EXHIBIT 4.6
STOCK OPTION AGREEMENT
AGREEMENT, made as of July 27, 1995 between INDIVIDUAL
INVESTOR GROUP, INC., a Delaware corporation (the "Company"), and Xxxxxxx Xxxxxx
("Xxxxxx").
WHEREAS, on July 27, 1995, the Board of Directors of the
Company authorized the grant to Xxxxxx of an option to purchase an aggregate of
100,000 of the authorized but unissued shares of the Common Stock of the
Company, $.01 par value (the "Common Stock"), on the terms and conditions set
forth in this Agreement; and
WHEREAS, Xxxxxx desires to acquire said option on the terms
and conditions set forth in this Agreement;
IT IS AGREED:
18. The Company hereby grants to Xxxxxx the right and option
(the "Option") to purchase all or any part of an aggregate of 100,000 shares of
the Common Stock on the terms and conditions set forth herein (the "Option
Shares"). The Option is a non-qualified stock option not intended to qualify
under any section of the Internal Revenue Code of 1986, as amended.
19. The Option shall be exercisable as to 20,000 Option Shares
on July 27, in each of 1996, 1997, 1998, 1999 and 2000. The Option Shares may be
purchased at an exercise price of $5.8125 per share. After a portion of the
Option becomes exercisable, it shall remain exercisable, except as otherwise
provided herein, until the close of business on July 27, 2005 (the "Exercise
Period").
20. (a) If Anmuth's employment is terminated by the Company
without cause, the portion of the Option, if any, that was exercisable as of the
date of termination of employment may be exercised for a period of six months
from the termination of employment or until the expiration of the Exercise
Period, whichever is shorter. The portion of the Option not yet exercisable on
the date of termination of employment shall immediately terminate upon the
termination of employment.
(b)If Anmuth's employment is terminated for any
reason other than death, disability, termination by the Company without
cause whether or not then exercisable, shall immediately expire on such
termination. In the event Anmuth's employment is terminated by the Company for
cause, the Company also may require Xxxxxx to return to the Company the
economic value of any Option Shares purchased under this Agreement by
Xxxxxx within the six month period prior to the date of termination. In such
event, Xxxxxx shall remit to the Company in cash the amount equal to the
difference between the Fair Market Value (as defined in Section 11 of this
Agreement) of the Option Shares on the date of termination (or the sales
price of the Option Shares sold during the six-month period) and the Exercise
Price of the Option Shares.
(c) Upon Anmuth's death, the Option, if any,
that was exercisable as of the date of death may thereafter be exercised by
Anmuth's legal representative or legatee under the will of Xxxxxx for a
period of one year from the date of death or until the expiration of the
Exercise Period, whichever period is shorter. The portion of the Option not
exercisable on the date of death shall immediately terminate upon Anmuths
death.
(d) If Anmuth's employment by the Company
terminates by reason of Anmuth's disability, the portion, if any, of the
Option that was exercisable as of the date of termination of employment may
thereafter be exercised by Xxxxxx or his guardian or legal representative
for a period of one year from the date of 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
termination shall immediately terminate upon termination of employment. For
the purposes of this agreement, disability shall mean Xxxxxx=s incapacity by
illness or other disability from performing his usual employment
obligations for a period in excess of 240 days (whether or not consecutive) or
120 days consecutively, as the case may be, during any twelve month period.
21. The Option shall not be assignable or transferable except,
in the event of the death of Xxxxxx, by will or by the laws of descent and
distribution. No transfer of the Option by Xxxxxx 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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22. The Company shall promptly issue certificates for any
Option Shares purchased hereunder. Xxxxxx shall not have any of the rights of a
stockholder with respect to the Option Shares until such shares have been issued
after the due exercise of the Option.
23. In the event of a reorganization, recapitalization,
reclassification, stock split or exchange, stock dividend, combination of
shares, or any other similar change in the Common Stock of the Company,
equitable proportionate adjustments shall be made by the Company in the number
and kind of shares covered by the Option and in the option price thereunder.
24. The Company hereby represents and warrants to Xxxxxx that
the Option Shares, when issued and delivered by the Company to Xxxxxx in
accordance with the terms and conditions hereof, will be duly and validly issued
and fully paid and non-assessable.
25. Xxxxxx hereby represents and warrants to the Company that
Xxxxxx is acquiring the Option and shall acquire the Option Shares for Anmuth's
own account and not with a view to the distribution thereof.
