Exhibit 10.24
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT (the "Agreement") is entered into as of the 3rd
day of January, 2001, by and between INDIVIDUAL INVESTOR GROUP, INC., a Delaware
corporation (the "Company"), and Xxxxxxx X. Xxxxxx (the "Employee").
WHEREAS, on January 3, 2001 (the "Grant Date"), Board of Directors of the
Company (the "Board") authorized the grant to the Employee of an option (the
"Option") to purchase an aggregate of 325,000 shares of the authorized but
unissued common stock, $.01 par value ("Common Stock") of the Company, including
176,480 shares of Common Stock ("1996 Option Shares") pursuant to the terms and
conditions of the Company's 1996 Performance Equity Plan ("1996 Plan"), 121,666
shares of Common Stock ("Management Option Shares") pursuant to the terms and
conditions of the Company's 1996 Management Incentive Plan ("Management Plan")
and 26,854 shares of Common Stock ("2000 Option Shares," and with the 1996
Option Shares and the Management Option Shares, the "Option Shares") pursuant to
the terms and conditions of the Company's 2000 Performance Equity Plan ("2000
Plan," and with the 1996 Plan and Management Plan, individually a "Plan" and
collectively, the "Plans"), conditioned upon the Employee's acceptance of the
grant of the Option upon the terms and conditions set forth in this Agreement
and subject to the terms of each of the respective Plans; and
WHEREAS, the Employee desires to acquire the Option upon the terms and
conditions set forth in this Agreement and subject to the terms of each of the
respective Plans;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants the Employee the Option
to purchase all or any part of an aggregate of 325,000 shares of Common Stock on
the terms and conditions set forth herein and subject to the provisions of each
of the respective Plans.
2. Incentive Stock Option. The Option represented hereby is intended to be
an Option which qualifies as an "Incentive Stock Option" under Section 422 of
the Internal Revenue Code of 1986, as amended.
3. Exercise Price. The exercise price of the Option is $0.4375 per share,
subject to adjustment as hereinafter provided.
4. Exercisability. This Option shall be exercisable, subject to the terms
and conditions of this Agreement, as follows:
(a) With regard to the 1996 Option Shares, (i) the right to purchase
44,120 of the 1996 Option Shares shall be exercisable on or after January 3,
2002, (ii) the right to purchase an additional 44,120 of the 1996 Option Shares
shall be exercisable on or after January 3, 2003, (iii) the right to purchase an
additional 44,120 of the 1996 Option Shares shall be exercisable on or after
January 3, 2004 and (iv) the right to purchase an additional 44,120 of the 1996
Option Shares shall be exercisable on or after January 3, 2005.
(b) With regard to the Management Option Shares, (i) the right to
purchase 30,416 of the Management Option Shares shall be exercisable on or after
January 3, 2002, (ii) the right to purchase an additional 30,417 of the
Management Option Shares shall be exercisable on or after January 3, 2003, (iii)
the right to purchase an additional 30,416 of the Management Option shares shall
be exercisable on or after January 3, 2004 and (iv) the right to purchase an
additional 30,417 of the Management Option Shares shall be exercisable on or
after January 3, 2005.
(c) With regard to the 2000 Option Shares, (i) the right to purchase
6,713 of the 2000 Option Shares shall be exercisable on after January 3, 2002,
(ii) the right to purchase an additional 6,714 of the 2000 Option Shares shall
be exercisable on or after January 3, 2003, (iii) the right to purchase an
additional 6,713 of the 2000 Option Shares shall be exercisable on or after
January 3, 2004 and (iv) the right to purchase an additional 6,714 of the 2000
Option Shares shall be exercisable on or after January 3, 2005.
After a portion of the Option becomes exercisable, such portion shall remain
exercisable, except as otherwise provided herein, until the close of business on
January 2, 2011 ("Exercise Period").
5. Effect of Termination of Employment.
5.1. Termination Due to Death. If Employee's employment by the Company
terminates by reason of death, the portion of the Option, if any, that was
exercisable as of the date of death may thereafter be exercised by the legal
representative of the estate or by the legatee of the Employee under the will of
the Employee, for a period of one (1) year from the date of such death or until
the expiration of the Exercise Period, whichever period is shorter. The portion
of the Option, if any, that was not exercisable as of the date of death shall
immediately expire upon death.
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5.2. Termination Due to Disability. If Employee's employment by the
Company terminates by reason of Disability (as such term is defined in each of
the respective Plans), the portion of the Option, if any, that was exercisable
as of the date of termination of employment may thereafter be exercised by the
Employee for a period of one (1) year from the date of the termination of
employment or until the expiration of the Exercise Period, whichever period is
shorter. The portion of the Option, if any, that was not exercisable as of the
date of such termination of employment shall immediately expire on the date of
such termination of employment.
