EXHIBIT 4.5
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 Xxxxx X. Xxxxx, an
individual residing at ____________________________________________________ (the
"Employee").
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 the Employee of an option (the "Option") to
purchase an aggregate of 175,000 shares of the authorized but unissued Common
Stock of the Company, $.01 par value (the "Common Stock"), conditioned upon the
Employee's acceptance of the grant of the Option upon the terms and conditions
set forth in this Agreement; and
WHEREAS, the Employee 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 the
Employee the Option to purchase all or any part of an aggregate of 175,000
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 43,750 of the Option Shares shall be exercisable on or after August 16,
2000 and (ii) the right to purchase one thirty-sixth of the 131,250 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 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.
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 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 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 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, 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 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
2
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.
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
3
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 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.
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 Employee 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.
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 the Employee as soon as
practicable after payment therefor.
8.3. Payment of Purchase Price. The Employee
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. 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.
4
8.3.2. 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 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. 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 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 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.
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, 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
5
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. 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 8.3.2.) 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.
11. Notice of Disqualifying Disposition of ISO Shares. If the
Option granted to the Employee herein is an ISO, 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 8.3.4.) 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.
12. 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.
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
6
(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.
15. 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 twenty-four (24) months
and all reports issued by the Company to its stockholders within the
last twenty-four (24 )months;
(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 except as provided in Xxxxxxx
00X xxxxx;
(x) 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;
(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 trans ferred 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
in addition to the provisions of Section 12 of this Agreement, the Employee
7
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.
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 Employee 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 the Employee. 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 the Employee, be liable for
any and all incidental, special and consequential damages and damages due to
loss of profits sustained by the Employee.
17. 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.
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
shall be binding upon the Employee and the Employee's heirs, executors,
administrators, 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
8
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.
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.
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
9
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. The Employee
acknowledges and agrees that, except for the information provided to the
Employee 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 the Employee 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.
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. 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
10
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 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 THE EMPLOYEE
(AND HIS OR HER 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 EMPLOYEE'S EMPLOYMENT OR TO
THE TERMINATION 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 18.12(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, 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 the Employee waive all rights under statutes of limitation
of different duration. The arbitration shall take place in New York, New York.
11
(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, 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 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, 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 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 the Employee and the Company
is not an Arbitrable Claim. The arbitration shall be final and binding upon the
parties.
12
(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, 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 18.12.
INDIVIDUAL INVESTOR GROUP, INC.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
By: ____________________________
Xxxxxxxx X. Xxxxxxxxx
Chief Executive Officer
Acceptance
The Employee hereby acknowledges: I have received a copy of 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 18.12 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 this Agreement.
13
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.
_____________________ __________________________
Date The Employee
Print Name: ____________________________
Address: _______________________________
________________________________
14
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 trans ferred 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
