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EXHIBIT 4.2
INTERSYSTEMS, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
INTERSYSTEMS, INC., a Delaware corporation (the "Company"),
hereby grants to _______________________ (the "Optionee"), an option to purchase
a total of ________ (_____) shares of the Company's common stock ("Common
Stock"), at the price determined as provided herein (the "Option"), and in all
respects subject to the terms, definitions and provisions of the 1997 Stock
Option Plan (the "Plan") adopted by the Company, which is incorporated herein by
reference. Capitalized terms not defined herein shall have the meanings ascribed
thereto in the Plan.
1. NATURE OF THE OPTION. This Option is intended to be a Non-Qualified Stock
Option.
2. EXERCISE PRICE. The exercise price is $______ for each share of Common Stock
(the Closing bid price of the Common Stock on __________, 199_).
3. EXERCISE OF OPTION. This Option shall be exercisable during its terms in
accordance with the provisions of Section 9 of the Plan as follows:
(a) Right to Exercise
(i) __% of the Option granted hereby shall vest
on the _________ anniversary of the date
hereof; __% shall vest on the ____________
anniversary of the date hereof; and __%
shall vest on the ______________ anniversary
of the date hereof.
(ii) This Option may not be exercised for a
fraction of a share.
(b) Method of Exercise. This Option shall be exercisable by
written notice which shall state the election to exercise the Option, the number
of Shares in respect of which the Option is being exercised, and such other
representations and agreements as to the holder's investment intent with respect
to such shares of Common Stock as may be required by the Company pursuant to the
provisions of the Plan. Such written notice shall be signed by the Optionee and
shall be delivered in person or by certified mail to the Secretary of the
Company. The written notice shall be accompanied by payment of the exercise
price.
No Shares of Common Stock will be issued pursuant to the
exercise of an Option unless such issuance and such exercise shall comply with
all relevant provisions of law and the requirements of any stock exchange upon
which the Shares may then be listed.
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4. OPTIONEE'S REPRESENTATIONS. In the event the Shares purchasable pursuant to
the exercise of this Option have not been registered under the Securities Act of
1933, as amended (the "Securities Act"), at the time this Option is exercised,
Optionee shall, concurrently with the exercise of all or any portion of this
Option, deliver to the Company his Investment Representation Statement in the
form attached hereto as Exhibit A.
5. METHOD OF PAYMENT. Payment of the exercise price shall be by cash, check or
shares of Common Stock having a fair market value on the date of surrender equal
to the aggregate exercise price of the Shares as to which the Option shall be
exercised, or any combination of such payment methods.
6. RESTRICTIONS ON EXERCISE. This Option may not be exercised if the issuance of
such Shares upon such exercise or the method of payment of consideration for
such shares would constitute a violation of any applicable federal or state
securities or other law or regulation, including any rule under Part 207 of
Title 12 of the Code of Federal Regulations ("Regulation G") as promulgated by
the Federal Reserve Board. As a condition to the exercise of this Option, the
Company may require Optionee to make any representation and warranty to the
Company as may be required by any applicable law or regulation.
7. TRANSFERABILITY OF OPTION. This Option may be transferred in accordance with
the Plan subject to compliance with the Securities Act, any applicable state
securities or blue sky laws to any of the following: (i) the spouse, children or
grandchildren of the optionee ("Immediately Family Members"), (ii) a trust or
trusts for the exclusive benefit of such Immediate Family Members, or (iii) a
partnership in which such Immediate Family Members are the only partners,
provided that (x) there is no consideration paid for any such transfer and (y)
subsequent transfers shall be prohibited except in accordance with the laws of
descent and distribution, or by will.
8. TERM OF OPTION. This Option may not be exercised more than ____ years from
the date of grant of this Option, and may be exercised during such term only in
accordance with the Plan and the terms of this Option.
