Exhibit (d)(41)
AMN HEALTHCARE SERVICES, INC
2001 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (the "Agreement"), made this May 8, 2003, by
and between AMN Healthcare Services, Inc. (the "Company"), a Delaware
corporation, and Xxxxxx X. Xxxxxxx (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Company sponsors the AMN Healthcare Services, Inc. 2001
Stock Option Plan (the "Plan"), and desires to afford the Optionee the
opportunity to acquire and maintain the Optionee's ownership of the Company's
common stock, par value $.01 per share ("Stock") thereunder, thereby
strengthening the Optionee's commitment to the welfare of the Company and
Affiliates and promoting an identity of interest between stockholders and the
Optionee.
NOW THEREFORE, in consideration of the covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1. Definitions.
The following definitions shall be applicable throughout the Agreement.
Where defined terms are not defined herein, their meaning shall be that set
forth in the Plan.
(a) "Affiliate" means (i) any entity that directly or indirectly is
controlled by, or is under common control with the Company and (ii) any entity
in which the Company has a significant equity interest, in either case as
determined by the Committee.
(b) "Board" means the Board of Directors of the Company.
(c) "Cause" means the Company or an Affiliate having "cause" to terminate
an Optionee's employment or service, as defined in any existing employment,
consulting or any other agreement between the Optionee and the Company or a
Subsidiary or Affiliate, or, in the absence of such an employment, consulting or
other agreement, upon (i) the determination by the Committee that the Optionee
has ceased to perform his duties to the Company or an Affiliate (other than as a
result of his incapacity due to physical or mental illness or injury), which
failure amounts to an intentional and extended neglect of his duties to such
party, (ii) the Committee's determination that the Optionee has engaged or is
about to engage in conduct injurious to the Company or an Affiliate, (iii) the
Optionee having been convicted of, or pleaded guilty or no contest to, a felony
or a crime involving moral turpitude or (iv) the failure of the Optionee to
follow the lawful instructions of the Board or his direct superiors; provided,
however, that in the instances of clauses (i), (ii) and (iv), the Company or
Affiliate, as
applicable, must give the optionee twenty (20) days' prior written notice of the
defaults constituting "cause" hereunder.
(d) "Change in Control" shall, unless in the case of a particular Option
the applicable Stock Option Agreement states otherwise or contains a different
definition of "Change in Control," be deemed to occur upon:
(i) The acquisition by any individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (a "Person") (other than any of the
following (each an "Excluded Person"): HWH Capital Partners, L.P., HWP Capital
Partners II, L.P., HWH Nightingale Partners, L.P., HWP Nightingale Partners II,
L.P., Xxxx Wheat & Partners, L.P., any Affiliate of any of the foregoing, or any
such group of which any of the foregoing is a member) of beneficial ownership
(within the meaning of Rule 13d-3 promulgated under the Exchange Act) of a
majority of the combined voting power of the then outstanding voting securities
of the Company entitled to vote generally in the election of directors, or the
acquisition by a Person other than an Excluded Person of at least thirty percent
(30%) of the combined voting power of the then outstanding voting securities of
the Company entitled to vote generally in the election of directors, if at such
time the Excluded Persons in the aggregate own a lesser percentage of such
securities than the Person making such acquisition of such securities;
(ii) the dissolution or liquidation of the Company;
(iii) the sale of all or substantially all of the business or
assets of the Company; or
(iv) the consummation of a merger, consolidation or similar form
of corporate transaction involving the Company that requires the approval of the
Company's stockholders, whether for such transaction or the issuance of
securities in the transaction (a "Business Combination"), if immediately
following such Business Combination: (x) a Person (other than an Excluded
Person), is or becomes the beneficial owner, directly or indirectly, of a
majority of the combined voting power of the outstanding voting securities
eligible to elect directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation), or (y) the Company's shareholders cease
to beneficially own, directly or indirectly, in substantially the same
proportion as they owned the then outstanding voting securities immediately
prior to the Business Combination, a majority of the combined voting power of
the outstanding voting securities eligible to elect directors of the Parent
Corporation (or, if there is no Parent Corporation, the Surviving Corporation).
"Surviving Corporation" shall mean the corporation resulting from a Business
Combination, and "Parent Corporation" shall mean the ultimate parent corporation
that directly or indirectly has beneficial ownership of a majority of the
combined voting power of the then outstanding voting securities of the Surviving
Corporation entitled to vote generally in the election of directors.
