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EXHIBIT 4.6
MEDAPHIS CORPORATION
NON-EMPLOYEE DIRECTOR STOCK OPTION AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the ____ day of __________,
______, by and between MEDAPHIS CORPORATION, a corporation organized and doing
business under the laws of the State of Delaware (the "Company"), and
__________________ (the "Optionee").
W I T N E S S E T H:
WHEREAS, the Optionee has been granted an option to purchase the
number of shares of voting common stock, par value $.01 per share ("Common
Stock"), of the Company allocated to such Optionee under the formula contained
in the Medaphis Corporation Non-Employee Director Stock Option Plan (the
"Plan"), and the Board of Directors of the Company (the "Board"), as
administrator of the Plan, wishes for the Optionee and the Company to enter
into this Agreement to provide for certain matters relating to such option;
WHEREAS, Optionee is a director of the Company and is not an employee
of the Company (a "Non-Employee Director");
WHEREAS, the Company and the Optionee wish to confirm the terms and
conditions of the option; and
WHEREAS, capitalized terms used and not otherwise defined herein shall
have the meaning provided to such terms in the Plan.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, it is hereby agreed between the parties hereto as follows:
1. Grant of Option. Upon and subject to the terms, restrictions,
limitations and conditions stated herein and in the Plan, the Company hereby
grants to the Optionee an option (the "Option") to purchase all or any part of
____ Thousand (_______) shares of Common Stock (hereinafter, the "Option
Shares"), effective as of the date first written above.
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2. Terms and Exercise of Option. Subject to the provisions of Section
6 of this Agreement:
(a) The Optionee shall have the right to exercise the Option
at any time and from time to time, subject to Section 2(b)(1) and
Section 4, with respect to that portion of the Option Shares (which
have not been previously exercised) determined by the application of
the following vesting schedule:
Years From Percent
Date of Grant Vested and Exercisable
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Less than 1 0%
1 20%
2 40%
3 60%
4 80%
5 100%
(b) The Option shall expire, terminate and no longer be
exercisable upon the earlier to occur of:
(1) the date which is eleven (11) years from the
date of grant; or
(2) the date set forth in Section 4 hereof.
(c) The Option may be exercised with respect to all or
any portion of the Option Shares at any time following the date which
is six (6) months after the later of (i) the date of grant of such
Option or (ii) the date the stockholders of the Company approve the
Plan, and from time to time, to the extent determined under Section
2(a) hereof and until the expiration of the period set forth in
Section 2(b) hereof, by delivery to the Company, at its principal
place of business in Atlanta, Georgia, of the written Notice of
Exercise in the form attached hereto as Exhibit A, which is
incorporated herein by reference, specifying the number of shares of
Common Stock with respect to which the Option is being exercised and
signed by the Optionee or the personal representative of the Optionee
pursuant to Section 4(b) hereof, and payment of the exercise price.
Upon acceptance of such notice and receipt of payment in full, the
Company shall cause to be issued a certificate representing the shares
of Common Stock purchased.
(d) The Optionee, or the personal representative of the
Optionee pursuant to Section 4(b) hereof, shall have no rights as a
stockholder with respect to any shares covered by the Option until the
issuance of a stock certificate to the Optionee for such shares. No
adjustment shall be made for dividends (ordinary or extraordinary,
whether in cash, securities
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or other property), distributions or other rights on or with respect
to shares of Common Stock purchased pursuant to the Option for which
the record date for such dividend, distribution or other right is
prior to the date of exercise of the Option, except as provided in
Section 5 hereof.
3. Exercise Price. The Optionee must pay to the Company
$______ per share for the Common Stock acquired pursuant to the exercise of the
Option. The Option exercise price shall be paid in full at the time of exercise
(a) in cash, (b) by tendering Common Stock then owned (which has been held for
the preceding six (6) months) and properly endorsed to the Company having a
Fair Market Value equal to the Option exercise price, or (c) partly in cash and
partly in Common Stock (which has been held for the preceding six (6) months)
valued at Fair Market Value, at the election of the Recipient. The Fair Market
Value of any such tendered Shares shall be determined as of the close of the
business day immediately preceding the day on which the certificate is received
by the office of the Secretary of the Company.
