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Exhibit 10.39
DATE OF GRANT: NOVEMBER 22, 2000
AREMISSOFT CORPORATION
NONQUALIFIED STOCK OPTION AGREEMENT
THIS OPTION AGREEMENT MAY BE EXERCISED ONLY IN ACCORDANCE WITH THE TERMS AND
CONDITIONS OF THE AREMISSOFT CORPORATION 2000 STOCK OPTION PLAN, INCORPORATED
HEREIN. A COPY OF THE PLAN CAN BE OBTAINED FROM THE COMPANY UPON REQUEST OF THE
HOLDER HEREUNDER. THE GRANT OF THIS OPTION SHALL NOT IMPOSE AN OBLIGATION UPON
THE OPTIONEE TO EXERCISE THIS OPTION.
THIS AGREEMENT is made by and between AremisSoft Corporation, a Delaware
corporation (the "Company"), and Prime Growth Inc., a British Virgin Islands
corporation ("Optionee"), an entity in which ▇▇. ▇▇▇▇ Poyiadjis ("Employee") has
voting and investing authority, effective as of November 22, 2000.
In consideration of the mutual covenants contained herein and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the parties hereto agree as follows:
1. GRANT OF OPTION. The Company hereby grants to Optionee, in the manner
and, subject to the conditions hereinafter provided, the right, privilege and
option to purchase (the "Option") an aggregate of Three Hundred and Seventy-Five
Thousand (375,000) shares of the Company's common stock, $.001 par value, (the
"Shares" or "Common Stock"). This Option is specifically conditioned on
compliance with the terms and conditions set forth herein and in the Company's
2000 Stock Option Plan (the "Plan).
2. TERM OF OPTION. Subject to the terms, conditions and restrictions set
forth herein, the term of this Option shall be ten (10) years from the date of
grant (the "Expiration Date"). Any portion of this Option not exercised prior to
the Expiration Date shall thereupon become null and void.
3. EXERCISE OF OPTION.
3.1. VESTING OF OPTION. This Option shall become exercisable as follows:
(a) One-seventh (1/7) of the Shares covered by the said Option
shall vest on November 22, 2001 ("Vesting Start Date"),
and beginning with the date one year after the Vesting
Start Date, one-seventh (1/7) of the Shares covered by
said Option shall vest on the same day of each year-long
period for the following six (6) years so that all of the
Shares under this Option shall be fully vested Seven (7)
years from the Grant Date (each of the foregoing dates
shall be referred to as a "Vesting Date")
(b) Notwithstanding the above, the Shares which have not been
vested ("Unvested Portion") shall be subject to
accelerated vesting as follows:
Number of Shares Vesting Event
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125,000 or the Unvested Shall vest when the Company's 5-day
Portion, whichever is less average trading price as quoted on the
NASDAQ reaches $42.50
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Number of Shares Vesting Event
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125,000 or the Unvested Shall vest when the Company's 5-day
Portion, whichever is less average trading price as quoted on the
NASDAQ reaches $46.00
125,000 or the Unvested Shall vest when the Company's 5-day
Portion, whichever is less average trading price as quoted on the
NASDAQ reaches $50.00
In the event that the Optionee ceases to be a director of the Company
but continues as a consultant or employee of the Company or any subsidiary, then
all remaining unvested options shall immediately vest and become exercisable by
the Optionee.
All or any portion of the Shares underlying a Vested Portion of this
Option may be purchased during the term of this Option, but not as to less than
100 Shares (unless the remaining Shares then constituting the Vested Portion of
this Option is less than 100 Shares) at any time.
3.2. MANNER OF EXERCISE. The Vested Portion of this Option may be
exercised from time to time, in whole or in part, by presentation of a "Request
To Exercise Form," substantially in the form attached hereto, to the Company at
its principal office, which form must be duly executed by Optionee and
accompanied by payment, in cash, to the Company, in the aggregate amount of the
Exercise Price (as defined below), multiplied by the number of Shares the
Optionee is purchasing at such time, subject to reduction for withholding for
tax obligations, if any, as provided in Section 13.
Upon receipt and acceptance by the Company of such form accompanied by
the payment specified, the Optionee shall be deemed to be the record owner of
the Shares purchased, notwithstanding that the stock transfer books of the
Company may then be closed or that certificates representing the Shares
purchased under this Option may not then be actually delivered to the Optionee.
3.3. EXERCISE PRICE. The exercise price (the "Exercise Price") payable
upon exercise of this Option shall be U.S. Thirty-Six and 25/100 Dollars (U.S.
$36.25) per Share.
