Exhibit 4.3
NON-QUALIFIED STOCK OPTION AGREEMENT
eSCRIPTION, INC.
AGREEMENT made as of the ___day of
2008, between eSCRIPTION, INC. (the “Company”), a
Delaware corporation having a principal place of business in
Needham, Massachusetts, and
(the “Participant”).
WHEREAS, the Company desires to grant
to the Participant an Option to purchase shares of its common
stock, $.001 par value per share (the “Shares”), under
and for the purposes set forth in the Company’s Amended and
Restated 1999 Employee, Director and Consultant Equity Incentive
Plan (the “Plan”);
WHEREAS, the Company and the
Participant understand and agree that any terms used and not
defined herein have the same meanings as in the Plan; and
WHEREAS, the Company and the
Participant each intend that the Option granted herein shall be a
Non-Qualified Option.
NOW, THEREFORE, in consideration of
the mutual covenants hereinafter set forth and for other good and
valuable consideration, the parties hereto agree as follows:
1. GRANT OF OPTION
.
The Company hereby grants to the
Participant the right and option to purchase all or any part of an
aggregate of
(___) Shares, on the terms and conditions and subject to all the
limitations set forth herein and in the Plan, which is incorporated
herein by reference. The Participant acknowledges receipt of a copy
of the Plan.
2. PURCHASE PRICE
.
The purchase price of the Shares
covered by the Option shall be
($___) per Share, subject to adjustment, as provided in the Plan,
in the event of a stock split, reverse stock split or other events
affecting the holders of Shares. Payment shall be made in
accordance with Paragraph 7 of the Plan.
3. EXERCISABILITY OF
OPTION .
Subject to the terms and conditions
set forth in this Agreement and the Plan, the Option granted hereby
shall become exercisable as follows:
[INSERT
VESTING SCHEDULE]
The foregoing rights are cumulative
and are subject to the other terms and conditions of this Agreement
and the Plan.
4. TERM OF OPTION
.
The Option shall terminate ten
(10) years from the date of this Agreement, but shall be
subject to earlier termination as provided herein or in the
Plan.
If the Participant ceases to be an
employee, director or consultant of the Company or of an Affiliate
(for any reason other than the death or Disability of the
Participant or termination of the Participant for
“cause” (as defined in the Plan), the Option may be
exercised, if it has not previously terminated, within three
(3) months after the date the Participant ceases to be an
employee, director or consultant of the Company or an Affiliate, or
within the originally prescribed term of the Option, whichever is
earlier, but may not be exercised thereafter. In such event, the
Option shall be exercisable only to the extent that the Option has
become exercisable and is in effect at the date of such cessation
of employment, directorship or consultancy.
Notwithstanding the foregoing, in the
event of the Participant’s Disability or death within three
(3) months after the termination of employment, directorship
or consultancy, the Participant or the Participant’s
Survivors may exercise the Option within one (1) year after
the date of the Participant’s termination of employment,
directorship or consultancy, but in no event after the date of
expiration of the term of the Option.
In the event the Participant’s
employment, directorship or consultancy is terminated by the
Company or an Affiliate for “cause” (as defined in the
Plan), the Participant’s right to exercise any unexercised
portion of this Option shall cease as of such termination, and this
Option shall thereupon terminate. Notwithstanding anything herein
to the contrary, if subsequent to the Participant’s
termination, but prior to the exercise of the Option, the Board of
Directors of the Company determines that, either prior or
subsequent to the Participant’s termination, the Participant
engaged in conduct which would constitute “cause,” then
the Participant shall immediately cease to have any right to
exercise the Option and this Option shall thereupon
terminate.