5.3. Other Termination.
(a) If Employee's employment is terminated by the Company or the
Employee for any reason other than (i) death, (ii) Disability or (iii) for cause
by the Company, then the portion of the Option, if any, that was exercisable as
of the date of termination of employment may thereafter be exercised by the
Employee for a period of thirty (30) days from termination of employment or
until the expiration of the Exercise Period, whichever is shorter. The portion
of the Option, if any, that was not exercisable as of the date of such
termination of employment shall immediately expire on the date of such
termination of employment.
(b) In the event the Employee's employment is terminated for cause, (i)
this Option, whether or not exercisable, shall immediately expire and (ii) the
Company may require the Employee to return to the Company the economic value of
any Option Shares purchased hereunder by the Employee within the six (6) month
period prior to the date of such termination of employment. In such event, the
Employee hereby agrees to remit to the Company, in cash, an amount equal to the
difference between the Fair Market Value (as such term is defined in each of the
respective Plans) of the Option Shares on the date of such termination of
employment (or the sales price of such shares if the Option Shares were sold
during such six (6) month period) and the Exercise Price of such shares.
5.4. "Employment". The Employee shall be considered to be employed by
the Company pursuant to this Section 5 if the Employee is an officer, director
or full-time employee of the Company (or of any parent, subsidiary or affiliate
of the Company) or if the Committee determines in its sole and absolute
discretion that the Employee is rendering substantial services to the Company as
a part-time employee, consultant or contractor of the Company (or of any parent,
subsidiary or affiliate of the Company). The Committee shall have the sole and
absolute discretion to determine whether the Employee has ceased to be employed
by the Company and the effective date on which such employment terminated.
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5.5. No Right to Employment. Nothing in the Plans or in this Agreement
shall confer on the Employee any right to continue in the employ of, or other
relationship with, the Company (or with any parent, subsidiary or affiliate of
the Company) or limit in any way the right of the Company (or of any parent,
subsidiary or affiliate of the Company) to terminate the Employee's employment
or other relationship with the Company (or with any parent, subsidiary or
affiliate of the Company) at any time, with or without cause.
5.6. Competing With the Company. In the event that, within eighteen
(18) months after the date of termination of Employee's employment with the
Company, Employee accepts employment with any competitor of, or otherwise
competes with, the Company, the Committee, in its sole discretion, may require
Employee to return to the Company the economic value of any Option Shares
purchased hereunder by the Employee within the six (6) month period prior to the
date of termination or after the date of termination. In such event, Employee
agrees to remit the economic value to the Company in accordance with Section
5.3(b).
6. Withholding Tax. Not later than the date as of which an amount first
becomes includible in the gross income of the Employee for Federal income tax
purposes with respect to the Option, the Employee shall pay to the Company, or
make arrangements satisfactory to the Company regarding the payment of, any
Federal, state and local taxes of any kind required by law to be withheld or
paid with respect to such amount. Notwithstanding anything in this Agreement to
the contrary, the obligations of the Company under the Plans and pursuant to
this Agreement shall be conditional upon such payment or arrangements with the
Company and the Company shall, to the extent permitted by law, have the right to
deduct any such taxes from any payment of any kind otherwise due to the Employee
from the Company.
7. Adjustments. In the event of any merger, reorganization, consolidation,
recapitalization, consolidation, dividend (other than cash dividend), stock
split, reverse stock split, or other change in corporate structure affecting the
number of issued shares of Common Stock, the Company shall proportionally adjust
the number and kind of Option Shares and the exercise price of the Option in
order to prevent the dilution or enlargement of the Employee's proportionate
interest in the Company and Employee's rights hereunder, provided that the
number of Option Shares shall always be a whole number.
8. Acceleration of Vesting on Change of Control. Notwithstanding the
provisions of Section 4, in the event of a "change of control" (as defined
below) while the Employee is employed by the Company, the vesting of this Option
shall accelerate and all the Option Shares shall be purchasable by Employee
simultaneous with such change of control. For the purposes of this Agreement, a
change of control shall mean (i) the acquisition by any "person" (as defined in
Section 3(a)(9) and 13(d) of the Securities Exchange Act of 1934, as amended
("Exchange Act")), other than a stockholder of the Company that, as of the date
of this Agreement, is the beneficial owner (as defined in Rule 13d-3 promulgated
under the Exchange Act) of 10% or more of the outstanding voting securities of
the Company, of more than 50% of the combined voting power of the then
outstanding voting securities of the Company or (ii) the sale by the Company of
all, or substantially all, of the assets of the Company to one or more
purchasers, in one or a series of related transactions, where the transaction or
transactions require approval pursuant to Delaware law by the stockholders of
the Company.
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9. Method of Exercise.
9.1. Notice to the Company. The Option shall be exercised in whole or
in part by written notice in substantially the form attached hereto as Exhibit A
directed to the Company at its principal place of business accompanied by full
payment as hereinafter provided of the exercise price for the number of Option
Shares specified in the notice.
