MEDIWARE INFORMATION SYSTEMS, INC. STOCK OPTION AGREEMENT
Exhibit
10.2
MEDIWARE
INFORMATION SYSTEMS, INC.
STOCK OPTION
AGREEMENT
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:
00000
X. 00xx
Xxxxxx
Xxxxxx,
XX 00000
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Type
of Option:
Non-Qualified
Stock Option
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Number
of Performance Option Shares:
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Expiration
Date:
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Exercise
Price Per Share: [TBD]
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Vesting
Date Provisions (if performance metrics
achieved):
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Shares
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Vesting
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Becoming
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Schedule
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Exercisable
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Company
Address:
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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 and as described herein. After vesting, the Options shall
remain exercisable until the “Expiration Date” set forth on the first page of
this Agreement unless earlier terminated as provided herein. Subject
to the continued employment of the Executive, the Performance Options shall vest
and become exercisable as follows:
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a.
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Up
to 8,333 options (or a pro rata portion thereof) shall vest
on July 2010 if, but only if, the Executive achieves
performance objectives as established by the Chief Executive Officer and
the Board of Directors;
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b.
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Up
to 8,333 options (or a pro rata portion thereof) shall vest on July 2011
if, but only if, the Executive achieves performance objectives as
established by the Chief Executive Officer and the Board of Directors;
and
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c.
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Up
to 8,334 options (or a pro rata portion thereof) shall vest on
July 2012 if, but only if, the Executive achieves performance
objectives as established by the Chief Executive Officer and the Board of
Directors
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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. Performance Options that are to vest
pursuant to the terms of this Paragraph 3 shall vest upon approval by the Chief
Executive and the Board of Directors of the performance
objectives. All Performance Options that do not vest as provided in
subsections a., b. and c above shall be forfeit
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.
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) 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
(iv) 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 limitation, 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 promulgated thereunder, and the requirements 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.
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
contemplated by the Plan.
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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Title:
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Optionee
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Print
Name: Xxxxxxx
Xxxxxxx
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