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Exhibit 10.29
New Option Grants
AMN HOLDINGS, INC.
1999 SUPER-PERFORMANCE STOCK OPTION PLAN
Nonqualified Stock Option Agreement
STOCK OPTION AGREEMENT dated December 13, 2000, between AMN
HOLDINGS, INC., a Delaware corporation (the "Company"), and Xxxxxx Xxxxxxx (the
"grantee").
All words and phrases not otherwise expressly defined herein
shall have the same meanings as are ascribed to such words and phrases in the
Plan document.
The Committee has determined that the objectives of the Plan
will be furthered by granting to the grantee an option pursuant to the Plan.
In consideration of the foregoing and of the mutual
undertakings set forth in this Stock Option Agreement, the Company and the
grantee agree as follows:
SECTION 1. Grant of Option. The Company hereby grants to the grantee a
nonqualified stock option to purchase 5,772.1 shares of Stock at a purchase
price of $287.84 per share.
SECTION 2. Exercisability.
(a) In General. Subject to Section 4 hereof, the
option shall become vested and exercisable if, and only if certain performance
targets are met, as follows:
Number of Shares as to which Option
Fiscal Year EBITDA Becomes Exercisable
----------- ------ -------------------
2001 at least $38,307,000 1,443.1
2002 at least $45,845,000 1,443.0
2003 at least $52,734,000 1,443.0
2004 at least $60,656,000 1,443.0
Any portion of the option that becomes exercisable pursuant to
the above shall become exercisable as of the date of delivery of audited
financial statements by the Company's independent auditor for the applicable
Fiscal Year (in each case, the "Fiscal Year Vesting Date"), provided that the
grantee was employed on the last day of the applicable Fiscal Year.
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(b) Change of Control Acceleration. Notwithstanding
the foregoing, in the event a Change of Control occurs prior to December 31,
2003, in which the net proceeds actually received by HWH Capital Partners, L.P.
and its affiliates (collectively, "HWP") in the form of cash and marketable
securities exceeds, on an aggregate basis (after taking into account any prior
sales by HWP of any portion of its investment in the Company), $580.81 per share
of Stock, the portion of the option which was eligible to become vested pursuant
to Section 2(a) with respect to the Fiscal Year in which a Change of Control
occurs and, if any, later Fiscal Years shall become exercisable, effective
immediately prior to such event.
(c) Expiration of Option.
(i) Generally. Subject to the
provisions of this Section 2(c) and
Section 4, the option shall
terminate and cease to be
exercisable on December 31, 2009.
(ii) Special Rule. Notwithstanding the
provisions of Section 2(c)(i), if
the Company does not meet the
performance target established in
Section 2(a) for a Fiscal Year,
that portion of the option which
was eligible to become vested with
respect to such Fiscal Year shall
immediately terminate.
SECTION 3. Method of Option Exercise. The option or any part thereof
may be exercised only by giving to the Company written notice of exercise in the
form prescribed by the Committee. Full payment of the purchase price shall be
made on the option exercise date by certified or official bank check or, in the
Committee's discretion (which shall not be unreasonably withheld), by personal
check (subject to collection), payable to the Company, or delivery of shares of
Stock already owned by the grantee for at least six months prior to the option
exercise date as described in Section 5.4(b)(iii) of the Plan. The grantee shall
have no right to pay the option exercise price, or to receive shares of Stock
with respect to an option exercise, prior to the option exercise date. For
purposes of this Stock Option Agreement, the "option exercise date" shall be
deemed to be the first business day immediately following the date written
notice of exercise is received by the Company.
SECTION 4. Termination of Employment.
(a) Unvested Options.
(i) General Rule. All unvested portions of
an option granted to a grantee shall terminate and no
longer be exercisable upon such grantee's termination
of employment for any reason, except to the extent
that options may become exercisable post-employment
in accordance with Section 5.5 of the Plan or may
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remain eligible for vesting pursuant to Section
4(a)(ii) of this Agreement.