4. EXERCISE AFTER CERTAIN EVENTS.
4.1. TERMINATION OF EMPLOYMENT. If for any reason other than permanent
and total disability (as defined below) or death, an Employee ceases to be
employed by the Company, Options held at the date of such termination (to the
extent then exercisable) may be exercised, in whole or in part, at any time
within three (3) months after the date of such termination or such lesser period
specified in the Option Agreement (but in no event after the expiration date of
the Option).
4.2. PERMANENT DISABILITY AND DEATH. If the Employee becomes permanently
and totally disabled (within the meaning of Section 22(e)(3) of the Internal
Revenue Code of 1986, as amended), or dies while employed by the Company, (or if
the Employee dies within the period that the Option remains exercisable after
termination of employment or affiliation), Options then held (to the extent then
exercisable) may be exercised by the Optionee, the Optionee's personal
representative, or by the person to whom the Option is transferred by will or
the laws of descent and distribution, in whole or in part, at any time within
one (1) year after the disability or death (but in no event after the expiration
date of the Option).
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5. RESTRICTIONS ON TRANSFER OF OPTION. This Option is not transferable by
Optionee without the prior written consent of the Company and is exercisable
only by the Optionee during the Employee lifetime except as provided in Section
4.2. above. In accordance with the Plan, the Option and the Shares underlying
the Option shall not be available for the debts or obligations of the Optionee,
nor shall it be subject to disposition by transfer, alienation, pledge or other
means of disposition, whether voluntary or involuntary, or by operation of law
through judgment, levy, attachment, garnishment or other legal proceeding
(including bankruptcy).
6. ADJUSTMENT FOR CHANGES IN CAPITALIZATION. The existence of this Option shall
not affect the Company's right to effect adjustments, recapitalizations,
reorganizations or other changes in its or any other corporation's capital
structure or business, any merger or consolidation, any issuance of bonds,
debentures, preferred or prior preference stock ahead of or affecting the
Shares, the dissolution or liquidation of the Company's or any other
corporation's assets or business, or any other corporate act, whether similar to
the events described above or otherwise. If the outstanding shares of the
Company's Common Stock are increased or decreased in number or changed into or
exchanged for a different number or kind of securities of the Company or any
other corporation by reason of a recapitalization, reclassification, stock
split, reverse stock split, combination of shares, stock dividend or other
similar event, an appropriate adjustment of the number and kind of securities
with respect to which this Option may be exercised and the exercise price at
which this Option may be exercised will be made.
7. DISSOLUTION, LIQUIDATION AND MERGER.
7.1. COMPANY NOT THE SURVIVOR. In the event of a dissolution or
liquidation of the Company, a merger, consolidation, combination or
reorganization in which the Company is not the surviving corporation, or a sale
of substantially all of the assets of the Company (as determined in the sole
discretion of the Board of Directors), the Administrator, in its absolute
discretion, may cancel each outstanding Option upon payment in cash to the
Optionee of the amount by which any cash and the fair market value of any other
property which the Optionee would have received as consideration for the shares
of Common Stock covered by the Option if the Option had been exercised before
such liquidation, dissolution, merger, consolidation or sale, exceeds the
exercise price of the Option. In addition to the foregoing, in the event of a
dissolution or liquidation of the Company, or a merger, consolidation,
combination or reorganization, in which the Company is not the surviving
corporation, the Administrator, in its absolute discretion, may accelerate the
time within which each outstanding Option may be exercised.
7.2. COMPANY IS THE SURVIVOR. In the event of a merger, consolidation,
combination or reorganization in which the Company is the surviving corporation,
the Board of Directors shall determine the appropriate adjustment of the number
and kind of securities with respect to which outstanding Options may be
exercised, and the exercise price at which outstanding Options may be exercised.
The Board of Directors shall determine, in its sole and absolute discretion,
when the Company shall be deemed to survive for purposes of the Plan or this
Agreement.
8. CHANGE OF CONTROL. If there is a change of control in the Company, all
outstanding Options shall fully vest immediately upon the Company's public
announcement of such a change. A "change of control" shall mean an event
involving one transaction or a related series of transactions, in which (i) the
Company issues securities equal to 25% or more of the Company's issued and
outstanding voting securities, determined as a single class, to any individual,
firm, partnership, limited liability company, or other entity, including a
"group" within the meaning of SEC Exchange Act Rule 13d-3, (ii) the Company
issues voting securities equal to 25% or more of the issued and outstanding
voting stock of the Company in connection with a merger, consolidation other
business combination, (iii) the Company is acquired in a merger or other
business
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combination transaction in which the Company is not the surviving company, or
(iv) all or substantially all of the Company's assets are sold or transferred.
See Section 7 with respect to Options vesting upon the occurrence of either of
the events described in (iii) or (iv) of this Section 8 and the result upon the
non-exercise of the Options.