4. Termination of Option.
(a) If the Optionee ceases to be a Non-Employee Director
of the Company for any reason (including failure to be elected or
failure to stand for election) other than as set forth in Section
4(b), the Option or any portion thereof which is not vested on the
date of such termination of Optionee's service shall be automatically
forfeited as of such termination date and the vested portion of the
Option which is unexercised on such termination date shall expire,
terminate and become unexercisable after the earlier to occur of the
expiration of (i) three (3) months after the date of the Optionee's
termination of services as a director pursuant to this Section 4(a),
or (ii) eleven years after the date first written above.
(b) Notwithstanding any other provision hereof to the
contrary, if the Optionee ceases to be a Non-Employee Director of the
Company by reason of retirement, death, or permanent and total
disability (within the meaning of Section 22(e)(3) of the Internal
Revenue Code of 1986, as amended (the "Code")), the Option or any
portion thereof which is unexercised shall immediately become fully
exercisable and shall expire, terminate and become unexercisable after
the earlier to occur of the expiration of (i) six (6) months after the
date of termination of Optionee's services as a director pursuant to
this Section 4(b), or (ii) eleven years after the date first written
above. For purposes of this Agreement, the term "by reason of
retirement" means mandatory retirement pursuant to established Board
policy.
5. Change in Control. If the Company agrees to sell all or
substantially all of its assets for cash or property or for a combination of
cash and property or agrees to any merger, consolidation, reorganization or
other corporate transaction in which Common Stock is converted into another
security or into the right to receive securities or property, or in the event
of a Change in Control of the Company or a tender or exchange offer is made for
Common Stock other than by
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the Company, the Option shall, on the date immediately preceding the effective
date of a transaction contemplated by this Section 5, become fully vested and
immediately exercisable and the Optionee shall be entitled to receive (at
Optionee's election) upon exercise of such Option and payment of the applicable
Option exercise price, either (1) the number of Shares subject to such Option,
or (2) a cash payment, the amount of which shall be determined by the Board by
multiplying the number of shares subject to such Option by the Fair Market
Value of the Common Stock; provided, however, that in the event the transaction
contemplated by this Section 5 involves a merger to be accounted for under the
"pooling of interests" accounting method, then the Board shall have the
authority hereunder to modify the rights of the Optionee under this Section 5
to the extent necessary in order to preserve the "pooling of interests"
accounting treatment for such merger.
6. General Restrictions. If there is no registration statement
covering the Shares in effect under the Securities Act of 1933, as amended,
then notwithstanding anything contained herein to the contrary, no purported
transfer or exercise of the Option shall be effective without the written
opinion of counsel to the Company that the Common Stock to be acquired pursuant
to the exercise of the Option is being acquired in accordance with the terms of
an applicable exemption from the registration requirements of applicable
federal and state securities laws.
7. Limitation of Rights.
(a) No Stockholder Rights. Neither the Optionee nor the
Optionee's successor or successors in interest shall have any rights
as a stockholder of the Company with respect to the Shares subject to
the Option until the date of issuance of a certificate for such
Shares. No adjustment shall be made for dividends (ordinary or
extraordinary, whether in cash, securities or other property) or
distributions or other rights for which the record date is prior to
the date the certificate is issued, except as otherwise provided in
this Agreement.
(b) Limitation as to Directorship. Neither this
Agreement, nor the granting of the Option evidenced hereunder, nor any
other action taken pursuant hereto shall constitute or be evidence of
any agreement or understanding, express or implied, that the Optionee
has a right to continue as a director for any period of time.
8. No Obligation to Exercise Option. The granting of an Option
shall impose no obligation upon the Optionee to exercise the Option.