(e) "Code" means the Internal Revenue Code of 1986, as amended. Reference
in the Plan to any section of the Code shall be deemed to include any amendments
or successor provisions to such section and any regulations under such section.
(f) "Committee" means a committee of at least two people as the Board may
appoint to administer the Plan or, if no such committee has been appointed by
the Board, the
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Board. Unless the Board is acting as the Committee or the Board specifically
determines otherwise, each member of the Committee shall, at the time he takes
any action with respect to
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a Option under the Plan, be an Eligible Director, however the mere fact that a
Committee member shall fail to qualify as an Eligible Director shall not
invalidate any Option granted by the Committee which Option is otherwise validly
made under the Plan.
(g) "Common Stock" means the common stock, par value $0.01 per share, of
the Company.
(h) "Company" means AMN Healthcare Services, Inc.
(i) "Disability" means a condition entitling a person to receive benefits
under the long-term disability plan of the Company, a Subsidiary or Affiliate,
as may be applicable to the Optionee in question, or, in the absence of such a
plan, the complete and permanent inability by reason of illness or accident to
perform the duties of the occupation at which the Optionee was employed or
served when such disability commenced or, as determined by the Committee based
upon medical evidence acceptable to it.
(j) "Effective Date" means May 8, 2003.
(k) "Eligible Director" means a person who is (i) a "non-employee
director" within the meaning of Rule 16b-3 under the Exchange Act, or a person
meeting any similar requirement under any successor rule or regulation and (ii)
an "outside director" within the meaning of Section 162(m) of the Code, and the
Treasury Regulations promulgated thereunder; provided, however, that clause (ii)
shall apply only with respect to grants of Options with respect to which the
Company's tax deduction could be limited by Section 162(m) of the Code if such
clause did not apply.
(l) "Eligible Person" means any (i) individual regularly employed by the
Company, a Subsidiary or Affiliate who satisfies all of the requirements of
Section 6; provided, however, that no such employee covered by a collective
bargaining agreement shall be an Eligible Person unless and to the extent that
such eligibility is set forth in such collective bargaining agreement or in an
agreement or instrument relating thereto; (ii) director of the Company, or
Affiliate or (iii) consultant or advisor to the Company, a Subsidiary or
Affiliate who is entitled to participate in an "employee benefit plan" within
the meaning of 17 CFR ss. 230.405 (which, as of the Effective Date, includes
those who (A) are natural persons and (B) provide bona fide services to the
Company other than in connection with the offer or sale of securities in a
capital-raising transaction, and do not directly or indirectly promote or
maintain a market for the Company's securities).
(m) "Exchange Act" means the Securities Exchange Act of 1934.
(n) "Fair Market Value," on a given date means (i) if the Stock is listed
on a national securities exchange, the mean between the highest and lowest sale
prices reported as having occurred on the primary exchange with which the Stock
is listed and traded on the date prior to such date, or, if there is no such
sale on that date, then on the last preceding date on which such a sale was
reported; (ii) if the Stock is not listed on any national securities exchange
but is quoted in the National Market System of the National Association of
Securities Dealers Automated Quotation System ("NASDAQ") on a last sale basis,
the average between the high bid price and low ask price reported on the date
prior to such date, or, if there is no such sale on
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that date, then on the last preceding date on which a sale was reported; or
(iii) if the Stock is not listed on a national securities exchange nor quoted in
the NASDAQ on a last sale basis, the amount determined by the Board to be the
fair market value based upon a good faith attempt to value the Stock accurately
and computed in accordance with applicable regulations of the Internal Revenue
Service.
(o) "Grant Date" means May 8, 2003, which is the date specified in the
authorization of the Option grant.
(p) "Non-Qualified Stock Option" means an Option granted by the Committee
to an Optionee under the Plan which is not an incentive stock option as
described in Section 422 of the Code.
(q) "Normal Termination" means termination of employment or service with
the Company and Affiliates:
(i) by the Optionee;
(ii) upon retirement;
(iii) on account of death or Disability; or
(iv) by the Company, a Subsidiary or Affiliate without Cause.
(r) "Option" means an award granted under Section 2.
(s) "Option Period" means the period described in Section 2.
(t) "Option Price" means the exercise price for an Option as described in
Section 2.
(u) "Optionee" means an Eligible Person who has been selected by the
Committee to participate in the Plan and to receive an Option pursuant to
Section 2.
(v) "Securities Act" means the Securities Act of 1933, as amended.
(w) "Stock" means the Common Stock or such other authorized shares of
stock of the Company, as the Committee may from time to time authorize for use
under the Plan.
(x) "Subsidiary" means any subsidiary of the Company as defined in
Section 424(f) of the Code.
2. Grant of Option. Subject to the terms and conditions set forth herein,
the Company hereby grants to the Optionee, during the period commencing on the
date of this Agreement and ending the day prior to the tenth anniversary of the
date hereof (the "Termination Date"), the right and option (the right to
purchase any one share of Stock hereunder being an "Option") to purchase from
the Company, at $9.68 per share (the "Option Price"), an aggregate of 200,000
shares of Stock (the "Option Shares"). The original ten-year term of such Option
shall be referred to herein as the "Option Period". The Options are not intended
to be "incentive stock options" within the meaning of Section 422 of the Code.
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3. Limitations on Exercise of Option. As set forth in the Plan, and
subject to the terms and conditions set forth herein, the Optionee may exercise
25% of the Option on and after the first annual anniversary of the Grant Date,
an additional 25% of the Option on and after the second anniversary of the Grant
Date, an additional 25% of the Option on and after the third anniversary of the
Grant Date, and a final 25% of the Option on and after the fourth anniversary of
the Grant Date.
4. Termination of Employment.
(a) If, prior to the end of the Option Period, the Optionee shall undergo
a Normal Termination other than due to death or Disability, (i) the portion of
the Option which is vested at the time of such Normal Termination shall be
determined in accordance with Section 3, (ii) the portion of the Option which is
not vested at the date of such Normal Termination shall expire on such date; and
(iii) the portion of the Option which is vested at the date of such Normal
Termination shall expire on the earlier of the Termination Date or the date that
is three months after the date of such Normal Termination.
(b) If, prior to the end of the Option Period, the Optionee dies or
incurs a Disability while still in the employ or service of the Company, a
Subsidiary or Affiliate, or if the Optionee dies within three months following a
Normal Termination, (i) the portion of the Option which is not vested at the
date of such termination shall expire on such date; and (ii) the portion of the
Option which is vested at the date of such termination shall expire on the
earlier of the Termination Date or the date that is twelve months after the date
of such termination. In such event, the vested portion of the Option may be
exercised as described above by the Optionee's personal representative or
executor, or by the person or persons to whom the Optionee's rights under the
Option pass by will or the applicable laws of descent and distribution.
(c) If, prior to the Termination Date, the Optionee is terminated from
the employment or service with the Company for Cause or for reasons other than a
Normal Termination, all portions of the Option then held by such Optionee
(whether or not vested) shall expire immediately upon such cessation of
employment or service.
5. Method of Exercising Option.
(a) The Optionee may exercise any or all of the Options after the time
they become vested pursuant to Section 3 hereof by delivering to the Committee a
written notice of exercise (in a form designated by the Committee) signed by the
Optionee stating the number of Options that the Optionee has elected to exercise
at that time and tendering the full payment of the Option Price of the shares of
Stock to be thereby purchased from the Company. Payment of the Option Price of
the shares may be made in cash and/or shares of Stock valued at the Fair Market
Value at the time the Option is exercised (including any means of attestation of
ownership of a sufficient number of shares of Stock in lieu of actual delivery
of such shares to the Company; provided, however, that such shares are not
subject to any pledge or other security interest and have either been held by
the Optionee for six months, previously acquired by the Optionee on the open
market or meet such other requirements as the Committee may determine necessary
in order to avoid an accounting earnings charge in respect of the Option), or,
in the discretion of the Committee, either (i) in other property having a fair
market value on the date of exercise equal to the Option Price, (ii) by
delivering to the Committee a copy of irrevocable instructions to a
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stockbroker to deliver promptly to the Company an amount of loan proceeds, or
proceeds of the sale of the Stock subject to the Option, sufficient to pay the
Option Price, or (iii) by such other method as the Committee may allow.
(b) The Optionee may be required to pay to the Company or any Affiliate
and the Company or any Affiliate shall have the right and is hereby authorized
to withhold from any shares of Stock or other property deliverable under the
Option or from any compensation or other amounts owing to the Optionee the
amount (in cash, Stock or other property) of any required tax withholding and
payroll taxes in respect of an Option, its exercise, or any payment or transfer
under an Option or under the Plan and to take such other action as may be
necessary in the opinion of the Company to satisfy all obligations for the
payment of such taxes.