(ii) Termination Before Performance
Verified. Notwithstanding Section 4(a)(i), if a
grantee terminates employment after the end of a
Fiscal Year, but before the Fiscal Year Vesting Date,
(if applicable), the portion of such grantee's option
that was eligible to vest upon delivery of audited
financial statements confirming that performance
targets were met for such Fiscal Year shall remain
outstanding and eligible for vesting until delivery
of such audited financial statements. Thereafter, the
unvested portion of such option shall immediately
terminate and the treatment of the vested portion of
the option shall be governed by Section 4(b).
(b) Vested Options.
(i) Death and Disability. Unless otherwise
provided herein, if a grantee's employment with the
Company and its subsidiaries terminates by reason of
death or Disability (as defined in a grantee's
employment agreement, if applicable, or if not
applicable, as defined in section 22(e)(3) of the
Code), the portion, if any, of the option granted to
such grantee which was exercisable immediately prior
to such termination of employment or which becomes
exercisable thereafter in accordance with Section
4(a)(ii) of this Agreement may be exercised by such
grantee or, as the case may be, by such grantee's
court-appointed legal representative or, in the case
of the grantee's death, by the person or persons to
whom such option passes under the grantee's will (or,
if applicable, pursuant to the laws of descent and
distribution) until the earlier of (x) the later of
(1) one year after the grantee's termination by
reason of death or Disability and (2) with respect to
any portion of the option that vests in accordance
with Section 4(a)(ii) of this Agreement, one year
after the date of delivery of audited financial
statements and (y) the date on which such portion of
the option terminates or expires in accordance with
the provisions of the Plan and the other provisions
of this Stock Option Agreement.
(ii) Regular Termination; Leaves of Absence.
Unless otherwise provided herein, if the grantee's
employment terminates for reasons other than as
provided in Section 4(b)(i), the portion, if any, of
the option granted to such grantee which was
exercisable immediately prior to such termination of
employment or which becomes exercisable thereafter in
accordance with Section 4(a)(ii)
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of this Agreement may be exercised by such grantee
until the earlier of (x) the later of (1) 90 days
after the grantee's date of termination and (2) with
respect to any portion of the Option that vests in
accordance with Section 4(a)(ii) of this Agreement,
90 days after the date of delivery of audited
financial statements, and (y) the date on which such
option terminates or expires in accordance with the
provisions of the Plan and the other provisions of
this Stock Option Agreement. The Committee may in its
discretion determine (A) whether any leave of absence
(including short-term or long-term disability or
medical leave) shall constitute a termination of
employment for purposes of the Plan and (B) the
impact, if any, of any such leave on outstanding
options under the Plan.
(c) Right of Discharge Reserved. Nothing in the Plan
or this Stock Option Agreement shall confer upon the grantee or any other person
the right to continue in the employment of the Company or any of its
subsidiaries or affect any right which the Company or any of its subsidiaries
may have to terminate the employment of the grantee or any other person.
SECTION 5. Withholding Tax Requirements. Shares of Stock deliverable to
the grantee upon exercise, pursuant to the terms of the Plan and this Stock
Option Agreement, shall be subject to income tax withholding as provided in
Section 10 of the Plan. Subject to the Committee's consent (which shall not be
unreasonably withheld), a grantee may elect to satisfy all or part of such
requirements by delivery of unrestricted shares of Stock owned by the grantee as
provided in Section 10.2 of the Plan.
SECTION 6. Agreement Provisions to Prevail. This Stock Option Agreement
shall be subject to all of the terms and provisions of the Plan, which are
incorporated hereby and made a part hereof, including, without limitation, the
provisions of Section 8 of the Plan (generally relating to consents required by
securities and other laws) and Section 11 of the Plan (generally relating to the
effects of certain reorganizations and other extraordinary transactions and
providing the Committee with the ability to adjust performance targets). In the
event there is any inconsistency between the provisions of this Stock Option
Agreement and the Plan, the provisions of this Stock Option Agreement shall
govern.
