Exhibit 4.3
The attached Stock Option Agreement covers the grant of stock options under
non-shareholder approved plans to the following persons. Except for the dates,
number of options and prices set forth below, the agreement is the same for all.
NAME DATE GRANTED NUMBER OF SHARES PRICE
▇▇▇▇▇▇▇, ▇▇▇▇▇ 04/01/01 4,000 3.250000
▇▇▇▇▇▇▇, ▇▇▇▇▇ 04/01/01 6,000 3.250000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 04/01/01 11,000 3.250000
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 04/01/01 17,500 3.250000
▇▇▇▇▇▇, ▇▇▇▇ 04/01/01 3,000 3.250000
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 04/01/01 25,000 3.250000
▇▇▇▇, ▇▇▇▇▇ 04/01/01 2,000 3.250000
▇▇▇▇▇▇, ▇▇▇▇▇ 04/01/01 1,000 3.250000
▇▇▇, ▇▇▇▇▇▇▇ 04/30/01 25,000 3.590000
▇▇▇▇▇▇, ▇▇▇▇▇ 04/01/01 6,000 3.250000
▇▇▇▇▇, ▇▇▇▇▇▇ 04/01/01 8,000 3.250000
▇▇▇▇▇, ▇▇▇▇▇▇ 04/01/01 500 3.250000
OPINA, Cuper 06/14/02 10,000 1.996000
▇▇▇▇▇, ▇▇▇▇▇▇ 08/16/02 2,000 1.706200
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ 08/16/02 10,000 1.706200
▇▇▇▇▇▇▇, ▇▇▇▇▇ 08/16/02 12,000 1.706200
▇▇▇▇▇▇▇, ▇▇▇▇▇ 08/16/02 12,000 1.706200
FILE, Eduard 08/16/02 1,000 1.706200
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 08/16/02 20,000 1.706200
▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 08/16/02 1,000 1.706200
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 08/16/02 12,000 1.706200
▇▇▇▇▇▇, ▇▇▇▇ 08/16/02 10,000 1.706200
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ 08/16/02 25,000 1.706200
▇▇▇▇, ▇▇▇▇▇▇▇ 08/16/02 10,000 1.706200
▇▇▇▇, ▇▇▇▇▇ 08/16/02 12,000 1.706200
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ 08/16/02 2,000 1.706200
▇▇▇▇, ▇▇▇▇▇▇▇ 08/16/02 2,000 1.706200
▇▇▇▇▇▇, ▇▇▇▇▇ 08/16/02 1,000 1.706200
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ 08/16/02 1,000 1.706200
▇▇▇▇▇▇, ▇▇▇▇▇ 08/16/02 20,000 1.706200
▇▇▇, ▇▇▇▇▇▇▇ 08/16/02 30,000 1.706200
▇▇▇▇▇▇, ▇▇▇▇▇ 08/16/02 20,000 1.706200
SIAM, ▇▇▇▇▇ 08/16/02 20,000 1.706200
▇▇▇▇▇, ▇▇▇▇ 08/16/02 12,000 1.706200
▇▇▇▇▇, ▇▇▇▇▇▇ 08/16/02 8,000 1.706200
▇▇▇▇▇, ▇▇▇▇▇▇ 08/16/02 20,000 1.706200
▇▇▇▇▇, ▇▇▇▇▇▇ 08/16/02 1,000 1.706200
1
THE SECURITIES REPRESENTED BY THIS OPTION AGREEMENT HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933.
NEITHER THESE SECURITIES NOR THE SHARES OF COMMON STOCK ISSUABLE HEREUNDER MAY
BE SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR ANY EXEMPTION
THEREFROM UNDER SAID ACT.
JMAR TECHNOLOGIES, INC.
STOCK OPTION AGREEMENT
(Non-Qualified Stock Options)
THIS AGREEMENT, made and entered into as of ________________ (the "Grant Date")
by and between JMAR TECHNOLOGIES, INC., a Delaware corporation, (the "Company"),
and _______________ ("Optionee").
