EXHIBIT 10.23
STOCK OPTION AGREEMENT
This Agreement is made as of _________, 19__, by and between PROXYMED,
INC. (the "Company") and ______________, who is an employee of the Company (the
"Employee").
WHEREAS, the Company considers it desirable and in its best interests
that the new Employee be given an inducement to acquire a proprietary interest
in the Company, and an added incentive to advance the interests of the Company
by possessing a right (the "Option Right") to purchase shares of the Company's
common stock, $.001 par value (the "Option Stock").
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties as follows:
1. GRANT OF OPTION. The Company hereby grants to the Employee the right,
privilege and option to purchase the number of shares of Option Stock, at the
purchase price as shown on Schedule I attached hereto (the "Option Price"), in
the manner and subject to the conditions hereinafter provided in this Agreement.
The Option Right granted hereunder is a Non-Qualified Option as specified on
Schedule I.
2. TIME OF EXERCISE OF OPTION. The aforesaid Option Right may be exercised
at any time, subject to Sections 3 and 4, below, and from time to time, until
the termination thereof as provided in Sections 7, 8, 9 and 10 below; provided,
however, that the Option Right granted herein may not be exercised after the
termination date as shown on Schedule I, unless provided otherwise by the Board
of Directors or Compensation Committee of the Company.
3. VESTING OF OPTION RIGHT. The Option Right shall vest as provided in the
Schedule I.
4. MANNER OF EXERCISE. An Option that has vested pursuant to the Schedule I
may be exercised in whole or in part, in increments of a minimum of 100 shares,
at any time, or from time to time, during its term. To exercise an Option, the
Employee exercising the Option must deliver to the Company, at its principal
office:
a) a written notice of exercise of the Option, which states the extent
to which the Option is being exercised and which is executed by the
Employee;
b) a check in an amount, or Common Stock with a fair market value,
equal to the Exercise Price of the Option times the number of shares
being exercised, or a combination of the foregoing; and
c) a check equal to any withholding taxes the Company is required to
pay as a result of the exercise of the Option by the Employee. If
permitted by the Board of Directors or the Committee, at the time of
exercise, the Employee may elect, at such time and in such manner as
the Board of Directors or the Committee may prescribe, to satisfy such
withholding obligation by (A) delivering to the Company Common Stock
(which in the case of Common Stock acquired from the Company shall have
been owned by the Employee for at least six months prior to the
delivery date) having a fair market value equal to such withholding
obligation; or (B) requesting that the Company withhold from the shares
of Common Stock to be delivered upon the exercise a number of shares of
Common Stock having a fair market value equal to such withholding
obligation.
The day on which the Company receives all of the items specified in this
subsection shall be the date on which the Option is exercised to the extent
described in the notice of exercise.
5. DELIVERY OF STOCK CERTIFICATES. As promptly as practicable after an
Option is exercised, the Company shall cause the transfer agent to deliver to
the Employee who exercises the Option certificates, registered in that person's
name, representing the number of shares of Common Stock that were purchased by
the exercise of the Option. Unless the Common Stock was issued in a transaction
that was registered pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), each certificate may bear a legend to indicate that if the
Common Stock represented by the certificate was issued in a transaction that was
not registered pursuant to the Securities Act, and may only be sold or
transferred in a transaction that is registered pursuant to the Securities Act
or is exempt from the registration requirements of the Securities Act.
6. NON-TRANSFERABILITY OF OPTIONS. During the lifetime of a person to whom
an Option is granted, the Option may be exercised only by that person or by his
or her guardian or legal representative., except to the extent the Board of
Directors or the Committee shall otherwise determine, whether at the time the
Option is granted or thereafter. An Option may not be assigned, transferred,
sold, pledged or hypothecated in any way; shall not be subject to levy or
execution or disposition under the Bankruptcy Code of 1978, as amended, or any
other state or federal law granting relief to creditors, whether now or
hereafter in effect; and shall not be transferable otherwise than by will or the
laws of descent and distribution. The Company will not recognize any attempt to
assign, transfer, sell, pledge, hypothecate or otherwise dispose of an Option
contrary to the provisions of this Plan, or to levy any attachment, execution or
similar process upon any Option and, except as expressly stated herein, the
Company shall not be required to, and shall not, issue Common Stock on the
exercise of an Option to anyone who claims to have acquired that Option from the
person to whom it was granted in violation of this subsection.
7. RETIREMENT OF HOLDER OF OPTION. If there is a Termination of Employment
of an Employee to whom an Option has been granted due to Retirement, each
Non-Qualified Option held by the retired Employee, whether or not then vested,
may be exercised until the earlier of: (x) the end of the twelve (12) month
period immediately following the date of such Termination of Employment; or (y)
the expiration of the term specified in the Option.
