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EXHIBIT 4.2
OPTION AGREEMENT FOR THE PURCHASE
OF RESTRICTED STOCK
Agreement dated as of __________ between Educational Medical, Inc., a
Delaware corporation (the "Company") and the employee executing this Agreement
(the "Employee").
Preliminary Statement
This Agreement sets forth the terms pursuant to which the
Employee 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 Employment. For
purposes of this Agreement, unless the Company otherwise agrees in writing,
Termination of Employment shall be effective upon the giving of written or oral
notice of such Termination to the Employee.
(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 such Shares became Vested Shares. With respect to Unvested Shares,
the Expiration Date shall also mean (i) the Effective Time of Termination of
Employment or (ii) the date of death of the Employee. With respect to Vested
Shares, the Expiration Date shall also mean (i) 5 p.m. Eastern Standard Time on
the 45th day following the Effective Time of Termination of Employment or (ii)
5 p.m. Eastern Standard Time on the 120th day following the death of the
Employee.
(c) Optioned Stock or Option Shares shall mean the Shares
of Common Stock of the Company which the Employee may purchase pursuant to the
terms of this Agreement.
(d) Purchase Price shall mean $_____ for each share of
Common Stock.
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EXHIBIT 4.2
(e) Termination of Employment shall mean the termination by
the Company of the employment of the Employee for any reason whatsoever or the
voluntary termination by the Employee of her employment with the Company.
(f) Unvested Shares shall mean any shares of Optioned Stock
which are not Vested Shares.
(g) Vested Shares shall mean (i) ____ shares of Optioned
Stock as of ________, (ii) an additional ___ shares of Optioned Stock
commencing with and including ________, (iii) an additional ___ shares of
Optioned Stock commencing with and including ________, (iv) an additional ___
shares of Optioned Stock commencing with and including ________, and (v) an
additional ___ shares of Optioned Stock commencing ________.
2. Grant of Option to Employee. Simultaneously with the
execution and delivery of this Agreement, the Employee 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 Employee or, in the event of the
Employee's death, any duly qualified representative of her 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 Employee 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 Employee) 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
Employee 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 4.2
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 Employee
with respect to registration of the sale of the Optioned Stock and Continued
Applicability of Agreement. The Employee hereby represents and warrants to the
Company that the Optioned Stock will be acquired for the Employee'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 Employee understands that the sale of the Employee 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 Employee
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 Employee in the event
such an opinion cannot reasonably be optioned.
6. No Right to Employment. This Agreement shall not entitle
the Employee to any right or claim to be employed as an employee of the Company
or limit the right of the Company to terminate the employment of the Employee
or to change the terms of such employment.
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
Employee shall have affixed thereto a legend substantially in the following
form:
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EXHIBIT 4.2
"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 EMPLOYEES. 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 Employee: 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: Greenberg, Traurig, Hoffman, Lipoff,
Xxxxx & Xxxxxxx, 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 each case addressed to such party as provided in this
Section or in accordance with the latest unrevoked direction from such party.
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EXHIBIT 4.2
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:
[EMPLOYEE NAME]
______________________________
[ADDRESS OF EMPLOYEE]
______________________________
______________________________
______________________________
______________________________
[Please type or print clearly your
home address.]
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