EXHIBIT 4.3
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT (the "Agreement") is entered into
as of August 16, 1999, by and between INDIVIDUAL INVESTOR GROUP, INC., a
Delaware corporation with its principal place of business at 000 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and Xxxxxx International,
Ltd., with its principal place of business at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000 ("Xxxxxx").
WHEREAS, in connection with the employment by the Company of
Xxxxx X. Xxxxx (the "Employee"), the Company agreed to issue the Employee an
option to purchase an aggregate of 175,000 shares of the Company's Common Stock,
on the terms and conditions set forth in the Stock Option Agreement dated as of
August 16, 1999 between the Company and the Employee (the "Employee Stock Option
Agreement"); and
WHEREAS, in connection with the Company's employment of the
Employee, the Company agreed to issue Xxxxxx an option to purchase an aggregate
of 43,750 shares of the Company's Common Stock, on substantially identical terms
and conditions to those set forth in the Employee Stock Option Agreement; and
WHEREAS, on August 16, 1999 (the "Grant Date"), the Stock
Option Committee (the "Committee") of the Board of Directors of the Company (the
"Board") authorized the grant to Xxxxxx of an option (the "Option") to purchase
an aggregate of 43,750 shares of the authorized but unissued Common Stock of the
Company, $.01 par value (the "Common Stock"), conditioned upon Xxxxxx'x
acceptance of the grant of the Option upon the terms and conditions set forth in
this Agreement; and
WHEREAS, Xxxxxx desires to acquire the Option upon the terms
and conditions set forth in this Agreement;
IT IS AGREED:
1. Grant of Stock Option. The Company hereby grants Xxxxxx the
Option to purchase all or any part of an aggregate of 43,750 shares of Common
Stock (the "Option Shares") on the terms and conditions set forth herein.
2. Non-Qualified Stock Option. The Option represented hereby
shall be a "non-qualified stock option," and is not 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
$2.625 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: (i) the right to
purchase 10,938 of the Option Shares shall be exercisable on or after August 16,
2000 and (ii) the right to purchase one thirty-sixth of the 32,812 share balance
of the Option Shares shall be exercisable on or after on the 16th calendar day
of each month thereafter. After a portion of the Option becomes exercisable,
such portion shall remain exercisable, except as otherwise provided herein,
until the close of business on August 15, 2009 ("Exercise Period").
5. Effect of Termination of Employee' 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 Xxxxxx, 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.
5.2. Termination Due to Disability. If
Employee's employment by the Company terminates by reason of disability, the
portion of the Option, if any, that was exercisable as of the date of
termination of employment may thereafter be exercised by Xxxxxx 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 or
(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 Xxxxxx 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
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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, the Company may require Xxxxxx to return to
the Company the economic value of any Option Shares purchased hereunder by
Xxxxxx within the six (6) month period prior to the date of such termination of
employment. In such event, Xxxxxx hereby agrees to remit to the Company, in
cash, an amount equal to the difference between the Fair Market Value 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. For purposes of this Agreement, the "Fair
Market Value" of the Option Shares on a given date (the "Date of Determination")
shall mean (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 the Date of Determination, 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 for the Common Stock on the last trading day preceding the
Date of Determination for which such quotations are reported by the OTC Bulletin
Board or 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 Committee
shall determine, in good faith.
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.
5.5. No Right to Employment. Nothing 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.
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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 Xxxxxx to return to the Company the economic value of any Option
Shares purchased hereunder by Xxxxxx within the six (6) month period prior to
the date of termination or after the date of termination. In such event, Xxxxxx
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 Xxxxxx for Federal income
tax purposes with respect to the Option, Xxxxxx 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 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 Xxxxxx 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
Xxxxxx'x proportionate interest in the Company and Xxxxxx'x rights hereunder,
provided that the number of Option Shares shall always be a whole number.
7A. Acceleration of Vesting on Change of Control.
Notwithstanding the provisions of Sections 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 Xxxxxx simultaneous with such change of control. For the purposes
of this Agreement, a change of control shall mean (x) a merger or consolidation
in which securities possessing more than fifty percent (50%) of the total
combined voting power of the Company's outstanding securities are transferred to
a person or persons different from the persons holding those securities
immediately prior to such transaction (but excluding any transfers between any
persons who are under common control), or (y) the sale, transfer or other
disposition of all or substantially all of the Company's assets in complete
liquidation or dissolution of the Company.
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8. Method of Exercise.
8.1. 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.
8.2. Delivery of Option Shares. The Company
shall deliver a certificate for the Option Shares to Xxxxxx as soon as
practicable after payment therefor.
8.3. Payment of Purchase Price. Xxxxxx shall
make pay for the Option Shares by any one or more of the following methods set
forth in this Section 8.3.
8.3.1. Cash Payment. Xxxxxx 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.
8.3.2. Payment through Bank or Broker.
Xxxxxx 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 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.
8.3.3. Cashless Payment. Xxxxxx may, in
its sole discretion, use shares of Common Stock of the Company that were owned
by Xxxxxx for more than six (6) months (and which have been paid for within the
meaning of SEC Rule 144 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
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shares), or that were obtained by Xxxxxx 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.
8.3.4. Payment of Withholding Tax. Any
required withholding tax may be paid in cash or with Common Stock in accordance
with Sections 8.3.1., 8.3.2 and 8.3.3.
8.3.5. 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 Securities Exchange Act of 1934; (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.
9. Security Interest in Option Shares Collateralizing
Obligations Owed to the Company. Notwithstanding anything in this Agreement to
the contrary, Xxxxxx hereby grants the Company a security interest in the Option
Shares as follows: in the event that Xxxxxx 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. Xxxxxx 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
Fair Market Value of the Company's Common Stock (as set forth in Section 5.3(b))
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.
10. Market Standoff Agreement. Xxxxxx 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, Xxxxxx 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 8.3.2.) or any other securities of the
Company without the prior written consent of the Company or such underwriters,
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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. Xxxxxx 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.
11. Notice of Disqualifying Disposition of ISO Shares. If the
Option granted to Xxxxxx herein is an ISO, and if Xxxxxx 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, Xxxxxx shall immediately notify the Company in writing of
such sale or disposition. Xxxxxx acknowledges and agrees that Xxxxxx may be
subject to income and other tax withholding by the Company on the compensation
income recognized by Xxxxxx from any such sale or disposition, by payment in
cash (or in shares of Common Stock, to the extent permissible under Section
8.3.4.) or out of the current wages or other earnings payable to Employee.
Xxxxxx 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 Xxxxxx'x account(s) with such broker(s), as the Company may
request. Xxxxxx agrees that this authorization may not be revoked or modified in
any manner except pursuant to a writing signed by both Xxxxxx and the Company.
12. Nonassignability. The Option shall not be assignable or
transferable.
13. 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.
14. 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.
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15. Xxxxxx Representations. Xxxxxx hereby represents and
warrants to the Company that:
(a) it is acquiring the Option and shall acquire
the Option Shares for its own account and not with a view towards the
distribution thereof;
(b) it 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 twenty-four (24) months
and all reports issued by the Company to its stockholders within the
last twenty-four (24 )months;
(c) it understands that it must bear the economic
risk of the investment in the Option Shares, which cannot be sold by it
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 except as provided in Section 16A below;
(d) it 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;
(e) it 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 August 16, 1999, 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."
16. Restriction on Transfer of Stock Option Agreement and
Option Shares. Notwithstanding anything in this Agreement to the contrary, and
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in addition to the provisions of Section 12 of this Agreement, Xxxxxx hereby
agrees that it shall not sell, transfer by any means or otherwise dispose of the
Option Shares acquired by it 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) 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.
16A. Registration Right. The Company agrees to file a
registration statement ("Registration Statement") on Form S-8 (or successor
form) to register the Option Shares for issuance to Xxxxxx on or prior to the
date the Option or any portion thereof first becomes exercisable. The Company
will bear all expenses and pay all fees incurred in connection with the filing
and modification or amendment of the Registration Statement, exclusive of
underwriting discounts, and commissions payable in respect of the sale of the
Common Stock and any counsel for Xxxxxx. Moreover, if the Company fails to
comply with the provisions of this Section 16A, the Company shall, in addition
to any other equitable or other relief available to Xxxxxx, be liable for any
and all incidental, special and consequential damages and damages due to loss of
profits sustained by Xxxxxx.
