EXHIBIT 4.3.1
STOCK OPTION AGREEMENT
AGREEMENT, dated as of by and between AMERICAN
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ELECTROMEDICS CORP., a Delaware corporation (the "Company"), and
(the "Optionee").
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W I T N E S S E T H
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WHEREAS the Company agreed to grant a stock option (the "Option") to the
Optionee for the purchase of shares of the
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Company's Common Stock, par value $.10 per share (the "Common Stock"); and
WHEREAS, the Board of Directors of the Company has authorized the grant of
the Option to the Optionee;
NOW, THEREFORE, in consideration of the premises, mutual covenants herein
set forth and other good and valuable consideration, subject to the terms and
conditions herein, the Company and the Optionee hereby agree as follows:
1. Grant of Option. Subject to the terms and conditions herein, the
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Company hereby grants to the Optionee an option (the "Option") to purchase
shares (the "Option Shares") of its Common Stock
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at an exercise price (the "Exercise Price") of $ per share, as may be
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adjusted from time to time as provided in this Agreement.
2. Exercise of the Option.
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2.01 Subject to adjustments as provided in Section 5 herein, the
Option shall be cumulatively exercisable: .
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2.02. Should the employment be terminated either (i) prior to
by the terms of an employment agreement between the Company and
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the optionee, if any, (ii) by the Company other than for cause, as defined
therein, or (iii) by the Optionee, all Option Shares which have vested prior to
such termination shall be exercisable for a period of ninety (90) days from the
date of such termination of the employment, but not beyond the Expiration Date
in Section 2.03 hereof. Should the employment be terminated by the Company for
cause, as defined therein, all Option Shares which have vested shall immediately
expire as of such termination date, and no longer be exercisable after the date
of such termination of the employment. All unvested Option Shares shall
terminate upon such termination of the employment regardless of the reason for
such termination.
2.03. The Option shall expire on (the "Expiration
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Date") subject to earlier termination as provided herein.
3. Rights of Optionee. The Optionee shall not have any rights to
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dividends or any other rights of a stockholder with respect to any Option Shares
until such Shares shall have been issued to him (as evidenced by the appropriate
entry on the transfer books of the Company) upon purchase of such Shares upon
exercise of the Option. Furthermore, nothing contained in this Agreement shall
confer upon the Optionee any right to be continued in the employ of the Company
or its subsidiaries beyond what is called for in an Employment Agreement, if
any, or shall prevent the Company from terminating his employment in accordance
with the Employment Agreement, if any.
4. Non-Transferability of Option. This Option shall not be
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transferable other than by will or by the laws of descent and distribution, and
may be exercised during the Optionee's lifetime only by him.
5. Adjustments.
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5.01 Adjustments by the Company. In the event of a stock
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dividend, stock split-up, share combination, exchange of shares,
recapitalization, merger, consolidation, acquisition or disposition of property
or shares, reorganization, liquidation or other similar changes or transactions,
by the Company during the term of the Option, the Board of Directors of the
Company shall make such adjustment of the number and class of shares then
covered by the Option, or of the Exercise Price, or both, whose determination
shall be conclusive. To the extent practicable, the Company shall give the
Optionee prior notice of any such event, provided that the failure by the
Company to give such notice shall not subject the Company to any liability
herein.
5.02 Adjustments Due to Merger, Consolidation, Reorganization,
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Asset Sale, Liquidation, etc.(a) If the Company shall be the surviving
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corporation in any reorganization, merger, consolidation, etc. of the Company
with one or more other corporations, any then outstanding Option shall pertain
to and apply to the securities to which a holder of the number of shares of
Common Stock subject to such Option would have been entitled immediately
following such reorganization, merger, consolidation, etc. with a corresponding
proportionate adjustment of the Exercise Price as to which such Option may be
exercised so that the aggregate Exercise Price as to which such Option may be
exercised shall be the same as the aggregate Exercise Price as to which such
Option may be exercised for the shares remaining subject to the Option
immediately prior to such reorganization, merger, consolidation, etc.
(b) In the event of a merger or consolidation in which the
Company is not the surviving corporation, or sale of all or substantially
all of the assets of the Company in which outstanding shares of Common Stock
are exchanged for securities, cash or other property of any other corporation
or business entity or in the event of a liquidation of the Company
(collectively, a "Corporate Transaction"), the Board of Directors of the
Company, or the board of directors of any corporation assuming the obligations
of the Company, may, in its discretion, take any one or more of the following
actions, as to outstanding Options: (i) provide that such Options shall be
assumed or equivalent Options shall be substituted, by the acquiring or
succeeding corporation (or an affiliate thereof), (ii) upon written notice to
the Optionee, provide that all unexercised Options will terminate immediately
prior to the consummation of such transaction unless exercised by the Optionee
within a specified period following the date of such notice, or (iii) in the
event of a Corporate Transaction under the terms of which holders of the
Common Stock of the Company will receive upon consummation thereof a cash
payment for each share surrendered in the Corporate Transaction (the
"Transaction Price"), make or provide for a cash payment to the Optionee equal
to the difference between (A) the Transaction Price times the
number of shares of Common Stock subject to such outstanding Options (to the
extent then exercisable at prices not in excess of the Transaction Price) and
(B) the aggregate Exercise Price of all such outstanding Options in exchange for
the termination of such Options.
6. Reservation of Shares. The Company shall at all times during the term of
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the Option reserve and keep available such number of shares of Common Stock or
such other class of stock then subject to the Option as shall be sufficient to
satisfy the requirements of this Agreement. The Company shall list such shares
of Common Stock on the national securities exchange or automated quotation
system on which the Company's Common Stock is then listed.