1. Option Grant and Accrual of Right to Purchase. As a matter of
separate inducement and agreement in connection with his service with the
Company, the Company hereby grants to Optionee, at the times, on the terms and
subject to conditions set forth herein, the right and "non-qualified stock
option" to purchase an aggregate of ________ shares of the Company's Common
Stock, par value $0.01, at the purchase price of $______ per share (the
"Option"). The Option shall continue for, and is limited to, the period of 120
months from and after the Grant Date (which 120 month period is hereinafter
referred to as the "Option Period"), except as and to the extent that (1) the
term of the Option may be reduced as provided in paragraphs 4 and 5 hereof or
(2) the Option may be terminated as provided in paragraph 13 hereof. In no event
may the Option or any portion thereof be exercised after the end of the Option
Period.
The Option shall become exercisable on the dates and in the installments
set forth in the following table:
Cumulative Percentage
Period of Continuous Of Total Shares
Employment After Subject to Option
Grant Date (Months) Which May Be Purchased
--------------------- ----------------------
12-24 33.3%
24-36 66.6%
36-48 100.0%
2
Prior to the expiration of the Option Period as specified above, and
subject to the provisions hereof, all or any portion of the shares of Common
Stock available for exercise may be purchased at any time and from time to time
after they become exercisable; provided that in no case may Optionee exercise
the Option for a fraction of a share.
(a) Change in Control. In the event of the occurrence of a Change in
Control (as defined below) or in the event that the Board, in its sole and
absolute discretion, determines that there exists a threat of a Change in
Control, each Option issued before the date of such occurrence or such
determination, which Option has not theretofore terminated as provided in
paragraphs 4, 5 or 13 below, shall immediately become exercisable in full as of
the date of such occurrence or such determination, whether or not such Option
was otherwise exercisable immediately before such occurrence or such
determination. For purposes of this Option, "Change in Control" shall be deemed
to occur if, at any time, any person (including, without limitation, any
individual, sole proprietorship, partnership, trust, corporation, association,
joint venture, pool, syndicate or other entity, whether or not incorporated), or
any two or more persons acting as a syndicate or group and thereby deemed
collectively to be a "person" within the meaning of Section 13(d)(3) of the
Exchange Act, shall acquire shares of stock of the Company, which acquisition
results in such person or persons owning in the aggregate shares of stock of the
Company possessing 15 percent or more of the total combined voting power of all
classes of stock of the Company, unless prior to such acquisition the full Board
shall by at least a two-thirds vote have specifically approved such acquisition
and determined that such acquisition shall not constitute a Change in Control
for purposes of this Option. Whether there exists a threat of a Change in
Control for purposes of this Option shall be determined by the Board, which
determination shall be final and conclusive.
2. Method of Exercise. The Option shall be exercisable by the giving of
written notice of exercise to the Company, in either of the manners set forth
below in this paragraph 2, specifying the number of shares to be purchased and
accompanying such notice with (a) payment by cash and/or check payable to the
Company of the full purchase price therefor or (b) in the discretion of the
Company's Board of Directors (the "Board") at the time of the exercise of the
Option regarding whether to permit payment in either of the following manners
(i) payment by a stock certificate or certificates, duly endorsed for transfer
to the Company, representing shares of Common Stock of the Company owned by the
Optionee which shall be deemed to have a fair market value on the date of
exercise equal
3
to the closing sale price of the Company's Common Stock as reported by NASDAQ on
the day prior to the date of exercise or (ii) cash and/or a check payable to the
Company and a stock certificate or certificates representing shares of the
Common Stock of the Company owned by the Optionee, which, when added to the
amount of the cash and/or check, have a fair market value on the date of
exercise, as defined in (i) above, equal to the option price and (c) if required
by the Company, the written representations and agreements referred to in
paragraph 7 hereof. Shares of stock delivered to the Company in payment of tax
withholdings are allowed only to the extent that such delivery does not result
in a charge to the earnings of the Company. If sent by mail such written notice
shall be deemed for all purposes to be given and the Option exercised on the
second business day following the date the same is deposited in the United
States mail, properly addressed to the Secretary of the Company, with postage
thereon prepaid. If personally delivered, such written notice shall be deemed
for all purposes to be given and the Option exercised on the date the same is
personally delivered to the Secretary of the Company (or such other officer as
may be designated by the Company in writing).