8. TOTAL DISABILITY OF HOLDER OF OPTION. If there is a Termination of
Employment of an Employee to whom an Option has been granted by reason of his or
her Total Disability, each Option held by the Employee, whether or not then
vested, may be exercised until the earlier of: (x) the end of the twelve (12)
month period immediately following the date of such Termination of Employment;
or (y) the expiration of the term specified in the Option.
9. DEATH OF HOLDER OF OPTION. If there is a Termination of Employment of an
Employee to whom an Option has been granted by reason of (i) his or her death;
or (ii) the death of the former Employee within twelve (12) months following the
date of his or her Retirement; or (iii) the death of the former Employee within
twelve (12) months following the date of his or her Termination of Employment by
reason of Total Disability, then each Option held by the person at the time of
his or her death, whether or not then vested, may be exercised by the person or
persons to whom the Option shall pass by will or by the laws of descent and
distribution (but by no other persons) until the earlier of: (x) the end of the
twelve (12) month period immediately following the date of death (or such longer
period as is permitted by the Committee); and (y) the expiration of the term
specified in the Option, provided,
however, that in no event is the term of the Option to be deemed to expire prior
to the end of three (3) months from the date of death of the Employee.
10. TERMINATION OF EMPLOYMENT OTHER THAN FOR RETIREMENT, DEATH OR
DISABILITY. Unless the Committee or the Board of Directors agrees or has agreed
otherwise with respect to a specific Option, if there is a Termination of
Employment of an Employee to whom an Option has been granted hereunder for any
reason other than the Retirement, death or Total Disability of the Employee,
then all Options held by such Employee which are then vested may be exercised
until the earlier of: (x) the three (3) month period immediately following the
date of such Termination of Employment; or (y) the expiration of the term
specified in the Option.
11. RESTRICTIONS ON RESALES. The shares issuable upon exercise of this
Option have not been registered under the Securities Act of 1933, as amended
(the "Securities Act") or under any state securities laws, and are being offered
and sold in reliance upon federal and state exemptions for transactions not
involving any public offering. The holder may not resell the shares purchased
hereunder except pursuant to registration under the Securities Act or an
exemption therefrom.
Resales of shares issuable hereunder may be subject to other state and
federal securities laws. The Employee is advised to consult with legal counsel
as to compliance with the Securities Act, the Securities Exchange Act of 1934,
as amended (the "Exchange Act") and such other laws prior to resale of such
shares.
The Company, as a condition to the exercise of an Option to acquire shares
not registered under the Securities Act, may require the Employee to represent
and warrant at the time of any exercise that the shares are being purchased only
for investment and without any present intention to sell or distribute such
shares if, in the opinion of counsel for the Company, such a representation is
required by the Securities Act.
12. REGISTRATION. Upon a Change of Control (defined below), the Company
agrees to use its best efforts to cause the Common Stock underlying the Options
to be registered under the Securities Act at the earliest possible time. The
Company shall have no other obligation to register said Common Stock unless
directed to do so by the Board of the Company based on the Company's best
interests.
13. RECAPITALIZATION.
a) IN GENERAL. If the Company increases the number of outstanding shares of
Common Stock through a stock dividend or a stock split, or reduces the number of
outstanding shares of Common Stock through a combination of shares or similar
recapitalization then, immediately after the record date for the change: (i) the
number of shares of Common Stock issuable on the exercise of each outstanding
Option granted hereunder (whether or not then vested) shall be increased in the
case of a stock dividend or a stock split, or decreased in the case of a
combination or similar recapitalization that reduces the number of outstanding
shares, by a percentage equal to the percentage change in the number of
outstanding shares of Common Stock as a result of the stock dividend, stock
split, combination or similar recapitalization; (ii) the Exercise Price of each
outstanding Option granted hereunder (whether or not then vested) shall be
adjusted so that the total amount to be paid upon exercise of the Option in full
will not change; and (iii) the number of shares of Common Stock that may be
issued on exercise of Options granted hereunder (whether or not then vested) and
that are outstanding or remain available for grant shall be increased or
decreased by a percentage equal to the
percentage change in the number of outstanding shares of Common Stock. Any
fractional shares will be rounded up to whole shares.