SECTION 7. Grantee's Acknowledgments. By entering into this Stock
Option Agreement, the grantee agrees and acknowledges that (a) he has received
and read a copy of the Plan, including Section 14.3 of the Plan (generally
relating to waivers of claims to continued exercisability of awards, damages and
severance entitlements related to non-continuation of awards), and accepts this
option upon all of the terms thereof, and (b) no member of the Committee shall
be liable for any action or determination made in good faith with respect to the
Plan or any award thereunder or under this Stock Option Agreement.
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SECTION 8. Stockholder Restrictions.
(a) Restrictions on Transfer of Stock Acquired by Option
Exercise.
(i) Limitation on Transfer. The grantee shall not
sell, give, assign, hypothecate, pledge, encumber, grant a
security interest in or otherwise dispose of (whether by
operation of law or otherwise) (each a "transfer") any Stock
or any right, title or interest therein or thereto, except in
accordance with the provisions of this Agreement. Any attempt
to transfer any Stock or any rights hereunder in violation of
the preceding sentence shall be null and void ab initio.
(ii) Permitted Transfers. At any time after December
31, 2003, the grantee may, subject to this Section 8(a)(ii),
Section 8(a)(iii) and Section 8(b), transfer all, but not less
than all, of the Stock owned by the grantee to any Person
other than a Person involved with the medical or employee
staffing industry other than through the Company (each a
"Permitted Transferee"); provided that the consideration for
such transfer shall consist solely of cash. No such transfer
to a Permitted Transferee shall be effective unless such
Permitted Transferee becomes a party to a separate agreement
setting forth substantially the same terms as this Section 8.
No Permitted Transferee of Stock pursuant to this Section
8(a)(ii) shall thereafter re-transfer such Stock except in
accordance with this Section 8(a)(ii) and Section 8(a)(iii).
(iii) Permitted Transfer Procedures. The grantee
shall give notice to the Company and AMN Acquisition Corp., a
Delaware corporation ("AMN") of its intention to make any
transfer permitted under Section 8(a)(ii) not less than thirty
(30) calendar days prior to effecting such transfer, which
notice shall state the name and address of the party to whom
such transfer is proposed and the Stock proposed to be
transferred.
(b) Proposed Voluntary Transfers by the Grantee; Right of
First Refusal.
(i) Offering Notice. If after December 31, 2003 the
grantee has received a bona fide offer from a Person (the
"Third Party Purchaser") to pay for cash (a "Third Party
Offer") all of its Stock (the "Offered Stock") and the grantee
desires to accept the Third Party Offer, then the grantee (the
"Selling Stockholder") shall make an offer (the "Offer") to
sell the Offered Stock to AMN and the Company by sending
written notice (the "Offering
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Notice") to the Company and AMN, which notice shall state (x)
the number of shares of Offered Stock and (y) all material
terms and conditions of such proposed sale (including the
proposed purchase price per share of Stock).
(ii) Offer Price. Upon receipt of the Offering
Notice, AMN or its designee and the Company (to the extent
that AMN or its designee does not exercise its right of first
refusal for the Offered Stock) shall have the right, but not
the obligation, to purchase collectively all, but not less
than all, of the Offered Stock. If the Offer is accepted by
AMN's designee, AMN shall remain responsible for such
designee's performance hereunder. The right of first refusal
shall be exercisable with respect to the Offered Stock (i) by
AMN or its designee and (ii) by the Company, to the extent
that AMN or its designee does not exercise its right of first
refusal for all of the Offered Stock, by written notice to the
Selling Stockholder (with a copy to the Company) within twenty
(20) calendar days (in the case of AMN) and within thirty (30)
calendar days (in the case of the Company) of receipt of the
Offering Notice. Failure by AMN or the Company to respond
within the applicable Notice Period shall be regarded as a
rejection of the Offer.
