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EXHIBIT 4.4
OPTION AGREEMENT FOR THE PURCHASE
OF RESTRICTED STOCK
Agreement dated as of ______________ between Educational Medical, Inc., a
Delaware corporation (the "Company") and the Non-Employee Director executing
this Agreement (the "Director").
Preliminary Statement
This Agreement sets forth the terms pursuant to which the Director shall
have the right to purchase from the Company a total of _________ shares of
common stock of the Company, $.01 par value (the "Common Stock"), and the terms
pursuant to which the Company has the right to repurchase such Common Stock, or
a portion of it, under certain circumstances.
NOW, THEREFORE, for good and valuable consideration, the receipt of which
is hereby acknowledged, the parties to this Agreement agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have
the following respective meanings:
(a) Effective Time of Termination of Service. For purposes of this
Agreement, Termination of Service shall be effective upon (1) the receipt by
the Company of the Director's written notice of resignation or at a later time
set forth in the notice of resignation; (2) removal of Director based upon a
vote of the holders of a majority of the shares entitled to vote at an election
of Directors cast at a meeting of the stockholders called for that purpose; (3)
death; or (4) disability requiring termination of membership on the Board of
Directors.
(b) Expiration Date, with respect to any Optioned Shares, shall mean 5
p.m. Eastern Standard Time on the fifth anniversary of the date upon which the
right to purchase such Optioned Shares was granted. With respect to Unvested
Shares, the Expiration Date shall also mean (i) the Effective Time of
Termination of Service or (ii) the date of death of the Director. With respect
to Vested Shares, the Expiration Date shall also mean (i) 5 p.m. Eastern
Standard Time on the 60th day following the Effective Time of Termination of
Service or (ii) 5 p.m. Eastern Standard Time on the last day of the twelfth
month following the death or disability of the Director.
(c) Optioned Stock or Option Shares shall mean the Shares of Common
Stock of the Company which the Director may purchase pursuant to the terms of
this Agreement.
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EXHIBIT 4.4
(d) Purchase Price shall mean $_________ for each share of Common Stock.
(e) Sell, as to any share of Optioned Stock, shall mean to sell, or in
any other way directly or indirectly transfer, assign, distribute, encumber or
otherwise dispose of, either voluntarily or involuntarily.
(f) Termination of Service shall mean the voluntary termination of
membership on the Board of Directors by the Director for any reason whatsoever
or termination of service due to removal by stockholder vote, death or
disability.
(g) Unvested Shares shall mean any shares of Optioned Stock which are
not Vested Shares.
(h) Vested Shares shall mean _______ shares which shall vest on
_________________.
2. Grant of Option to Director. Simultaneously with the execution and
delivery of this Agreement, the Director is granted the option (the "Option")
to purchase the Optioned Stock for a Purchase Price of $______ per share, upon
the terms and conditions set forth in this Agreement.
3. Exercise of Option. The Option provided for in this Agreement may be
exercised only by the Director or, in the event of the Director's death, any
duly qualified representative of his estate, and only with respect to any
Vested Shares. It may be exercised in whole at any time or in part from time
to time prior to the Expiration Date. No fractional shares of Common Stock
will be issued. The Director may exercise this purchase right by giving
written notice of such exercise at the general corporate offices of the Company
located at 0000 Xxxxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (or at
such other agency or office of the Company as it may designate by notice in
writing to the Director) and by payment to the Company of the Purchase Price in
cash or by check for each Vested Share being purchased. In the event of any
exercise of the Options provided for in this Agreement, certificates for the
shares of Common Stock so purchased, registered in the name of the person
entitled to receive the same, shall be delivered to the Director within a
reasonable time, not exceeding ten days after the Option shall have been so
exercised. The person in whose name any certificates for shares of Common
Stock is issued upon exercise of any Option shall for all purposes be deemed to
have become the holder of record of such shares on the date on which the Option
was surrendered and payment of the Purchase Price made, irrespective of the
date of delivery of such certificate, except that, if the date of such
surrender and payment is a date when the stock transfer books of the Company
are closed, such person shall be deemed to have become the holder of record of
such shares at the close of business on the next succeeding date on which the
stock transfer books are open.
