HEALTH SCIENCES GROUP, INC. AND RESTRICTED STOCK PLAN STOCK OPTION AGREEMENT
EXHIBIT
4.3
HEALTH
SCIENCES GROUP, INC.
2006
STOCK OPTION, DEFERRED STOCK
AND
RESTRICTED STOCK PLAN
NAME:
___________________
This
AGREEMENT is made effective as of the ______ day
of
________________ (the
"Option Grant Date"), by and between HEALTH
SCIENCES GROUP, INC., a
corporation (the "Company") and ________________ (the
"Optionee").
RECITALS
WHEREAS,
the Board of Directors of the Company has established the 2006 Stock Option,
Deferred Stock and Restricted Stock Plan (the "Plan") effective as of June
26,
2006, and
WHEREAS,
pursuant to the provisions of said Plan, the Administrator of the Company,
by
action duly taken on,
granted
to the Optionee an option or options (the
"Option(s)")
to purchase shares of the Common Stock of the Company on the terms and
conditions set forth herein.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and of the mutual covenants set
forth herein and other good and valuable consideration, the parties hereto
agree
as follows:
1. The
Option(s).
The
Optionee may, at his/her option, purchase all or any part of
an
aggregate of___________________ shares
of
Common Stock (the "Optioned Shares"), at the price of _______________
per
share
(the "Option Price"), on the terms and conditions set forth herein.
2. Option
Type; Exercise Dates and Exercise.
Options
intended to qualify as Incentive Stock Options are designated by an "ISO" under
the category "Type." Options intended as separate Non-Qualified Stock Options
are designated by a "NQSO" under the category "Type". In the case of an employee
who receives ISOs and is a 10% holder, the option term shall be 5 years, in
all
other cases, 10 years. The Option(s) shall be exercisable immediately for
Restricted Stock which shall be subject to forfeiture in the event Employee
is
no longer employed by the Company for any reason, provided however:
ALTERNATIVE
PROVISIONS
[STANDARD]
[fill
in]
_____ of
the Restricted Stock covered by the grant shall be freed of forfeiture monthly
during continued employment from [fill
in hire date]
1
[SPECIAL CIRCUMSTANCES/LONG STANDING EMPLOYEES/FULLY VESTED-OTHER] all
as
more particularly set forth in Section 6 of the Plan.
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
_________________________________________________________________________________________________________
o
ISO
o
NQSO
Optionee further understands that the Option(s) granted hereunder shall expire
and become un-exercisable as provided in Section 5(c) below.
4. Method
of Exercise.
This
Option shall be deemed exercised as to the shares to be purchased when written
notice of such exercise has been given to the Company at its principal business
office by the Optionee with respect to the Common Stock to be purchased. Such
notice shall be accompanied by full payment in cash or cash equivalents as
determined by the Administrator. As determined by the Administrator, in its
sole
discretion, payment in whole or part may also be made (i) by cancellation of
any
indebtedness owed by the Company to the Optionee, (ii) by a full recourse
promissory note executed by the Optionee, (iii) in the form of unrestricted
Stock owned by the Optionee, or, in the case of the exercise of a Non-Qualified
Stock Option, Restricted Stock or Performance Shares subject to an award under
the Plan (based, in each case, on the Fair Market Value of the Stock on the
date
the option is exercised); provided, however, that in the case of an Incentive
Stock Option, the right to make payment in the form of already owned shares
may
be authorized only at the time of grant, or (iv) by any combination of the
foregoing or as set forth in the Plan. Any payment in the form of Stock already
owned by the Optionee may be effected by use of an attestation form approved
by
the Administrator. If payment of the option exercise price of a NQSO is made
in
whole or in part in the form of Restricted Stock or Performance Shares, the
shares received upon the exercise of such Option (to the extent of the number
of
shares of Restricted Stock or Performance Shares surrendered upon exercise
of
such Option) shall be restricted in accordance with the original terms of the
Restricted Stock or Performance Share award in question, except that the
Administrator may direct that such restrictions shall apply only to that number
of shares surrendered upon the exercise of such Option.