7. Exercise Procedure.
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7.01 Manner of Exercise. The purchase rights evidenced by this
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Option Agreement shall be exercised by the optionee with the Notice of Exercise
in the form of Exhibit A hereto duly executed by the Optionee, to the Company
at its principal office (or such other office as may be designated by the
Company to the Optionee), accompanied by payment (in cash, by wire transfer or
by certified or official bank check or checks) of the Purchase Price, or by
delivering to the Company the number of shares of the Company's Common Stock
having a value on the date of exercise equal to such Purchase Price. In lieu
of a monetary payment or delivery of shares for the applicable Purchase Price,
the Holder may elect to receive, without the payment of any additional
consideration, shares of Common Stock equal to the value of the Shares to be
acquired upon exercise by completing the Notice of Exercise with the net
issuance election marked. Thereupon, the Company shall issue to the
Optionee, such number of shares of Common Stock as is computed using the
following formula:
X = Y(A-B)
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A
where X = the number of shares to be issued to the Holder pursuant to this
Section 7.01.
Y = the number of Shares in respect of which the net issuance
election is made pursuant to this Section 7.01.
A = the closing price of one share of Common Stock for the last
trading day immediately preceding the date of the Notice of
Exercise is given pursuant to this Section 7.01, which closing
price shall be the last sale price regular way or if no
reported last sale price regular way for such, the last high
bid price, in either case on the principal national securities
or stock quotation system on which the Common Stock is listed
or traded.
B = the applicable Purchase Price in effect at the time the net
issuance election is made pursuant to this Section 7.01.
7.02 Partial Exercise. Options may be exercised for less than the
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full number of shares of Common Stock at the time called for hereby, in which
case the number of Shares receivable upon the exercise of the Options as a
whole, and the sum payable upon the exercise of the Options as a whole, shall be
proportionately reduced.
7.03 Compliance. The Company, however, shall not be required to
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issue or deliver the stock certificate pursuant to Section 7.01 hereof until it
has complied with all requirements of the Securities Act of 1933, as amended
(the "Securities Act"), the Securities Exchange Act of 1934, as amended, any
securities exchange or automated quotation system on which the Company's Common
Stock may then be listed, and all applicable state laws in connection with the
issuance of the Option Shares or their listing on said securities exchange or
system, including receiving representations by the Optionee as reasonably
required to ensure compliance with the foregoing laws.
7.04 Legend. If the Purchased Shares are not then covered by a
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registration statement in accordance with Section 8 hereof, each certificate for
the Purchased Shares shall bear the following legend:
"THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. SUCH SECURITIES MAY NOT BE
SOLD, TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS THE
REGISTRATION PROVISIONS OF SAID ACT HAVE BEEN COMPLIED WITH OR
UNLESS THE COMPANY HAS RECEIVED AN OPINION OF ITS COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED."
8. Registration Statement. Upon the written request of the Optionee,
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the Company shall use its best efforts to prepare and file with the Securities
and Exchange Commission (the "Commission") a Registration Statement (the
"Registration Statement") on Form S-8 or any successor form under the Securities
Act, assuming continued eligibility by the Company to use such Form, for the
purpose of registering for purchase and sale of the Option Shares. The Company
shall bear the costs of preparing and filing the Registration Statement (other
than any selling costs of the Optionee) and may include in such Registration
Statement other shares of its Common Stock underlying options or awards granted
to other persons. Notwithstanding the provisions of this Section 8, the Company
shall not be obligated to file a registration statement hereunder if (i) the
Purchased Shares may then be sold pursuant to Rule 144 under the Securities Act
or (ii) the Company is not able to use a Form S-8.
9. Notices. Each notice relating to this Agreement shall be in writing
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and delivered in person or by facsimile or certified mail to the following
addresses:
If to the Company
American Electromedics Corp.
00 Xxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxx, President
Fax: (000) 000-0000
If the Optionee:
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or to such other address as either party hereto may hereinafter duly give to the
other.
10. Binding. This Agreement shall be binding upon and inure to the
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benefit of the parties hereto, and their successors, assigns, heirs and
administrators.
11. Entire Agreement. This Agreement constitutes the entire agreement
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between the parties hereto with respect to the matters herein, and cannot be
amended, modified or terminated except by an agreement in writing executed by
the parties hereto.
12. Governing Law. This Agreement shall be construed in accordance
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with and governed by the laws of the State of Delaware without regard to the
conflicts of law principles thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first set forth above.
AMERICAN ELECTROMEDICS CORP.
By:
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Xxxxxxx X. Xxxxxxxxx,
Chief Financial Officer
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(optionee signature)
EXHIBIT A
NOTICE OF EXERCISE
(To be executed by the Optionee desiring to exercise the right to purchase
Shares pursuant to the Option Agreement.)
The undersigned Optionee hereby:
(a) Irrevocably elects to exercise the Options to the extent of purchasing
Shares;
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(b) Makes payment in full of the aggregate Exercise Price for those Shares
in the amount of $ by wire transfer or the delivery of certified
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funds or a bank cashier's check in the amount of $ ; or tenders
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shares of Common Stock having a fair market value of $ ; or shares as
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determined by the net issuance formula set forth in Section 7.01 of the Option
Agreement.
(c) Requests that a certificate for such Shares be issued in the name
of the undersigned, or, if the name and address of some other person is
specified below, in the name of such other person:
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(Name and address of person other than the undersigned in
whose name Shares are to be registered.)
Dated:
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Signature
(This signature must conform in all respects
to the name of the Optionee as specified on
the face of the Option Agreement.)
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Social Security Number Printed Name
or Employer ID Number
Address:
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