Exhibit 10.10
STOCK OPTION
AGREEMENT
THIS STOCK OPTION AGREEMENT is made
on March 12, 2007 by and between National Medical Health Card
Systems, Inc., a Delaware corporation (the “ Company
”) and Thomas W. Erickson (“ Optionee
”).
WHEREAS, Optionee serves as the
chairman of the Board of Directors of the Company pursuant to an
agreement, dated as of February 23, 2007, by and between the
Company and Optionee (the “ Chairman Agreement
”); and
WHEREAS, in accordance with the
terms of the Chairman Agreement, the Company now desires to grant
to Optionee an option to purchase shares of the Company’s
common stock (the “ Common Stock ”):
NOW, THEREFORE, the Company and
Optionee hereby agree as follows:
1. Grant of Option . The
Company hereby grants to Optionee an option (the “
Option ”) to purchase 100,000 shares of Common Stock
(the “ Option Shares ”), under and pursuant to
the terms of the Company’s 1999 Stock Option Plan, as amended
(the “ Plan ”), upon and subject to the terms
and provisions of this Agreement. The Option is not intended to
meet the requirements of Section 422 of the Internal Revenue
Code of 1986, as amended, relating to “incentive stock
options.”
2. Exercise Price . The
exercise price of each of the Option Shares shall be $14.02, which
is the closing price per share of Common Stock on the date
hereof.
3. Vesting; Term .
(a) Except as specifically provided, the Option shall become
vested and become exercisable upon the satisfaction of the
following two conditions: (i) Optionee shall have been a
director of the Company though at least February 23, 2008 (the
“First Anniversary”) or Optionee shall have resigned at
the request of the Board of Directors of the Company or have been
otherwise involuntarily terminated (in either case other than a
Termination for Cause (within the meaning of the Chairman
Agreement)) on or prior to the First Anniversary and (ii) a
Change in Control (as defined in Exhibit B to the Chairman
Agreement) shall have occurred. The options would also immediately
vest upon a Change in Control prior to the First Anniversary. If
the condition set forth in clause (i) above is not satisfied
due to termination of service, then, unless vesting is accelerated,
the Option will thereupon terminate and be of no further force or
effect. If Optionee’s service terminates due to the
Optionee’s death or “disability” (within the
meaning of Exhibit B to the Chairman Agreement) prior to the First
Anniversary, and a Change in Control shall occur later during the
term of this Agreement, then the Option will partially vest in
connection with the Change in Control with respect to a
proportionate number of the Option Shares (based upon the number of
days during the initial one-year vesting period that have elapsed
at the time of Optionee’s termination of service) and the
balance of the Option shall terminate.
(b) Unless sooner exercised or
terminated, the Option will expire on the tenth anniversary of the
date hereof. The Option shall remain in effect following the
satisfaction of the condition in clause (i) of the first
sentence of paragraph (a) above, notwithstanding any
subsequent termination of service.
4. Exercise of Options . The Option shall
be exercised in accordance with the provisions of the Plan. As soon
as practicable after the receipt of notice of exercise (in the form
attached hereto as Exhibit A ) and payment of the Option
Price as provided for in the Plan, the Company shall tender to
Optionee certificates issued in Optionee’s name evidencing
the number of Option Shares covered thereby.
5. Transferability . The
Option shall not be transferable other than by will or the laws of
descent and distribution and, during Optionee’s lifetime,
shall not be exercisable by any person other than
Optionee.
6. Incorporation by Reference
. The terms and conditions of the Plan, which is attached hereto as
Exhibit B , are hereby incorporated by reference and made a
part hereof.
7. Notices . Any notice or
other communication given hereunder shall be deemed sufficient if
in writing and hand delivered or sent by registered or certified
mail, return receipt requested, addressed to the Company, 26 Harbor
Park Drive, Port Washington, New York 11050, Attention: Secretary
and to Optionee at the address indicated below. Notices shall be
deemed to have been given on the date of hand delivery or mailing,
except notices of change of address, which shall be deemed to have
been given when received.
8. Binding Effect . This
Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective legal representatives,
successors and assigns.
9. Entire Agreement . This
Agreement, and the Plan, contains the entire understanding of the
parties hereto with respect to the subject matter hereof and may be
modified only by an instrument executed by the party sought to be
charged.
[Signature page
follows]
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IN WITNESS WHEREOF, the parties have
executed this Agreement as of the day and year first above
written.
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NATIONAL
MEDICAL HEALTH CARD SYSTEMS, INC.,
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By:
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Name:
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James
Smith
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Title:
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Chief Executive
Officer
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OPTIONEE
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Thomas W. Erickson
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Exhibit A
NATIONAL MEDICAL HEALTH CARD
SYSTEMS, INC.
OPTION EXERCISE
FORM
The undersigned hereby irrevocably
elects to exercise the within Option dated
to the extent of purchasing
shares of common stock of National Medical Health Card Systems,
Inc. The undersigned hereby makes a payment of $
in payment therefor.
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Name of
Optionee
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Signature of
Optionee
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Address of Holder
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Date
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Exhibit B
National Medical Health Card
Systems, Inc.
1999 Stock Option
Plan
As Amended on March 19,
2004
1. Purpose of the Plan
. The National Medical Health Card Systems, Inc. 1999 Stock Option
Plan (the “Plan”) is intended to advance the interests
of National Medical Health Card Systems, Inc. (the
“Company”) by inducing individuals and eligible
entities (as hereinafter provided) of outstanding ability and
potential to join and remain with, or provide consulting or
advisory services to, the Company, by encouraging and enabling
eligible employees, non- employee Directors, consultants and
advisors to acquire proprietary interests in the Company, and by
providing the participating employees, non-employee Directors,
consultants and advisors with an additional incentive to promote
the success of the Company. This is accomplished by providing for
the granting of “Options,” which term as used herein
includes both “Incentive Stock Options” and
“Nonstatutory Stock Options,” as later defined, to
employees, non-employee Directors, consultants and
advisors.
2. Administration .
The Plan shall be administered by the Board of Directors of the
Company (the “Board of Directors”) or by a committee
(the “Committee”) consisting of at least one
(1) person chosen by the Board of Directors. Except as herein
specifically provided, the interpretation and construction by the
Board of Directors or the Committee of any provision of the Plan or
of any Option granted under it shall be final and conclusive. The
receipt of Options by Directors, or any members of the Committee,
shall not preclude their vote on any matters in connection with the
administration or interpretation of the Plan.
3. Shares Subject to the
Plan . The stock subject to Options granted under the Plan
shall be shares of the Company’s common stock, par value
$.001 per share (the
“Common Stock”), whether authorized
but unissued or held in the Company’s treasury, or shares
purchased from stockholders expressly for use under the Plan.
The maximum number of shares of Common Stock (a) which may
be issued pursuant to Options or SARs granted under the Plan shall
not exceed in the aggregate four million eight hundred fifty
thousand (4,850,000) shares, and (b) with respect to
which Options and SARs (as hereinafter defined) may be granted
during any fiscal year of the Company to any employee shall not
exceed six hundred thousand (600,000) shares, subject to
adjustment in accordance with the provisions of Section 14
hereof. The Company shall at all times while the Plan is in
force reserve such number of shares of Common Stock as will be
sufficient to satisfy the requirements of all outstanding Options
granted under the Plan. In the event any Option granted under the
Plan shall expire or terminate for any reason without having been
exercised in full or shall cease for any reason to be exercisable
in whole or in part, the unpurchased shares subject thereto shall
again be available for Options under the Plan.
4. Participation . The
class of individual or entity that shall be eligible to receive
Options under the Plan shall be (a) with respect to Incentive
Stock Options described in Section 6 hereof, all employees
(including officers) of either the Company or any subsidiary
corporation of the Company, and (b) with respect to
Nonstatutory Stock Options described in Section 7 hereof, all
employees (including officers) and non-employee Directors of, or
consultants and advisors to, either the Company or any subsidiary
corporation of the Company; provided, however, that Nonstatutory
Stock Options shall not be granted to any such consultants and
advisors unless (i) bona fide services have
been or are to be rendered by such consultant or advisor and
(ii) such services are not in connection with the offer or
sale of securities in a capital raising transaction. For purposes
of the Plan, for an entity to be an eligible entity, it must
be
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included in the definition of
“employee” for purposes of a Form S-8 Registration
Statement filed under the Securities Act of 1933, as amended (the
“Act”). The Board of Directors or the Committee, in its
sole discretion, but subject to the provisions of the Plan, shall
determine the employees and non-employee Directors of, and the
consultants and advisors to, the Company and its subsidiary
corporations to whom Options shall be granted, and the number of
shares to be covered by each Option, taking into account the nature
of the employment or services rendered by the individuals or
entities being considered, their annual compensation, their present
and potential contributions to the success of the Company, and such
other factors as the Board of Directors or the Committee may deem
relevant.
5. Stock Option
Agreement . Each Option granted under the Plan shall be
authorized by the Board of Directors or the Committee, and shall be
evidenced by a Stock Option Agreement which shall be executed by
the Company and by the individual or entity to whom such Option is
granted. The Stock Option Agreement shall specify the number of
shares of Common Stock as to which any Option is granted, the
period during which the Option is exercisable, the option price per
share thereof, and such other terms and provisions as the Board of
Directors or the Committee may deem necessary or
appropriate.
6. Incentive Stock
Options . The Board of Directors or the Committee may grant
Options under the Plan, which are intended to meet the requirements
of Section 422 of the Internal Revenue Code of 1986, as
amended (the “Code”), and which are subject to the
following terms and conditions and any other terms and conditions
as may at any time be required by Section 422 of the Code
(referred to herein as an “Incentive Stock
Option”):
(a) No Incentive Stock Option shall
be granted to individuals other than employees of the Company or of
a subsidiary corporation of the Company.
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(b) Each Incentive Stock Option
under the Plan must be granted prior to February 9, 2009,
which is within ten (10) years from the date the Plan was
adopted by the Board of Directors of the Company.
(c) The option price of the shares
subject to any Incentive Stock Option shall not be less than the
fair market value of the Common Stock at the time such Incentive
Stock Option is granted; provided, however, if an Incentive Stock
Option is granted to an individual who owns, at the time the
Incentive Stock Option is granted, more than ten percent
(10%) of the total combined voting power of all classes of
stock of the Company or of a parent or subsidiary corporation of
the Company (a “Principal Stockholder”), the option
price of the shares subject to the Incentive Stock Option shall be
at least one hundred ten percent (110%) of the fair market
value of the Common Stock at the time the Incentive Stock Option is
granted.
(d) No Incentive Stock Option
granted under the Plan shall be exercisable after the expiration of
ten (10) years from the date of its grant. However, if an
Incentive Stock Option is granted to a Principal Stockholder, such
Incentive Stock Option shall not be exercisable after the
expiration of five (5) years from the date of its grant. Every
Incentive Stock Option granted under the Plan shall be subject to
earlier termination as expressly provided in Section 12
hereof.
(e) For purposes of determining
stock ownership under this Section 6, the attribution rules of
Section 424(d) of the Code shall apply.
(f) For purposes of the Plan, fair
market value shall be determined by the Board of Directors or the
Committee. If the Common Stock is listed on a national securities
exchange or The Nasdaq Stock Market (“Nasdaq”) or
traded on the NASD OTC Electronic Bulletin Board (the
“Bulletin Board”) or the Over-the-Counter market, fair
market value shall be
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the closing selling price or, if not available,
the closing bid price or, if not available, the high bid price of
the Common Stock quoted on such exchange or Nasdaq, or as reported
by the Bulletin Board or, with respect to the Over-the-Counter
market, the National Quotation Bureau, Incorporated or other
reporting bureau, on the day immediately preceding the day on which
the Option is granted (or, if granted after the close of trading,
on the day on which the Option is granted), or, if there is no
selling or bid price on that day, the closing selling price,
closing bid price or high bid price on the most recent day which
precedes that day and for which such prices are available. If there
is no selling or bid price for the thirty (30) day period
preceding the date of grant of an Option hereunder, fair market
value shall be determined in good faith by the Board of Directors
or the Committee.
7. Nonstatutory Stock
Options . The Board of Directors or the Committee may grant
Options under the Plan which are not intended to meet the
requirements of Section 422 of the Code, as well as Options
which are intended to meet the requirements of Section 422 of
the Code but the terms of which provide that they will not be
treated as Incentive Stock Options (referred to herein as a
“Nonstatutory Stock Option”). Nonstatutory Stock
Options shall be subject to the following terms and
conditions:
(a) A Nonstatutory Stock Option may
be granted to any individual or entity eligible to receive an
Option under the Plan pursuant to Section 4(b)
hereof.
(b) The option price of the shares
subject to a Nonstatutory Stock Option shall be determined by the
Board of Directors or the Committee, in its sole discretion, at the
time of the grant of the Nonstatutory Stock Option.
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(c) A Nonstatutory Stock Option
granted under the Plan may be of such duration as shall be
determined by the Board of Directors or the Committee (subject to
earlier termination as expressly provided in Section 12
hereof).
8. Reload Feature .
The Board of Directors or the Committee may grant Options with a
reload feature. A reload feature shall only apply when the option
price is paid by delivery of Common Stock (as set forth in
Sec