(c) Without limiting the generality of clause (b) above, in the
Committee's sole discretion the Optionee may satisfy, in whole or in part, the
foregoing withholding liability (but no more than the minimum required
withholding liability) by delivery of shares of Stock owned by the Optionee
(which are not subject to any pledge or other security interest and which have
been owned by the Participant for at least 6 months or purchased on the open
market) with a Fair Market Value equal to such withholding liability or by
having the Company withhold from the number of shares of Stock otherwise
issuable pursuant to the exercise of the Option a number of shares with a Fair
Market Value equal to such withholding liability.
6. Issuance of Shares. As promptly as practical after receipt of written
notification of exercise and full payment of the Option Price together with any
required income tax withholding, the Company shall issue or transfer to the
Optionee, the number of shares with respect to which the Option has been so
exercised (less shares withheld in satisfaction of tax withholding obligations,
if any), and shall deliver to the Optionee a certificate or certificates
therefor, registered in the Optionee's name. The shares delivered to the
Optionee pursuant to this Section 6 shall be free and clear of all liens, fully
paid and non-assessable.
7. Company; Optionee.
(a) The term "Company" as used in this Agreement with reference to
employment shall include the Company, its Subsidiaries and its Affiliates, as
appropriate.
(b) Whenever the word "Optionee" is used in any provision of this
Agreement under circumstances where the provision should logically be construed
to apply to the beneficiaries, the executors, the administrators, or the person
or persons to whom the Options may be transferred by will or by the laws of
descent and distribution, the word "Optionee" shall be deemed to include such
person or persons.
8. Purchase for Investment; Legends. In the event that the offering of
Option Shares with respect to which the Options are being exercised is not
registered under the Securities Act, but an exemption is available that requires
an investment representation or other representation, the Optionee, if electing
to purchase Option Shares, shall represent that such Option Shares are being
acquired for investment and not with a view to distribution thereof, and to make
such other reasonable and customary representations regarding matters relevant
to compliance with applicable securities laws as are deemed necessary by counsel
to the Company. Stock certificates evidencing such unregistered Option Shares
that are acquired upon exercise of
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the Options shall bear restrictive legends in substantially the following form
and such other restrictive legends as are required or advisable under the
provisions of any applicable laws or are provided for in the Shareholders
Agreement or any other agreement to which Optionee is a party:
THE SHARES REPRESENTED BY THIS STOCK CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), NOR UNDER ANY STATE
SECURITIES LAWS AND SHALL NOT BE TRANSFERRED AT ANY TIME IN
THE ABSENCE OF (I) AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS WITH RESPECT TO SUCH SHARES AT SUCH TIME, OR (II) AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS
COUNSEL, TO THE EFFECT THAT SUCH TRANSFER AT SUCH TIME WILL
NOT VIOLATE THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS.
9. Non-Transferability. The Options are not transferable by the Optionee
other than to a designated beneficiary upon death, by will or the laws of
descent and distribution, or upon approval of the Committee, to a trust solely
for the benefit of the Optionee or his immediate family, and are exercisable
during the Optionee's lifetime only by him, or in the case of the Options being
held by such a trust, by the trustee.
10. Forfeiture for Non-Compete Violation.
(a) Non-Compete. The grantee agrees that during the term of grantee's
employment and for a period of two years thereafter (the "Coverage Period") the
grantee will not engage in, consult with, participate in, hold a position as
shareholder, director, officer, consultant, employee, partner or investor, or
otherwise assist any business entity (i) in any State of the United States of
America or (ii) in any other country in which the Company has business
activities, in either case, that is engaged in any activities which are
competitive with the business of providing healthcare or other personnel on a
temporary basis to hospitals, healthcare facilities or other entities and any
and all business activities reasonably related thereto in which the Company or
any of its divisions, affiliates or subsidiaries are then engaged.
(b) Non-Solicit. The grantee agrees that during the Coverage Period, he
shall not solicit, attempt to solicit or endeavor to entice away from the
Company any person who, at any time during the Term was a traveling nurse or
other healthcare professional, employee, customer, client or supplier of the
Company.
