1
EXHIBIT 4.3
NON-PLAN OPTION AGREEMENT
AGREEMENT, made as of the 3rd day of September, 1997 between
INTERSYSTEMS, INC. a Delaware corporation ("Company"), and ____ ("Grantee").
WHEREAS, the Board of Directors of the Company (the "Company")
authorized the grant to the Grantee of an option to purchase an aggregate of
____,000 authorized but unissued shares of Common Stock of the Company, $.01 par
value (the "Common Stock"), on the terms and conditions set forth in this
Agreement as set forth below; and
WHEREAS, the Grantee desires to acquire said option on the terms and
conditions set forth in this Agreement;
IT IS AGREED:
1. The Company hereby grants to the Grantee the right and option
to purchase all or any part of an aggregate of ,000 shares of Common Stock on
the terms and conditions set forth herein (the "Option"). Said 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 purchase price of each share of Common Stock subject to
the Option ("Option Shares") shall be $____ per share.
3. (a) No Option shall be exercisable after five years from the
date of grant. The Option shall become exercisable as follows: (i) the Option is
immediately exercisable to the extent of ____ shares; (ii) the Option shall
become exercisable to the extent of an additional ____ shares on September 3,
1998; and (iii) the Option shall become exercisable to the extent of an
additional ____ shares on September 3, 1999.
(b) The death or disability of the Grantee shall not affect
the Grantee's rights under this Agreement.
(c) The Option shall not be assignable or transferable except
in the event of the death of the Grantee, by will or by the laws of descent and
distribution. No transfer of the Option by the Grantee 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. Nothwithstanding the foregoing, the
Grantee may transfer this Option to a joint tenancy of which Grantee is a joint
tenant together with Grantee's spouse, children, grandchildren, or great
grandchildren.
2
4. The Grantee shall not have any of the rights of a stockholder with
respect to the Option Shares until such shares have been issued after the due
exercise of the Option.
5. In the event of a reorganization, recapitalization, reclassification,
stock split or exchange, stock dividend, combination of shares, or any other
similar change in Common Stock of the Company, the Board of Directors of the
Company may, in its sole discretion, make such equitable, proportionate
adjustment, if any, as it deems appropriate in the number and kind of shares
covered by this Option and in the option price hereunder, in order to preserve
the Grantee's proportionate interest in the Company and to maintain the
aggregate option price; provided, however, that upon the dissolution or
liquidation of the Company, or upon any merger, consolidation or other form of
reorganization in which the Company is not the surviving entity, or upon the
sale of all or substantially all of the Company's assets, the Option may be
terminated by the Company or its successor or be of no further effect provided
that (a) the Company shall have given notice of such intended termination to the
Grantee at least thirty (30) days prior to the date fixed as a record date for
the determination of the stockholders of the Company entitled to participate in
the dividends or other distributions with respect to the Common Stock, or the
exchange or conversion of shares of Common Stock, as the case may be, associated
with any such dissolution, liquidation, merger, consolidation, reorganization or
sale of all or substantially all of the Company's assets, and (b) the date
selected by the Company as the termination date shall not be prior to such
record date.
6. The Company hereby represents and warrants to the Grantee that the
Option Shares, when issued and delivered by the Company to the Grantee in
accordance with the terms and conditions hereof, will be duly and validly issued
and fully paid and nonassessable.
7. The Grantee hereby represents and warrants to the Company that he is
acquiring the Option and shall acquire the Option Shares for his own account and
not with a view to the distribution thereof.
8. Anything in this Agreement to the contrary notwithstanding, the
Grantee hereby agrees that he shall not sell, transfer by any means or otherwise
dispose of the Option Shares acquired by him without registration under the Act,
or in the event that they are not so registered, unless (a) an exemption from
the Securities Act of 1933, as amended, (the "Act"), is available thereunder,
and (b) the Grantee 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.
9. The Grantee hereby acknowledges that:
(a) If he exercised the Option, he 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 him unless they are registered under the Act or an exemption therefrom is
available thereunder.
3
(b) In his position as a director of the Company, he has had
both the opportunity to ask questions of 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.
(c) 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, and the certificate
evidencing the Option Shares shall be legended appropriately.
10. 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 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. The Company shall issued a certificate or certificates evidencing the
Option Shares as soon as practicable after the notice and payment is received.
The certificate or certificates evidencing the Option Shares shall be registered
in the name of the person or persons so exercising the Option.
11. 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 mailed, as the case may be.
12. 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.
13. This Agreement constitutes the entire agreement between the parties
with respect to the subject matter thereof.
4
14. 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.
15. This Agreement shall be governed by and construed in accordance with
the laws of the State of Texas.
IN WITNESS WHEREOF, parties hereto have signed this Agreement as of the
3rd day of September, 1997.
INTERSYSTEMS, INC. GRANTEE
By:
------------------------------- -------------------------------
Xxxx X. Xxxxxxx
President