9. Governing Laws. This Agreement shall be construed,
administered and enforced according to the laws of the State of Delaware;
provided, however, that no Option may be exercised except, in the reasonable
judgment of the Board, in compliance with exemptions under applicable state
securities laws of the state in which the Optionee resides, and/or any other
applicable securities laws.
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10. Transferability. The Option shall not be assignable or
transferable by the Optionee other than (i) to the spouse, children or
grandchildren of the Optionee ("Immediate Family Members"), (ii) to a trust or
trusts for the exclusive benefit of such Immediate Family Members, (iii) to a
partnership in which such Immediate Family Members are the only partners, (iv)
to an entity exempt from federal income tax pursuant to Section 501(c)(3) of
the Code or any successor provision, or (v) to a split interest trust or pooled
income fund described in Section 2522(c)(2) of the Code or any successor
provision; provided, however, that (x) there shall be no consideration for any
such transfer, and (y) other transfers by the Optionee, or any subsequent
transfer of transferred Options by a transferee, shall be prohibited, except
those by will or the laws of descent and distribution or pursuant to a
qualified domestic relations order as defined in the Code or Title I of the
Employee Retirement Income Security Act of 1974, as amended; and provided,
further, that following transfer, for purpose of elections to exercise the
Option and the sale or merger and change in control provisions of the Plan and
of Section 5 of this Agreement, the terms "Non-Employee Director," as used in
the Plan, and "Optionee," as used in this Agreement, shall be deemed to include
the transferee, but the Option otherwise shall continue to be subject to the
same terms and conditions that were applicable immediately prior to transfer,
including without limitation the provisions of Section g(1) of the Plan and
Section 4 of this Agreement, which shall apply so that in the event the
Optionee ceases for any reason to be a Non-Employee Director of the Company,
then the Option shall be exercisable by the transferee only to the extent and
for the periods specified in this Agreement. The Company shall have no
obligation to register with any federal or state securities commission or
agency any Common Stock issuable or issued under the Option in the event that
the Option has been transferred by the Optionee under Section 5(h) of the Plan
or under this Section 10.
11. Successors. This Agreement shall be binding upon and inure to
the benefit of the heirs, legal representatives, successors and permitted
assigns of the parties.
IN WITNESS WHEREOF, the parties have executed and sealed this
Agreement on the day and year first written above.
MEDAPHIS CORPORATION
By:
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Name:
[CORPORATE SEAL] Title:
ATTEST:
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Name:
Title:
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OPTIONEE
(Seal)
------------------------------------
Name:
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EXHIBIT A
NOTICE OF EXERCISE OF MEDAPHIS CORPORATION
NON-EMPLOYEE DIRECTOR STOCK OPTION TO PURCHASE
COMMON STOCK OF MEDAPHIS CORPORATION
Name:
---------------------------------
Address:
---------------------------------
---------------------------------
Date:
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Medaphis Corporation
0000 Xx. Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: President
Re: Exercise of Medaphis Corporation Non-Employee Director Stock
Option
Ladies and Gentlemen:
Subject to acceptance hereof in writing by Medaphis Corporation (the
"Company") pursuant to the provisions of the Medaphis Corporation Non-Employee
Director Stock Option Plan, I hereby elect to exercise options granted to me to
purchase __________ shares of Common Stock, par value $.01 per share, of the
Company under the Medaphis Corporation Non-Employee Director Stock Option
Agreement dated the ____ day of ____________, _____, at a price of $_______ per
share.
Enclosed is $__________________ for the full purchase price in the
form of ________________________.
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As soon as the Stock Certificate is registered in my name, please
deliver it to me at the above address.
Very truly yours,
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Name:
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AGREED TO AND ACCEPTED:
MEDAPHIS CORPORATION
By:
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Title:
-----------------------------------
Number of Shares
Exercised:
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Number of Shares
Remaining:
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