(c) Confidential and Proprietary Information. The grantee agrees that he
will not, at any time make use of or divulge to any other person, firm or
corporation any confidential or proprietary information concerning the business
or policies of the Company or any of its divisions, affiliates or subsidiaries.
For purposes of this Agreement, any confidential information shall constitute
any information designated as confidential or proprietary by the
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Company or otherwise known by the grantee to be confidential or proprietary
information including, without limitation, customer information. Grantee
acknowledges and agrees that for purposes of this Agreement, "customer
information" includes without limitation, customer lists, all lists of
professional personnel, names, addresses, phone numbers, contact persons,
preferences, pricing arrangements, requirements and practices. Grantee's
obligation under this Section 10(c) shall not apply to any information which (i)
is known publicly; (ii) is in the public domain or hereafter enters the public
domain without the fault of grantee; or (iii) is hereafter disclosed to grantee
by a third party not under an obligation of confidence to the Company. Grantee
agrees not to remove from the premises of the Company, except as an employee of
the Company in pursuit of the business of the Company or except as specifically
permitted in writing by the Company, any document or other object containing or
reflecting any such confidential or proprietary information. Grantee recognizes
that all such information, whether developed by the grantee or by someone else,
will be the sole exclusive property of the Company. Upon termination of
employment, grantee shall forthwith deliver to the Company all such confidential
or proprietary information, including without limitation all lists of customers,
pricing methods, financial structures, correspondence, accounts, records and any
other documents, computer disks, computer programs, software, laptops, modems or
property made or held by him or under his control in relation to the business or
affairs of the Company or any of its divisions, subsidiaries or affiliates, and
no copy of any such confidential or proprietary information shall be retained by
him.
(d) Forfeiture for Violations. If the grantee shall at any time violate
the provisions of Section 10(a), (b), or (c), the grantee shall immediately
forfeit all options (whether vested or unvested) and any exercise of an option
which occurs after (or within 6 months before) any such violation shall be void
ab initio.
11. Rights as Stockholder. The Optionee or a transferee of the Options
shall have no rights as a stockholder with respect to any share of Stock covered
by the Options until the Optionee shall have become the holder of record of such
share and no adjustment shall be made for dividends or distributions or other
rights in respect of such share of Stock for which the record date is prior to
the date upon which she shall become the holder of record thereof.
12. Changes in Capital Structure. Options granted under the Plan and any
Stock Option Agreements, the maximum number of shares of Stock subject to all
Options stated in Section 5(a) of the Plan and the maximum number of shares of
Stock with respect to which any one person may be granted Options during any
period stated in Section 5(d) of the Plan shall be subject to adjustment or
substitution, as determined by the Committee in its sole discretion, as to the
number, price or kind of a share of Stock or other consideration subject to such
Options or as otherwise determined by the Committee to be equitable (i) in the
event of changes in the outstanding Stock or in the capital structure of the
Company by reason of stock or extraordinary cash dividends, stock splits,
reverse stock splits, recapitalization, reorganizations, mergers,
consolidations, combinations, exchanges, or other relevant changes in
capitalization occurring after the Date of Grant of any such Option or (ii) in
the event of any change in applicable laws or any change in circumstances which
results in or would result in any substantial dilution or enlargement of the
rights granted to, or available for, Participants, or which otherwise warrants
equitable adjustment because it interferes with the intended operation of the
Plan. Any adjustments under Section 11 of the Plan shall be made in a manner
which does not adversely affect the exemption provided pursuant to Rule 16b-3
under the Exchange Act. Further, with
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respect to Options intended to qualify as "performance-based compensation" under
Section 162(m) of the Code, such adjustments or substitutions shall be made only
to the extent that the Committee determines that such adjustments or
substitutions may be made without causing Options granted under the Plan to fail
to qualify as "performance-based compensation" for purposes of Section 162(m) of
the Code. The Company shall give each Optionee notice of an adjustment hereunder
and, upon notice, such adjustment shall be conclusive and binding for all
purposes.
Notwithstanding the above, in the event of any of the following:
(a) The Company is merged or consolidated with another corporation
or entity and, in connection therewith, consideration is received by
shareholders of the Company in a form other than stock or other equity interests
of the surviving entity;
(b) All or substantially all of the assets of the Company are
acquired by another person;
(c) The reorganization or liquidation of the Company; or
(d) The Company shall enter into a written agreement to undergo an
event described in clause (a), (b) or (c) above, then the Committee may, in its
discretion and upon at least 10 days advance notice to the affected persons,
cancel any outstanding Options and pay to the holders thereof, in cash or stock,
or any combination thereof, the value of such Options based upon the price per
share of Stock received or to be received by other shareholders of the Company
in the event.