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EXHIBIT 4.4
4. Adjustment of Number of Option Shares.
(a) If, at any time after the date of this Agreement, the number of
shares of Common Stock outstanding is increased by a stock dividend payable in
shares of Common Stock or by a subdivision or split-up of shares of Common
Stock, then, following the record date fixed for the determination of holders
of Common Stock entitled to receive such stock dividend, subdivision or
split-up, the Purchase Price shall be appropriately decreased and the number of
shares of Optioned Stock thereafter issuable on exercise of the Option shall be
increased in proportion to such increase in outstanding shares.
(b) If, at any time after the date of this Agreement, the number of
shares of Common Stock outstanding is decreased by a combination of the
outstanding shares of Common Stock, then, following the record date for such
combination, the Purchase Price shall be appropriately increased and the number
of shares of Common Stock issuable on exercise of this Option shall be
decreased in proportion to such decrease in outstanding shares.
5. Representations, Warranties and Agreements of the Director with Respect
to Registration of the Sale of the Optioned Stock and Continued Applicability
of Agreement. The Director hereby represents and warrants to the Company that
the Optioned Stock will be acquired for the Director's own account, for
investment purposes and not with a view to the distribution thereof, nor with
any intention of making such distribution at the time the Option is exercised.
The Director understands that the sale by the Director of Optioned Stock has
not been registered under the Securities Act of 1933, as amended (the
"Securities Act"), by reason of its proposed issuance in a transaction exempt
from the registration requirements of the Securities Act and that the Optioned
Stock must be held indefinitely unless a subsequent disposition thereof is
registered under the Securities Act or the transaction is exempt from
registration. In connection with the foregoing, the Director also agrees that
the issuance of all or any portion of the Optioned Stock is subject to the
receipt by the Company at the time of its issuance of an opinion of its counsel
that the issuance of such shares is exempt from registration pursuant to an
exemption provided for in the Securities Act, and that the Company will not be
liable for any damages incurred by Director in the event such an opinion cannot
reasonably be obtained.
6. No Right to Employment. This Agreement shall not entitle the Director
to any right or claim to be employed as an employee of the Company.
7. Legends. Unless issued pursuant to an effective Registration Statement
filed pursuant to the provisions of the Securities Act of 1933, all stock
certificates representing Optioned Stock issued to the Director shall have
affixed thereto a legend substantially in the following for:
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EXHIBIT 4.4
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
BEEN ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THESE
SECURITIES MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM UNDER SAID ACT. THE SALE, TRANSFER,
ASSIGNMENT, PLEDGE OR ENCUMBRANCE OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
TERMS AND CONDITIONS OF AN OPTION AGREEMENT FOR THE
PURCHASE OF RESTRICTED STOCK BETWEEN EDUCATIONAL
MEDICAL, INC. AND ONE OF ITS DIRECTORS. COPIES OF
SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN
REQUEST MADE BY THE HOLDER OF RECORD OF THIS
CERTIFICATE TO THE SECRETARY OF EDUCATIONAL MEDICAL,
INC."
8. Notices. All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered personally
or sent by air courier or first class or certified mail addressed as follows:
If to the Director: At the address specified at the foot of this
Agreement
If to the Company: Educational Medical, Inc.
0000 Xxxxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: President
With a copy to: Xxxxxxxxx Xxxxxxx Xxxxxxx Xxxxxx Xxxxx &
Quentel, P.A.
000 X. Xxxxxxx Xxxxx, Xxxxx 000-Xxxx Xxxxx
Xxxx Xxxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
or to such other address as the party to whom notice is to be given may have
furnished to the other party in writing in accordance herewith. All notices
and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of
delivery if personally delivered; on the business day after the date when sent
if sent by air courier; and on the third business day after the date when sent
if sent by mail, in
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EXHIBIT 4.4
each case addressed to such party as provided in this Section or in accordance
with the latest unrevoked direction from such party.
9. Governing Law. This Agreement shall be governed by, and construed in
accordance with, (a) the laws of the State of Georgia applicable to contracts
made and to be performed wholly therein and (b) the laws of the State of
Delaware applicable to corporations organized under the laws of such state.
10. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the transactions contemplated herein
and supersedes all previously written or oral negotiations, commitments,
representations and agreements.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
12. Amendments. This Agreement, or any provisions hereof, may not be
amended, changed or modified without the prior written consent of each of the
parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first above written.
EDUCATIONAL MEDICAL, INC.
By:________________________________
Authorized Signatory
ACCEPTED AND AGREED TO:
[DIRECTOR'S NAME]
______________________________
[ADDRESS OF DIRECTOR]
______________________________
______________________________
______________________________
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