Exhibit 4.2
ECLIPSYS
CORPORATION
INDUCEMENT GRANT OMNIBUS
INCENTIVE PLAN
(Implemented July 8, 2009
pursuant to unanimous written consent of Eclipsys’ Board of
Directors effective July 7, 2009; shares available for awards
increased on August 3, 2009 from the initial amount of 155,556
to 500,000)
Eclipsys Corporation (the
“Company”), a Delaware corporation, hereby establishes
and adopts the following Inducement Grant Omnibus Incentive Plan
(the “Plan”).
1. PURPOSE OF THE
PLAN
The purpose of the Plan is to
provide terms and conditions to govern inducement grants made by
the Company under Section 5635(c)(4) of the NASDAQ Stock
Market Rules (“Inducement Grants”). Such Inducement
Grants are intended to assist the Company and its Subsidiaries in
recruiting and retaining selected individuals to serve as employees
of the Company and its Subsidiaries who are expected to contribute
to the Company’s success and to achieve long-term objectives
that will benefit stockholders of the Company through the
additional incentives inherent in the Awards hereunder.
2. DEFINITIONS
2.1. “ Award ” shall mean any
Option, Stock Appreciation Right, Restricted Stock Award,
Restricted Stock Unit, Other Share-Based Award, Performance Award
or any other right, interest or option relating to Shares or other
property (including cash) granted pursuant to the provisions of the
Plan.
2.2. “ Award Document ” shall mean
any agreement, contract, notice, memorandum or other instrument or
document evidencing any Award hereunder, including through an
electronic medium.
2.3. “ Board ” shall mean the
board of directors of the Company.
2.4. “ Code ” shall mean the
Internal Revenue Code of 1986, as amended from time to
time.
2.5. “ Committee ” shall mean the
Compensation Committee of the Board or a subcommittee thereof
formed by the Compensation Committee to act as the Committee
hereunder. The Committee shall consist of no fewer than two
Directors, each of whom is (i) a “Non-Employee
Director” within the meaning of Rule 16b-3 of the Exchange
Act, (ii) an “outside director” within the meaning
of Section 162(m) of the Code, and (iii) an
“independent director” for purpose of the rules of the
principal securities exchange on which the Shares are traded, to
the extent required by such rules.
2.6. “ Covered Employee ” shall
mean an employee of the Company or its subsidiaries who is a
“covered employee” within the meaning of
Section 162(m) of the Code.
2.7. “ Director ” shall mean a
non-employee member of the Board.
2.8. “ Dividend Equivalents ”
shall have the meaning set forth in Section 11.5.
2.9. “ New Employee ” shall mean
any prospective and newly hired employee conditioned upon, and
effective not earlier than, such person becoming an employee of the
Company or any Subsidiary.
2.10. “ Exchange Act ” shall mean
the Securities Exchange Act of 1934, as amended.
2.11. “ Fair Market Value ” shall
mean, with respect to Shares as of any date, the per Share closing
price of the Shares (i) if the Shares are listed on a national
securities exchange, the closing sale price reported as having
occurred on the principal securities exchange on which the Shares
are listed and traded on such date, or, if there is no such sale on
that date, then on the last preceding date on which such a sale was
reported; (ii) if the Shares are not listed on any national
securities exchange but is quoted in an inter-dealer quotation
system on a last sale basis, the final ask price reported on such
date, or, if there is no such sale on such date, then on the last
preceding date on which a sale was reported; or (iii) if the
Shares are not listed on a national securities exchange nor quoted
on an inter-dealer quotation system on a last sale basis, the
amount determined by the Committee to be the fair market value of
the Shares as determined by the Committee in its sole discretion.
The Fair Market Value of any property other than Shares shall mean
the market value of such property determined by such methods or
procedures as shall be established from time to time by the
Committee.
2.12. “ Option ” shall mean any
right granted to a Participant under the Plan allowing such
Participant to purchase Shares at such price or prices and during
such period or periods as the Committee shall determine.
2.13. “ Other Share-Based Award ”
shall have the meaning set forth in Section 8.1.
2.14. “ Participant ” shall mean a
New Employee who is selected by the Committee to receive an Award
under the Plan.
2.15. “ Payee ” shall have the
meaning set forth in Section 12.2.
2.16. “ Performance Award ” shall
mean any Award of Performance Cash, Performance Shares or
Performance Units granted pursuant to Article 9.
2.17 “Performance Cash”
shall mean any cash incentives
granted pursuant to Article 9 payable to the Participant upon the
achievement of such performance goals as the Committee shall
establish.
