Exhibit 4.3
INSTRUMENT OF GRANT OF NON-QUALIFIED STOCK OPTION
INSTRUMENT OF GRANT dated as of the 29th day of February, 2000, from
Netsmart Technologies, Inc., a Delaware corporation (the "Company"), to Thomas
B. Heil ("Optionee").
W I T N E S S E T H:
WHEREAS, the Company has, on the date of this Instrument of Grant,
granted Optionee a non-qualified stock option to purchase from the Company
shares of the Company's common stock, par value $.01 per share ("Common Stock");
WHEREFORE, the Company does hereby grant to Optionee the following
Option:
1. Stock Option. Subject to the terms and conditions set forth in this
Instrument of Grant, the Company hereby grants to the Optionee a
non-qualified stock option (the "Option") to purchase from the Company
seventy five thousand (75,000) shares (the "Optioned Shares") of Common
Stock at an exercise price (the "Exercise Price") of six and 50/100 dollars
($6.50) per share, being the fair market value per share of Common Stock on
the date of grant. The number of Optioned Shares being exercised at any
particular time multiplied by the Exercise Price shall be hereinafter
referred to as the "Purchase Price."
2. Exercise Period. This Option is exercisable cumulatively, as to thirty
seven thousand five hundred (37,500) shares on February 28, 2001 and as to
the remaining thirty seven thousand five hundred (37,500) shares on
February 28, 2002, and, to the extent that it is exercisable, it may be
exercised in whole at any time and in part from time, during the period
(the "Exercise Period") commencing on the date it become exercisable and
ending at 5:00 P.M. New York City time on February 28, 2005; provided,
however, that if such date is a day on which banks in the City of New York
are authorized or permitted to be closed, then the Exercise Period shall
end at 5:00 P.M. New York City time on the next day which is not such a
day. Notwithstanding the foregoing, if the Optionee's employment is
terminated pursuant to Paragraph 3(d) or 3(e) of Optionee's employment
agreement dated February 1, 2000, the option shall become immediately
exercisable in full.
3. Termination. This Option shall terminate, and Optionee shall have no
further rights under this Option, at the expiration of the Exercise Period;
provided, however; that in the event of the Optionee's death, this Option
may be exercised, to the extent exercisable on the date of death, during
the one year period following the date of death, but not later then the
last day of the Exercise Period.
4. Manner of Exercise.
(a) The Option shall be exercised by written notice of exercise in the form of
Exhibit A to this Instrument of Grant addressed to the Company and signed
by the Optionee and delivered to the Company along with this Instrument of
Grant and payment in full of the Purchase Price of the Optioned Shares as
to which the Option is being exercised. If the Option is exercised in part
only, the Company will either issue a new Instrument of Grant with respect
to the unexercised portion of the Option or shall make a notation on this
Instrument of Grant reflecting the partial exercise.
(b) The Purchase Price is payable by certified or official bank check or by
personal check; provided, however, that if payment is made by check, no
Optioned Shares shall be issued to Optionee until the Company has been
advised by its bank that the check has cleared.
(c) The Option may also be exercised by the delivery to the Company of shares
of Common Stock having a fair market value, as of the date of exercise,
equal to the Purchase Price of the Optioned Shares to the extent that the
Option is being exercised.
(d) The Optioned Shares, when issued upon exercise of the Option, will be duly
and validly authorized and issued, fully paid and non-assessable.
5. Adjustment Provisions. The number of shares of Common Stock and the
Exercise Price shall be adjusted in accordance with generally accepted
accounting principles in the event of a stock dividend, stock split, stock
distribution, reverse split or other combination of shares,
recapitalization or otherwise, which affects the Common Stock.
6. Transferability. The Option is not transferable by the Optionee except, in
the event of Optionee's death or incompetence, the Option may be exercised
by Optionee's legal representative or by the persons to whom the Option is
transferred by will or the laws of descent and distribution.
7. No Rights As a Stockholder. The Optionee shall have no interest in and
shall not be entitled to any voting rights or any dividend or other rights
or privileges of a stockholder of the Company with respect to any shares of
Common Stock issuable upon exercise of this Option prior to the exercise of
this Option and payment of the Purchase Price of the Optioned Shares.