9.2. Delivery of Option Shares. The Company shall deliver a certificate
for the Option Shares to the Employee as soon as practicable after payment
therefor.
9.3. Payment of Purchase Price. The Employee shall make payment for the
Option Shares by any one or more of the following methods set forth in this
Section 9.3.
9.3.1. Cash Payment. The Employee shall make cash payments by
wire transfer, certified check or bank check, in each case payable to the order
of the Company; the Company shall not be required to deliver certificates for
Option Shares until the Company has confirmed the receipt of good and available
funds in payment of the purchase price thereof.
9.3.2. Payment through Bank or Broker. The Employee may make
arrangements satisfactory to the Company with a bank or a broker who is member
of the National Association of Securities Dealers, Inc. to either (a) sell on
the exercise date a sufficient number of the Option Shares being purchased so
that the net proceeds of the sale transaction will at least equal the Exercise
Price multiplied by the number of Option Shares being purchased pursuant to such
exercise, plus the amount of any applicable withholding taxes and pursuant to
which the bank or broker undertakes irrevocably to deliver the full Exercise
Price multiplied by the number of Option Shares being purchased pursuant to such
exercise, plus the amount of any applicable withholding taxes to the Company on
a date satisfactory to the Company, but no later than the date on which the sale
transaction would settle in the ordinary course of business or (b) obtain a
"margin commitment" from the bank or broker pursuant to which the bank or broker
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undertakes irrevocably to deliver the full Exercise Price multiplied by the
number of Option Shares being purchased pursuant to such exercise, plus the
amount of any applicable withholding taxes to the Company, immediately upon
receipt of the Option Shares.
9.3.3. Cashless Payment. The Employee may, in his or her sole
discretion, use shares of Common Stock of the Company that were owned by the
Employee for more than six (6) months (and which have been paid for within the
meaning of Rule 144 promulgated by the Securities and Exchange Commission
("Commission") and, if such shares were purchased from the Company by use of a
promissory note, such note has been fully paid with respect to such shares), or
that were obtained by the Employee in the open public market, to pay the
purchase price for the Option Shares by delivery of one or more stock
certificates in negotiable form which are effective to transfer good and valid
title thereto to the Company, free of any liens or encumbrances. Shares of
Common Stock used for this purpose shall be valued at the Fair Market Value (as
such term is defined in each of the respective Plans).
9.3.4. Payment of Withholding Tax. Any required withholding
tax may be paid in cash or with Common Stock in accordance with Sections 9.3.1.,
9.3.2 and 9.3.3.
9.3.5. Exchange Act Compliance. Notwithstanding the foregoing,
the Company shall have the right to reject payment in the form of Common Stock
if in the opinion of counsel for the Company, (i) it could result in an event of
"recapture" under Section 16(b) of the Exchange Act; (ii) such shares of Common
Stock may not be sold or transferred to the Company; or (iii) such transfer
could create legal difficulties for the Company.
10. Security Interest in Option Shares Collateralizing Obligations Owed to
the Company. Notwithstanding anything in this Agreement to the contrary, the
Employee hereby grants the Company a security interest in the Option Shares as
follows: in the event that the Employee owes the Company any sum (including
without limitation amounts owed pursuant to a loan made by the Company to the
Employee), and such sum is past due (the "Past Due Amount"), the Company shall
have a security interest in the Option Shares. The Employee hereby agrees to
execute, promptly upon request by the Company, such instruments and to take such
action as may be useful for the Company to perfect and/or exercise such security
interest, and hereby irrevocably grants the Company the right to retain, in full
or partial payment of the Past Due Amount, up to the following number of Option
Shares upon any whole or partial exercise of the Option: a fraction, the
numerator of which is the Past Due Amount, and the denominator of which is the
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Fair Market Value (as such term is defined in each of the respective Plans) of
the Company's Common Stock as of the date of such exercise; provided that the
fraction set forth in the preceding clause shall be rounded up to the nearest
whole number. The security interest set forth herein shall be cumulative to all,
and not in lieu of any, other remedies to available to the Company with respect
to any Past Due Amount.
11. Market Standoff Agreement. The Employee agrees that, in connection with
any registration of the Company's securities, upon the request of the Company or
the underwriters managing any public offering of the Company's securities, the
Employee will not sell or otherwise dispose of any Option Shares (including
without limitation sale of Option Shares in connection with the exercise method
set forth in Section 9.3.2.) or any other securities of the Company without the
prior written consent of the Company or such underwriters, as the case may be,
for such period of time from the effective date of such registration as the
Company or the underwriters may specify for the Company's employee shareholders
generally. The Employee understands and agrees that, in order to ensure
compliance with the market standoff agreement, the Company may issue appropriate
"stop-transfer" instructions to its transfer agent.