2.18. “ Performance Period ” shall
mean the period established by the Committee during which any
performance goals specified by the Committee with respect to a
Performance Award are to be measured.
2.19. “ Performance Share ” shall
mean any grant pursuant to Article 9 of an Award valued by
reference to a designated number of Shares, which value will be
paid to the Participant upon achievement of such performance goals
as the Committee shall establish.
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2.20. “ Performance Unit ” shall
mean any grant pursuant to Article 9 of an Award valued by
reference to a designated amount of cash or property other than
Shares, which value will be paid to the Participant upon
achievement of such performance goals during the Performance Period
as the Committee shall establish.
2.21. “ Permitted Assignee ” shall
have the meaning set forth in Section 11.3.
2.22. “ Restricted Stock ” shall
mean any Share issued with the restriction that the holder may not
sell, transfer, pledge or assign such Share and with such other
restrictions as the Committee, in its sole discretion, may impose
(including any restriction on the right to vote such Share and the
right to receive any dividends), which restrictions may lapse
separately or in combination at such time or times, in installments
or otherwise, as the Committee may deem appropriate.
2.23. “ Restricted Stock Award ”
shall have the meaning set forth in Section 7.1.
2.24 “Restricted Stock Unit”
means an Award that is valued by
reference to a Share, which value may be paid to the Participant by
delivery of such property as the Committee shall determine,
including without limitation, cash or Shares, or any combination
thereof, and that has such restrictions as the Committee, in its
sole discretion, may impose, including without limitation, any
restriction on the right to retain such Awards, to sell, transfer,
pledge or assign such Awards, and/or to receive any cash Dividend
Equivalents with respect to such Awards, which restrictions may
lapse separately or in combination at such time or times, in
installments or otherwise, as the Committee may deem
appropriate,
2.25 “Restricted Stock Unit
Award” shall have
the meaning set forth in Section 7.1.
2.26. “ Shares ” shall mean the
shares of common stock of the Company, par value $0.01 per
share.
2.27. “ Stock Appreciation Right ”
shall mean the right granted to a Participant pursuant to Article
6.
2.28. “ Subsidiary ” shall mean any
corporation (other than the Company) or limited liability company,
or comparable foreign entity (each a “Covered Entity”)
in an unbroken chain of Covered Entities beginning with the Company
if, at the relevant time each of the Covered Entities other than
the last Covered Entity in the unbroken chain owns stock or other
equity interests possessing 50% or more of the total combined
voting power of all classes of stock and other equity interests in
one of the other Covered Entities in the chain.
3. SHARES SUBJECT TO THE
PLAN
3.1 Number of Shares . (a) Subject to adjustment as provided in
Section 11.2, a total of 500,000 Shares shall be authorized
for grant under the Plan. The Board may in its discretion increase
the number of Shares available for Awards under the Plan from time
to time.
(b) If any Shares subject to an
Award are forfeited or expire or an Award is settled for cash (in
whole or in part), the Shares subject to such Award shall, to the
extent of such forfeiture, expiration or cash settlement, again be
available for Awards under the Plan. Notwithstanding anything to
the contrary contained herein, the following Shares shall not be
added to the Shares authorized
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for grant under paragraph (a) of this
Section: (i) Shares tendered by the Participant or withheld by
the Company in payment of the purchase price of an Option,
(ii) Shares tendered by the Participant or withheld by the
Company to satisfy any tax withholding obligation with respect to
an Award, and (iii) Shares subject to a Stock Appreciation
Right that are not issued in connection with the stock settlement
of the Stock Appreciation Right on exercise thereof.
3.2. Character of Shares . Any Shares issued hereunder may consist, in
whole or in part, of authorized and unissued shares, treasury
shares or shares purchased in the open market or
otherwise.
4. ELIGIBILITY AND
ADMINISTRATION
4.1. Eligibility . Any New Employee shall be eligible to be
selected as a Participant.
4.2. Administration . (a) The Plan shall be administered by the
Committee. The Committee shall have full power and authority,
subject to the provisions of the Plan and subject to such orders or
resolutions not inconsistent with the provisions of the Plan as may
from time to time be adopted by the Board, to: (i) select the
New Employees to whom Awards may from time to time be granted
hereunder; (ii) determine the type or types of Awards, not
inconsistent with the provisions of the Plan, to be granted to each
New Employee hereunder; (iii) determine the number of Shares
to be covered by each Award granted hereunder; (iv) determine
the terms and conditions, not inconsistent with the provisions of
the Plan, of any Award granted hereunder; (v) determine
whether, to what extent and under what circumstances Awards may be
settled in cash, Shares or other property; (vi) determine
whether, to what extent, and under what circumstances cash, Shares,
other property and other amounts payable with respect to an Award
made under the Plan shall be deferred either automatically or at
the election of the Participant; (vii) determine whether, to
what extent and under what circumstances any Award shall be
canceled or suspended, provided that no determination may be made
after the grant of the Award that would impair the rights of the
Participant in any material respect without the Participant’s
written consent; (viii) interpret and administer the Plan and
any instrument or agreement entered into under or in connection
with the Plan, including any Award Document; (ix) correct any
defect, supply any omission or reconcile any inconsistency in the
Plan or any Award in the manner and to the extent that the
Committee shall deem desirable to carry it into effect;
(x) establish such rules and regulations and appoint such
agents as it shall deem appropriate for the proper administration
of the Plan; (xi) determine whether any Award, other than an
Option or Stock Appreciation Right, will have Dividend Equivalents;
and (xii) make any other determination and take any other
action that the Committee deems necessary or desirable for
administration of the Plan.
(b) Decisions of the Committee shall
be final, conclusive and binding on all persons or entities,
including the Company, any Participant, and any Subsidiary. A
majority of the members of the Committee may determine its actions,
including fixing the time and place of its meetings.
(c) To the extent not inconsistent
with applicable law or the rules and regulations of the principal
securities exchange on which the Shares are traded, the
“independent directors” (as defined by the rules of the
principal securities exchange on which the Shares are traded) of
the Board may exercise any or all of the authority of the Committee
under the Plan.
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5. OPTIONS
5.1. Grant of Options . Options may be granted hereunder to New
Employees either alone or in addition to other Awards granted under
the Plan. Any Option shall be subject to the terms and conditions
of the Plan and to such additional terms and conditions, not
inconsistent with the provisions of the Plan, as the Committee
shall deem desirable.
5.2. Award Documents . All Options shall be evidenced by a written
Award Document in such form and containing such terms and
conditions as the Committee shall determine which are not
inconsistent with the provisions of the Plan. The terms of Options
need not be the same with respect to each Participant. Granting an
Option pursuant to the Plan shall impose no obligation on the
recipient to exercise such Option. Any individual who is granted an
Option pursuant to this Article may hold more than one Option
granted pursuant to the Plan at the same time.
5.3. Option Price . The option price per each Share purchasable
under any Option granted pursuant to this Article shall not be less
than 100% of the Fair Market Value of one Share on the date of
issuance of such Option.
5.4. Option Term . The term of each Option shall be fixed by the
Committee in its sole discretion; provided that no Option shall be
exercisable after the expiration of seven (7) years from the
date the Option is granted, except in the event of death or
disability.
5.5. Exercise of Options . (a) Vested Options granted under the Plan
may be exercised by the Participant or by a Permitted Assignee
thereof (or by the Participant’s executors, administrators,
guardian or legal representative, as may be provided in an Award
Document) as to all or part of the Shares covered thereby, by
giving notice of exercise to the Company or its designated agent,
specifying the number of Shares to be purchased. The notice of
exercise shall be in such form, made in such manner, and in
compliance with such other requirements consistent with the
provisions of the Plan as the Committee may prescribe from time to
time.
(b) Unless otherwise provided in an
Award Document, full payment of such purchase price shall be made
at the time of exercise and shall be made (i) in cash or cash
equivalents (including certified check or bank check or wire
transfer of immediately available funds), (ii) by tendering
previously acquired Shares (either actually or by attestation,
valued at their then Fair Market Value), (iii) with the
consent of the Committee in any instance or through general
administrative procedures approved by the Committee, by delivery of
other consideration having a Fair Market Value on the exercise date
equal to the total purchase price, (iv) with the consent of
the Committee in any instance or through general administrative
procedures approved by the Committee, by withholding Shares
otherwise issuable in connection with the exercise of the Option,
(v) through any other method specified in an Award Document
(including same-day sales through a broker), or (vi) any
combination of any of the foregoing. The notice of exercise,
accompanied by such payment, shall be delivered to the Company at
its principal business office or such other office as the Committee
may from time to time direct, and shall be in such form, containing
such further provisions consistent with the provisions of the Plan,
as the Committee may from time to time prescribe. In no event may
any Option granted hereunder be exercised for a fraction of a
Share.
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5.6. Form of Settlement . In its sole discretion, the Committee may
provide at the time an Option is granted that the Shares to be
issued upon an Option’s exercise shall be in the form of
Restricted Stock or other similar securities.
6. STOCK APPRECIATION
RIGHTS
6.1. Grant and Exercise . The Committee may provide Stock Appreciation
Rights (a) in conjunction with all or part of any Option
granted under the Plan, (b) in conjunction with all or part of
any Award (other than an Option) granted under the Plan, or
(c) without regard to any Option or other Award in each case
upon such terms and conditions as the Committee may establish in
its sole discretion.
6.2. Terms and Conditions . Stock Appreciation Rights shall be subject to
such terms and conditions, not inconsistent with the provisions of
the Plan, as shall be determined from time to time by the
Committee, including the following:
(a) Upon the exercise of a Stock
Appreciation Right, the holder shall have the right to receive the
excess of (i) the Fair Market Value of one Share on the date
of exercise (or such amount less than such Fair Market Value as the
Committee shall so determine at any time during a specified period
before the date of exercise) over (ii) the grant price of the
Stock Appreciation Right on the date of issuance, which, except in
connection with an adjustment provided in Section 11.2, shall
not be less than the Fair Market Value of one Share on such date of
issuance of the Stock Appreciation Right.
(b) The Committee shall determine in
its sole discretion whether payment of a Stock Appreciation Right
shall be made in cash, in whole Shares or other property, or any
combination thereof.
(c) The provisions of Stock
Appreciation Rights need not be the same with respect to each
recipient.
(d) The Committee may impose such
other conditions or restrictions on the terms of exercise and the
grant price of any Stock Appreciation Right, as it shall deem
appropriate. A Stock Appreciation Right shall have (i) a grant
price not less than Fair Market Value on the date of grant (subject
to the requirements of Section 409A of the Code with respect
to a Stock Appreciation Right granted in conjunction with, but
subsequent to, an Option), and (ii) a term not greater than
seven (7) years except in the event of death or
disability.
7. RESTRICTED STOCK AND
RESTRICTED STOCK UNITS
7.1. Grants . Awards of Restricted Stock and of Restricted
Stock Units may be issued hereunder to New Employees either alone
or in addition to other Awards granted under the Plan (a
“Restricted Stock Award” or “Restricted Stock
Unit Award” respectively), and such Restricted Stock Awards
and Restricted Stock Unit Awards shall also be available as a form
of payment of Performance Awards and other earned cash-based
incentive compensation. A Restricted Stock Award or Restricted
Stock Unit Award shall be
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subject to vesting restrictions during the
Vesting Period as specified by the Committee. The Committee has
absolute discretion to determine whether any consideration (other
than services) is to be received by the Company or any Subsidiary
as a condition precedent to the issuance of Restricted Stock or
Restricted Stock Units.
7.2. Award Documents . The terms of any
Restricted Stock Award or Restricted Stock Unit Award granted under
the Plan shall be set forth in a written Award Document which shall
contain provisions determined by the Committee and not inconsistent
with the Plan. The terms of Restricted Stock Awards and Restricted
Stock Unit Awards need not be the same with respect to each
Participant.
7.3. Rights of Holders of Restricted Stock and
Restricted Stock Units. Unless otherwise provided in the Award Document,
beginning on the date of grant of the Restricted Stock Award and
subject to execution of the Award Document, the Participant shall
become a stockholder of the Company with respect to all Shares
subject to the Award and shall have all of the rights of a
stockholder, including the right to vote such Shares and the right
to receive distributions made with respect to such Shares. A
Participant receiving a Restricted Stock Unit Award shall not
possess voting rights with respect to such Award. Except as
otherwise provided in an Award Document any Shares or any other
property (other than cash) distributed as a dividend or otherwise
with respect to any Restricted Stock Award or Restricted Stock Unit
Award as to which the restrictions have not yet lapsed shall be
subject to the same restrictions as such Restricted Stock Award or
Restricted Stock Unit Award.
7.4 Issuance of Shares. Any Restricted Stock granted under the Plan may
be evidenced in such manner as the Board may deem appropriate,
including book-entry registration or issuance of a stock
certificate or certificates, which certificate or certificates
shall be held by the Company. Such certificate or certificates
shall be registered in the name of the Participant and shall bear
an appropriate legend referring to the restrictions applicable to
such Restricted Stock.
8. OTHER SHARE-BASED
AWARDS
8.1. Grants . Other Awards of Shares and other Awards that
are valued in whole or in part by reference to, or are otherwise
based on, Shares or other property (“Other Share-Based
Awards”), including deferred stock units, may be granted
hereunder to New Employees either alone or in addition to other
Awards granted under the Plan. Other Share-Based Awards shall also
be available as a form of payment of other Awards granted under the
Plan and other earned cash-based compensation. Other Share-Based
Awards shall be subject to vesting restrictions during the Vesting
Period as specified by the Committee. The Committee has
absolute