(iii) Sell Option. If all of the Offered Stock has
not been acquired by AMN or its designee or the Company, the
Selling Stockholder(s) shall have the right to sell such Stock
to the Third Party Offeror on the terms and conditions of the
Third Party Offer; provided, that any such sale must be
consummated within 45 calendar days of the date of the
Offering Notice; provided however, that if compliance with the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 is
necessary to consummate such sale, the 45-day period may be
extended to the end of the waiting period thereunder (but in
no event to more than 75 calendar days after the date of the
Offering Notice). In the event that such sale is not
consummated within such 45-day period (as extended if
applicable) for any reason, then the restrictions provided for
herein shall again become effective, and no transfer of such
Offered Stock may be made thereafter by such Selling
Stockholder(s) without again complying with this Section
8(b)(iii).
(c) Drag-Along Right.
(i) Sale of the Company. In the event AMN (the
"Initiating Seller") proposes to sell any of its Stock in one
or more related transactions, including without limitation, a
merger or
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consolidation (a "Drag-Along Sale") to a bona fide party
purchaser (the "Proposed Transferee") on an arm's length
basis, the Initiating Seller shall have the right (the
"Drag-Along Right") to require the grantee (the "Drag-Along
Seller") to sell, and the Drag-Along Seller hereby agrees to
sell, to the Proposed Transferee:
(1) until AMN has sold (or will have sold as a result of such
sale (assuming no tag-along rights are exercised on such sale)) Stock to a third
party in an amount equal to at least 75 percent (75%) of the Stock owned by AMN
as of the date hereof (the "Threshold Event"), that number of shares of Stock
(but not less than such number of shares of Stock) which is equal to the product
of (x) the number of Shares held by the grantee and (y) a fraction (A) the
numerator of which is the number of outstanding shares of Stock proposed to be
sold by the Initiating Seller and (B) the denominator of which is the number of
shares of Stock owned by the Initiating Seller; and
(2) from and after the Threshold Event, all, but not less than
all, of its Stock (such amount referred to in clause (1) or (2), as the case may
be, for the grantee being herein referred to as the "Drag-Along Amount").
(ii) Sale Notice. The Initiating Seller shall notify
the Company, and the Company shall promptly notify the
Drag-Along Seller in writing of such proposed Transfer (the
"Sale Notice"). The Sale Notice shall set forth (a) the name
and address of the Proposed Transferee and (b) a copy of the
written proposal pursuant to which the Drag-Along Sale will be
effected, containing all of the material terms and conditions
thereof including (1) the number of shares of Stock
(calculated on a fully diluted, as converted basis) proposed
to be transferred by the Initiating Seller, (2) the applicable
Drag-Along Amount, (3) the price per share of Stock to be
paid, (4) the terms and conditions of payment offered by the
Proposed Transferee, (5) whether the Initiating Seller has
determined to exercise the Drag-Along Right, (6) in the event
the Initiating Seller has determined to exercise the
Drag-Along Right, that the Proposed Transferee has been
informed of the Drag-Along Right provided for in this Section
8(c) and has agreed to purchase the applicable Drag-Along
Amount in accordance with the terms hereof and (7) the date
and location of and procedures for selling Stock to the
Proposed Transferee.
(iii) Purchase of Drag-Along Amount. The Stock
purchased from the Drag-Along Seller by the Proposed
Transferee pursuant to this Section 8(c) shall be paid for at
the same price per share and upon terms and conditions no less
favorable than the terms and conditions applicable to the
Stock to be sold by the Initiating Seller.
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(d) Stock Certificate Legend; Recording of Transfer. A copy of
this Agreement shall be filed with the Secretary of the Company and kept with
the records of the Company. Each certificate representing Stock now held or
hereafter acquired by the grantee shall, at the option of the Company, for as
long as this Section 8 is effective, bear a legend as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE
SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
SUCH ACT AND UNDER ANY APPLICABLE STATE SECURITIES LAWS, OR AN OPINION
OF COUNSEL SATISFACTORY TO THE ISSUER HEREOF THAT SUCH REGISTRATION IS
NOT REQUIRED AS TO SUCH SALE OR OFFER.
THE TRANSFER AND PLEDGE OF ANY OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS RESTRICTED BY THE TERMS OF THIS STOCK OPTION AGREEMENT,
DATED AS OF DECEMBER 13, 2000, AMONG THE COMPANY AND THE GRANTEE, A
COPY OF WHICH MAY BE INSPECTED AT THE COMPANY'S PRINCIPAL OFFICE.
(e) All Transfers in Compliance with Law and Subject to this
Assignment. Any transfer of Stock permitted or required by this Agreement must
be in compliance with the applicable provisions of this Agreement and with
federal and state securities laws, including, without limitation, the Securities
Act.
(f) Specific Performance. The parties hereto intend that each
of the parties have the right to seek damages and/or specific performance in the
event that any other party hereto fails to perform such party's obligations
hereunder. Therefore, if any party shall institute any action or proceeding to
enforce the provisions hereof, any party against whom such action or proceeding
is brought hereby waives any claim or defense therein that the plaintiff party
has an adequate remedy at law.
(g) Definitions. For purposes hereof, the following terms
shall have the meanings set forth below:
"Person" means any individual, corporation, partnership,
limited liability company, firm, joint venture, association, joint stock
company, trust, unincorporated organization, governmental body or other entity.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
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"Stock" means, with respect to each Stockholder, all shares,
whether now owned or hereafter acquired, of Common Stock owned by such
Stockholder.
(h) Term. This entire Section 8 shall terminate upon the
closing of a bona fide initial public offering of Common Stock of the Company.
SECTION 9. Nontransferability. No option granted to the grantee under
the Plan or this Stock Option Agreement shall be assignable or transferable by
the grantee (whether by operation of law or otherwise and whether voluntarily or
involuntarily), other than by will or by the laws of descent and distribution.
During the lifetime of the grantee, all rights granted to the grantee under the
Plan or under this Stock Option Agreement shall be exercisable only by the
grantee or the grantee's court appointed legal representative. Notwithstanding
the foregoing, with the Committee's consent, the option may be transferred to
one or more members of the grantee's immediate family or trusts all of the
beneficiaries (other than contingent beneficiaries) of which are members of the
grantee's immediate family.
SECTION 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
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,
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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.
SECTION 11. Execution of Agreement. Notwithstanding anything contained
in this Stock Option Agreement to the contrary, no option may be exercised until
the grantee has returned an executed copy of this Stock Option Agreement to the
Company.
SECTION 12. Notice. Any notice to be given to the Company hereunder
shall be in writing and shall be addressed to 00000 Xx Xxxxxx Xxxx, Xxxxx 000,
Xxx Xxxxx, Xxxxxxxxxx 00000 or at such other address as the Company may
hereafter designate to the grantee by notice as provided herein. Any notice to
be given to the grantee hereunder shall be addressed to the grantee at the
address set forth below or at such other address as the grantee may hereafter
designate to the Company by notice as provided herein. Notices hereunder shall
be deemed to have been duly given when received by personal delivery or by
registered or certified mail to the party entitled to receive the same.
SECTION 13. Reorganization Event. The option awarded hereunder may be
subject, in the Committee's discretion, to termination on account of a
Reorganization Event affecting the Company, as described in Section 17 of the
Plan.
SECTION 14. Successors and Assigns. This Stock Option Agreement shall
be binding upon and inure to the benefit of the parties hereto and the
successors and assigns of the Company and, to the extent set forth in the Plan,
the heirs and personal representatives of the grantee.
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SECTION 15. Governing Law. This Agreement shall be governed by the laws
of the State of Delaware applicable to agreements made and to be performed
entirely within such State.
SECTION 16. Modifications to Agreement. This Agreement may not be
altered, modified, changed or discharged, except by a writing signed by or on
behalf of both the Company and the grantee.
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IN WITNESS WHEREOF, the parties hereto have executed this
Stock Option Agreement as of the date and year first above written.
AMN HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Title: CFO
/s/ Xxxxxx X. Xxxxxxx
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Grantee
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Address
