience, qualifications, attributes and
skills include financial literacy and expertise and managerial
experience.
|
Dr. Richard M.
Krasno, 68
Director
since 2006
|
Dr.
Krasno has served as the executive director of the William R. Kenan, Jr.
Charitable Trust and as president of the four affiliated William R. Kenan,
Jr. Funds since October 1999. Prior to joining the Trust,
Dr. Krasno was the president of the Monterey Institute of
International Studies in Monterey, California. From 1981 to 1998, he
served as president and chief executive officer of the Institute of
International Education in New York. He also served as Deputy Assistant
Secretary of Education in Washington, D.C. from 1979 to 1980.
Dr. Krasno previously served as a director of IVAX Corporation.
Dr. Krasno’s pertinent experience, qualifications, attributes and
skills include financial literacy and expertise and managerial
experience.
|
|
Richard J. Lampen,
56
Director
since 2002
|
Mr.
Lampen has been our president and chief executive officer since
September 2006. Since July 1996, Mr. Lampen has served as
executive vice president of Vector Group. Since October 2008,
Mr. Lampen has served as president and chief executive officer and a
director of Castle Brands Inc. From October 1995 to
December 2005, Mr. Lampen served as the executive vice president
and general counsel of New Valley, where he also served as a member of its
board of directors. Since January 1997, Mr. Lampen has served as a
director of CDSI Holdings Inc., an affiliate of New Valley seeking
acquisitions or investments, and since November 1998 has been its
president and chief executive officer. From May 1992 to
September 1995, Mr. Lampen was a partner at the law firm of Steel
Hector & Davis in Miami, Florida. From January 1991 to
April 1992, Mr. Lampen was a managing director at Salomon
Brothers Inc, an investment bank, and was an employee at Salomon Brothers
from 1986 to April 1992. Mr. Lampen’s pertinent experience,
qualifications, attributes and skills include his knowledge and experience
in our company attained through his service as a director of our company
since 2002 and as president and chief executive officer since 2006, his
industry experience, his managerial experience and the knowledge and
experience he has attained through his service as a director of
publicly-traded corporations.
|
|
Howard M. Lorber,
61
Director
since 2001
|
Mr.
Lorber has been vice chairman of our board of directors since July 2006.
Previously, Mr. Lorber had been chairman of our board of directors
from May 2001 to July 2006. Mr. Lorber has been president and chief
executive officer of Vector Group since January 2006 and has served as a
director of Vector Group since January 2001. He served as president and
chief operating officer of Vector Group from January 2001 to December
2005. From November 1994 to December 2005, Mr. Lorber served as
president and chief operating officer of New Valley, where he also served
as a director. Mr. Lorber was chairman of the board of directors of
Hallman & Lorber Assoc. Inc., consultants and actuaries of
qualified pension and profit sharing plans, and various of its affiliates
from 1975 to December 2004 and has been a consultant to these entities
since January 2005; chief executive officer from November 1993 to December
2006 and executive chairman of the board of directors since January 2007
of Nathan’s Famous; and a director of United Capital Corp., a real estate
investment and diversified manufacturing company. He is also a trustee of
Long Island University.
|
|
Jeffrey S. Podell,
69
Director
since 2004
|
Mr.
Podell has been the chairman of the board and president of Newsote, Inc.,
a privately-held holding company, since 1989. He also serves as a
director of Vector Group. Mr. Podell was a member of the New York
State Bar Association from 1965 until March 2010. Mr. Podell’s
pertinent experience, qualifications, attributes and skills include
managerial experience, financial literacy and the knowledge and experience
he has attained through his service as a director of publicly-traded
corporations.
|
Richard J. Rosenstock,
57
Director
since 1999
|
From
May 2001 until December 2002, Mr. Rosenstock served as vice
chairman of our board of directors and from August 1999 until
December 2002, served as our chief operating officer. He also served as
our president from August 1999 until May 2001. Since
January 2003, Mr. Rosenstock has been a registered representative of
Ladenburg Thalmann & Co. Inc., one of our broker-dealer subsidiaries.
Mr. Rosenstock was affiliated with Ladenburg Capital Management Inc.,
one of our subsidiaries, from 1986 until December 2002, serving from
May 2001 as Ladenburg Capital Management’s chief executive officer.
From January 1994 until May 1998, he served as an executive vice
president of Ladenburg Capital Management and was its president from
May 1998 until November 2001. Mr. Rosenstock’s pertinent
experience, qualifications, attributes and skills include his industry
knowledge and the experience he has attained through his service as a
director of a publicly-traded corporation.
|
|
Mark Zeitchick,
45
Director
since 1999
|
Mr.
