10.2 FORM OF AWARD AGREEMENTS
FORM OF
HEALTHEXTRAS, INC.
2006 STOCK INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
THIS AGREEMENT (together with Schedule A, attached hereto, the
"Agreement"), made the __________ day of _______________, 2006 (as defined
below, the "Grant Date"), between HEALTHEXTRAS, INC. a Delaware corporation (the
"Corporation"), and _______________, an Employee of, or individual in service
to, the Corporation or an Affiliate (the "Participant");
R E C I T A L S:
In furtherance of the purposes of the HealthExtras, Inc. 2006 Stock
Incentive Plan, as it may be hereafter amended (the "Plan"), the Corporation and
the Participant hereby agree as follows:
1. INCORPORATION OF PLAN. The rights and duties of the Corporation and the
Participant under this Agreement shall in all respects be subject to and
governed by the provisions of the Plan, the terms of which are incorporated
herein by reference. In the event of any conflict between the provisions in
the Agreement and those of the Plan, the provisions of the Plan shall
govern. Unless otherwise defined herein, capitalized terms in this Agreement
shall have the same definitions as set forth with the Plan.
2. TERMS OF AWARD. The following terms used in this Agreement shall have the
meanings set forth in this Section 2:
(a) The "Participant" is
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(b) The "Grant Date" is
----------------------------------.
(c) The "Restriction Period" is the period beginning on the Grant Date
and ending on such date or dates and satisfaction of such conditions
as described in Schedule A, which is attached hereto and expressly
made a part of this Agreement.
(d) The number of shares of Common Stock subject to the Restricted Stock
Award granted under this Agreement shall be shares (the
------ "Shares").
3. GRANT OF RESTRICTED STOCK AWARD. Subject to the terms of this Agreement and
the Plan, the Corporation hereby grants the Participant a Restricted Stock
Award (the "Award") for that number of Shares of Common Stock as is set
forth in Section 2.
4. VESTING AND EARNING OF AWARD.
(a) Subject to the terms of the Plan, the Award shall be deemed vested
and earned upon such date or dates, and subject to such
conditions, as are described in this Agreement, including but
not limited to the terms of Schedule A, attached hereto.
(b) The Administrator has sole authority to determine whether and to
what degree the Award has vested and been earned and is payable and
to interpret the terms and conditions of this Agreement and the
Plan.
5. FORFEITURE OF AWARD. Except as may be otherwise provided in the
Plan, in the event that the employment or service of the Participant
is terminated for any reason and the Participant has not yet earned
all or part of the Award pursuant to Section 4 and Schedule A
herein, then the Award, to the extent not earned as of the
Participant's Termination Date, shall be forfeited immediately upon
such termination, and the Participant shall have no further rights
with respect to the Award or the Shares underlying that portion of
the Award that has not yet been earned and vested. The Participant
expressly acknowledges and agrees that the termination of his or her
employment or service shall result in forfeiture of the Award and
the Shares to the extent the Award has not been earned and vested as
of his or her Termination Date.
6. SETTLEMENT OF AWARD. The Award shall be payable in whole shares of
Common Stock.
7. NO RIGHT OF EMPLOYMENT OR SERVICE; FORFEITURE OF AWARD. Neither the Plan,
this Agreement nor any other action related to the Plan shall confer upon the
Participant any right to continue in the employment or service of the
Corporation or an Affiliate or interfere with the right of the Corporation
or an Affiliate to terminate the Participant's employment or service at any
time. Except as otherwise expressly provided in the Plan or this Agreement
or as determined by the Administrator, all rights of the Participant with
respect to the Award shall terminate upon termination of the employment of
the Participant with the Corporation or an Affiliate.
8. NONTRANSFERABILITY OF AWARD AND SHARES. The Award shall not be transferable
(including by sale, assignment, pledge or hypothecation) other than by will
or the laws of intestate succession. The designation of a beneficiary does
not constitute a transfer. The Participant shall not sell, transfer, assign,
pledge or otherwise encumber the Shares subject to the Award (except as
provided in Section 12 herein) until the Restriction Period has
expired and all conditions to vesting and transfer have been met.
9. SUPERSEDING AGREEMENT; BINDING EFFECT. This Agreement supersedes any
statements, representations or agreements of the Corporation with respect
to the grant of the Award or any related rights, and the Participant hereby
waives any rights or claims related to any such statements, representations
or agreements. This Agreement does not supersede or amend any existing
confidentiality agreement, nonsolicitation agreement, noncompetition
agreement, employment agreement or any other similar agreement between the
Participant and the Corporation, including, but not limited to, any
restrictive covenants contained in such agreements. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective executors, administrators, next-of-kin, successors and assigns.
10. GOVERNING LAW. Except as otherwise provided in the Plan or herein,
this Agreement shall be construed and enforced according to the laws
of the State of Delaware, without regard to the conflict of laws
provisions of any state, and in accordance with applicable federal
laws of the United States.
11. AMENDMENT AND TERMINATION; WAIVER. Subject to the terms of the Plan,
this Agreement may be modified or amended only by the written agreement of
the parties hereto. The waiver by the Corporation of a breach of any
provision of the Agreement by the Participant shall not operate or be
construed as a waiver of any subsequent breach by the Participant. Notwith-
standing the foregoing, the Administrator shall have unilateral authority
to amend the Plan and this Agreement (without Participant consent) to the
extent necessary to comply with applicable law or changes to applicable
law (including but in no way limited to Code Section 409A, Code Section 422
and federal securities laws).
12. RIGHTS AS STOCKHOLDER. As of the Grant Date, the Participant shall
have the right to vote the Shares subject to the Award or, if the Shares are
held in trust, direct the trustee to vote the Shares. The Participant shall be
entitled to all dividends paid on the Shares as of the Grant Date. The
Administrator (in its sole discretion) will decide when the dividends (if any)
are distributed. Participants will receive certificates for Shares as soon as
practicable after the end of the Restriction Period.
13. WITHHOLDING; TAX MATTERS.
(a) The Participant acknowledges that if he or she is an employee, the
Corporation shall require the Participant to pay the Corporation in
cash the amount of any tax or other amount required by any
governmental authority to be withheld and paid over by the
Corporation to such authority for the account of the Participant,
and the Participant agrees, as a condition to the grant of the Award
and delivery of the Shares or any other benefit, to satisfy such
obligations. Notwithstanding the foregoing, the Corporation may
establish procedures to permit the Participant to satisfy such
obligations in whole or in part, and any other local, state,
federal, foreign or other income tax obligations relating to the
Award, by electing (the "election") to have the Corporation withhold
shares of Common Stock from the Shares to which the Participant is
entitled. The number of Shares to be withheld shall have a Fair
Market Value as of the date that the amount of tax to be withheld is
determined as nearly equal as possible to (but not exceeding) the
amount of such obligations being satisfied. Each election must be
made in writing to the Administrator in accordance with election
procedures established by the Administrator.
(b) The Participant acknowledges that the Corporation has made no
warranties or representations to the Participant with respect to
the tax consequences (including, but not limited to, income tax
consequences) related to the transactions contemplated by this
Agreement, and the Participant is in no manner relying on the
Corporation or its representatives for an assessment of such tax
consequences. The Participant acknowledges that there may be
adverse tax consequences upon acquisition or disposition of the
Shares subject to the Award and that the Participant should
consult a tax advisor prior to such exercise or disposition. The
Participant acknowledges that he or she has been advised that he
or she should consult with his own attorney, accountant, and/or
tax advisor regarding the decision to enter into this Agreement
and the consequences thereof. The Participant also acknowledges
that the Corporation has no responsibility to take or refrain
from taking any actions in order to achieve a certain tax result
for the Participant.
14. ADMINISTRATION. The authority to construe and interpret this Agreement
and the Plan, and to administer all aspects of the Plan, shall be vested in the
Administrator, and the Administrator shall have all powers with respect to this
Agreement as are provided in the Plan. Any interpretation of the Agreement by
the Administrator and any decision made by it with respect to the Agreement is
final and binding.
15. NOTICES. Except as may be otherwise provided by the Plan or determined
by the Administrator, any written notices provided for in this Agreement or the
Plan shall be in writing and shall be deemed sufficiently given if either hand
delivered or if sent by fax or overnight courier, or by postage paid first class
mail. Notices sent by mail shall be deemed received three business days after
mailed but in no event later than the date of actual receipt. Notices shall be
directed, if to the Participant, at the Participant's address indicated by the
Corporation's records (or at such other address as may be designated by the
Participant in a manner acceptable to the Administrator), or if to the
Corporation, at the Corporation's principal office, attention _________________,
HealthExtras, Inc. Notice may also be provided by electronic submission, if and
to the extent permitted by the Administrator.
16. SEVERABILITY. The provisions of this Agreement are severable and if any
one or more provisions may be determined to be illegal or otherwise
unenforceable, in whole or in part, the remaining provisions shall nevertheless
be binding and enforceable.
17. RESTRICTIONS ON AWARD AND SHARES. The Corporation may impose such
restrictions on the Award and the Shares or other benefits underlying the Award
as it may deem advisable, including without limitation restrictions under the
federal securities laws, the requirements of any stock exchange or similar
organization and any blue sky, state or foreign securities laws applicable to
such Award or Shares. Notwithstanding any other provision in the Plan or the
Agreement to the contrary, the Corporation shall not be obligated to issue,
deliver or transfer shares of Common Stock, to make any other distribution of
benefits, or to take any other action, unless such delivery, distribution or
action is in compliance with all applicable laws, rules and regulations
(including but not limited to the requirements of the Securities Act). The
Corporation may cause a restrictive legend or legends (including but in no way
limited to any legends which may be necessary or appropriate pursuant to Section
12 herein) to be placed on any certificate issued pursuant to the Award in such
form as may be prescribed from time to time by applicable laws and regulations
or as may be advised by legal counsel.
18. EFFECT OF CHANGES IN STATUS. Unless the Administrator, in its sole
discretion, determines otherwise (or unless required by Code Section 409A), the
Award shall not be affected by any change in the terms, conditions or status of
the Participant's employment or service, provided that the Participant continues
to be in the employ of, or in service to, the Corporation or an Affiliate.
Without limiting the foregoing, the Administrator has sole discretion to
determine, subject to Code Section 409A, at the time of grant of the Award or at
any time thereafter, the effect, if any, on the Award if the Participant's
status as an Employee, Director or Independent Contractor changes, including but
not limited to a change from full-time to part-time, or vice versa, or if other
similar changes in the nature or scope of the Participant's employment or
service occur.
19. RIGHT OF OFFSET. Notwithstanding any other provision of the Plan or the
Agreement, the Corporation may reduce the amount of any payment otherwise
payable to or on behalf of the Participant by the amount of any obligation of
the Participant to the Corporation that is or becomes due and payable and the
Participant shall be deemed to have consented to such reduction.
20. COUNTERPARTS; FURTHER INSTRUMENTS. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. The parties hereto
agree to execute such further instruments and to take such further action as may
be reasonably necessary to carry out the purposes and intent of this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed in behalf of the
Corporation and by the Participant on the day and year first above written.
HEALTHEXTRAS, INC.
By:
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Chairman of the Board of Directors
ATTEST:
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[Corporate Seal]
PARTICIPANT
--------------------------------------
Printed Name:
HEALTHEXTRAS, INC.
