MEDIWARE INFORMATION SYSTEMS, INC. STOCK OPTION AGREEMENT
EXHIBIT
10.13
2003
EQUITY INCENTIVE PLAN
MEDIWARE
INFORMATION SYSTEMS, INC.
THIS
AGREEMENT,
made as
of the Grant Date set forth below, by and between Mediware Information Systems,
Inc., a New York corporation having its principal place of business at the
address set forth below (hereinafter called the “Company”), and the individual
whose name and address appear below on the first page of this Agreement
(hereinafter called “Optionee”).
WHEREAS,
the
terms and conditions of the Options (the "Options") granted to Optionee and
evidenced by this Agreement are as follows:
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Name
of Optionee:
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Grant
Date:
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Address
of Optionee:
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Type
of Option:
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Number
of Option Shares:
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Expiration
Date:
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Exercise
Price Per Share:
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Vesting
Date Provisions:
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Vesting
Schedule
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Shares
Becoming
Exercisable
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Company
Address:
00000
X.
00xx
Xxxxxx,
Xxxxxx, XX 00000
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WHEREAS,
Optionee
is an employee of the Company; and
WHEREAS,
as an
incentive for the Optionee and as compensation and a benefit to him or her
for
serving as an employee, the Company has offered to issue, and the Optionee
has
agreed to accept, options to purchase shares of common stock of the Company
pursuant to the Mediware Information Systems, Inc. 2003 Equity Incentive
Plan
(the “Plan”).
NOW,
THEREFORE,
in
consideration of the mutual covenants hereinafter set forth and for other
good
and valuable consideration, the parties hereto hereby agree as
follows:
1. Grant
of Options.
Pursuant to and subject in all respects to the provisions of the Plan, the
Company -hereby grants to the Optionee, under the terms and conditions set
forth
in this Agreement and the Plan, as of the Grant Date, Options to purchase
the
aggregate number of shares of common stock, par value $.10 per share, of
the
Company (“Common Stock”) set forth above on the first page of this Agreement
subject to adjustment in accordance herewith (which shares are hereinafter
called “Option Shares”). The Option Shares may be purchased by exercising the
Options in accordance with the terms of this Agreement, at the exercise price
per share set forth on the first page of this Agreement, which price is not
less
than 100% of the Fair Market Value of a share of Common Stock on the date
of
grant. Terms defined in the Plan shall have the same meaning in this Agreement
unless the context requires otherwise.
2. Vesting
of Options.
The
Options shall vest as set forth on the first page of this Agreement. The
Options
shall remain exercisable until the “Expiration Date” set forth on the first page
of this Agreement unless earlier terminated as provided herein.
The
Options and exercisability of the Options shall be subject in all respects
to
the terms and conditions set forth in this Agreement, all other terms and
conditions of the Plan and any rules, regulations or other determinations
of the
Compensation Committee of the Board of Directors (the “Committee”). Unless
specifically indicated on the first page of this Agreement, it is not intended
that the Options shall be incentive stock options for the purposes of the
Internal Revenue Code of 1986, as amended (the "Code").
If
a
Change of Control, as described in Section 9.6 of the Plan occurs, all Options
shall become fully vested and fully exercisable immediately upon the occurrence
of the Change of Control.
3. Transferability.
Subject
to the exceptions noted in Section 6.6 of the Plan, no Option shall be
transferable other than by will or the laws of descent and distribution.
4. Exercisable
only during Employment; Death; Disability.
During
the lifetime of Optionee, the Options shall be exercisable only by such Optionee
(or his or her court-appointed legal representative) subject to the terms
of the
Plan.
5. Confidential
Information; Forfeiture;.
(a) The
Optionee hereby acknowledges and agrees that any limitations and restrictions
relating to the Optionee’s receipt and use of any confidential information under
any other agreement between the Optionee and the Company shall be incorporated
into this Agreement, and any unexercised Options shall be forfeited immediately
upon a breach of such undertaking as determined reasonably by the Committee
and
set forth in a notice given to the Optionee and Company, any such determination
to be final and binding on all parties.
(b)
Any unexercised Options that have been awarded to the Optionee shall be
terminated if the Committee determines that the Optionee’s employment has been
terminated for Cause, as stated in Section 9.4 of the Plan.
(c)
Optionee acknowledges and agrees that the Restrictive Covenants (as
defined below) are reasonable and necessary for the protection of the Company’s
business interests. Nothing contained herein shall be construed as prohibiting
the Company from pursuing any other remedies available to it including equitable
relief and the recovery of any damages.
(d)
If any court of competent jurisdiction shall at any time deem any term of
this Agreement or any provision or provisions of any covenant, undertaking
or
agreement on the part of the Optionee contained in this Section 5, or
incorporated by reference herein, (“Restrictive Covenants”) too lengthy or too
restrictive or the territory too extensive, the other terms and provisions
of
Section 5 shall nevertheless stand, the restrictive periods shall be deemed
to
be the longest periods permissible by law under the circumstances, the other
restrictive provisions and conditions shall be the most protective to the
Company as may be permissible under law in the circumstances, and the territory
in which activities are restricted shall be deemed to comprise the largest
territory permissible by law under the circumstances. The court in each case
shall reduce the Restrictive Covenants, time period, territory and/or other
restrictions or provisions to the maximum permissible duration or size or
reasonable restriction.
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6. No
Rights as a Shareholder.
Optionee shall have no rights as a shareholder with respect to any Shares
covered by this Agreement until Optionee becomes the holder of record of
such
Shares, and Optionee shall not be entitled to any dividends or distributions
or
other rights in respect of such Shares for which the record date is prior
to the
date on which Optionee shall have become the holder of record
thereof.
7. Adjustment
in Option Shares; Change of Control.
Optionee shall be entitled to appropriate adjustments to the number of Option
Shares and/or their Exercise Price, as determined by the Committee in accordance
with Section 9.1 of the Plan, in order to preserve the benefits or potential
benefits intended to be made under this Agreement in the event of any stock
dividend, extraordinary cash dividend, reclassification, recapitalization,
reorganization, split-up, spin-off, combination, exchange of shares, warrants
or
rights offering to purchase Shares, or other corporate event (including mergers
or consolidations).
8. Exercise.
The
exercise of an Option must be by written notice to the Company at its principal
place of business which must state the election to exercise the Option, the
number of shares for which the Option is being exercised and such other
representations and agreements as to the Optionee's investment intent with
respect to such shares as may be required pursuant to Article VII of the
Plan.
The written notice must be signed by the Optionee and must be delivered in
person, by certified or registered mail, return receipt requested, or by
confirmed facsimile transmission, to the Chief Financial Officer or other
authorized representative of the Company, prior to the termination of the
Option, accompanied by full payment of the exercise price for the number
of
shares being purchased. The Option Shares to be purchased upon each exercise
of
any Option shall be paid for in full at the time of such exercise, such payment
to be made (i) cash, (ii) check, (iii) promissory note, (iv) the tendering,
by
either actual delivery or by attestation, of those shares of Stock, having
a
Fair Market Value as of the day of exercise equal to the aggregate exercise
price, or (v) through a special sale and remittance procedure pursuant to
which
the Optionee shall concurrently provide irrevocable written instructions
as
provided in Section 7.3 of the Plan.
9. Compliance
with Laws and Regulations.
The
grant and exercise of the Options, and the Company’s obligation to sell and
deliver stock hereunder, are subject to such approvals by any regulatory
or
governmental agency as may be required and shall comply with all relevant
provisions of applicable Federal and state laws, rules and regulations,
including, without limita-tion, the Securities Act of 1933, as amended (the
"Securities Act"), the Securities Exchange Act of 1934, as amended, state
securities laws, the rules and regulations promul-gated thereunder, and the
require-ments of any stock exchange or of any quotation association or
organization upon which the Option Shares may then be listed or quoted, and
shall be further subject to the approval of counsel for the Company with
respect
to such compliance. The Company may imprint any legends on the Option Shares
restricting their subsequent sale or transfer that may be required by state
or
Federal law.