26. Anything in this Agreement to the contrary
notwithstanding, Xxxxxx hereby agrees that Xxxxxx shall not sell, transfer by
any means or otherwise dispose of the Option Shares acquired by Xxxxxx without
registration under the Securities Act of 1933 (the "Act"), or in the event that
they are not so registered, unless (a) an exemption from the Act is available
thereunder, and (b) Xxxxxx 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.
27. Xxxxxx hereby acknowledges that:
(a) 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 within the last 12 months
have been made available to Xxxxxx for inspection.
(b) If Xxxxxx exercises the Option, Xxxxxx
must bear the economic risk of the investment in the Option Shares for an
indefinite period of time because the Option Shares will not have been
registered under the Act and cannot be sold by Xxxxxx unless they are
registered under the Act or an exemption therefrom is available.
(c) In Anmuth's position with the Company,
Xxxxxx has had both the opportunity to ask questions of and receive answers
from the officers 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 subparagraph (a) above.
(d) 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 Act or an exemption therefrom.
(e) The certificates evidencing the Option
Shares shall bear the following legends:
"The shares represented by this certificate have been
acquired for investment and have not been registered
under the Securities Act of 1933. The shares may not
be sold or transferred in the absence of such
registration or an exemption therefrom under said
Act."
28. Subject to the terms and conditions of the Agreement, the
Option may be exercised by written notice to the Company at its principal place
of business. Such notice shall state the election to exercise the Option and the
number of Option Shares in respect to which it is being exercised, shall contain
a representation and agreement by the person or persons so exercising the Option
that the Option Shares are being purchased for investment and not with a view to
the distribution or resale thereof, and shall be signed by the person or persons
so exercising the Option. Such notice shall be accompanied by payment of the
full purchase price of the Option Shares. Payment of the purchase price shall be
made in cash or by check, bank draft or money order payable to the order of the
Company; provided, however, that, at the election of Xxxxxx, the purchase price
for any or all of the Option Shares to be acquired may be paid by: (i) the
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surrender of shares of Common Stock of the Company held by or for the account of
Xxxxxx with a fair market value equal to the purchase price multiplied by the
number of Option Shares to be purchased, or (ii) the surrender of any
exercisable but unexercised portion of the Option having a fair market value
equal to the purchase price multiplied by the number of Option Shares to be
purchased. In either case, the fair market value of the surrendered shares or
options shall be determined as of the date of exercise as follows: "Fair market
value" of the Common Stock means, as of the exercise date: (i) if the Common
Stock is listed on a national securities exchange or quoted on the Nasdaq
National Market or Nasdaq SmallCap Market, the last sale price of the Common
Stock in the principal trading market for the Common Stock on the last trading
day preceding such date, as reported by the exchange or Nasdaq, as the case may
be; (ii) if the Common Stock is not listed on a national securities exchange or
quoted on the Nasdaq National Market or Nasdaq SmallCap Market, but is traded in
the over-the-counter market, the closing bid price of the Common Stock on the
last trading day preceding such date for which such quotations are reported by
the National Quotation Bureau, Incorporated or similar publisher of such
quotations; and (iii) if the fair market value of the Common Stock cannot be
determined pursuant to clause (i) or (ii) above, such price as the Company shall
determine, in good faith. The "fair market value" of a surrendered portion of
the Option means, as of the exercise date, an amount equal to the excess of the
total fair market value of the shares of Common Stock underlying the surrendered
portion of the Option (as determined in accordance with the immediately
preceding sentence) over the total purchase price of such shares of Common Stock
underlying the surrendered portion of the Option.
29. 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 either be delivered personally or sent
by certified mail, return receipt requested, postage prepaid, to the parties at
their respective addresses set forth below, or to such other address as either
shall have specified by notice in the writing to the other, and shall be deemed
duly given hereunder when so delivered or three days after being mailed, as the
case may be.
30. The waiver by any party hereto of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
other or subsequent breach.
31. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter thereof.
32. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and to the extent not prohibited herein, their
respective heirs, successors, assigns and representatives. Nothing in this
Agreement, expressed or implied, is intended to confer on any person other than
the parties hereto and as provided above, their respective heirs, successors,
assigns and representatives any rights, remedies, obligations or liabilities.
33. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have signed this
Agreement as of the date first above written.
INDIVIDUAL INVESTOR GROUP, INC. Address: 000 Xxxxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000
By: /s/ Xxxx X. Xxxxxxxxx
--------------------------------
Xxxx X. Xxxxxxxxx, Secretary
/s/ Xxxxxxx X. Xxxxxx Address: 00 Xxxx 00xx Xxxxxx, Xxx. 0X
-------------------------------- Xxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxx
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