17. Interpretation. Any dispute regarding the interpretation
of this Agreement shall be submitted by Xxxxxx 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 Xxxxxx.
18. Miscellaneous.
18.1. 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.
18.2. [Intentionally omitted.]
18.3. 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
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shall be binding upon Xxxxxx and Xxxxxx'x legal representatives, successors and
assigns.
18.4. 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 Xxxxxx and are inconsistent with the terms of the Agreement,
the provisions of the Agreement shall control.
18.5. 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.
18.6. 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.
18.7. 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.
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18.8. 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 18.12, 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 18.1 (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 18.12.
18.9. No Duty to Disclose. Xxxxxx acknowledges
and agrees that, except for the information provided to Xxxxxx by the Company
pursuant to Section 15(b) and 15(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
Xxxxxx 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. Xxxxxx acknowledges and understands that it (a)
might exercise its 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 its 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 Xxxxxx acknowledges and agrees
that it will not bring or participate in any claim whatsoever against the
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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 Xxxxxx'x exercise of the Option and/or sale, pledge or
encumbrance of the Option Shares.
18.10. 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.
18.11 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.
18.12. Agreement to Arbitrate. Xxxxxx 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. Xxxxxx understands and agrees that by entering into this Agreement,
Xxxxxx anticipates the benefits of a speedy, impartial dispute-resolution
procedure of any such differences. As used in this Section 18.12 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 XXXXXX (AND
ITS PERMITTED SUCCESSORS AND ASSIGNS) AND THE COMPANY (AND ITS AFFILIATES,
SHAREHOLDERS, DIRECTORS, OFFICERS, AGENTS AND PERMITTED SUCCESSORS AND ASSIGNS)
RELATING IN ANY MANNER WHATSOEVER TO THIS AGREEMENT OR TO EMPLOYEE'S EMPLOYMENT
OR TO THE TERMINATION THEREOF (COLLECTIVELY, AARBITRABLE 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 18.12(a)(ii), the Arbitrator
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(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, HOWEVER, 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 Xxxxxx waive all rights under statutes of limitation of
different duration. The arbitration shall take place in New York, New York.
(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 Lists
unstricken by parties, Xxxxxx 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 Xxxxxx strikes a name as set forth in the preceding
13
sentence, there is still two or more unstricken names, the Company and Xxxxxx
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 the 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, Xxxxxx 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 18(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 Xxxxxx and the Company is not
an Arbitrable Claim. The arbitration shall be final and binding upon the
parties.
(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 18.12 and in Section 18.7, Xxxxxx and the Company shall equally share
the fees and costs of the arbitration and the Arbitrator.
14
(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 18.12.
INDIVIDUAL INVESTOR GROUP, INC.
By: ___________________________________
Xxxxxxxx X. Xxxxxxxxx
Chief Executive Officer
Acceptance
Xxxxxx hereby acknowledges that: it has received a copy of this
Agreement; it has had the opportunity to consult legal counsel in
regard to this Agreement, and has availed itself of that opportunity to
the extent it wishes to do so (it understand the Company's attorneys
represent the Company and not Xxxxxx, and it has not relied on any
advice from the Company's attorneys); it has read and understand this
Agreement; II IS FULLY AWARE OF LEGAL EFFECT OF THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION THE EFFECT OF SECTION 18.12 HEREOF
CONCERNING ARBITRATION; and it has entered into this Agreement freely
and voluntarily and based on its own judgment and not on any
representations or promises other than those contained in this
Agreement. Xxxxxx accepts this Option subject to all the terms and
conditions of this Agreement.
Xxxxxx acknowledges that there may be adverse tax consequences upon
exercise of this Option or disposition of the Option Shares and that
15
Xxxxxx should consult a tax adviser prior to such exercise or
disposition.
XXXXXX INTERNATIONAL, LTD.
By: _________________________________
Xxxxxx Xxxxxx
Title: _________________________
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 August 16, 1999
("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
Agreement) 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 the
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 August 16, 1999, 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