3. Who May Exercise. The Option shall be exercisable during the lifetime
of Optionee only by the Optionee. In the event that the notice specified in
paragraph 2 hereof shall, pursuant to the provisions of paragraph 5 hereof, be
given by any person other than Optionee, such notice shall be accompanied by
appropriate evidence satisfactory to the Company to establish such person's
right to exercise the Option.
4. Exercise Upon Termination of Employment. Subject to the other
provisions hereof, if Optionee shall cease to be employed by the Company or any
subsidiary of the Company for any reason other than the death of Optionee, the
option privileges shall be limited to the shares which are immediately
exercisable on the date of termination of Optionee's service; and such option
privileges shall expire unless exercised by him or his successors as the case
may be, within 60 days after such termination.
5. Exercise in the Event of Death. Subject to the other provisions
hereof, in the event of the death of Optionee while in the employ of the Company
or a subsidiary of the Company, the Option may be exercised by the person or
persons to whom Optionee's rights under the Option shall pass by Optionee's will
or by the laws of descent and distribution. In such event, the Option may be
exercised during the one year period following the Optionee's date of death, but
only to the extent that Optionee was entitled to exercise the Option at the date
of death; provided, however, that in no event shall the Option or any portion
thereof be exercisable except during the Option
4
Period. The right to exercise the Option provided under this Paragraph 5, to the
extent permitted hereunder, shall terminate on the first anniversary of the date
of the Optionee's death.
6. Stock To Be Issued. Shares to be issued on the exercise of the Option
may, at the election of the Company, be either authorized and unissued shares or
shares previously issued and reacquired by the Company.
7. Investment Representation and Restrictions on Disposition. By
accepting the Option, Optionee agrees for himself or herself and any other
person or persons entitled to exercise the Option pursuant to the provisions of
paragraph 5 hereof, that any and all shares purchased upon the exercise of the
Option shall be acquired for investment and not with a view to distribution, and
that if required by the Company: (i) each notice of the exercise of all or any
portion of the Option shall be accompanied by such representations and
agreements in writing, signed by the Optionee or such other person or persons
entitled to exercise the Option, as the case may be, and in form and substance
satisfactory to the Company, to such effect as the Company may deem necessary in
order to insure compliance with all laws, orders, rules, regulations, conditions
and undertakings of any kind which may be in effect at any time with respect to
the purchase or disposition of any shares purchased upon exercise of the Option,
including, but not limited to, a representation to the effect that the shares
covered by such notice are being acquired in good faith for investment and not
for distribution; (ii) the certificate or certificates evidencing the shares may
be legended with language appropriate to give notice of the restrictions
referred to in this paragraph 7; and (iii) the Company may place "stop orders"
or other impediments to the transfer of the shares until it is satisfied that
the transfer can be made in conformity with the representations and agreements
of Optionee made pursuant to this paragraph 7. Optionee understands that the
effect of this paragraph 7 is to restrict the right to sell, transfer or
otherwise distribute such shares except in accordance with the Securities Act of
1933 ("the Act") and all other laws, orders, rules, regulations, conditions and
undertakings of any kind which may be in effect at any time with respect to the
purchase or disposition of such shares. In the event such shares are or shall at
any time hereafter become duly registered under the Act, then those provisions
of this paragraph 7 which the Company determines are rendered unnecessary by
reason of such registration shall not be operative during such time as said
registration remains effective.
