EXHIBIT 4.4
STOCK OPTION AGREEMENT
AGREEMENT, made as of June 23, 1995, between INDIVIDUAL
INVESTOR GROUP, INC., a Delaware corporation (the "Company"), and ROBERT SCHMIDT
("Schmidt").
WHEREAS, on June 23, 1995, the Board of Directors of the
Company authorized the grant to Schmidt of an option to purchase an aggregate of
80,000 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, Schmidt desires to acquire said option on the terms
and conditions set forth in this Agreement;
IT IS AGREED:
1. The Company hereby grants to Schmidt the right and option
(the "Option") to purchase all or any part of an aggregate of 80,000 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.
2. The Option shall be exercisable as to 26,667 Option Shares
on June 23 in each of 1996 and 1997, and 26,666 Option Shares on June 23, 1998.
The Option Shares may be purchased at an exercise price of $5.75 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 June 23,
2005 (the "Exercise Period").
3. (a) If Schmidt's employment is terminated by the Company
without Just 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, if any, that
was not exercisable as of the date of termination of employment, as hereinbefore
provided, shall immediately terminate upon the termination of employment.
(b) If Schmidt's employment is terminated
for any reason other than death, disability, without Just Cause by the
Company or by the Company for Just Cause, then the Options exercisable as of
the date of termination may thereafter be exercised by Schmidt for a period of
three years from the date of termination 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 termination shall immediately expire.
(c) In the event Schmidt's employment is
terminated by the Company for Just Cause,the Option shall terminate
immediately and no Options may be exercised, and further the Company also
may require Schmidt to return to the Company the economic value of any
Option Shares purchased under this Agreement by Schmidt within the six month
period prior to the date of termination. In such event, Schmidt shall remit
to the Company in cash the amount equal to the difference between the Fair
Market Value (as defined in Section 12 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.
(d) Upon Schmidt's death, the portion, if any,
of the Option that was exercisable as of the date of death may thereafter
be exercised by Schmidt's legal representative or legatee under the will
of Schmidt 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, if any, that was not exercisable as of the date of death shall
immediately terminate upon Schmidt's death.
(e) If Schmidt's employment by the Company
terminates by reason of Schmidt'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 Schmidt 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 of employment shall immediately terminate upon the
termination of employment.
(f) For purposes of this Agreement, terms not
otherwise defined in this Agreement shall have the meanings as assigned to
such terms in the Employment Agreementbetween Schmidt and the Company dated
July 27, 1994.
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4. The Option shall not be assignable or transferable except,
in the event of the death of Schmidt, by will or by the laws of descent and
distribution. No transfer of the Option by Schmidt 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.
5. The Company shall promptly issue certificates for any
Option Shares purchased hereunder. Schmidt shall have all of the rights of a
stockholder with respect to the Option Shares purchased hereunder as of the
close of business on the date of exercise, provided such exercise is in
accordance with the terms of this Option.
6. 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.
7. The Company hereby represents and warrants to Schmidt that
the Option Shares, when issued and delivered by the Company to Schmidt in
accordance with the terms and conditions hereof, will be duly and validly issued
and fully paid and non-assessable.
8. Schmidt hereby represents and warrants to the Company that
Schmidt is acquiring the Option and shall acquire the Option Shares for
Schmidt's own account and not with a view to the distribution thereof.
9. Anything in this Agreement to the contrary notwithstanding,
Schmidt hereby agrees that Schmidt shall not sell, transfer by any means or
otherwise dispose of the Option Shares acquired by Schmidt 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) Schmidt 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.
10. Schmidt 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 Schmidt for inspection.
(b) If Schmidt exercises the Option, Schmidt
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 Schmidt unless they are
registered under the Act or an exemption therefrom is available.
(c) In Schmidt's position with the Company,
Schmidt 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 an appropriate legend as determined by counsel to the Company.
11. Notwithstanding the foregoing, upon a "change in control"
of the Company as defined below, the Option shall be accelerated and be
immediately exercisable as to all the Option Shares under this Option and remain
exercisable until the close of business on the date immediately preceding the
tenth anniversary of the date hereof. For purposes of this Agreement, a "change
in control" of the Company shall mean a change in control of a nature that would
be required to be reported in response to Item 5(f) of Schedule 14A of
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Regulation 14A promulgated under the Securities Exchange Act of 1934, as amended
("Exchange Act"); provided that, without limitation, such a change in control
shall be deemed to have occurred if (a) any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act), other than Jonathan Steinberg or
Saul Steinberg, becomes the "beneficial owner," as defined below, directly or
indirectly, of securities of the Company representing 40% or more of the
combined voting power of the Company's then outstanding securities ordinarily
having the right to vote at elections of directors ("Voting Securities"), or (b)
individuals who constitute the Board on the date of this Agreement ("Incumbent
Board") cease for any reason to constitute at least a majority thereof, provided
that any person becoming a director subsequent to the date of this Agreement
whose election, or nomination for election by the Company's stockholders, was
approved by a vote of at least two-thirds of the directors comprising the
Incumbent Board (either by a specific vote or by approval of the proxy statement
of the Company in which such person is named as a nominee for director, without
objection to such nomination) shall be, for purposes of this clause (b),
considered as though such person were a member of the Incumbent Board.
Notwithstanding anything in the foregoing to the contrary, no change in control
shall be deemed to have occurred for purposes of this Agreement by virtue of
either the beneficial ownership (or sale) by Schmidt, or with members of
Schmidt's immediate family, of 40% or more of the Voting Securities or any
transaction which results in Schmidt, or a group of persons which includes
Schmidt, acquiring (or selling) 40% or more of either the voting power of the
Company's Voting Securities or other voting securities of any corporation which
acquires all or substantially all of the assets of the Company, whether by way
of merger, consolidation, sale of such assets or otherwise.
For purposes of this Agreement, "beneficial owner" shall be as
defined in Rule 13d-3 under the Exchange Act, except that the provisions of Rule
13d-3(d)(2), which exclude certain persons from the Rule, shall not exclude
those persons from being deemed beneficial owners for purposes of this
Agreement.
12. 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 Schmidt, the purchase price
for any or all of the Option Shares to be acquired may be paid by: (i) the
surrender of shares of Common Stock of the Company held by or for the account of
Schmidt 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.
13. 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.
14. 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.
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15. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter thereof.
16. 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.
17. 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: 333 Seventh Avenue, Fifth Floor
New York, NY 10001
By: /s/ Scot A. Rosenblum
- -----------------------------
Scot A. Rosenblum, Secretary
/s/ Robert Schmidt Address:
- ----------------------------- __________________________
ROBERT SCHMIDT
__________________________
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