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EXHIBIT 10.11
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT (this "Agreement"), is effective as of
August 6, 1998 (the "Grant Date") and is by and between MedPartners, Inc., a
Delaware corporation (the "Company"), and Xxxxxx X. Xxxxxx, Xx. (the
"Optionee").
RECITALS
WHEREAS, on August 6, 1998, the Board of Directors (the "Board") of
the Company adopted a stock option plan known as the "MedPartners, Inc. 1998
New Employee Stock Option Plan" (the "Plan") which authorizes the Compensation
Committee of the Board (the "Committee") to grant options to purchase shares of
the Company's common stock, $.001 par value (the "Common Stock") to persons who
were not previously employees of the Company as a material inducement to such
persons to enter into employment agreements with the Company;
WHEREAS, the Committee has granted the Optionee an Option (as
described below) to purchase the number of shares of Common Stock as set forth
below;
WHEREAS, Optionee has indicated that the granting of an Option is a
material inducement to Optionee to enter into an employment agreement with the
Company
WHEREAS, the Optionee has agreed to exercise an employment agreement
of even date herewith with the Company (the "Employment Agreement"); and
WHEREAS, the Company and the Optionee desire to enter into a written
agreement with respect to the Option in accordance with the Plan.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows.
1. Incorporation of Plan. This Option is granted pursuant to the
provisions of the Plan and the terms and conditions of the Plan are
incorporated herein by reference and made a part hereof. A copy of the Plan has
been delivered to, and receipt is hereby acknowledged by, the Optionee. Except
as otherwise noted, capitalized terms used herein and not otherwise defined
herein shall have the meanings ascribed to them in the Plan. Notwithstanding
anything in this Agreement to the contrary, to the extent the terms of this
Agreement conflict with or otherwise attempt to exceed the authority of the
Committee set forth under the Plan, the Plan shall govern and control in all
respects.
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2. Grant of Option. Subject to the terms, restrictions,
limitations, and conditions stated herein and in the Plan, the Company hereby
evidences its grant to the Optionee of the right and option to purchase 400,000
shares of Common Stock (the "Option") at a price of $3.25 per share (the
"Exercise Price").
3. Additional Changes in Control and Option Term.
3.1. Additional Change in Control. Without amending the
provisions of Article 9 of the Plan and without limiting the definition of
"Change in Control" contained in Section 2.7 of the Plan, pursuant to the
authority granted to the Committee in Section 2.7(e) of the Plan, the Committee
does hereby include in the definition of "Change in Control" contained in the
Plan, the sale, transfer or other disposition, in a transaction or series of
related transactions, of a majority of the assets of any one of the Company's
three major lines of business as of the Grant Date (consisting of its physician
practice management services business, pharmacy benefit management services
business and contracts management services business).
3.2. Option Term. Unless earlier terminated pursuant to
the Plan, this Option shall terminate on the day that is the tenth (10th)
anniversary of the Grant Date (the "Term"). In the event this Option is not
exercised with respect to all or any part of the shares of Common Stock subject
to this Option prior to the expiration of the Term or the cancellation of the
Option as provided in the Plan, the shares of Common Stock with respect to
which this Option was not exercised shall no longer be subject to this Option
and Optionee shall have no further right to purchase such shares.
4. Restrictions on Transferability.
4.1. Transfers to Immediate Family Members. This Option
may not be transferred to any person or entity except for (i) Immediate Family
Members, (ii) a trust or trusts for the exclusive benefit of such Immediate
Family Members, or (iii) a partnership in which such Immediate Family Members
are the only partners, provided that, Optionee may receive no form of
consideration or value whatsoever (whether tangible or intangible) for such
transfer.
4.2. Application of the Plan. Following any transfer
allowed pursuant to Section 4.1 (such transfer a "Permitted Transfer"), (i) the
Option shall be subject to the terms and conditions of the Plan and this
Agreement and (ii) to the extent not inconsistent with the terms of this
Agreement or the Plan, such transferee shall be deemed the "Participant"
pursuant to the Plan, provided that, the events of termination of the Option as
provided in the Plan and this Agreement shall continue to be applied with
respect to the Optionee such that the Option shall be exercisable by transferee
only to the extent and for the periods specified in Section 6.9 of the Plan as
such periods, terms and events are applied to the Optionee.
4.3. No Obligation of Committee or Company. Neither the
Company, its Board of Directors, nor the Committee shall have any obligation to
notify or otherwise provide notice to a transferee of any early termination of
the Option.
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4.4. Subsequent Transfers. Any transferee of Options
hereunder shall be prohibited from subsequently transferring such Options other
than pursuant to a will or by the laws of descent.
5. Notice of Exercise of Option.
5.1. Exercise of Option. This Option may be exercised by
the Optionee, or by the Optionee's administrators, executors, personal
representatives, or permitted transferees (collectively and together with
Optionee, the "Exercising Parties" and each an "Exercising Party") by a written
notice (in substantially the form of the Notice of Exercise attached hereto as
Exhibit A) signed by the appropriate Exercising Party and delivered or mailed
to the Company as specified in Section 11.3 hereof to the attention of the
President and Chief Executive Officer or such other officer as the Company may
designate.
5.2. Content of Notice. Any such notice shall:
(1) specify the number of shares of Stock which
the appropriate Exercising Party then elects to purchase hereunder,
(2) contain such information as may be
reasonably required pursuant to Section 9 hereof, and
(3) be accompanied by (i) a certified or
cashier's check payable to the Company in an amount equal to the
Exercise Price times the number of shares of Common Stock to be
purchased (such amount, the "Aggregate Purchase Price"); or, (ii) if
approved by the Committee, (A) shares of Common Stock owned by the
Optionee and duly endorsed or accompanied by stock transfer powers and
having an aggregate Fair Market Value equal to the Aggregate Purchase
Price; or (B) a certified or cashier's check accompanied by the number
of shares of Common Stock whose aggregate Fair Market Value when added
to the amount of the check equals the Aggregate Purchase Price,
subject to compliance with applicable federal and state laws.
5.3. Issuance of Stock. Upon receipt of any such notice
and accompanying payment, and subject to the terms hereof, the Company agrees
to issue to the appropriate Exercising Party stock certificates for the number
of shares specified in such notice registered in the name of the person
exercising this Option.
5.4. Fair Market Value. As used herein, the term "Fair
Market Value" shall be determined in accordance with Section 6.7 of the Plan on
the date the Exercising Party sends notice of its intent to exercise all or a
portion of the Option in accordance with Section 5.1 hereof.
6. Adjustment in Option. The number of shares of Stock subject
to this Option, the Exercise Price and other matters are subject to adjustment
during the term of this Option in accordance with the Plan.
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7. Death of Optionee. In the event of the Optionee's death, the
appropriate Exercising Party may exercise this Option at any time within a
period ending on the earlier of (a) the last day of the one (1) year period
following the Optionee's death or (b) the expiration date of this Option.
8. Date of Grant. This Option was granted by the Committee on
the Grant Date.
9. Compliance with Regulatory Matters. The Optionee acknowledges
that the issuance of capital stock of the Company is subject to limitations
imposed by federal and state law and the Optionee hereby agrees that the
Company shall not be obligated to issue any shares of Common Stock upon
exercise of this Option that would cause the Company to violate law or any
rule, regulation, order or consent decree of any regulatory authority
(including without limitation the Securities and Exchange Commission) having
jurisdiction over the affairs of the Company. The Optionee (or any appropriate
Exercising Party) agrees that he or she will provide the Company with such
information as is reasonably requested by the Company or its counsel to
determine whether the issuance of Common Stock complies with the provisions
described by this Section.
10. Investment Representation of Optionee.
10.1. Representations. Optionee represents to the Company
the following:
(1) that Optionee has read and understands the
terms and provisions of the Plan, and hereby accepts this Agreement
subject to all the terms and provisions of the Plan;
(2) that optionee shall accept as binding and
final all decisions or interpretations of the Board or of the
Committee upon any questions arising under the Plan;
(3) that Optionee understands that, unless at
the time of exercise of the Option a registration statement under the
Securities Act of 1933 (the "Act"), as amended, is in effect covering
shares of Common Stock to be issued upon exercise of the Option, as a
condition to the exercise of the Option the Company may require
Optionee to represent that Optionee is acquiring the Common Stock for
Optionee's own account only and not with a view to, or for sale in
connection with, any distribution of the Stock.
10.2. Stock Legends. The Optionee understands and agrees
that the certificate or certificates representing any shares of Stock acquired
hereunder may bear an appropriate legend relating to registration and resale
under federal and state securities laws.
10.3. No Rights as Stockholder. The Optionee shall not
have any rights of a stockholder of the Company with respect to the shares of
Common Stock which may be purchased upon exercise of this Option, unless and
until such shares shall have been issued and
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delivered and his/her name has been entered as a stockholder on the stock
transfer records of the Company.
10.4. No Registration Right. Notwithstanding anything in
this Agreement or the Plan to the contrary, nothing herein shall obligate or
require the Company to file or keep effective a registration statement pursuant
to the Act or any state's securities law covering the shares of Common Stock to
be issued upon exercise of the Option.
11. Miscellaneous.
11.1. Successors and Assigns. This Agreement shall be
binding upon the parties hereto and their representatives, successors and
assigns.
11.2. Choice of Law. This Agreement shall be governed by
the laws of the State of Delaware, without regard to conflicts of laws
principles.
11.3. Notice. Any notice, request, document or other
communication given hereunder shall be deemed to be sufficiently given upon
personal delivery to the other party or upon the expiration of three (3) days
after depositing same in the United States mail, return receipt requested,
properly addressed to the respective parties' or such other address as they may
give to the other party in writing in the same manner as follows:
Company: MedPartners, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: President and Chief Executive Officer
Optionee: Xxxxxx X. Xxxxxx, Xx.
00 Xxxxxx Xxx
Xxxxxxxxxx, Xxxxxxx 00000
11.4. Amendment. This Agreement may not be modified except
in writing executed by each of the parties hereto.
11.5. Entire Agreement. This Agreement, together with the
Plan, contains the entire understanding of the parties hereto and supersedes
any prior understanding and/or written or oral agreement between them
respecting the subject matter hereof.
11.6. Severability. The parties agree that the provisions
of this Agreement are severable and the invalidity or unenforceability of any
provision in whole or part shall not affect
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the validity or enforceability of any enforceable part of such provision or any
other provisions hereof.
11.7. Section Headings. The paragraph and section headings
herein are included solely for convenience of reference and shall not control
the meaning or interpretation of any of the provisions of this Agreement.
11.8. Waiver. No waiver of any breach or default hereunder
shall be considered valid unless in writing, and no such waiver shall be deemed
a waiver of any subsequent breach or default of the same or similar nature.
11.9. Counterparts. This Agreement may be executed in one
or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Committee has caused this Stock
Option Agreement to be executed on behalf of the Company and the Optionee has
executed this Stock Option Agreement.
COMPANY:
MEDPARTNERS, INC.
/s/ E. Xxx Xxxxxxxx
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E. Xxx Xxxxxxxx
President and Chief Executive Officer
OPTIONEE:
/s/ Xxxxxx X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, Xx.
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Exhibit A
to
Stock Option Agreement
between
MedPartners, Inc.
and
Xxxxxx X. Xxxxxx, Xx.
NOTICE OF EXERCISE
Dated
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The undersigned hereby notifies MedPartners, Inc. (the
"Company") of this election to exercise the undersigned's stock option to
purchase ________________ shares of the Company's common stock, $.001 par value
(the "Common Stock"), pursuant to the Stock Option Agreement (the "Agreement")
between the undersigned and the Company dated ________________. Accompanying
this Notice is (1) a certified or a cashier's check in the amount of
$________________ payable to the Company, and/or (2) _______________ shares of
Common Stock presently owned by the undersigned and duly endorsed or
accompanied by stock transfer powers, having an aggregate Fair Market Value (as
determined by Section 5.4 of the Agreement) as of the date hereof of
$__________________, such amounts being equal, in the aggregate, to the
Exercise Price per share set forth in Section 2 of the Agreement multiplied by
the number of shares being purchased hereby (in each instance subject to
appropriate adjustment pursuant to Section 6 of the Agreement).
The undersigned is a resident of the State of ______________.
IN WITNESS WHEREOF, the undersigned has set his/her hand and
seal, this ________ day of ________________, ______.
OPTIONEE [OR OPTIONEE'S
ADMINISTRATOR, EXECUTOR OR
PERSONAL REPRESENTATIVE]
Name:
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Position (if other than Optionee):
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