12. Notice of Disqualifying Disposition of Incentive Stock Option Shares.
If the Option granted to the Employee herein is an Incentive Stock Option, and
if the Employee sells or otherwise disposes of any of the Option Shares acquired
pursuant to a whole or partial exercise the Option prior to the later of (a) the
second (2nd) anniversary of the Grant Date, or (b) the first (1st) anniversary
of the date of exercise of such Option Shares, the Employee shall immediately
notify the Company in writing of such sale or disposition. The Employee
acknowledges and agrees that the Employee may be subject to income and other tax
withholding by the Company on the compensation income recognized by the Employee
from any such sale or disposition, by payment in cash (or in shares of Common
Stock, to the extent permissible under Section 9.3.4.) or out of the current
wages or other earnings payable to Employee. The Employee hereby authorizes
his/her broker(s) to provide the Company, promptly at the Company's request,
with any information concerning the Option Shares, now or previously in
Employee's account(s) with such broker(s), as the Company may request. The
Employee agrees that this authorization may not be revoked or modified in any
manner except pursuant to a writing signed by both the Employee and the Company.
13. Nonassignability. The Option shall not be assignable or transferable
except by will or by the laws of descent and distribution in the event of the
death of the Employee. No transfer of the Option by the Employee by will or by
the laws of descent and distribution shall be effective to bind the Company
unless the Company shall have been furnished with written notice thereof and a
copy of the will and such other evidence as the Company may deem necessary to
establish the validity of the transfer and the acceptance by the transferee or
transferees of the terms and conditions of the Option.
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14. Required Holding Period. This Option and any Common Stock acquired upon
its exercise may not be sold, assigned or otherwise transferred prior to the six
(6) month anniversary of the Grant Date.
15. Company Representations. The Company hereby represents and warrants to
the Employee that:
(a) the Company, by appropriate and all required action, is duly
authorized to enter into this Agreement and consummate all of the transactions
contemplated hereunder; and
(b) the Option Shares, when issued and delivered by the Company to the
Employee in accordance with the terms and conditions hereof, will be duly and
validly issued and fully paid and non-assessable.
16. Employee Representations. The Employee hereby represents and warrants
to the Company that:
(a) he or she is acquiring the Option and shall acquire the Option
Shares for his or her own account and not with a view towards the distribution
thereof;
(b) he or she has received a copy of all reports and documents required
to be filed by the Company with the Commission pursuant to the Exchange Act
within the last 24 months and all reports issued by the Company to its
stockholders and a copy of each Plan in effect as of the date of this Agreement;
(c) he or she understands that he or she must bear the economic risk of
the investment in the Option Shares, which cannot be sold by him or her unless
they are registered under the Securities Act of 1933 (the "1933 Act") or an
exemption therefrom is available thereunder and that the Company is under no
obligation to register the Option Shares for sale under the 1933 Act;
(d) in his or her position with the Company, he or she has had both the
opportunity to ask questions and receive answers from the officers and directors
of the Company and all persons acting on its behalf concerning the terms and
conditions of the offer made hereunder and to obtain any additional information
to the extent the Company possesses or may possess such information or can
acquire it without unreasonable effort or expense necessary to verify the
accuracy of the information obtained pursuant to clause (b) above;
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(e) he or she is aware that the Company shall place stop transfer
orders with its transfer agent against the transfer of the Option Shares in the
absence of registration under the 1933 Act or an exemption therefrom as provided
herein; and
(f) The certificates evidencing the Option Shares may bear the
following legends:
"The shares represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of
1933. The shares may not be sold or transferred in the absence of such
registration or an exemption therefrom under said Act."
"The shares represented by this certificate have been acquired pursuant
to a Stock Option Agreement, dated as of January 3, 2001, a copy of
which is on file with the Company, and may not be transferred, pledged
or disposed of except in accordance with the terms and conditions
thereof."
17. Restriction on Transfer of Stock Option Agreement and Option Shares.
Notwithstanding anything in this Agreement to the contrary, and in addition to
the provisions of Section 13 of this Agreement, the Employee hereby agrees that
he or she shall not sell, transfer by any means or otherwise dispose of the
Option Shares acquired by him or her without registration under the 1933 Act, or
in the event that they are not so registered, unless (a) an exemption from the
1933 Act registration requirements is available thereunder, and (b) the Employee
has furnished the Company with notice of such proposed transfer and the
Company's legal counsel, in its reasonable opinion, shall deem such proposed
transfer to be so exempt.
18. Interpretation. Any dispute regarding the interpretation of this
Agreement shall be submitted by the Employee or the Company to the Committee for
review. The resolution of such a dispute by the Board or Committee shall be
final and binding on the Company and on the Employee.
19. Miscellaneous.
19.1. Notices. All notices, requests, deliveries, payments, demands and
other communications which are required or permitted to be given under this
Agreement shall be in writing and shall be either delivered personally or by
private courier (e.g., Federal Express), or sent by registered or certified
mail, return receipt requested, postage prepaid, to the parties at their
respective addresses set forth herein, or to such other address as either shall
have specified by notice in writing to the other. Notice shall be deemed duly
given hereunder when delivered in person or by private courier, or on the third
(3rd) business day following deposit in the United States mail as set forth
above.
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19.2. Plans Paramount; Conflicts with Plans. This Agreement and the
Option shall, in all respects, be subject to the terms and conditions of each of
the respective Plans, whether or not stated herein. In the event of a conflict
between the provisions of a Plan and the provisions of this Agreement, the
provisions of the Plan shall in all respects be controlling.
19.3. Successors and Assigns. The Company may assign any of its rights
under this Agreement. This Agreement shall be binding upon and inure to the
benefit of the successors and assigns of the Company. Subject to the
restrictions on transfer set forth herein, this Option Agreement shall be
binding upon the Employee and the Employee's heirs, executors, administrators,
legal representatives, successors and assigns.
19.4. Entire Agreement. This Agreement constitutes the entire agreement
of the parties hereto and supersede all prior undertakings and agreements, oral
or written, with respect to the subject matter hereof. The Agreement may not be
contradicted by evidence of any prior or contemporaneous agreement. To the
extent that the policies and procedures of the Company apply to the Employee and
are inconsistent with the terms of the Agreement, the provisions of the
Agreement shall control.
19.5. Amendments; Waivers. The Agreement may not be modified, amended,
or terminated except by an instrument in writing, signed by each of the parties
(in the case of the Company, such instrument must be signed by the President or
Chief Executive Officer of the Company to be effective). No failure to exercise
and no delay in exercising any right, remedy, or power under the Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, remedy, or power under the Agreement preclude any other or further
exercise thereof, or the exercise of any other right, remedy, or power provided
herein or by law or in equity. All rights and remedies, whether conferred by the
Agreement, by any other instrument or by law, shall be cumulative, and may be
exercised singularly or concurrently.
19.6. Severability; Enforcement. If any provision of this Agreement is
held invalid, illegal or unenforceable in any respect (an "Impaired Provision"),
(a) such Impaired Provision shall be interpreted in such a manner as to
preserve, to the maximum extent possible, the intent of the parties, (b) the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby, and (c) such decision shall not affect
the validity, legality or enforceability of such Impaired Provision under other
circumstances. The parties agree to negotiate in good faith and agree upon a
provision to substitute for the Impaired Provision in the circumstances in which
the Impaired Provision is invalid, illegal or unenforceable.
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19.7. Attorneys' Fees. In the event of any arbitration or litigation
between the parties arising under or related to this Agreement (a "Covered
Dispute"), the substantially prevailing party in the Covered Dispute (the
"Prevailing Party") shall be entitled to receive from the other party the
Prevailing Party's reasonable attorneys' fees and costs, including, without
limitation, the cost at the hourly charges routinely charged therefor by the
persons providing the services, reasonable fees and/or allocated costs of staff
(in-house) counsel, and fees and expenses of experts retained by counsel in
connection with such arbitration or litigation and with any and all appeals or
petitions therefrom, in addition to any other relief to which the Prevailing
Party may be entitled. A party to a Covered Dispute shall be the Prevailing
Party in such Covered Dispute if the claims against such party are dismissed at
any stage in the arbitration or litigation.
19.8. Governing Law; Jurisdiction. The Agreement shall be governed by
and construed in accordance with the law of the State of New York, without
reference to that body of law concerning choice of law or conflicts of law,
except that the General Corporation Law of the State of Delaware ("GCL") shall
apply to all matters governed by the GCL, including without limitation matters
concerning the validity of grants of stock options and actions of the Company's
board of directors or any committee thereof. The parties agree that, subject to
the agreement to arbitrate disputes set forth in Section 19.12, the sole and
exclusive judicial venues for any dispute, difference, cause of action or legal
action of any kind that any party, or any officer, director, employee, agent or
permitted successor or assign of any party may bring against any other party, or
against any officer, director, employee, agent or permitted successor or assign
of any party, related to this Agreement (a "Proceeding"), shall be (a) the
United States District Court for the Southern District of New York, if such
court has statutory jurisdiction over the Proceeding and (b) the Supreme Court
of the State of New York in the County of New York (collectively, the "New York
Courts"). Each of the parties hereby expressly (i) consents to the personal
jurisdiction of each of the New York Courts with respect to any Proceeding; (ii)
agrees that service of process in any Proceeding may be effected upon such party
in the manner set forth in Section 19.1 (as well as in any other manner
prescribed by law); and (iii) waives any objection, whether on the grounds of
venue, residence or domicile or on the ground that the Proceeding has been
brought in an inconvenient forum, to any Proceeding brought in either of the New
York Courts. Notwithstanding the foregoing, nothing in this paragraph alters the
parties' agreement to arbitrate disputes as set forth in Section 19.12.