b) CORPORATE TRANSACTIONS. "Corporate Transactions" means any (i)
reorganization or liquidation of the Company; (ii) reclassification of the
Company's capital stock; (iii) merger of the Company with or into another
corporation; or (iv) the sale of all or substantially all the assets of the
Company, which results in a significant number of employees being transferred to
a new employer or discharged or in the creation or severance of a
parent-subsidiary relationship. If, as a result of a Corporate Transaction while
an Option granted hereunder is outstanding (whether or not then vested), and the
holders of the Common Stock become entitled to receive, with respect to their
Common Stock, securities or assets other than, or in addition to, their Common
Stock, then upon exercise of that Option the holder shall receive what the
holder would have received if the holder had exercised the Option immediately
before the first Corporate Transaction that occurred while the Option was
outstanding and as if the Company had not disposed of anything the holder would
have received as a result of that and all subsequent Corporate Transactions. The
Company shall not agree to any Corporate Transaction unless the other party to
the Corporate Transaction agrees to make available on exercise of the Options
granted hereunder that are outstanding at the time of the Corporate Transaction,
the securities or other assets the holders of those Options are entitled
pursuant to this subsection to receive.
14. CHANGE OF CONTROL. Upon a change of control, as defined herein, any
unvested Options shall immediately vest.
a) "Change of Control" means any of the following events:
i) an acquisition (other than directly from the Company) of any
voting securities of the Company (the "Voting Securities") by any
Person (as defined in the Exchange Act of 1934, as amended (the "1934
Act")) immediately after which such Person has "Beneficial Ownership"
(within the meaning of Rule 13d-3 promulgated under the 1934 Act) of
twenty percent (20%) or more of the combined voting power of the
Company's then outstanding Voting Securities; provided, however, that
in determining whether a Change in Control has occurred, Voting
Securities which are acquired in a Non-Control Acquisition (as
hereinafter defined) shall not constitute an acquisition which would
cause a Change in Control. A "Non-Control Acquisition" shall mean an
acquisition by (x) an employee benefit plan (or a trust forming a part
thereof) maintained by (A) the Company; or (B) any corporation or other
Person of which a majority of its voting power or its equity securities
or equity interest is owned directly or indirectly by the Company (a
"Subsidiary"); (y) the Company or any Subsidiary; or (z) any Person in
connection with a Non-Control Transaction (as hereinafter defined).
ii) the individuals who, as of the date this Plan is approved by
the Company's Board of Directors (the "Board"), are members of the
Board (the "Incumbent Board") cease for any reason to constitute at
least two-thirds (2/3) of the Board; provided, however, that the
voluntary resignation of a member of the Incumbent Board unrelated to a
Change of Control shall not affect such calculation; provided, further,
however, that if the election or nomination for election by the
Company's stockholders or Board of any new director was approved by a
vote of at least two-thirds (2/3) of the
Incumbent Board, such new director shall, for purposes of this
Agreement, be considered a member of the Incumbent Board; provided
further, however, that no individual shall be considered a member of
the Incumbent Board if such individual initially assumed office as a
result of either an actual or threatened solicitation of proxies or
consents by or on behalf of a person other than the Board (a "proxy
contest"), including by reason of any agreement intended to avoid or
settle any election contest or proxy contest; or
iii) approval by stockholders of the Company of:
a) a merger, consolidation or reorganization involving the
Company, unless
(1) the stockholders of the Company, immediately
before such merger, consolidation or reorganization, own,
directly or indirectly immediately following such merger,
consolidation or reorganization, at least seventy-five percent
(75%) of the combined voting power of the outstanding Voting
Securities of the corporation resulting from such merger or
consolidation or reorganization or the ultimate entity
controlling such corporation (the "Surviving Corporation") in
substantially the same proportion as their ownership of the
Voting Securities immediately before such merger,
consolidation or reorganization;
(2) the individuals who are members of the Incumbent
Board immediately prior to the execution of the agreement
providing for such merger, consolidation or reorganization
constitute at least two-thirds (2/3) of the members of the
board of directors of the Surviving Corporation and no
agreement, plan or arrangement is in place to change the
composition of the board following the merger, consolidation
or reorganization such that the Incumbent Board would
constitute less than two-thirds (2/3) of the reconstituted
board;
(3) no person (other than the Company, any
Subsidiary, or any employee benefit plan (or any trust forming
a part thereof) maintained by the Company, the Surviving
Corporation or any Subsidiary, or any Person who immediately
prior to such merger, consolidation or reorganization had
Beneficial Ownership of twenty percent (20%) or more of the
then-outstanding Voting Securities) has Beneficial Ownership
of twenty percent (20%) or more of the combined voting power
of the Surviving Corporation's then-outstanding Voting
Securities; and
(4) a transaction described in clauses (1) through
(3) shall herein be referred to as a "Non-Control
Transaction."
b) a complete liquidation or dissolution of the Company; or
c) an agreement for the sale or other disposition of all of
the operating assets of the Company to any Person (other than
a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be deemed to
occur solely because any Person (the "Subject Person") acquired Beneficial
Ownership of more than the permitted amount of the outstanding Voting Securities
as a result of the acquisition of Voting Securities by the Company which, by
reducing the number of Voting Securities outstanding, increases the proportional
number of shares Beneficially Owned by the Subject Person, provided
that if a Change in Control would occur (but for the operation of this sentence)
as a result of the acquisition of Voting Securities by the Company, and after
such share acquisition by the Company the Subject Person becomes the Beneficial
Owner of any additional Voting Securities which increases the percentage of the
then-outstanding Voting Securities Beneficially Owned by the Subject Person,
then a Change in Control shall occur.
16. RIGHTS OF OPTION HOLDER.
a) STOCKHOLDER. The holder of an Option (whether or not then vested) shall
not have any rights as a stockholder by reason of holding that Option. Upon
exercise of an Option granted hereunder, the holder shall be deemed to acquire
the rights of a stockholder when, but not before, the issuance of Common Stock
as a result of the exercise is recorded in the stock transfer records of the
Company.
b) EMPLOYMENT. Nothing in the grant of an Option shall confer upon any
Employee the right to continue in the employ of the Company or shall interfere
with or restrict in any way the rights of the Company to discharge any Employee
at any time for any reason whatsoever, with or without cause.
17. LAWS AND REGULATIONS. The obligation of the Company to sell and deliver
shares of Common Stock on vesting and exercise of Options granted hereunder
shall be subject to the condition that counsel for the Company be satisfied that
the sale and delivery thereof will not violate the Securities Act or any other
applicable laws, rules or regulations. In addition, the Company may, as a
condition to such sale and delivery, require the Employee to represent and
warrant at the time of any such exercise that the shares are being purchased
only for investment and without any present intention to sell or distribute such
shares if, in the opinion of counsel for the Company, such a representation is
required pursuant to such securities laws.
18. TAXES; WITHHOLDING OF TAXES. Employee is obligated to determine what,
if any, tax effect the grant or exercise of these options has or may have on
Employee. The Company is not liable for any taxes which Employee may be
obligated to pay as a result of these options nor shall the Company be liable
for any taxes. If, whether because of a disposition of Common Stock acquired on
exercise of a Non-Qualified Option or otherwise, the Company becomes required to
pay withholding taxes to any federal, state or other taxing authority and the
Employee fails to provide the Company with the funds with which to pay that
withholding tax, then the Company may withhold, subject to applicable state law,
up to 50% of each payment of salary or bonus to the Employee (which will be in
addition to any other required or permitted withholding), until the Company has
been reimbursed for the entire withholding tax it was required to pay, or to
otherwise make full reimbursement from Employee.
19. BINDING EFFECT. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, executors,
administrators, successors and assigns; it may be amended only in writing and
executed by the parties and as authorized by the Board of Directors or
Compensation Committee of the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
PROXYMED, INC.
By:__________________________________ By:__________________________________
Frank M. Puthoff, Secretary Harold S. Blue, Chairman
I hereby accept the stock option right offered to me by the Company as
set forth in this Stock Option Agreement dated as of ______, 19__, and Schedule
I which is attached thereto.
Accepted by:
-------------------------------------
Employee
Date:________________________________
SCHEDULE I
The information set forth in this Schedule I is subject to all of the
terms of the PROXYMED, INC. STOCK OPTION AGREEMENT to which this Schedule is
attached.
1. Name of Employee:
2. Address:
3. Social Security Number:
4. Number of Shares:
5. Exercise Price: $_____ per share (closing price at close of
business on ________)
6. Type of Option: Non-Qualified Stock Option
7. NUMBER OF SHARES DATE VESTED EXPIRATION DATE
---------------- ----------- ---------------
SCHEDULE II
NOTICE OF EXERCISE
I, the undersigned Employee, hereby give notice of the exercise of the
Option described below, to the extent and in the manner specified herein,
subject to the all of the terms and conditions of the PROXYMED, INC. STOCK
OPTION AGREEMENT granting this Option and the PROXYMED, INC. If the shares to be
acquired pursuant to this exercise of the Option are not registered under the
Securities Act of 1933, as amended, the undersigned represents and warrants that
the shares are being purchased only for investment and without any present
intention to sell or distribute such shares.
1. Name of Employee:
2. Address:
3. Social Security Number: _________________________
4. Number of Shares Being Exercised on This Date: ______________
5. Exercise Price: $_____ per share
6. Manner of Payment:
______ Check (amount enclosed: $ )
---------------------
______ Stock Certificates (subject to receipt of opinion
of counsel, as specified in Section 5 of the Stock
Option Agreement)
---------------------------------
Employee
Date: