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EXHIBIT 4.2
AMENDED AND RESTATED PER-SE TECHNOLOGIES, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS AGREEMENT ("Agreement") is made as of the date of grant specified
on the foregoing Notice of Grant (the "Notice of Grant") by and between PER-SE
TECHNOLOGIES, INC., a Delaware corporation formerly known as Medaphis
Corporation (the "Company"), and the Optionee as identified on the Notice of
Grant.
W I T N E S S E T H
WHEREAS, the Committee (the "Committee") appointed by the Board of
Directors to administer the Second Amended and Restated Per-Se Technologies,
Inc. Non-Qualified Stock Option Plan, as amended (the "Plan"), has authorized
the grant to the Optionee of a stock option, which shall not be an incentive
stock option described in Section 422A of the Internal Revenue Code of 1986, as
amended (the "Code"), authorizing the Optionee to purchase the number of shares
of Common Stock, par value $.01 per share ("Common Stock"), of the Company
allocated to him by the Committee; and
WHEREAS, the Company and the Optionee wish to confirm the terms and
conditions of the option;
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, the Company hereby grants to the Optionee an
option (the "Option") to purchase all or any part of the shares of Common Stock
enumerated on the Notice of Grant (hereinafter the "Option Shares").
2. Terms and Exercise of Option. Subject to the provisions of Section 6 of this
Agreement:
(a) Beginning six (6) months after the date of grant of the Option, at
any time, and from time to time, the Optionee shall have the right to
exercise the Option with respect to that portion of the Option Shares
determined by the application of the following vesting schedule (after
subtracting the number of Option Shares which previously have been
exercised pursuant to the Option) set forth on the Notice of Grant.
(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) Beginning six (6) months after the date of grant of the Option, at
any time, and from time to time, the Option may be exercised with
respect to all or any portion of the Option Shares 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 (i) 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 person exercising the Option as provided
herein and (ii) payment of the purchase 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) below, shall have no rights as a stockholder
with respect to any shares covered by the Option until the issuance of
a stock certificate to him or her for such shares. No adjustment shall
be made for dividends (ordinary or extraordinary, whether in cash,
securities or other property), distributions or other rights in 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 below.
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3. Exercise Price. The Optionee must pay to the Company the option price per
share reflected on the Notice of Grant, subject to adjustment as set forth in
Section 5, for each share of Common Stock acquired pursuant to the exercise of
the Option.
4. Termination of Option.
(a) If the Optionee ceases to be an employee of the Company or of any
parent or subsidiary corporation of the Company for any reason other
than death or disability (within the meaning of Section 22(e)(3) of
the Code and as determined in the sole and absolute judgment of the
Company) or a Change of Control Event (as hereinafter defined) before
this Option is fully vested, any portion of this Option which is not
vested on the date of such termination of Optionee's employment shall
be automatically forfeited as of his employment termination date. The
vested portion of this Option which is unexercised shall expire,
terminate and become unexercisable after the expiration of three (3)
months after the effective date of the Optionee's termination of
employment. The Option evidenced hereby is nontransferable and, except
as provided in Section 4(b) below with respect to the death of the
Optionee, shall be exercisable during the lifetime of the Optionee
only by the Optionee.
(b) Notwithstanding any other provision hereof to the contrary, if the
Optionee ceases to be an employee of the Company or of any parent or
subsidiary corporation of the Company by reason of death or disability
(within the meaning of Section 22(e)(3) of the Code and as determined
in the sole and absolute judgment of the Company), the Option or any
portion thereof which is unexercised shall immediately be and become
fully exercisable without regard to the vesting schedule set forth in
Section 2 hereof and shall expire, terminate and become unexercisable
after the expiration of six (6) months following the Optionee's death
or termination of employment due to disability.
5. Corporate Reorganizations and Change in Control.
(a) Adjustments. The Committee will adjust the total number of Option
Shares, both as to the number of Option Shares and the exercise price,
for any increase or decrease in the number of outstanding shares of
Common Stock resulting from a stock split or a payment of a stock
dividend on the shares of Common Stock, a subdivision or combination
of the shares of Common Stock, a reclassification of the shares of
Common Stock, a merger or consolidation of the Company or any other
like changes in the Option Shares or in their value. No fractional
shares will be issued as a result of any of these changes, and any
fractional shares that result from a change will be eliminated from
the Option. Any such adjustments will be made by or under authority of
the Committee, and the determination by the Committee as to what
adjustments are to be made will be final, binding and conclusive.
(b) Change in Control.
(1) The following occurrences constitute "Change of
Control" events:
(i) the adoption of a plan of merger or the
consolidation of the Company with any other
corporation as a result of which the holders of the
outstanding voting stock of the Company as a group
would receive less than 50% of the voting stock of
the surviving or resulting corporation;
(ii) the adoption of a plan of liquidation or
the approval of the dissolution of the Company;
(iii) the sale or transfer of substantially all of
the assets of the Company;
(iv) the sale or transfer of substantially all of
the assets or stock of an operating subsidiary of
the Company, other than as security for obligations
of the Company; or
(v) the sale or transfer of substantially all of the
assets of an operating division of the Company or
its subsidiaries, other than as security for
obligations of the Company.
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(2) In the event of an occurrence described in Section
5(b)(1)(i), (ii), or (iii), the unexercised portion of this
Option will be fully vested and immediately exercisable, and
will remain exercisable until the occurrence of such event,
after which time the Option will terminate immediately as to
any portion thereof not exercised.
(3) In the event of an occurrence of an event described in
Section 5(b)(1)(iv) or (v), which results in optionees
employed by the affected operating subsidiary or division
being terminated from their employment with the Company, then
the unexercised portion of all outstanding options under the
Plan held by those affected optionees will be fully vested
and immediately exercisable. Such options will remain
exercisable until the earlier of (i) the expiration of the
respective terms of such options, or (ii) six (6) months
following termination of employment.
(4) The Optionee will be mailed notice of any anticipated
occurrence described in Section 5(b)(1) at least twenty (20)
days prior to the occurrence of such event.
(c) Liquidation of Shares After Change in Control.
(1) In the event of any occurrence described in Section
5(b)(1)(i), (ii) or (iii) and if the Optionee elects to
exercise the Option, the Optionee will have the right in
connection with the closing of such event to either (i) sell
to the Company, or the surviving or resulting corporation,
the shares of Common Stock which the Optionee received upon
the exercise of the Option at a cash price per share
equivalent to the fair market value of the Common Stock as
determined by the Committee, as of the date of such event, or
(ii) receive the number and class of shares of stock or other
securities or any other property to which the terms of the
agreement of merger, consolidation, or other reorganization
would entitle the Optionee to receive, if, at the time of the
merger, consolidation, or other reorganization, the Optionee
had been a holder of record of the number of shares which the
Optionee received upon the exercise of the Option; provided,
however, that in the event the transaction contemplated by
this Section 5(c)(1) involves a merger to be accounted for
under the "pooling of interests" accounting method, then the
Committee shall have the authority hereunder to modify the
rights of the Optionee hereunder to the extent necessary in
order to preserve the "pooling of interests" accounting
treatment for such merger.
(2) In the event of any occurrence described in Section
5(b)(1)(iv) or (v) and if the Optionee elects to exercise the
Option, the Optionee will have the right to sell to the
Company the shares of Common Stock which the Optionee
received upon the exercise of the Option at a price per share
equivalent to the fair market value of the Common Stock as
determined by the Committee, such payment to be made in the
form of cash and/or notes, as determined by the Committee.
The Committee will make reasonable efforts to assure that an
Optionee electing to sell shares pursuant to this Section
5(c)(2) receives cash consideration in an amount at least
sufficient to offset the exercise price paid to the Company
by the Optionee in connection with the exercise of the
Option.
6. General Restrictions. Notwithstanding anything contained herein to the
contrary, no purported exercise of the Option shall be effective without the
written approval of the Company, which may be withheld to the extent that the
exercise of the Option, either individually or in the aggregate together with
the exercise of other previously exercised stock options and/or offers and
sales pursuant to any prior or contemplated offering of securities, would, in
the sole and absolute judgment of the Company, require the filing of a
registration statement with the United States Securities and Exchange
Commission or with the securities commission of any state. The Company shall
avail itself of any exemptions from registration contained in applicable
federal and state securities laws which are reasonably available to the Company
on terms which, in its sole and absolute discretion, it deems reasonable and
not unduly burdensome or costly. If the Option cannot be exercised at the time
it would otherwise expire due to the restrictions contained in this Section,
the exercise period of the Option shall be extended for successive one-year
periods until it can be exercised in accordance with this Section. The Optionee
shall deliver to the Company, prior to the exercise of the Option, such
information, representations and warranties as the Company may reasonably
request in order for the Company to be able to satisfy itself 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 securities
registration requirements of applicable federal and state securities laws.
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7. Tax Withholding. The Company shall have the right to withhold or retain from
any payment to an optionee (whether or not such payment is made pursuant to
this Option) or take such other action as is permissible under the Plan which
the Company deems necessary or appropriate to satisfy any income or other tax
withholding requirements as a result of the exercise of this Option.
8. 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 Committee, in
compliance with exemptions under applicable state securities laws of the state
in which the Optionee resides, and/or any other applicable securities laws.
9. Successors. This Agreement shall be binding upon and inure to the benefit of
the heirs, legal representatives, successors and permitted assigns of the
parties.
10. Notice. Except as otherwise specified herein, all notices and other
communications under this Agreement shall be in writing and shall be deemed to
have been given if personally delivered or if sent by registered or certified
United States mail, return receipt requested, postage prepaid, addressed to the
proposed recipient at the last known address of such recipient. Any party may
designate any other address to which notices shall be sent by giving notice of
the address to the other parties in the same manner as provided herein.
11. Severability. In the event that any one or more of the provisions or
portions thereof contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, the same shall not invalidate
or otherwise affect any other provisions of this Agreement, and this Agreement
shall be construed as if the invalid, illegal or unenforceable provision or
portion thereof had never been contained herein.
12. Entire Agreement. Subject to the terms and conditions of the Plan, this
Agreement expresses the entire understanding and agreement of the parties and
specifically supersedes all previous agreements between the Company and the
Optionee pertaining to the stock option granted to the Optionee on the date of
grant.
13. 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
general restrictions applicable under the Plan and under this Agreement to
Option exercises, the term "Optionee" 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 5(f) of the Plan and
Section 4 of this Agreement, which shall apply so that in the event the
original grantee of the Option ceases to be an employee of the Company or any
parent or subsidiary of the Company, then the Option shall be exercisable by
the transferee only to the extent and for the periods specified in this
Agreement.
14. Headings. Section headings used herein are for convenience of reference
only and shall not be considered in construing this Agreement.
15. Specific Performance. In the event of any actual or threatened default in,
or breach of, any of the terms, conditions or provisions of this Agreement, the
party or parties who are thereby aggrieved shall have the right to specific
performance and injunction in addition to any and all other rights and remedies
at law or in equity, and all such rights and remedies shall be cumulative.
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EXHIBIT A
NOTICE OF EXERCISE OF AMENDED AND RESTATED PER-SE TECHNOLOGIES, INC.
NON-QUALIFIED STOCK OPTION TO PURCHASE
COMMON STOCK OF PER-SE TECHNOLOGIES, INC.
Name: __________________________
Address: ________________________
_________________________________
Date:___________________________
SS No.:__________________________
Per-Se Technologies, Inc.
2840 Mt. Wilkinson Parkway
Atlanta, Georgia 30339
Attn: Treasurer
Re: Exercise of Amended and Restated Per-Se Technologies, Inc.
Non-Qualified Stock Option
Ladies and Gentlemen:
Subject to acceptance hereof in writing by Per-Se Technologies, Inc.
(the "Company") pursuant to the provisions of the Second Amended and Restated
Per-Se Technologies, Inc. Non-Qualified Stock Option Plan, as amended, 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 Amended and
Restated Per-Se Technologies, Inc. Non-Qualified Stock Option Agreement dated
________, at a price of $_________ per share.
Enclosed is a certified check (or bank cashier's check) for
$___________ for the full purchase price, payable to the order of Per-Se
Technologies, Inc.
As soon as the Stock Certificate is registered in my name, please
deliver it to me at the above address.
I hereby represent, warrant, covenant and agree with the Company as
follows:
I am able to bear the economic risks of the investment in the Common
Stock, including the risk of a complete loss of my investment therein;
I understand and agree that the Company shall withhold from payments
made to me, or I shall remit to the Company, all amounts required to be
withheld by the Company to satisfy federal and state tax withholding
obligations with respect to the exercise of the Option;
I have such knowledge and experience in financial and business matters
that I am capable of evaluating the merits and risks of the purchase of the
shares hereunder and I am able to bear the economic risk of such purchase; and
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The agreements, representations, warranties and covenants made by me
herein extend to and apply to all of the Common Stock of the Company issued to
me pursuant to the Option. Acceptance by me of the certificate representing
such Common Stock shall constitute a confirmation that all such agreements,
representations, warranties and covenants made herein shall be true and correct
at such time.
Very truly yours,
-----------------------------------
(Name of Optionee)
-----------------------------------
AGREED TO AND ACCEPTED:
PER-SE TECHNOLOGIES, INC.
By: _________________________
Title: ______________________
Number of Shares
Exercised: ___________________
Number of Shares
Remaining: ___________________
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