19.9. No Duty to Disclose. The Employee acknowledges and agrees that,
except for the information provided to the Employee by the Company pursuant to
Sections 16(b) and 16(d) prior to execution of this Agreement, neither the
Company nor any of the Company's officers, directors, shareholders, employees,
agents or representatives has any duty or obligation to disclose to the Employee
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any information whatsoever, including but not limited to information concerning
the Company that might if made public affect the value of the Option Shares.
Such information includes without limitation any information concerning the
Company's actual or potential financial performance, actual or potential
material contracts to which the Company is or may become a party, or actual or
potential material transactions that involve or may involve the Company,
including but not limited to plans to effect a merger or to acquire or dispose
of a material amount of assets. The Employee acknowledges and understands that
he or she (a) might exercise his or her Option (or a portion thereof) prior to
the public dissemination of such information, and that the value of the Option
Shares may decrease after the public dissemination of such information, or (b)
might exercise his or her Option (or a portion thereof) and sell, pledge or
encumber the Option Shares (or a portion thereof) prior to the public
dissemination of such information, and that the value of the Option Shares may
increase after the public dissemination of such information; and the Employee
acknowledges and agrees that he or she will not bring or participate in any
claim whatsoever against the Company or against any of the Company's officers,
directors, shareholders, employees, agents or representatives related to the
failure to have disclosed such information prior to the Employee's exercise of
the Option and/or sale, pledge or encumbrance of the Option Shares.
19.10. Rights of Third Parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective permitted successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
19.11 Headings. The Section headings used herein are for convenience
only and do not define, limit or construe the content of such sections. All
references in this Agreement to Section numbers refer to Sections of this
Agreement, unless otherwise indicated.
19.12. Agreement to Arbitrate. The Employee and the Company recognize
that differences may arise between them during or following the Employee's
employment with the Company, and that those differences may or may not be
related to the grant of the Option herein or to the Employee's employment. The
Employee understands and agrees that by entering into this Agreement, the
Employee anticipates the benefits of a speedy, impartial dispute-resolution
procedure of any such differences. As used in this Section 19.12 and its
subparts, the "Company" shall also refer to all benefit plans, the benefit
plans' sponsors, fiduciaries, administrators, affiliates, and all successors and
assigns of any of them.
(a) Arbitrable Claims. (i) ALL DISPUTES BETWEEN THE EMPLOYEE (AND HIS
OR HER PERMITTED SUCCESSORS AND ASSIGNS) AND THE COMPANY (AND ITS AFFILIATES,
STOCKHOLDERS, DIRECTORS, OFFICERS, AGENTS AND PERMITTED SUCCESSORS AND ASSIGNS)
RELATING IN ANY MANNER WHATSOEVER TO EMPLOYEE'S EMPLOYMENT OR TO THE TERMINATION
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THEREOF, INCLUDING WITHOUT LIMITATION ALL DISPUTES ARISING UNDER THIS AGREEMENT
(COLLECTIVELY, "ARBITRABLE CLAIMS"), SHALL BE RESOLVED EXCLUSIVELY BY BINDING
ARBITRATION. Arbitrable Claims shall include, but are not limited to, contract
(express or implied) and tort claims of all kinds, as well as all claims based
on any federal, state, or local law, statute, or regulation (including but not
limited to claims alleging unlawful harassment or discrimination in violation of
Title VII and/or Title IX of the U.S. Code, of the Age Discrimination in
Employment Act, of the Americans with Disabilities Act, of state statute, or
otherwise), excepting only claims under applicable workers' compensation law and
unemployment insurance claims. Arbitration shall be final and binding upon the
parties and shall be the exclusive remedy for all Arbitrable Claims. Except as
provided in Section 19.12(a)(ii), the Arbitrator (as defined below) shall decide
whether a claim is an Arbitrable Claim. THE PARTIES HEREBY WAIVE ANY RIGHTS THAT
THEY MAY HAVE TO TRIAL BY JURY IN REGARD TO ARBITRABLE CLAIMS.
(ii) NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE COMPANY MAY
ENFORCE IN COURT, WITHOUT PRIOR RESORT TO ARBITRATION, ANY CLAIM CONCERNING
ACTUAL OR THREATENED UNFAIR COMPETITION AND/OR THE ACTUAL OR THREATENED USE
AND/OR UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL OR PROPRIETARY INFORMATION OF THE
COMPANY. The court shall determine whether a claim concerns actual or threatened
unfair competition and/or the actual or threatened use and/or unauthorized
disclosure of confidential or proprietary information of the Company.
(b) Arbitration Procedure.
(i) American Arbitration Association Rules; Initiation of
Arbitration; Location of Arbitration. Arbitration of Arbitrable Claims shall be
in accordance with the Employment Dispute Resolution Rules of the American
Arbitration Association ("AAA Rules"), except as provided otherwise in this
Agreement. Arbitration shall be initiated by providing written notice to the
other party with a statement of the claim(s) asserted, the facts upon which the
claim(s) are based, and the remedy sought. This notice shall be provided to the
other party within six (6) months of the acts or omissions complained of. Any
claim not initiated within this limitations period shall be null and void, and
the Company and the Employee waive all rights under statutes of limitation of
different duration. The arbitration shall take place in New York, New York.
13
(ii) Selection of Arbitrator. All disputes involving
Arbitrable Claims shall be decided by a single arbitrator (the "Arbitrator"),
who shall be selected as follows. The American Arbitration Association ("AAA")
shall give each party a list of eleven (11) arbitrators drawn from its panel of
employment arbitrators (the "Name List"). Each party may strike up to six (6)
names on the Name List it deems unacceptable, and shall notify the other party
of the names it has stricken, within fourteen (14) calendar days of the date the
AAA gave notice of the Name List. If only one common name on the Name List
remains unstricken by the parties, that individual shall be designated as the
Arbitrator. If more than one common name remains on the Name List unstricken by
parties, Employee shall strike one of the remaining names and notify the
Company, within seven (7) calendar days of notification of the list of
unstricken names. If, after Employee strikes a name as set forth in the
preceding sentence, there is still two or more unstricken names, the Company and
the Employee shall alternately strike names (with the Company having the next
strike) and notify the other party of the stricken name within seven (7)
calendar days, until only one remains. If no common name on the initial Name
List remains unstricken by the parties, the AAA shall furnish an additional list
or lists, and the parties shall proceed as set forth above, until an Arbitrator
is selected.
(iii) Conduct of the Arbitration.
(A) Discovery. To help prepare for the arbitration, the Employee and
the Company shall be entitled, at their own expense, to learn about the facts of
a claim before the arbitration begins. Each party shall have the right to take
the deposition of one (1) individual and any expert witness designated by
another party. Each party also shall have the right to make requests for
production of documents to any party. Additional discovery may be had only where
the Arbitrator so orders, upon a showing of substantial need. At least thirty
(30) days before the arbitration, the parties must exchange lists of witnesses,
including any expert witnesses, and copies of all exhibits intended to be used
at the arbitration.
(B) Authority. The Arbitrator shall have jurisdiction to hear and rule
on pre-hearing disputes and is authorized to hold pre-hearing conferences by
telephone or in person as the Arbitrator deems necessary. The Arbitrator shall
have the authority to entertain a motion to dismiss and/or a motion for summary
judgment by any party and shall apply the standards governing such motions under
the Federal Rules of Civil Procedure. The Arbitrator shall apply the substantive
law (and the law of remedies, if applicable) of the state in which the claim
arose, or federal law, or both, as applicable to the claim(s) asserted. The
Arbitrator shall have the authority to award equitable relief, damages, costs
and fees as provided by the law for the particular claim(s) asserted. The
arbitrator shall not have the power to award remedies or relief that a New York
court could not have awarded. The Federal Rules of Evidence shall apply. The
burden of proof shall be allocated as provided by applicable law. Except as
provided in Section 19(a)(ii), the Arbitrator, and not any federal, state, or
local court or agency, shall have exclusive authority to resolve any dispute
relating to the interpretation, applicability, enforceability or formation of
the Agreement, including but not limited to any claim that all or any part of
any of the Agreement is void or voidable and any assertion that a dispute
between the Employee and the Company is not an Arbitrable Claim. The arbitration
shall be final and binding upon the parties.
14
(C) Costs. Either party, at its expense, may arrange for and pay the
cost of a court reporter to provide a stenographic record of the proceedings. If
the Arbitrator orders a stenographic record, the parties shall split the cost.
Except as otherwise provided in this Section 19.12 and in Section 19.7, the
Employee and the Company shall equally share the fees and costs of the
arbitration and the Arbitrator.
(c) Confidentiality. All proceedings and documents prepared in
connection with any Arbitrable Claim shall be confidential and, unless otherwise
required by law, the subject matter thereof shall not be disclosed to any person
other than the parties to the proceeding, their counsel, witnesses and experts,
the Arbitrator, and, if involved, the court and court staff. All documents filed
with the Arbitrator or with a court shall be filed under seal. The parties shall
stipulate to all arbitration and court orders necessary to effectuate fully the
provisions of this subparagraph concerning confidentiality.
(d) Enforceability. Either party may bring an action in any court of
competent jurisdiction to compel arbitration under this Agreement and to enforce
an arbitration award. Except as provided above, neither party shall initiate or
prosecute any lawsuit or administrative action in any way related to any
Arbitrable Claim. The Federal Arbitration Act shall govern the interpretation
and enforcement of this Section 19.12.
INDIVIDUAL INVESTOR GROUP, INC.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: /s/ Xxxxxxxx X.Xxxxxxxxx
------------------------------
Xxxxxxxx X. Xxxxxxxxx
Chief Executive Officer
15
Acceptance
The Employee hereby acknowledges: I have received a copy of each Plan
and this Agreement; I have had the opportunity to consult legal counsel
in regard to this Agreement, and have availed myself of that
opportunity to the extent I wish to do so (I understand the Company's
attorneys represent the Company and not myself, and I have not relied
on any advice from the Company's attorneys); I have read and understand
this Agreement; I AM FULLY AWARE OF LEGAL EFFECT OF THIS AGREEMENT,
INCLUDING, WITHOUT LIMITATION, THE EFFECT OF SECTION 19.12 HEREOF
CONCERNING ARBITRATION; and I have entered into this Agreement freely
and voluntarily and based on my own judgment and not on any
representations or promises other than those contained in this
Agreement. The Employee accepts this Option subject to all the terms
and conditions of the Plans and this Agreement.
The Employee acknowledges that there may be adverse tax consequences
upon exercise of this Option or disposition of the Option Shares and
that the Employee should consult a tax adviser prior to such exercise
or disposition.
1/11/01 /s/ Xxxxxxx X. Xxxxxx
--------------------- ---------------------
Date Xxxxxxx X. Xxxxxx
Address: 00 Xxxx 00, #0X
------------------------
Xxx Xxxx, Xxx Xxxx 00000
------------------------
16
EXHIBIT A
-
FORM OF NOTICE OF EXERCISE OF OPTION
----------
DATE
Individual Investor Group, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Stock Option Committee of the Board of Directors
Re: Purchase of Option Shares
Gentlemen:
In accordance with my Stock Option Agreement dated as of January 3, 201
("Agreement") with Individual Investor Group, Inc. (the "Company"), I hereby
irrevocably elect to exercise the right to purchase _________ shares of the
Company's common stock, par value $.01 per share ("Common Stock"), which are
being purchased for investment and not for resale.
As payment for my shares, enclosed is (check and complete
applicable box[es]):
( ) a [personal check] [certified check] [bank check] payable to the
order of "Individual Investor Group, Inc." in the sum of $_________;
( ) confirmation of wire transfer in the amount of $_____________;
and/or
( ) certificate for shares of the Company's Common Stock, free and clear
of any encumbrances, duly endorsed, having a Fair Market Value (as
such term is defined in the Company's 1996 Plan (the "1996 Plan"), the
Company's 1996 Management Incentive Plan (the "Management Plan") or
the Company's 2000 Performance Equity Plan (the "2000 Plan" and with
the 1996 Plan and Management Plan, individually a "Plan" and
collectively the "Plans")) of $_____________.
I hereby represent, warrant to, and agree with, the Company
that:
(i) I have acquired the Option and shall acquire the Option Shares for
my own account and not with a view towards the distribution thereof;
(ii) I have received a copy of all reports and documents required to be
filed by the Company with the Securities and Exchange Commission pursuant to the
Securities Exchange Act of 1934, as amended, within the last twenty-four (24)
months and all reports issued by the Company to its stockholders;
(iii)I understand that I must bear the economic risk of the investment
in the Option Shares, which cannot be sold by me unless they are registered
under the Securities Act of 1933 (the "1933 Act") or an exemption therefrom is
available thereunder and that the Company is under no obligation to register the
Option Shares for sale under the 1933 Act;
(iv) in my position with the Company, I have had both the opportunity
to ask questions and receive answers from the officers and directors of the
Company and all persons acting on its behalf concerning the terms and conditions
of the offer made hereunder and to obtain any additional information to the
extent the Company possesses or may possess such information or can acquire it
without unreasonable effort or expense necessary to verify the accuracy of the
information obtained pursuant to clause (ii) above;
(v) I am aware that the Company shall place stop transfer orders with
its transfer agent against the transfer of the Option Shares in the absence of
registration under the 1933 Act or an exemption therefrom as provided herein;
(vi) my rights with respect to the Option Shares shall, in all
respects, be subject to the terms and conditions of each of the respective Plans
and this Agreement; and
(vii)the certificates evidencing the Option Shares may bear the
following legends:
"The shares represented by this certificate have been acquired for
investment and have not been registered under the Securities Act of
1933. The shares may not be sold or transferred in the absence of such
registration or an exemption therefrom under said Act."
"The shares represented by this certificate have been acquired pursuant
to a Stock Option Agreement, dated as of January 3, 2001, a copy of
which is on file with the Company, and may not be transferred, pledged
or disposed of except in accordance with the terms and conditions
thereof."
Kindly forward to me my certificate at your earliest
convenience.
Very truly yours,
------------------------------ ------------------------------
(Signature) (Address)
------------------------------ ------------------------------
(Print Name) (Address)
------------------------------
(Social Security Number)
2