5. Governing
Plan.
This
Agreement hereby incorporates by reference the Plan and all of the terms and
conditions of the Plan as heretofore amended and as the same may be amended
from
time to time hereafter in accordance with the terms thereof, but no such
subsequent amendment shall adversely affect the Optionee's rights under this
Agreement and the Plan except as may be required by applicable law. The Optionee
expressly acknowledges and agrees that the provisions of this Agreement are
subject to the Plan; the terms of this Agreement shall in no manner limit or
modify the controlling provisions of the Plan, and in case of any conflict
between the provisions of the Plan and this Agreement, the provisions of the
Plan shall be controlling and binding upon the parties hereto. The Optionee
also
hereby expressly acknowledges, represents and agrees as follows:
(a) Acknowledges
receipt of a copy of the Plan, a copy of which is attached hereto and by
reference incorporated herein, and represents that he/she is familiar with
the
terms and provisions of said Plan, and hereby accepts this Agreement subject
to
all the terms and provisions of said Plan.
(b) Agrees
to
accept as binding, conclusive and final all decisions or interpretations of
the
Administrator upon any questions arising under the Plan.
2
(c) Acknowledges
that he/she is familiar with Sections of the Plan regarding the exercise of
the
Option(s) and represents that he/she understands that said Option(s) must be
exercised on or before the earliest of the following dates, whichever is
applicable: (i) the day prior to the tenth anniversary of the Option(s) Grant
Date, (ii) the date which is three months from the date of termination of
employment for any reason other than death or disability as provided under
Subsection 5(h) of the Plan; or (iii) the date that is six months following
the
Optionee's termination of employment, by reason of his/her death, or the date
that is six months following his/her termination of employment, by reason of
disability, whichever is applicable, as provided in Subsection 5(g) of the
Plan
(d) Acknowledges,
understands and agrees that the existence of the Plan and the execution of
this
Agreement are not sufficient by themselves to cause any exercise of any
Option(s) granted as an Incentive Stock Option to qualify for favorable tax
treatment through the application of Section 422 of the Internal Revenue Code;
that Optionee must, in order to so qualify, individually meet by his own action
all applicable requirements of Section 422, including without limitation the
following holding period and employment requirements as to Incentive Stock
Options:
(1) holding
period requirement:
no
disposition of an Optioned Share may be made by Optionee within two (2) years
from the date of the granting of the Option(s) nor within one (1) year after
the
acquisition of the Optioned Shares through exercise of the Options,
and
(2) employment
requirement:
at all
times during the period beginning on the date of the granting of the Option(s)
and ending on the day three (3) months before the date of exercise, the Optionee
must have been an employee of the Company, its Parent, or a Subsidiary of the
Company, or a corporation or a parent or subsidiary of such corporation issuing
or assuming the Option(s) in a transaction to which Section 425(a) of the
Internal Revenue Code applies, except where the termination of employment is
by
means of the employee's disability, in which case said three (3) month period
may be extended to six months.
6. Representations
and Warranties.
As a
condition to the exercise of any portion of an Option, the Company may require
the person exercising such Option to make any representation and/or warranty
to
the Company as may, in the judgment of counsel to the Company, be required
under
the Securities Act of 1933 or any other applicable law or regulation. Optionee
hereby represents to the Company that each of the Options evidenced hereby
and
the shares purchasable upon exercise thereof are being acquired only for
investment and without any present intention to sell or distribute such
securities, that Optionee will sign a lock-up agreement similar to that signed
by the principal shareholders at the public offering ("PO") of the Company's
stock as may be required by the underwriters in such PO.
7. Options
Not Transferable. No
Stock
Option shall be transferable by the Optionee other than by will or by the laws
of descent and distribution.
8. No
Enlargement of Employee Rights.
Nothing
in this Agreement shall be construed to confer upon the Optionee (if an
employee) any right to continued employment with the Company, any future Parent
or any future Subsidiary, or to restrict in any way the right of the Company,
any future Subsidiary or any future Parent, to terminate his/her employment.
