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EXHIBIT 4.3
OPTION AGREEMENT
THIS OPTION AGREEMENT ("Agreement") to be effective the ___ day of _______,
1995 by and between ________________________________ (the "Employee") and
FocusSoft, Inc. (the "Corporation").
RECITALS
As part of the transaction by which the Employee shall be employed by the
Corporation, the parties desire that Employee shall have an option to acquire
certain shares of the unissued Class B Non-Voting Common Capital Stock of the
Corporation ("Shares") subject to the expressed terms and conditions provided
herein.
AGREEMENT
IN CONSIDERATION of the foregoing and the mutual terms and conditions
included herein, the parties agree as follows:
1. GRANT OF OPTION. The Corporation hereby grants to Employee an option
to acquire the following Shares subject to the terms and conditions herein
(the "Option Shares") (collectively, the "Options"):
(a) _____________________ (____) shares of the Class B Non-Voting
Common Capital Stock of the Corporation ("First Option").
(b) _____________________ (____) shares of the Class B Non-Voting
Common Capital Stock of the Corporation ("Second Option").
2. EXERCISE OF OPTION. The Options may be exercised by Employee under
the following conditions ("Exercise Events"):
(a) First Option -- _________________ (____) months following the
execution date of this Agreement provided Employee shall have
performed all employment duties and responsibilities assigned in
a satisfactory manner as determined solely by the Corporation.
(b) Second Option -- _________________ (____) months following the
execution date of this Agreement provided Employee shall have
performed all employment duties and responsibilities assigned in
a satisfactory manner as determined solely by the Corporation.
Notwithstanding any term or provision of this Agreement to the contrary, in no
event shall any Option be granted or exercised unless Employee shall at such
time of grant and exercise remain an active, full time employee of the
Corporation. In the event such employment shall terminate or expire prior to
exercise, for any reason, all such Options provided herein shall terminate and
be permanently and irrevocably forfeited.
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3. OPTION PERIOD. Subject to the terms of this Agreement, the Options
may be exercised by Employee upon the occurrence of the Exercise Events as set
forth in Section 2 but not later than sixty (60) months following such dates
("Option Period"). Upon the Employee's satisfactory completion of all terms and
conditions as set forth in this Agreement, such Options shall be exercised by
the Employee through the delivery by such Employee of written notice to the
Corporation of his or her intention to so exercise such Options during the
Option Period. In the event the Employee shall for any reason fail to give such
notice or to exercise the Options and remit the Option Price to the Corporation
during the Option Period, or shall fail to fully satisfy any term, provision or
requirement of this Agreement, each such Option shall be permanently and
irrevocably forfeited and Employee shall have no further right, claim, or
interest of any nature therein to such Option or Option Shares, nor shall the
Employee possess any claims against the Corporation derived in any manner from
this Agreement or the transactions included herein.
4. OPTION PRICE. With respect to the exercise of the Options by
Employee, the Option Price per share for the Option Shares shall be as follows
("Option Price"):
(a) First Option - __________ (____) per Share times the total
number Option Shares acquired ("Option Price").
(b) Second Option - __________ (____) per Share times the total
number Option Shares acquired ("Option Price").
5. PAYMENT. Each Option Price shall be paid in cash in full during the
Option Period. Upon such receipt of the Option Price, the Corporation shall
issue the Option Shares subject to the restrictions and conditions included
herein no later than thirty (30) days thereafter. Notwithstanding any term or
provision of this Agreement to the contrary, the exercise of the Options shall
be contingent upon the satisfaction by Employee of any federal, state, and
local payroll tax or similar withholding obligations of the Corporation that
shall be applicable to the exercise of the Options.
6. LIMITATIONS. The Options provided herein are not assignable or
transferrable and may only be exercised by Employee personally, subject to all
terms and conditions of this Agreement. In no event whatsoever shall any right,
title, or interest in the Option Shares or any Shares including but not limited
to dividend, distribution, or similar rights, vest in Employee prior to
exercise of the Options and issuance of the Option Shares pursuant to this
Agreement.
7. STOCK RESTRICTION AND PURCHASE AGREEMENTS. Notwithstanding any term
or provision of this Agreement to the contrary, the Options shall not be
exercised and no Option Shares may be issued unless Employee shall execute a
Stock Restriction and Purchase Agreement ("Shareholder Agreement") in such form
as shall be solely acceptable to the Corporation. Such Shareholder Agreement
shall provide for, among other matters, transfer restrictions, mandatory
offering events, purchase price calculations and payment terms, and such other
terms, conditions, and restrictions as shall be solely determined by the
Corporation.
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8. REGISTRATION. The Options provided herein are subject to the
requirement that, if at any time the board of directors of the Corporation
shall determine, in its discretion, that the listing, registration, or
qualification of the Option Shares or Shares upon any securities exchange or
under any state or federal law, or the consent or approval of any governmental
regulatory body, is necessary of desirable as a condition of, or in connection
with, the granting of the Option or the issue or purchase of Option Shares
under this Agreement, the Options may not be exercised in whole or in part
unless such listing, registration, qualification, consent, or approval shall
have been effected or obtained free of any conditions not acceptable to the
board of directors of the Corporation. The Employee represents to the
Corporation that it is his intention to acquire the Option Shares for
investment and not with a view toward the distribution or sale thereof.
9. EQUITY ADJUSTMENTS. The Options granted herein are based upon the
current equity structure of the Corporation. In the event the equity of the
Corporation shall for any reason be adjusted, amended, or modified, whether by
reorganization, recapitalization, or otherwise, the Corporation shall have the
authority to make such adjustments in its sole discretion that it deems
necessary regarding the Option Shares subject to the Options to be granted
herein.
10. PLAN PROCEDURES AND AMENDMENT. Until such time that the Options
herein are fully exercised, this Agreement and all terms included herein may be
amended or terminated, in whole or in part, solely by the Corporation without
prior notice. Each determination, interpretation, or other action made or taken
pursuant to the provisions of this Agreement by the board of directors of the
Corporation shall be final and shall be binding and conclusive for all purposes
on the Corporation and Employee.
11. NO EMPLOYMENT. In no event shall this Agreement be construed as an
offer or agreement of employment or continuing employment for any stated term.
12. MISCELLANEOUS.
(a) COMPLETE AGREEMENT. This Agreement supersedes all prior
agreements and understandings between the parties, written or oral, related to
the subject matter hereof and is intended by the parties as the complete and
exclusive statement of the terms of this Agreement.
(b) APPLICABLE LAW. This Agreement, and any properly executed
amendments hereto, and any disputes relating to this Agreement shall be
construed under and controlled by laws of the State of Kentucky.
(c) SEVERABILITY. In the event that any provision of this
Agreement is found to be unenforceable, illegal, or contrary to public policy,
said Agreement shall remain in full force and effect, except for any such
unenforceable provisions.
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(d) ASSIGNMENT. This Agreement is binding upon and shall inure to
the benefit of the legal successors and assigns of the Corporation.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date indicated below to be effective ________________, 1995.
FOCUSSOFT, INC. _____________________________________
("Corporation")
_____________________________________
("Employee")
BY: _________________________________ DATE: _______________________________
TITLE: ______________________________
DATE: _______________________________
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