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EXHIBIT 99.5
MEDAPHIS CORPORATION
RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT ("Agreement") is made as of the 21st day
of January, 1997, by and between MEDAPHIS CORPORATION, a corporation organized
and doing business under the laws of the State of Delaware (the "Company"), and
KAREN C. MILLER, a resident of the State of California (the "Recipient").
W I T N E S S E T H:
WHEREAS, the Recipient is a key employee of Health Data Sciences
Corporation, a Delaware corporation which is a wholly-owned subsidiary of the
Company ("HDS");
WHEREAS, in order to advance the interests of the Company by stimulating
the efforts of the Recipient and encouraging the Recipient to continue
Recipient's employment with HDS, the Board of Directors of the Company has
awarded to the Recipient a certain number of shares of voting common stock, par
value $.01 per share (the "Common Stock"), of the Company (the "Award"),
subject to the payment by the Recipient to the Company in cash of the aggregate
par value of the shares covered by the Award and to the restrictions contained
in this Agreement; and
WHEREAS, the Company and the Recipient wish to confirm the terms and
conditions of the Award.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
it is hereby agreed between the parties hereto as follows:
1. Grant of Award. Upon and subject to the terms, restrictions,
limitations, and conditions stated herein, the Company hereby grants to the
Recipient an Award of 6,923 shares of Common Stock (the "Shares"), effective as
of the date first written above.
2. Terms and Conditions of Award. The Award shall be subject to the
following terms and conditions:
(a) Restrictions; Vesting. The Shares shall remain restricted and
subject to the transfer and other restrictions set forth in Section 5
hereof unless and until such Shares vest and become nonforfeitable
hereunder. The Shares shall vest and become nonforfeitable hereunder in
accordance with the following schedule:
2
Years From Percent
Date of Grant Vested
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Less than 1 0%
1 25%
2 50%
3 75%
4 100%
The Recipient acknowledges and agrees that the Compensation Committee of
the Board of Directors of the Company (the "Committee"), subject to the
provisions of Section 13 hereof, shall have the authority to change,
adjust or modify the vesting provisions of this Section 2(a) subsequent
to the date hereof in any manner deemed equitable by the Committee to
reflect changes in the Company's financial condition, results of
operation, capital structure or other matters which occur subsequent to
the date hereof, and all such changes, adjustments or modifications
effected by the Committee under this Section 2(a) shall be final,
conclusive and binding on the Recipient.
(b) Restricted Shares; Certificates. Upon grant of the Award
evidenced hereby and payment of the applicable purchase price pursuant to
Section 2(e) hereof, a certificate in respect of the Shares shall be
issued to reflect the Shares underlying the Award. Such certificate
shall be registered in the name of the Recipient and shall bear an
appropriate legend referring to the terms, conditions and restrictions
applicable to the Award. The Recipient hereby agrees not to dispose of
the Shares in violation of this Agreement and any attempt to dispose of
Shares in contravention of the terms, conditions and restrictions of this
Agreement shall be ineffective. The certificate for Shares shall be
subject to such transfer orders and other restrictions as the Committee
may deem advisable under this Agreement, the rules, regulations and other
requirements of the Securities and Exchange Commission, any stock
exchange upon which the Common Stock is listed and any applicable federal
or state securities law. The Committee shall cause a legend to be put on
any such certificate substantially in the following form:
"THE TRANSFERABILITY OF THIS CERTIFICATE AND THE SHARES OF
COMMON STOCK REPRESENTED HEREBY ARE SUBJECT TO THE TERMS AND
CONDITIONS (INCLUDING FORFEITURE) OF AN AGREEMENT ENTERED INTO
BETWEEN THE REGISTERED OWNER HEREOF AND MEDAPHIS CORPORATION. A
COPY OF SUCH AGREEMENT IS ON FILE IN THE OFFICES OF MEDAPHIS
CORPORATION."
(c) Vested Shares; Reissued Certificates. Upon the vesting of the
Shares pursuant to the terms of this Agreement, the Recipient may present, or
request the presentation of, the restricted certificate to the Company for
reissuance of a certificate which reflects that number
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of Shares held free and clear of the restrictions set forth in this Agreement
other than those imposed by law.