2006 STOCK INCENTIVE PLAN
RESTRICTED STOCK AWARD AGREEMENT
SCHEDULE A
SERVICE MEASURES
GRANT DATE: --------------------
, 2006
NUMBER OF SHARES SUBJECT TO AWARD: ---------------------
shares.
RESTRICTION PERIOD: The Shares subject to the Award shall
vest and be earned, as provided below,
subject to the terms and conditions as
may be imposed by the Plan and the
Agreement:
DATE OF VESTING PERCENTAGE OF SHARES VESTED
[Insert Schedule]
FORM OF
HEALTHEXTRAS, INC.
2006 STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
THIS AGREEMENT (together with Schedule A, attached hereto, the
"Agreement"), effective as of the date specified as the "Grant Date" on Schedule
A attached hereto, between HEALTHEXTRAS, INC., a Delaware corporation (the
"Corporation"), and the individual identified on Schedule A attached hereto, an
Employee of the Corporation or an Affiliate (the "Participant");
R E C I T A L S:
---------------
In furtherance of the purposes of the HealthExtras, Inc. 2006 Stock
Incentive Plan, as it may be hereafter amended (the "Plan"), the Corporation and
the Participant hereby agree as follows:
1. INCORPORATION OF PLAN. The rights and duties of the Corporation and
----------------------
the Participant under this Agreement shall in all respects be
subject to and governed by the provisions of the Plan, the terms of
which are incorporated herein by reference. In the event of any
conflict between the provisions in the Agreement and those of the
Plan, the provisions of the Plan shall govern. Unless otherwise
defined herein, capitalized terms in this Agreement shall have the
same definitions as set forth in the Plan.
2. GRANT OF OPTION; TERM OF OPTION. The Corporation hereby grants to
--------------------------------
the Participant pursuant to the Plan, as a matter of separate
inducement and agreement in connection with his or her employment or
service to the Corporation, and not in lieu of any salary or other
compensation for his or her services, the right and Option (the
"Option") to purchase all or any part of such aggregate number of
shares (the "Shares") of common stock of the Corporation (the
"Common Stock") at a purchase price (the "Option Price") as
specified on Schedule A, attached hereto, and subject to such other
terms and conditions as may be stated herein or in the Plan or on
Schedule A. The Participant expressly acknowledges that the terms of
Schedule A shall be incorporated herein by reference and shall
constitute part of this Agreement. The Corporation and the
Participant further acknowledge and agree that the signatures of the
Corporation and the Participant on the Grant Notice contained in
Schedule A shall constitute their acceptance of all of the terms of
this Agreement and their agreement to be bound by the terms of this
Agreement. The Option (or any portion thereof) shall be designated
as an Incentive Option, as stated on Schedule A. To the extent that
the Option or any portion thereof is designated as an Incentive
Option and such Option does not qualify as an Incentive Option, the
Option or portion thereof shall be treated as a Nonqualified Option.
Except as otherwise provided in the Plan or this Agreement, this
Option will expire if not exercised in full by the Expiration Date
specified on Schedule A.
3. EXERCISE OF OPTION. Subject to the terms of the Plan and this
--------------------
Agreement, the Option shall become exercisable on the date or dates,
and subject to such conditions, as are set forth on Schedule A
attached hereto. To the extent that an Option which is exercisable
is not exercised, such Option shall accumulate and be exercisable by
the Participant in whole or in part at any time prior to expiration
of the Option, subject to the terms of the Plan and this Agreement.