13. Effect of Change in Control.
(a) In the event of a Change in Control, notwithstanding any
vesting schedule, the Option shall become immediately exercisable with respect
to 100 percent of the shares subject to such Option and, to the extent
practicable, such acceleration of exercisability shall occur in a manner and at
a time which allows the Optionee the ability to exercise his Option and
participate in the Change in Control transaction with respect to the Stock
subject to such Option.
(b) In addition, in the event of a Change in Control, the Committee
may in its discretion and upon at least 10 days' advance notice to the Optionee,
cancel any outstanding portions of the Option and pay to the Optionee, in cash
or stock, or any combination thereof, the value of such portions of the Option
based upon the price per share of Stock received or to be received by other
shareholders of the Company in the event.
(c) The obligations of the Company under this Agreement shall be
binding upon any successor corporation or organization resulting from the
merger, consolidation or other reorganization of the Company, or upon any
successor corporation or organization succeeding to substantially all of the
assets and business of the Company. The Company agrees that it will make
appropriate provisions for the preservation of the Optionee's rights under this
Agreement in any agreement or plan which it may enter into or adopt to effect
any such merger, consolidation, reorganization or transfer of assets.
14. Compliance with Law. Notwithstanding any of the provisions
hereof, the Optionee hereby agrees that the Optionee will not exercise the
Options, and that the
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Company will not be obligated to issue or transfer any shares to the Optionee
hereunder, if the exercise hereof or the issuance or transfer of such shares
shall constitute a violation by the Optionee or the Company of any provisions of
any law or regulation of any governmental authority. Any determination in this
connection by the Committee shall be final, binding and conclusive. The Company
shall in no event be obliged to register any securities for sale under the
Securities Act or to take any other affirmative action in order to cause the
exercise of the Options or the issuance or transfer of shares pursuant thereto
to comply with any law or regulation of any governmental authority.
15. Notice. Every notice or other communication relating to this
Agreement shall be in writing, and shall be mailed to or delivered to the party
for whom it is intended at such address as may from time to time be designated
by it in a notice mailed or delivered to the other party as herein provided,
provided that, unless and until some other address be so designated, all notices
or communications by the Optionee to the Company shall be mailed or delivered to
the Company at its principal executive office, and all notices or communications
by the Company to the Optionee may be given to the Optionee personally or may be
mailed to her at her address as recorded in the records of the Company.
16. No Right to Continued Employment. This Agreement shall not be
construed as giving the Optionee the right to be retained in the employ or
service of the Company, a Subsidiary or an Affiliate. Further, the Company or an
Affiliate may at any time dismiss the Optionee or discontinue any consulting
relationship, free from any liability or any claim under this Agreement, except
as otherwise expressly provided herein.
17. Binding Effect. Subject to Section 9 hereof, this Agreement
shall be binding upon the heirs, executors, administrators and successors of the
parties hereto.
18. Amendment of Agreement. The Committee may, to the extent
consistent with the terms of this Agreement, waive any conditions or rights
under, amend any terms of, or alter, suspend, discontinue, cancel or terminate,
any portion of the Option heretofore granted, prospectively or retroactively;
provided that any such waiver, amendment, alteration, suspension,
discontinuance, cancellation or termination that would impair the rights of the
Optionee in respect of any Option already granted shall not to that extent be
effective without the consent of the Optionee.
19. Option Subject to Plan. By entering into this Agreement, the
Optionee agrees and acknowledges that the Optionee has received and read a copy
of the Plan. The Option is subject to the Plan. The terms and provisions of the
Plan as it may be amended from time to time are hereby incorporated herein by
reference. In the event of a conflict between any term or provision contained
herein and a term or provision of the Plan, the applicable terms and provisions
of the Plan will govern and prevail.
20. Governing Law. This Agreement shall be construed and
interpreted in accordance with the internal laws of the State of Delaware
without regard to the principles of conflicts of law thereof, or principles of
conflicts of laws of any other jurisdiction which could cause the application of
the laws of any jurisdiction other than the State of Delaware.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
AMN HEALTHCARE SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President
OPTIONEE
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
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