9. SUSPENSION AND TERMINATION. In the event the Board or the Committee
reasonably believes the Optionee has committed an act of misconduct including,
but limited to acts specified below, the Committee may suspend the Optionee's
right to exercise this Option granted hereunder pending final determination by
the Board or the Committee. If the Committee determines that the Optionee has
committed an act of embezzlement, fraud, breach of fiduciary duty or deliberate
disregard of the Company rules or rules made by a supervisor, or if the Optionee
makes an unauthorized disclosure of any Company trade secret or confidential
information, engages in any conduct constituting unfair competition, induces any
Company customer to breach a contract with the Company or induces any principal
for whom the Company acts as agent to terminate such agency relationship,
neither the Optionee nor his or her estate shall be entitled to exercise any
Option hereunder. In making such determination, the Board or the Committee shall
give the Optionee an opportunity to appear and present evidence on the
Optionee's behalf. The determination of the Board or the Committee shall be
final and conclusive.
10. COMPLIANCE WITH SECURITIES LAWS. The Company shall not be obligated to issue
any shares of Stock upon exercise of this Option unless such shares are at that
time effectively registered or exempt from registration under the federal
securities laws and the offer and sale of the shares of Stock are otherwise in
compliance with all applicable securities laws. Upon exercising all or any
portion of this Option, the Optionee may be required to furnish representations
or undertakings deemed appropriate by the Company to enable the offer and sale
of the shares of Stock or subsequent transfers of any interest in such shares to
comply with applicable securities laws. Evidence of ownership of shares of Stock
acquired upon exercise of Options shall bear any legend required by, or useful
for purposes of compliance with, applicable securities laws, this Plan or this
Option.
11. RESERVATION OF SHARES OF STOCK. The Company agrees that prior to the earlier
of the expiration of this Option or the exercise and purchase of the total
number of shares of Stock represented by this Option, there shall be reserved
for issuance and delivery upon exercise of this Option such number of the
Company's authorized and unissued shares as shall be necessary to satisfy the
terms and conditions of this Agreement.
12. NO RIGHTS AS SHAREHOLDER. The Optionee shall have no rights as a shareholder
with respect to any shares of Stock covered by this Option. The Optionee shall
have no right to vote any shares of Stock, or to receive distributions of
dividends or any assets or proceeds from the sale of Company assets upon
liquidation until such Optionee has effectively exercised this Option and fully
paid for such shares of Stock. Subject to Sections 7 and 8, no adjustment shall
be made for dividends or other rights for which the record date is prior to the
date title to the shares of Stock has been acquired by the Optionee.
13. NO RIGHTS TO EMPLOYMENT OR CONTINUED EMPLOYMENT. The grant of this Option
shall in no way be construed so as to confer on the Optionee the rights to
employment or continued employment by the Company or any Subsidiary. Nothing in
the Plan or hereunder shall confer upon the Optionee any right to employment or
to continue in the employ or consultancy of the Company or any Subsidiary, or to
interfere with or restrict in any way the rights of the Company, which are
hereby expressly reserved, to terminate or discharge the Optionee at any time
for any reason whatsoever, with or without cause.
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14. PARTICIPATION IN OTHER OPTION PLANS. The grant of this Option shall not
prevent the Optionee from participating or being granted other options in the
same or other plans provided, however, that the Optionee meets the eligibility
requirements, and such participation or grant does not prevent the other plan
from meeting the requirements of the Internal Revenue Code of 1986, as amended.
15. PAYMENT OF TAXES. Upon the exercise of the Option, the Company shall have
the right to require the Optionee or such other person to pay by cash, or check
payable to the Company, the amount of any required withholding on applicable
federal, state, and local taxes and FICA with respect to such transactions. Any
such payment must be made promptly when the amount of such obligation becomes
determinable (the "Tax Date"). To the extent permissible under applicable tax,
securities and other laws, the Committee may, in its sole discretion and upon
such terms and conditions as it may deem appropriate, permit the Optionee to
satisfy his or her obligation to pay any such tax, in whole or in part, up to an
amount not greater than the employer's minimum statutory withholding based on
the minimum statutory withholding rates, by (a) directing the Company to apply
shares of Common Stock to which the Optionee is entitled as a result of the
exercise of this Option, or (b) delivering to the Company shares of Common Stock
owned by the Optionee. The shares of Common Stock so applied or delivered in
satisfaction of the Optionee's tax withholding obligation shall be valued at
their Fair Market Value as of the date of measurement of the amount of income
subject to withholding.
16. ARBITRATION. Any controversy, dispute, or claim arising out of or relating
to this Option which cannot be amicably settled including, but not limited to,
the suspension or termination of the Optionee's right in accordance with Section
9 above, shall be settled by arbitration. Said arbitration shall be conducted in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association at a location selected by the arbitrator(s) within the County of
Sacramento.
16.1. INITIATION OF ARBITRATION. After seven (7) days prior written
notice to the other, either party hereto may formally initiate arbitration under
this Agreement by filing a written request therefor, and paying the appropriate
filing fees, if any.
16.2. HEARING AND DETERMINATION DATES. The hearing before the arbitrator
shall occur within thirty (30) days from the date the matter is submitted to
arbitration. Further, a determination by the arbitrator shall be made within
forty-five (45) days from the date the matter is submitted to arbitration.
Thereafter, the arbitrator shall have fifteen (15) days to provide the parties
with his or her decision in writing. However, any failure to meet the deadlines
in this section will not affect the validity of any decision or award.
16.3. BINDING NATURE OF DECISION. The decision of the arbitrator shall
be binding on the parties. Judgment thereon shall be entered in a court of
competent jurisdiction.
16.4. INJUNCTIVE ACTIONS. Nothing herein contained shall bar the right
of either party to seek to obtain injunctive relief or other provisional
remedies against threatened or actual conduct that will cause loss or damages
under the usual equity rules including the applicable rules for obtaining
preliminary injunctions and other provisional remedies.
16.5. COSTS. The cost of arbitration, including the fees of the
arbitrator, shall initially be borne equally by the parties; provided, the
prevailing party shall be entitled to recover such costs, in addition to
attorneys' fees and other costs, in accordance with Section 18 of this
Agreement.
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17. NOTICES. All notices to be given by either party to the other shall be in
writing and may be transmitted by personal delivery, facsimile transmission,
overnight courier or mail, registered or certified, postage prepaid with return
receipt requested; provided, however, that notices of change of address or telex
or facsimile number shall be effective only upon actual receipt by the other
party. Notices shall be delivered at the following addresses, unless changed as
provided for herein:
To the Optionee: Prime Growth Inc.
c/o Caribbean Corporate Services Limited
▇▇▇▇ ▇▇▇▇▇ Building, Wickhams Cay I
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
To the Company: AremisSoft Corporation
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
18. APPLICABLE LAW. This Option and the relationship of the parties in
connection with its subject matter shall be governed by, and construed under,
the laws of the state of Delaware.
19. ATTORNEYS FEES. In the event of any litigation, arbitration or other
proceeding arising out of this Option, the prevailing party shall be entitled to
an award of costs, including an award of reasonable attorneys' fees. Any
judgment, order or award entered in any such proceeding shall designate a
specific sum as such an award of attorneys' fees and costs incurred. This
attorneys' fee provision is intended to be severable from the other provisions
of this Agreement, shall survive any judgment or order entered in any
proceeding, and shall not be deemed merged into any such judgment or order, so
that such further fees and costs as may be incurred in the enforcement of an
award or judgment or in defending it on appeal shall likewise be recoverable by
further order of a court or panel or in a separate action as may be appropriate.
20. BINDING EFFECT. This Agreement shall inure to the benefit of, and be binding
upon, the parties hereto and their respective heirs, executors and successors.
21. TAX EFFECT. The federal tax consequences of stock options are complex and
subject to change. Each person should consult with his or her tax advisor before
exercising any Option or disposing of any Shares acquired upon the exercise of
an Option.
IN WITNESS WHEREOF, this Option Agreement has been executed as of the
date first above written.
THE COMPANY: AREMISSOFT CORPORATION
By:
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Dr. Lycourgos ▇. ▇▇▇▇▇▇▇▇▇,
Chairman of the Board
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REQUEST TO EXERCISE FORM
Dated:___________________________
The undersigned hereby irrevocably elects to exercise all or part, as
specified below, of the Vested Portion of the option granted to him or her
pursuant to that certain Non-qualified Stock Option Agreement effective
_____________________, between the undersigned and AremisSoft Corporation (the
"Company") to purchase an aggregate of __________________ (________) shares of
the Company's common stock, $.001 par value (the "Shares").
The undersigned hereby tenders cash in the amount of $__________ per
Share multiplied by ________________________________ (___________), the number
of Shares he is purchasing at this time, for a total of $______________, which
constitutes full payment of the total exercise price thereof.
INSTRUCTIONS FOR REGISTRATION OF SHARES
IN COMPANY'S TRANSFER BOOKS
Name: ____________________________________________
(Please typewrite or print in block letters)
Address: ____________________________________________
____________________________________________
Signature: ____________________________________________
Accepted by AremisSoft Corporation:
By: ______________________________
______________________________
Name
______________________________
Title