8. Restrictions on Exercise. Each exercise of the Option shall be
subject to the condition that if at any time the Company shall determine in its
discretion that (i) the satisfaction of withholding tax or other withholding
liabilities, or (ii) the listing, registration or qualification of any shares
otherwise deliverable upon such
5
exercise upon any securities exchange or under any state or federal law, or
(iii) the consent or approval of any regulatory body, or (iv) the perfection of
any exemption from any such withholding, listing, registration, qualification,
consent or approval is necessary or desirable as a condition of, or in
connection with, such exercise or the issuance, delivery or purchase of shares
hereunder, then in any such event, such exercise shall not be effective, and the
Company shall not be required to accept a notice of exercise delivered by
Optionee pursuant to paragraph 2 hereof or the tender of any portion of the
purchase price for the shares covered by such exercise or to issue or deliver
any certificate or certificates for shares intended to be purchased by such
exercise, unless such withholding, listing, registration, qualification,
consent, approval or exemption shall have been effected, obtained or perfected
free of any conditions not acceptable to the Company.
9. Capital Adjustments. In the event that prior to the delivery by the
Company of all the shares covered by the Option, there shall be any change in
the outstanding common shares of the Company in the manner described in
paragraph 7 of the Company's 1999 Stock Option Plan, the number of shares
deliverable upon the exercise of the Option and the purchase price therefor
shall be adjusted as provided in said paragraph 7.
10. Issuance of Certificates and Rights as Shareholders. As soon as
practicable after the exercise of the Option as provided in paragraph 2 hereof,
but subject to the provisions of paragraphs 7, 8 and 9 hereof, the Company shall
issue and deliver to Optionee or any other person who has exercised the Option
pursuant to the provisions of paragraph 5 hereof a certificate evidencing the
shares purchased thereby. Neither Optionee nor any other person entitled to
exercise the Option pursuant to the provisions of paragraph 5 hereof shall be or
have any of the rights or privileges of a shareholder of the Company in respect
of any of the shares issuable upon the exercise of the Option unless and until a
certificate representing such shares shall have been issued and delivered.
11. Transferability of Option. Except as otherwise herein provided, the
Option and the rights and privileges conferred hereby may not be transferred,
assigned, pledged or hypothecated in any way (whether by operation of law or
otherwise) and shall not be subject to execution, attachment or similar process.
Upon any attempt to transfer, assign, pledge, hypothecate or otherwise dispose
of the Option or any right or privilege conferred hereby contrary to the
provisions hereof, or upon the levy of any attachment or similar process on the
rights and privileges conferred hereby, contrary to the provisions hereof, the
Option and the rights and privileges conferred hereby shall immediately become
null and void.
6
12. Interpretation of Agreement. The Board shall have the full and final
authority in its discretion to construe, interpret and define all terms and
provisions of this Agreement and to correct any defect or supply any omission or
reconcile any inconsistency herein and to prescribe rules and regulations
relating to the administration of the Option.
13. Cancellation of Option. Notwithstanding anything herein to the
contrary, the Company may cancel the Option, or any portion thereof, at any time
if the Company determines that Optionee has (i) committed fraud, embezzlement or
other act of dishonesty; (ii) engaged in other gross misconduct or deliberate
disregard of the law; (iii) made any unauthorized disclosure of any secret or
confidential information of the Company or any of its subsidiaries; (iv) engaged
in any conduct which constitutes unfair competition with the Company or any of
its subsidiaries; (v) induced or attempted to induce an employee of the Company
or any of its subsidiaries to terminate such employee's employment with the
Company or any of its subsidiaries; or (vi) induced or attempted to induce any
customer of, or other person having business relations with the Company or any
of its subsidiaries to terminate or curtail such relationship with the Company
or any of its subsidiaries.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
JMAR TECHNOLOGIES, INC.
Optionee By
---------------------- --------------------------------------
7