Zeitchick has been our executive vice president since September 2006.
From August 1999 until December 2003, Mr. Zeitchick served
as one of our executive vice presidents. Mr. Zeitchick has also been
president and chief executive officer of Ladenburg Thalmann & Co. Inc.
since September 2006 and a registered representative with Ladenburg
Thalmann & Co. Inc. since March 2001. Mr. Zeitchick has been
Ladenburg Capital Management’s co-chairman since November 2001. From
September 1995 until November 2001, he was an executive vice
president of Ladenburg Capital Management. From May 2001 until
November 2001, he served as chairman of Ladenburg Capital Management,
and became co-chairman in November 2001. Mr. Zeitchick’s pertinent
experience, qualifications, attributes and skills include managerial
experience, industry knowledge and the knowledge and experience he has
attained through his service as a director of a publicly-traded
corporation.
|
Name
|
Title
|
Number of Shares Purchased
|
||
Phillip
Frost, M.D.
|
Chairman
|
500,000
|
||
Richard
J. Lampen
|
President
and Chief Executive Officer and Director
|
50,000
|
||
Mark
Zeitchick
|
Executive
Vice President and Director
|
50,000
|
||
Robert
J. Eide
|
Director
|
25,000
|
||
Dr.
Richard M. Krasno
|
Director
|
50,000
|
||
Richard
J. Rosenstock
|
|
Director
|
|
50,000
|
Director
|
Independent
|
Audit
|
Compensation
|
Nominating
|
Executive
|
|||||
Henry
C. Beinstein
|
X
|
X
|
X
|
X
|
||||||
Robert
J. Eide
|
X
|
X
|
X
|
X
|
||||||
Phillip
Frost, M.D.
|
X
|
|||||||||
Brian
S. Genson
|
X
|
X
|
||||||||
Saul
Gilinski
|
X
|
X
|
||||||||
Dr.
Richard M. Krasno
|
X
|
X
|
X
|
|||||||
Richard
J. Lampen
|
X
|
|||||||||
Howard
M. Lorber
|
||||||||||
Jeffrey
S. Podell
|
X
|
X
|
||||||||
Richard
J. Rosenstock
|
||||||||||
Mark
Zeitchick
|
X
|
|||||||||
Number
of meetings held in 2009
|
|
—
|
|
4
|
|
Acted
by consent
|
|
1
|
|
Acted
by consent
|
|
·
|
the
integrity of our financial
statements;
|
|
·
|
our
independent auditor’s qualifications and
independence;
|
|
·
|
the
performance of our independent auditor;
and
|
|
·
|
our
compliance with legal and regulatory
requirements.
|
|
•
|
reviewing
and discussing with management and the independent auditor the annual
audited financial statements, and recommending to the board whether the
audited financial statements should be included in our
Form 10-K;
|
|
•
|
discussing
with management and the independent auditor significant financial
reporting issues and judgments made in connection with the preparation of
our financial statements;
|
|
•
|
discussing
with management and the independent auditor the effect on our financial
statements of (i) regulatory and accounting initiatives and
(ii) off-balance sheet
structures;
|
|
•
|
discussing
with management major financial risk exposures and the steps management
has taken to monitor and control such exposures, including our risk
assessment and risk management
policies;
|
|
•
|
reviewing
disclosures made to the audit committee by our chief executive officer and
chief financial officer during their certification process for our
Form 10-K and Form 10-Q about any significant deficiencies in
the design or operation of internal controls or material weaknesses
therein and any fraud involving management or other employees who have a
significant role in our internal
controls;
|
|
•
|
verifying
the rotation of the lead (or coordinating) audit partner having primary
responsibility for the audit and the audit partner responsible for
reviewing the audit as required by
law;
|
|
•
|
reviewing
and approving all related-party
transactions;
|
|
•
|
inquiring
and discussing with management our compliance with applicable laws and
regulations;
|
|
•
|
pre-approving
all auditing services and permitted non-audit services to be performed by
our independent auditor, including the fees and terms of the services to
be performed;
|
|
•
|
appointing
or replacing the independent
auditor;
|
|
•
|
determining
the compensation and oversight of the work of the independent auditor
(including resolution of disagreements between management and the
independent auditor regarding financial reporting) for the purpose of
preparing or issuing an audit report or related
work; and
|
|
•
|
establishing
procedures for the receipt, retention and treatment of complaints received
by us regarding accounting, internal accounting controls or reports which
raise material issues regarding our financial statements or accounting
policies.