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DATE OF GRANT: _____________, 199__
INTERSYSTEMS, INC.
a Delaware Corporation
By: _______________________________
_____________, Chairman of
the Stock Option Committee
____________________________________
____________________, Optionee
Optionee acknowledges receipt of a copy of the Plan, a copy of
which is annexed hereto, and represents that he is familiar with the terms and
provisions thereof, and hereby accepts this Option subject to all of the terms
and provisions thereof. Optionee hereby agrees to accept as binding, conclusive
and final all decisions or interpretations of the Board upon any questions
arising under the Plan.
Dated: ________________, 199_
____________________________________
____________________, Optionee
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EXHIBIT A
INVESTMENT REPRESENTATION STATEMENT
PURCHASER:
COMPANY: INTERSYSTEMS, INC.
SECURITY: COMMON STOCK
DATE:
In connection with the purchase of the above-listed
Securities, I, the Purchaser, represent to the Seller and to the Company the
following:
(a) I am aware of the Company's business affairs and financial
condition, and have acquired sufficient information about the Company to reach
an informed and knowledgeable decision to acquire the securities. I am
purchasing these securities for my own account for investment purposes only and
not with a view to, or for the resale in connection with, any "distribution"
thereof for purposes of the Securities Act of 1933 ("Securities Act").
(b) I understand that the Securities have not been registered
under the Securities Act in reliance upon a specific exemption therefrom, which
exemption depends upon, among other things, the bona fide nature of my
investment intent as expressed herein. In this connection, I understand that, in
the view of the Securities and Exchange Commission ("SEC"), the statutory basis
for such exemption may be unavailable if my representation was predicated solely
upon a present intention to hold these Securities for the minimum capital gains
period specified under tax statutes, for a deferred sale, for or until an
increase or decrease in the market price of the Securities, or for a period of
one year or any other fixed period in the future.
(c) I further understand that the Securities must be held
indefinitely unless subsequently registered under the Securities Act or unless
an exemption from registration is otherwise available. Moreover, I understand
that the Company is under no obligation to register the Securities. In addition,
I understand that the certificate evidencing the Securities will be imprinted
with a legend which prohibits the transfer of the Securities unless they are
registered or such registration is not required in the opinion of counsel for
the Company.
(d) I am familiar with the provisions of Rule 144, promulgated
under the Securities Act, which, in substance, permits limited public resale of
"restricted securities" acquired, directly or indirectly, from the issuer
thereof (or from an affiliate of such issuer), in a non-public offering subject
to the satisfaction of certain conditions, including, among other things: (1)
the
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availability of certain public information about the Company; (2) the resale
occurring not less than one year after the party has purchased, and made full
payment within the meaning of Rule 144, for the securities to be sold, and, in
the case of an affiliate, or of a non-affiliate who has held the securities less
than two years, (3) the sale being made through a broker in an unsolicited
"broker's transaction" or in transactions directly with a market maker (as said
term is defined under the Securities Exchange Act of 1934); and (4) the amount
of securities being sold during any three-month period not exceeding the
specified limitations stated in Rule 144, if applicable.
(e) I further understand that at the time I wish to sell the
Securities there may be no public market upon which to make such a sale, and
that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144, and that, in
such event, I would be precluded from selling the Securities under Rule 144 even
if the two-year minimum holding period is satisfied.
(f) I further understand that in the event all of the
applicable requirements of Rule 144 are not satisfied, registration under the
Securities Act, compliance with Regulation A, or some other registration
exemption will be required; and that, notwithstanding the fact that Rule 144 is
not exclusive, the Staff of the SEC has expressed its opinion that persons
proposing to sell private placement securities other than in a registered
offering and otherwise than pursuant to Rule 144 will have a substantial burden
of proof in establishing that an exemption from registration is available for
such offers or sales, and that such persons and their respective brokers who
participate in such transactions do so at their own risk.
(g) I understand that the certificate evidencing the
Securities will be imprinted with a legend noting the above restrictions on
sale.
Date: , 19
Signature of Purchaser:
_______________________
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