8. No Right to Continued Employment. Nothing in this Instrument of Grant shall
be construed (a) as an employment agreement or an agreement to engage the
Optionee as a consultant, or (b) to grant Optionee any rights to continue
as an employee or consultant of the Company or of a parent, subsidiary or
affiliate of the Company.
9. Legality. Anything in this Option to the contrary notwithstanding, the
Optionee agrees that he will not exercise the Option, and that the Company
will not be obligated to issue any shares of Common Stock pursuant to this
Option, if the exercise of the Option or the issuance of such shares shall
constitute a violation by the Optionee or by the Company of any provisions
of any law or of any regulation of any governmental authority. Any
determination by the Compensation Committee of the Company's board of
directors (the "Committee") in this connection shall be final, binding and
conclusive. The Company shall not be obligated to take any affirmative
action in order to cause the exercise of the Option or the issuance of
shares pursuant thereto to comply with such law or regulation. In this
connection, the Optionee understands that, unless the issuance of the
Optioned Shares is registered pursuant to the Securities Act of 1933, as
amended (the "Securities Act"), the Optioned Shares, if and when issued,
will be restricted securities, as defined in Rule 144 of the Securities and
Exchange Commission pursuant to the Securities Act. The Company shall not
be required to issue any Optional Shares if the issuance thereof is not
permitted pursuant to the Securities Act.
10. Tax Status. In accepting this Option, Optionee understands that in the
Option is not an incentive stock option, as defined in Section 422 of the
Internal Revenue Code of 1986, as amended, and Optionee is aware of the tax
consequences of his exercise of the Option. The Optionee shall pay or
provide for the payment of any withholding tax due in respect of the
exercise of this Option.
11. Action by Company. The existence of the Option shall not effect in any way
the right or power of the Company or its stockholders to make or authorize
any or all adjustments, recapitalization, reorganizations or other changes
in the Company's capital structure or its business, or any merger or
consolidation of the Company, or any issue of bonds, debentures, preferred
or prior preference stocks ahead of or affecting the Common Stock or the
rights thereof, or the dissolution or liquidation of the Company, or any
sale or transfer of all or any part of its assets or business, or any other
corporate act or proceeding, whether of a similar character or otherwise.
12. Interpretation. As a condition of the granting of the Option, the Optionee
and each person who succeeds to the Optionee's rights pursuant to this
Instrument of Grant, agrees that any dispute or disagreement which shall
arise under or as a result of or pursuant to this Option shall be
determined by the Committee in its sole discretion and that any
interpretation by the Committee of the terms of this Agreement shall be
final, binding and conclusive. If no Committee is acting, its functions
shall be performed by the Board of Directors, and each reference in this
Option to the Committee shall, in that event, be deemed to refer to the
Board of Directors.
13. Notice. Any notice which either party hereto may be required or permitted
to give to the other shall be in writing, and any be delivered personally
or by mail, postage prepaid, addressed as follows: to the Company, at 146
Nassau Avenue, Islip, New 11751, Attention: President, or at such other
address as the Company, by notice, may designate in writing from time to
time; to the Optionee, at the address shown at the end of this Agreement,
or at such other address as the Optionee, by notice to the Company, may
designate in writing from time to time.
14. Governing Law. This Agreement shall be construed and governed in accordance
with the laws of the State of New York without applying its conflict of
laws principles.
15. Terms Defined in the Plan. All terms defined in the Plan and used in this
Instrument of Grant shall have the same meanings in this Instrument of
Grant as in the Plan.
IN WITNESS WHEREOF, the Company has executed this Instrument of Grant as of the
date first above written.
NETSMART TECHNOLOGIES, INC.
By: /s/James L. Conway
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James L. Conway, President
Optionee
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Thomas B. Heil
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(Address)
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(Social Security No.)
Exhibit A
Date:
Netsmart Technologies, Inc.
146 Nassau Avenue
Islip, New York 11751
Attention: Chief Financial Officer
Re: Stock Option Exercise - Instrument of Grant
Dated as of February 29, 2000
Gentlemen:
I hereby exercise the above-referenced option to the extent of _____
shares, and I am tendering with this Notice full payment of the Purchase Price
in the manner provided in Paragraph 4 of the Instrument of Grant of
Non-Qualified Stock Option with respect to the Optioned Shares as to which this
Option is being exercised. I further represent and warrant to the Company that I
am aware of the tax consequences of my exercise of the option.
Very truly yours,
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Name: