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Exhibit 10.11
AMN HOLDINGS, INC.
1999 PERFORMANCE STOCK OPTION PLAN
CEO Nonqualified Stock Option Agreement
STOCK OPTION AGREEMENT dated November 19, 1999, between AMN
HOLDINGS, INC., a Delaware corporation (the "Company"), and Xxxxxx X. 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 31,238.3 shares of Stock at a purchase
price of $163.9743 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
Fiscal Year EBITDA Option Becomes Exercisable
2000 at least $18,915,000 7,809.6
2001 at least $22,685,000 7,809.6
2002 at least $27,115,000 7,809.6
2003 at least $31,193,000 7,809.5
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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.
(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 equals or
exceeds three times HWP's aggregate investment in the Company (after taking into
account any prior sales by HWP of any portion of its investment in the Company),
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 the
tenth anniversary of the date of grant
thereof.
(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
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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 remain eligible for vesting and exercise
pursuant to Sections 4(a)(ii) or 4(c) 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 terminate immediately, 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 (including, without limitation, Section 4(c)), 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,
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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 (including, without limitation,
Section 4(c)), 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) 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) Special Rule. If termination of the grantee's employment
occurs due to death, Disability (as defined in the Plan), resignation for Good
Reason, termination without Cause, or a resignation within 90 days of a Change
of Control as described in Section 5.03 of the grantee's employment agreement,
and such termination takes place between January 1, 2002 and December 31, 2003,
then one-half of the portion of the option eligible for vesting in Fiscal Years
2002 and 2003 in accordance with Section 2(a), which has not previously become
exercisable and as to which the applicable Fiscal Year has not ended, shall not
terminate, but rather shall remain outstanding and become exercisable if and to
the extent that the performance targets set forth in Section 2(a) are met for
Fiscal Years 2002 and 2003 (as applicable), as if such termination of employment
had not occurred. After each such vesting, if any, grantee shall have a period
of 90 days in which to exercise such portion of the option, unless his
termination was due to death or Disability, in which case the grantee or his
estate shall have one year after vesting to exercise such portion of the option.
Any portion of the option which remains outstanding
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following termination of employment as described in this Section 4(c), but as to
which the applicable Fiscal Year has ended without the performance targets
having been attained, shall terminate as of the end of such Fiscal Year.
(d) 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, 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.
SECTION 8. 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.
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SECTION 9. 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 or 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, pricing arrangements, requirements and practices. Grantee's
obligation under this Section 9(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
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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 9(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 10. 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 11. Notices. 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 12. Reorganization Event. The option awarded hereunder may be
subject, in the Committee's discretion, to termination upon advance notice on
account of a Reorganization Event affecting the Company, as described in Section
17 of the Plan.
SECTION 13. 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.
SECTION 14. 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 15. 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
__________________________________________
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President, Finance &
CFO
/s/ Xxxxxx X. Xxxxxxx
__________________________________________
Xxxxxx X. Xxxxxxx
X.X. Xxx 000000
Xxxxxx Xxxxx Xx, Xxxxxxxxxx 00000
__________________________________________
(Address)