|
•
|
establishing
the general compensation policy for our executive officers, including our
chief executive officer;
|
•
|
administering
our Qualified Employee Stock Purchase Plan (“QESPP”), our Amended and
Restated 1999 Performance Equity Plan (“1999 Plan”) and our 2009 Incentive
Compensation Plan (“2009 Plan” and, together with the QESPP and the 1999
Plan, the “Plans”); and
|
•
|
determining
who participates in these plans, establishing performance goals, if any,
and determining specific grants and awards to the
participants.
|
|
•
|
a
base salary, which is not anticipated to be the sole component of total
annual cash compensation;
|
|
•
|
brokerage
commissions, if the executive is a registered representative, with respect
to customer accounts for which such executive is the designated account
representative;
|
|
•
|
a
discretionary cash bonus; and
|
|
•
|
a
stock option grant.
|
Name and Principal
Position
|
Fiscal
Period
|
Salary
($)
|
Bonus
($)
|
Option
Awards
($)(1)
|
Non-Equity
Incentive Plan
Compensation
($)
|
All Other
Compensation
($)
|
Total
($)
|
|||||||||||||
Richard
J. Lampen,
chief
executive officer and president (2)
|
2009
|
—
|
—
|
—
|
—
|
—
|
—
|
|||||||||||||
2008
|
—
|
150,000
|
591,480
|
—
|
—
|
741,480
|
||||||||||||||
|
|
|||||||||||||||||||
Mark
Zeitchick , executive vice president; president and chief executive
officer of Ladenburg Thalmann & Co. Inc.
|
2009
|
250,000
|
100,000
|
—
|
—
|
205,929(3)
|
555,929
|
|||||||||||||
2008
|
250,000
|
150,000
|
591,480
|
—
|
464,089(3)
|
1,455,569
|
||||||||||||||
|
|
|||||||||||||||||||
Brett
H. Kaufman, vice president and chief financial officer
|
2009
|
200,000
|
100,000
|
—
|
|
—
|
—
|
300,000
|
||||||||||||
2008(4)
|
154,616
|
100,000
|
226,635
|
—
|
54,116(5)
|
535,367
|
(1)
|
Represents
the aggregate grant date fair value of stock options granted for the year
ended December 31, 2008 as determined in accordance with FASB ASC
Topic 718, rather than an amount paid to or realized by the named
executive officer. Assumptions used in the calculation of such amount are
included in note 15 to our audited financial statements included in our
annual report on Form 10-K for the year ended December 31, 2009. The FASB
ASC Topic 718 amounts from these grants may never be realized by the named
executive officer.
|
(2)
|
Does
not include payments to Vector Group under the management services
agreement with Vector Group described under the caption “Compensation
Arrangements for Executive Officers”
below.
|
(3)
|
Represents
commissions earned from customer accounts for which the individual is a
designated account representative ($199,031 in 2009 and $457,209 in 2008)
and health and dental insurance premiums paid by
us.
|
(4)
|
Mr.
Kaufman became a vice president in March 2008 and became our chief
financial officer in April 2008.
|
(5)
|
Represents
relocation expenses ($13,359), brokerage, legal and other fees in
connection with the sale of his house in New York ($30,635) and legal fees
in connection with the negotiation of his employment letter with us
($10,122).
|
Option Awards
|
|||||||||||||
Equity
|
|||||||||||||
Incentive Plan
|
|||||||||||||
Awards:
|
|||||||||||||
Number of
|
Number of
|
Number of
|
|||||||||||
Securities
|
Securities
|
Securities
|
|||||||||||
Underlying
|
Underlying
|
Underlying
|
Option
|
||||||||||
Unexercised
|
Unexercised
|
Unexercised
|
Exercise
|
||||||||||
Options (#)
|
Options (#)
|
Unearned
|
Price
|
Option
|
|||||||||
Name
|
Exercisable
|
Unexercisable
|
Options (#)
|
($)
|
Expiration Date
|
||||||||
Richard
J. Lampen
|
20,000 | 0 | — | 0.88 |
01/09/2012
|
||||||||
20,000 | 0 | 0.22 |
11/14/2012
|
||||||||||
20,000 | 0 | 0.30 |
09/16/2013
|
||||||||||
20,000 | 0 | 0.48 |
03/02/2015
|
||||||||||
450,000 | 150,000(1) | 0.88 |
07/17/2016
|
||||||||||
20,000 | 0 | 1.39 |
11/05/2016
|
||||||||||
20,000 | 0 | 2.30 |
06/28/2017
|
||||||||||
300,000 | 300,000(2) | 2.30 |
07/25/2017
|
||||||||||
150,000 | 450,000(3) | 1.58 |
10/30/2018
|
||||||||||
Mark
Zeitchick
|
250,000 | 0 | — | 0.88 |
01/09/2012
|
||||||||
125,000 | 0 | 1.01 |
05/25/2014
|
||||||||||
150,000 | 0 | 0.58 |
08/17/2015
|
||||||||||
450,000 | 150,000(1) | 0.88 |
07/17/2016
|
||||||||||
300,000 | 300,000(2) | 2.30 |
07/25/2017
|
||||||||||
150,000 | 450,000(3) | 1.58 |
10/30/2018
|
||||||||||
Brett
H. Kaufman
|
37,500 | 112,500(4) | — | 2.30 |
03/24/2018
|
(1)
|
These
options vest July 17, 2010.
|
(2)
|
These
options vest in two equal annual installments beginning on July 25,
2010.
|
(3)
|
These
options vest in three equal installments beginning October 30,
2010.
|
(4)
|
These
options vest in three equal annual installments beginning on March 25,
2010.
|
Fees
Earned or
|
Stock
|
Option
|
||||||||||||||
Paid
in Cash
|
Awards
|
Awards(1)
|
Total
|
|||||||||||||
Name
|
($)
|
($)
|
($)
|
($)
|
||||||||||||
Henry
C. Beinstein
|
46,500 | — | 10,850 | 57,350 | ||||||||||||
Robert
J. Eide
|
46,500 | — | 10,850 | 57,350 | ||||||||||||
Phillip
Frost, M.D.
|
123,000 | — | 10,850 | 133,850 | ||||||||||||
Brian
S. Genson
|
29,000 | — | 10,850 | 39,850 | ||||||||||||
Saul
Gilinski
|
33,500 | — | 10,850 | 44,350 | ||||||||||||
Howard
M. Lorber
|
24,000 | — | 10,850 | 34,850 | ||||||||||||
Dr. Richard
M. Krasno
|
34,500 | — | 10,850 | 45,350 | ||||||||||||
Jeffrey
S. Podell
|
36,000 | — | 10,850 | 46,850 |
(1)
|
Represents
the aggregate grant date fair value of stock options granted for the year
ended December 31, 2009 as determined in accordance with FASB ASC
Topic 718, rather than an amount paid to or realized by the director.
Assumptions used in the calculation of such amount are included in note 15
to our audited financial statements included in our annual report on Form
10-K for the year ended December 31, 2009. The FASB ASC Topic 718
amounts from these grants may never be realized. The aggregate number of
outstanding option awards at December 31, 2009 was as
follows:
|
Name
|
Aggregate
Number of Option Awards
|
|||
Henry
C. Beinstein
|
160,000 | |||
Robert
J. Eide
|
100,000 | |||
Phillip
Frost, M.D.
|
3,120,000 | |||
Brian
S. Genson
|
100,000 | |||
Saul
Gilinski
|
80,000 | |||
Howard
M. Lorber
|
1,060,000 | |||
Dr. Richard
M. Krasno
|
80,000 | |||
Jeffrey
S. Podell
|
100,000 |
Number of Securities
|
|||||||||
Remaining Available for
|
|||||||||
Future Issuance Under
|
|||||||||
Number of Securities
|
Weighted-Average
|
Equity Compensation
|
|||||||
to be Issued Upon
|
Exercise Price of
|
Plans
|
|||||||
Exercise of
|
Outstanding
|
(Excluding Securities
|
|||||||
Outstanding Options,
|
Options, Warrants
|
Reflected in the First
|
|||||||
Plan Category
|
Warrants and Rights
|
and Rights
|
Column)
|
||||||
Equity
compensation plans approved by security holders
|
15,257,290
|
$1.46
|
30,042,154(1)
|
||||||
Equity
compensation plans not approved by security holders
|
12,664,000(2)(3)(4)(5)(6)
|
$1.27
|
—
|
(1)
|
Consists
of approximately 5,182,154 million shares available for future
issuance under our 1999 Plan and 24,860,000 under the 2009
Plan.
|
(2)
|
Includes
warrants to purchase 2,900,000 shares of our common stock at $0.96 per
share, issued to acquire Capitalink,
L.C.
|
(3)
|
Includes
warrants to purchase 1,500,000 shares of our common stock at $0.94 per
share, issued to acquire Broadwall Capital
LLC.
|
(4)
|
Includes
warrants to purchase 500,000 shares of our common stock at $0.95 per
share, which we issued to acquire a 10% interest in the Florida Value
Fund.
|
(5)
|
Includes
warrants to purchase 2,000,000 shares of our common stock at $1.91 per
share, issued to an affiliate of our chairman of the board and our
principal shareholder, under a credit agreement in connection with the
Investacorp acquisition.
|
(6)
|
Includes
non-plan options described below.
|
|
·
|
Cause
means: (i) conviction of, or the entry of a plea of guilty or nolo
contendere to, a felony, (ii) alcoholism or drug addiction which
materially impairs Mr. Kaufman's ability to perform his duties,
(iii) continued, intentional and willful failure to substantially and
materially perform his material duties and responsibilities after receipt
of written notice and failure to cure within 30 days of such notice, (iv)
willful and deliberate misconduct that results, or is reasonably likely to
result, in material and demonstrative harm to us or our subsidiaries or
affiliates, or (v) substantial impairment from performing his duties for a
period of longer than 60 consecutive days or more than 120 days as a
result of an action taken by a regulatory body or self-regulatory
agency.
|
|
·
|
Disability
means that Mr. Kaufman, as a result of incapacity due to physical or
mental illness, has been substantially unable to perform his normal duties
for an entire period of six consecutive months, and has not returned to
the substantial performance of his duties on a full-time basis within 30
days after written notice of termination is given by us after such
six-month period.
|
|
·
|
Good
Reason means: (i) a material diminution in duties or responsibilities,
(ii) failure to appoint or elect Mr. Kaufman as our vice president and
chief financial officer or his removal from such position, (iii) a
reduction in his base salary, (iv) relocation of his office to a location
outside of Miami, FL (other than in connection with travel necessary to
perform his duties), or (v) a material breach by us of his employment
letter, an indemnification agreement between us or any equity agreement
between us, including, without limitation, the failure of any successor to
all or substantially all of our assets to assume our obligations under the
employment letter and the indemnification
agreement.
|
Name
|
Change-in-Control
($)
|
Death
($)
|
Disability
($)
|
|||||||||
Richard
J. Lampen
|
— | — | — | |||||||||
Mark
Zeitchick
|
2,250 | 2,250 | 2,250 | |||||||||
Brett
H. Kaufman
|
— | — | — |
|
·
|
the
aggregate amount involved is expected to exceed $120,000 in any calendar
year;
|
|
·
|
we
or any of our subsidiaries is a participant;
and
|
|
·
|
any
(a) executive officer, director or director nominee,
(b) five percent or greater beneficial owner of our common
stock, or (c) immediate family member, of the persons listed in
clauses (a) and (b), has or will have a material interest (other than
solely as a result of being a director or a less than 10 percent
beneficial owner of another
entity).
|
|
·
|
whether
the transaction is on terms no less favorable to us than terms generally
available to an unaffiliated third-party under the same or similar
circumstances; and
|
|
·
|
the
extent of the related party’s interest in the
transaction.
|
2009
|
2008
|
|||||||
(dollars in thousands)
|
||||||||
Audit
fees
|
$ | 720 | $ | 714 | ||||
Audit-Related
fees
|
— | 27 | ||||||
Tax
fees
|
— | 17 | ||||||
All
other fees
|
106 | 80 | ||||||
Total
fees
|
$ | 826 | $ | 838 |
By
Order of the Board of Directors
|
|
/s/
Richard J. Lampen
|
|
President
and Chief Executive Officer
|
1.
|
Election
of the following Directors:
|
FOR all nominees listed
below except
|
WITHHOLD AUTHORITY to
vote
|
||
as
marked to the contrary below o
|
for
all nominees listed below
o
|
2.
|
Approval
of the issuance and sale of common stock to certain directors and
officers.
|
FOR o
|
AGAINST o
|
ABSTAIN
o
|
3.
|
Approval
of ratification of Eisner LLP as independent registered public accounting
firm for fiscal 2010.
|
FOR o
|
AGAINST o
|
ABSTAIN
o
|
4.
|
In
their discretion, the proxies are authorized to vote upon such other
business as may come before the meeting or any adjournment
thereof.
|
Date:
|
, 2010
|
|||||
Signature
|
||||||
Signature
if held jointly
|
||||||
Please
sign exactly as name appears above. 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 authorized
person.
|