(d) Custody. The Recipient acknowledges and agrees that the
certificate evidencing Shares which are restricted may be held in custody
by a bank or other institution or that the Company may itself hold such
certificate in custody until such Shares shall vest and become
nonforfeitable hereunder, and the Recipient agrees, upon the request of
the Company, to deliver a stock power endorsed in blank relating to the
Shares.
(e) Payment. The Recipient shall pay to the Company in cash the sum
of $69.23 as consideration for the Shares.
3. Termination of Employment. In the event of the termination of the
Recipient's employment by HDS or the Company or any parent or other subsidiary
corporation of the Company, the Shares which have not yet become vested and
nonforfeitable hereunder shall be forfeited to the Company and the
consideration paid by the Recipient with respect to such forfeited Shares
pursuant to Section 2(e) hereof shall be repaid by the Company to the Recipient
without any interest being paid thereon; provided, however, that in the event
of termination of the Recipient's employment by the Company or any parent or
subsidiary corporation of the Company by reason of total and permanent
disability (within the meaning of Section 22(e)(3) of the Internal Revenue Code
of 1986, as amended (the "Code")) or death, all Shares shall thereupon vest and
become nonforfeitable, so that such Recipient or his assigns or beneficiaries
shall be entitled to retain the number of Shares subject to the Award.
4. Shares Subject to Agreement.
(a) Change in Control Events. For purposes of this Agreement,
"Change in Control" shall be defined as: (1) the adoption of a plan of
merger or 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 fifty percent (50%) of the
voting stock of the surviving or resulting corporation; (2) the adoption
of a plan of liquidation or the approval of the dissolution of the
Company; or (3) the sale or transfer of substantially all of the assets
of the Company.
(b) The Company. In the event of a Change in Control event described
in Section 4(a)(1), (2), or (3) hereof, all Shares underlying the Award
shall become fully vested and nonforfeitable on the date immediately
preceding the effective date of the transaction contemplated by Section
4(a)(1), (2) or (3), as applicable.
(c) Liquidation of Shares After Change of Control. Upon the
occurrence of any event described in Section 4(b) hereof, the Recipient
shall have the right in connection with the closing or other consummation
of such event either to (i) sell to the Company, or the
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surviving or resulting corporation, the Shares received under the
Award at a cash price per Share equal to the then Fair Market Value (as
hereinafter defined) of the Common Stock, 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, reorganization
or other corporate transaction would entitle the Recipient to receive as
the holder of record of the number of Shares underlying the Award;
provided, however, that in the event the transaction contemplated by
Section 4(b) 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 Recipient under this Section 4(c) to the
extent necessary in order to preserve the "pooling of interests"
accounting treatment for such merger. For purposes of this Agreement,
"Fair Market Value" shall mean (1) the closing price on a specified date
for a share of Common Stock as reported by The Wall Street Journal under
the Nasdaq National Market quotation system (or under any successor
quotation system) or, if the Common Stock is not traded on the Nasdaq
National Market, under the stock exchange or quotation system under which
such closing price is reported or, (2) if The Wall Street Journal does not
report such closing price, such closing price as reported by a newspaper
or trade journal selected by the Committee or, (3) if no such closing
price is available on such date, such closing price as so reported or so
quoted in accordance with Section 4(c)(i) for the immediately preceding
business day, or (4) if no newspaper or trade journal reports such closing
price or if no such price quotation is available, the price at which the
Committee acting in good faith determines through any reasonable valuation
method that a share of Common Stock might change hands between a willing
buyer and a willing seller, neither being under any compulsion to buy or
to sell and both having reasonable knowledge of the relevant facts.
5. Restrictions on Transfer. The Recipient agrees that the Shares shall
be restricted and nontransferable and shall not be sold, exchanged,
transferred, hypothecated or otherwise disposed of at any time prior to their
vesting in accordance with Sections 2(a), 3, or 4(b) hereof.
6. Rights as a Stockholder. Upon payment for the Shares pursuant to
Section 2(e) hereof and issuance of a certificate pursuant to Section 2(b)
hereof, the Recipient shall have rights as a stockholder of the Company with
respect to the Shares covered by the Award (regardless of whether such Shares
have become vested and nonforfeitable hereunder) to: (a) receive dividends in
cash or other property or other distributions or rights in respect of the Shares
(except that shares of Common Stock issued in order to effect a stock split or
any other securities issued in respect of Shares which have not yet vested and
become nonforfeitable hereunder shall be restricted on the same terms underlying
the Shares); and (b) vote the Shares as the record owner thereof.
7. No Contract of Employment. The grant of the Award to the Recipient
under this Agreement shall not constitute a contract of employment and shall
not confer on the Recipient any rights upon the Recipient's termination of
employment in addition to those, if any, expressly set forth herein.
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8. Tax Matters; Withholding. The Recipient understands and acknowledges
that unless the Recipient makes a timely election under Section 83(b) of the
Code (a "Section 83(b) Election"), the fair market value of the Shares will be
treated as compensation income, subject to applicable withholding and
employment taxes, upon the vesting of such Shares. The Recipient further
acknowledges and understands that taxation of Recipient's compensation income
resulting from an Award (including the imposition of applicable withholding and
employment taxes) may be accelerated by the filing of a Section 83(b) Election,
but that filing such an election may be undesirable if the Shares subsequently
are forfeited under the vesting restrictions set forth herein. The Recipient
agrees that Recipient will obtain independent tax advice concerning the
desirability of filing a Section 83(b) Election with respect to the Award
evidenced hereby. The Recipient may elect (if Recipient is not subject to the
provisions of Section 16 of the Securities Exchange Act of 1934, as amended, at
the time of such election) to have withheld from the Shares issuable in
respect of an Award such number of Shares equal to the amount necessary to
satisfy any federal and state tax withholding requirements which the Company,
acting in its discretion, deems applicable to such Award. If the Recipient
does not so elect to have Shares withheld to satisfy such tax withholding
requirements, funds required to pay applicable withholding taxes shall be
obtained from other cash payments due to the Recipient from the Company or from
cash funds provided by the Recipient to the Company; and the Company shall be
authorized to retain custody (or to cause any other custodian to retain
custody) of the Shares until sufficient funds are provided by the Recipient to
the Company to pay all such withholding taxes.
9. The Committee. The Committee acting in its absolute discretion shall
exercise such powers and take such actions as are expressly called for under
this Agreement. Further, the Committee shall have the power to interpret this
Agreement and to take such other actions as the Committee deems equitable under
the circumstances, which action shall be binding upon the Company, the
Recipient and each other person directly or indirectly affected by such action.
No member of the Committee shall be liable for any action or determination
made in good faith with respect to this Agreement.
10. General Restrictions. If there is no registration statement covering
the Shares in effect under the Securities Act of 1933, as amended, then
notwithstanding anything contained herein to the contrary, no purported
transfer of such Shares shall be effective without the written opinion of
counsel to the Company that the Common Stock is being transferred in accordance
with the terms of an applicable exemption from the registration requirements of
applicable federal and state securities laws.
11. Governing Laws. This Agreement shall be construed, administered and
enforced according to the laws of the State of Georgia.
12. Successors. This Agreement shall be binding upon and inure to the
benefit of the heirs, legal representatives, successors and permitted assigns
of the parties.
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13. Amendment. This Agreement may be amended by the Committee from time
to time to the extent that the Committee deems necessary or appropriate;
provided, however, the Committee may not effect any amendment to this Agreement
which would materially impair the rights of the Recipient hereunder without the
prior written consent of Recipient.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
and year first set forth above.
MEDAPHIS CORPORATION
[CORPORATE SEAL] By: /s/ DANIEL S. CONNORS, JR.
ATTEST: --------------------------------
Daniel S. Connors, Jr.
Senior Vice President -
Personnel & Administration
/s/ PEGGY SHERMAN
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Assistant Secretary
RECIPIENT
/s/ KAREN C. MILLER (SEAL)
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Karen C. Miller
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