Optionee acknowledges that in the absence of an express written employment
agreement to the contrary, Optionee's employment with the Company may be
terminated by the Company at any time, with or without cause.
9. Withholding
of Taxes.
Optionee authorizes the Company to withhold, in accordance with any applicable
law, from any compensation payable to him any taxes required to be withheld
by
federal, state or local law as a result of the grant of the Option(s) or the
issuance of stock pursuant to the exercise of such Option(s).
10. Laws
Applicable to Construction.
This
Agreement shall be construed and enforced in accordance with the laws of the
State of California.
3
11. Agreement
Binding on Successors.
The
terms of this Agreement shall be binding upon the executors, administrators,
heirs, successors, transferees and assignees of the Optionee.
12. Costs
of Litigation.
In any
action at law or in equity to enforce any of the provisions or rights under
this
Agreement or the Plan, the unsuccessful party to such litigation, as determined
by the court in a final judgment or decree, shall pay the successful party
or
parties all costs, expenses and reasonable attorneys' fees incurred by the
successful party or parties (including without limitation costs, expenses end
fees on any appeals), and if the successful party recovers judgment in any
such
action or proceeding such costs, expenses and attorneys' fees shall be included
as part of the judgment.
13. Necessary
Acts.
The
Optionee agrees to perform all acts and execute and deliver any documents that
may be reasonably necessary to carry out the provisions of this Agreement,
including but not limited to all acts and documents related to compliance with
federal and/or state securities laws. Optionee shall be responsible for
conferring with his or her own tax accountant regarding the tax matters
pertaining to the Options and the exercise of the Options and shall be solely
responsible as to all tax filings pertaining to Optionee, including the filing
of an 83(b) election, if any.
14. Counterparts.
For
convenience this Agreement may be executed in any number of identical
counterparts, each of which shall be deemed a complete original in itself and
may be introduced in evidence or used for any other purpose without the
production of any other counterparts.
15. Invalid
Provisions.
In the
event that any provision of this Agreement is found to be invalid or otherwise
unenforceable under any applicable law, such invalidity or unenforceability
shall not be construed as rendering any other provisions contained herein
invalid or unenforceable, and all such other provisions shall be given full
force and effect to the same extent as though the invalid and unenforceable
provision was not contained herein.
16. Limitation
on Value of Optioned Shares.
Optionee acknowledges that the Plan provides that the aggregate fair market
value (determined as of the date hereof) of the shares of Common Stock to which
Options granted as Incentive Stock Options are exercisable for the first time
by
Optionee during any calendar year under all incentive stock option plans of
the
Company and any future Subsidiary shall not exceed $100,000. It is understood
and agreed that should it be determined that an Option if granted as an
Incentive Stock Option hereunder would exceed such maximum, such Option shall
be
considered granted as a Non-Qualified Stock Option to the extent, but only
to
the extent of such excess. This limitation shall not apply to any option granted
as a Non-Qualified Stock Option.
4
IN
WITNESS WHEREOF, the Company and the Optionee have executed this Agreement
effective as of the date first written hereinabove.
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HEALTH
SCIENCES GROUP, INC.
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OPTIONEE
|
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By:
___________________________________
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___________________________________ | |
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Name:
_________________________________
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(Signature)
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Title:__________________________________
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| ___________________________________ | ||
|
(Print
Name)
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Address
of Participant:
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| __________________________________ | ___________________________________ | |
| __________________________________ |
(Social
Security)
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| __________________________________ | ||
By
his or
her signature below, the spouse of the Optionee, if such Optionee be legally
married as of the date of his execution of this Agreement, acknowledges that
he
or she has read this Agreement and the Plan and is familiar with the terms
and
provisions thereof, and agrees to be bound by all the terms and conditions
of
said Agreement and said Plan document and appoints Optionee as attorney in
fact
with respect to any matter pertaining thereto.
_________________________________
Spouse
Dated:
_________________________________
By
his or
her signature below the Optionee represents that he or she is not legally
married as of the date of execution of this Agreement.
__________________________________
Optionee
Dated:
__________________________________