Unless
the Option Shares shall be duly registered under the Securities Act and
registered, qualified or authorized under applicable state securities law,
the
Optionee, by accepting these Options, represents and warrants for himself
and
any other person or persons properly exercising these Options that any and
all
shares purchased hereunder shall be acquired for investment and not with
the
intention to sell or distribute such shares and agrees to deliver to the
Company, upon request, a written representation that the shares being purchased
are being acquired for investment and not with a present intention of sale
or
with a view to distribution, and a consent that the certificate representing
such shares be endorsed to indicate such representation. The Company shall
not
be liable in the event it is unable to issue or sell shares of Common Stock
or
other securities to the Optionee if such issuance or sale would be unlawful,
nor
shall the Company be liable if the issuance or sale of shares of Common Stock
or
other securities to an Optionee is subsequently invalidated.
So
long
as is required, in the opinion of the Company’s general counsel, to avoid
adverse tax, legal or accounting consequences to the Company, Optionee may
not
exercise an Option through the tendering, by either actual delivery or by
attestation, of whole Shares unless the Committee specifically authorized
such a
transaction in the applicable Agreement.
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10. Withholding.
Option
shall be required to pay the Company at the time of exercise of a Nonqualified
Option, such amount as the Company deems necessary to satisfy the Company’s
obligation to withhold federal or state income or other taxes incurred by
reason
of the exercise or the transfer of Shares thereupon. Optionee my satisfy
such
withholding requirements by having the Company withhold from the number of
Shares otherwise issuable upon exercise of the Option that number of shares
having an aggregate Fair Market Value on the date of exercise equal to the
minimum amount required by law to be withheld or such other amount that may
not
be exceeded in the opinion of the Independent Auditor, to avoid adverse
financial accounting results.
11. Employment
Rights.
Nothing
contained in the Plan or in this Option Agreement shall confer upon the Optionee
any right to be employed by, or to be continued in the employ of, the Company
or
of any of its subsidiaries or interfere in any way with the right of the
Company
or any subsidiary by whom such person may be employed to terminate his
employment at any time.
12. Notice
of Disposition.
If
these Options shall be incentive stock options the following shall apply:
Optionee or his estate or legal representative shall immediately notify the
Company in the event of any disposition of any kind by him of Option Shares
acquired pursuant to these Options. If the disposition shall be a
“disqualifying” disposition within the meaning of Section 422 of the Code, the
Optionee or his estate or legal representation shall immediately pay any
federal, state or local taxes owing by reason of the exercise or disposition
and
provide proof of payment to the Company.
13. Notices.
Any
notice or other communication required or permitted hereunder shall be in
writing and shall be delivered personally (including by courier or overnight
carrier), or sent by facsimile transmission, or by certified or registered
first
class mail, postage prepaid. Any such notice shall be deemed given when so
delivered personally; or if sent by facsimile transmission, when transmitted;
or, if mailed, forty-eight (48) hours after the date of deposit in the mail,
as
follows:
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(i)
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if
to the Company, to Chief Financial Officer, Mediware Information
Systems,
Inc., 00000 X. 00xx Xxxxxx, Xxxxxx, XX 00000, telecopier (000)
000-0000
and
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(ii)
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if
to the Optionee, to the address set forth on the first page of
this
Agreement.
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14. Interpretation
of this Agreement.
Any
dispute regarding the interpretation of this Agreement shall be resolved
in
accordance with the Plan and may be submitted by the Optionee or by the Company
forthwith to the Committee for resolution, which shall review such dispute
at
the time of the next regular meeting of the Board or such Committee, or earlier
at the Committee’s discretion. The decision of the Committee, as the case may
be, with regard to such dispute shall be final and binding upon the Company
and
upon the Optionee.
15. Successors
and Assigns.
This
Agreement shall be binding on all successors and permitted assigns as provided
in the Plan.
16. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of Kansas, without giving effect to the principles of conflicts of
law.
17. Amendments.
No
provision of this Agreement shall be modified, amended, extended or waived
except in writing signed by the parties hereto or as otherwise be permitted
or
con-templated by the Plan.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
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IN
WITNESS WHEREOF,
the
Company has caused this Agreement to be duly executed by its duly authorized
officer, and Optionee has executed this Agreement, all as of the date and
year
first above written.
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MEDIWARE
INFORMATION SYSTEMS, INC.
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By:
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Name:
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Xxxxxx
X. Xxxxx
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Title:
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President
& CEO
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Optionee
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Print
Name:
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