In the event of the Disability of the
Participant, as determined in accordance with the Plan, the Option
shall be exercisable within one (1) year after the
Participant’s termination of service or, if earlier, within
the term originally prescribed by the Option. In such event, the
Option shall be exercisable:
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(a) |
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to the extent exercisable but not exercised as of the date of
Disability; and |
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(b) |
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in the event rights to exercise the Option accrue periodically,
to the extent of a pro rata portion of any additional rights to
exercise the Option as would have accrued had the Participant not
become Disabled prior to the end of the accrual period which next
ends following the date of Disability. The proration shall be based
upon the number of days during the accrual period prior to the date
of Disability. |
In the event of the death of the
Participant while an employee, director or consultant of the
Company or of an Affiliate, the Option shall be exercisable by the
Participant’s Survivors
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within
one (1) year after the date of death of the Participant or, if
earlier, within the originally prescribed term of the Option. In
such event, the Option shall be exercisable:
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(x) |
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to the extent exercisable but not exercised as of the date of
death; and |
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(y) |
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in the event rights to exercise the Option accrue periodically,
to the extent of a pro rata portion of any additional rights to
exercise the Option as would have accrued had the Participant not
died prior to the end of the accrual period which next ends
following the date of death. The proration shall be based upon the
number of days during the accrual period prior to the
Participant’s death. |
5. METHOD OF EXERCISING
OPTION .
Subject to the terms and conditions
of this Agreement, the Option may be exercised by written notice to
the Company at its principal executive office, in substantially the
form of Exhibit A attached hereto. Such notice shall
state the number of Shares with respect to which the Option is
being exercised and shall be signed by the person exercising the
Option. Payment of the purchase price for such Shares shall be made
in accordance with Paragraph 7 of the Plan. The Company shall
deliver a certificate or certificates representing such Shares as
soon as practicable after the notice shall be received, provided,
however, that the Company may delay issuance of such Shares until
completion of any action or obtaining of any consent, which the
Company deems necessary under any applicable law (including,
without limitation, state securities or “blue sky”
laws). The certificate or certificates for the Shares as to which
the Option shall have been so exercised shall be registered in the
name of the person or persons so exercising the Option (or, if the
Option shall be exercised by the Participant and if the Participant
shall so request in the notice exercising the Option, shall be
registered in the name of the Participant and another person
jointly, with right of survivorship) and shall be delivered as
provided above to or upon the written order of the person or
persons exercising the Option. In the event the Option shall be
exercised, pursuant to Section 4 hereof, by any person or
persons other than the Participant, such notice shall be
accompanied by appropriate proof of the right of such person or
persons to exercise the Option. All Shares that shall be purchased
upon the exercise of the Option as provided herein shall be fully
paid and nonassessable.
6. PARTIAL EXERCISE
.
Exercise of this Option to the extent
above stated may be made in part at any time and from time to time
within the above limits, except that no fractional share shall be
issued pursuant to this Option.
7. NON-ASSIGNABILITY
.
The Option shall not be transferable
by the Participant otherwise than by will or by the laws of descent
and distribution or pursuant to a qualified domestic relations
order as defined by the Code or Title I of the Employee Retirement
Income Security Act or the rules thereunder. Except as provided in
the previous sentence, the Option shall be exercisable, during the
Participant’s lifetime, only by the Participant (or, in the
event of legal incapacity or
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incompetency, by the Participant’s guardian or
representative) and shall not be assigned, pledged or hypothecated
in any way (whether by operation of law or otherwise) and shall not
be subject to execution, attachment or similar process. Any
attempted transfer, assignment, pledge, hypothecation or other
disposition of the Option or of any rights granted hereunder
contrary to the provisions of this Section 7, or the levy of
any attachment or similar process upon the Option shall be null and
void.
8. NO RIGHTS AS STOCKHOLDER
UNTIL EXERCISE .
The Participant shall have no rights
as a stockholder with respect to Shares subject to this Agreement
until registration of the Shares in the Company’s share
register in the name of the Participant. Except as is expressly
provided in the Plan with respect to certain changes in the
capitalization of the Company, no adjustment shall be made for
dividends or similar rights for which the record date is prior to
the date of such registration.
9. CAPITAL CHANGES AND
BUSINESS SUCCESSIONS .
The Plan contains provisions covering
the treatment of Options in a number of contingencies such as stock
splits and mergers
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