The Participant expressly acknowledges that the Option may vest and
be exercisable only upon such terms and conditions as are provided
in this Agreement and the Plan. Upon the exercise of an Option in
whole or in part and payment of the Option Price in accordance with
the provisions of the Plan and this Agreement, the Corporation
shall, as soon thereafter as practicable, deliver to the Participant
a certificate or certificates for the Shares purchased. Payment of
the Option Price may be made (i) in cash or by cash equivalent; and,
where permitted by applicable law, payment may also be made (ii) by
delivery (by either actual delivery or attestation) of shares of
Common Stock owned by the Participant (subject to such terms and
conditions, if any, as may be determined by the Administrator);
(iii) by shares of Common Stock withheld upon exercise but only if
and to the extent that payment by such method does not result in
variable accounting or other accounting consequences deemed
unacceptable to the Corporation; (iv) by such other payment methods
as may be approved by the Administrator and which are acceptable
under applicable law; or (v) by any combination of the foregoing
methods. Shares delivered or withheld in payment of the Option Price
shall be valued at their Fair Market Value on the date of exercise,
determined in accordance with the terms of the Plan.
4. NO RIGHT OF EMPLOYMENT OR SERVICE; FORFEITURE OF OPTION. Neither the
-------------------------------------------------------
Plan, this Agreement nor any other action related to the Plan shall
confer upon the Participant any right to continue in the employment
or service of the Corporation or an Affiliate or interfere with the
right of the Corporation or an Affiliate to terminate the
Participant's employment or service at any time. Except as otherwise
expressly provided in the Plan or this Agreement or as determined by
the Administrator, all rights of the Participant with respect to the
Option shall terminate upon termination of the employment of the
Participant with the Corporation or an Affiliate.
5. TERMINATION OF EMPLOYMENT. Unless the Administrator determines
---------------------------
otherwise, the Option shall not be exercised unless the Participant
is, at the time of exercise, an Employee and has been an Employee
continuously since the date the Option was granted, subject to the
following:
(a) The employment relationship of the Participant shall be treated
as continuing intact for any period that the Participant is on
military or sick leave or other bona fide leave of absence,
provided that the period of such leave does not exceed __ days,
or, if longer, as long as the Participant's right to reemployment
is guaranteed either by statute or by contract. The employment
relationship of the Participant shall also be treated as
continuing intact while the Participant is not in active service
because of Disability. The Administrator shall have sole
authority to determine whether the Participant is disabled and,
if applicable, the Participant's Termination Date.
(b) Unless the Administrator determines otherwise (subject to any
requirements imposed under Code Section 409A), if the employment
of the Participant is terminated because of Disability or death,
the Option may be exercised only to the extent vested and
exercisable on the Participant's Termination Date. The Option
must be exercised, if at all, prior to the first to occur of the
following, whichever shall be applicable (X) the close of the
period of one year next succeeding the Termination Date; or (Y)
the close of the Option Period. In the event of the Participant's
death, the Option shall be exercisable by such person or persons
as shall have acquired the right to exercise the Option by will
or by the laws of intestate succession.
(c) Unless the Administrator determines otherwise (subject to any
requirements imposed under Code Section 409A), if the employment
of the Participant is terminated for any reason other than
Disability, death or for Cause, the Option may be exercised to
the extent vested and exercisable on his or her Termination Date.
The Option must be exercised, if at all, prior to the first to
occur of the following, whichever shall be applicable: (X) the
close of the period of three months next succeeding the
Termination Date; or (Y) the close of the Option period. If the
Participant dies following such termination of employment and
prior to the date specified in (X) of this subparagraph (c), the
Participant shall be treated as having died while employed under
subparagraph (b) immediately preceding (treating for this purpose
the Participant's date of termination of employment as the
Termination Date). In the event of the Participant's death, the
Option shall be exercisable by such person or persons as shall
have acquired the right to exercise the Option by will or by the
laws of intestate succession.
(d) Unless the Administrator determines otherwise (subject to any
requirements imposed under Code Section 409A), if the employment of
the Participant is terminated for Cause, the Option shall lapse and
no longer be exercisable as of his or her Termination Date, as
determined by the Administrator.
6. NOTICE OF DISPOSITION. To the extent that this Option is designated
---------------------
as an Incentive Option, if Shares of Common Stock acquired upon
exercise of the Option are disposed of within two (2) years
following the date of grant or one (1) year following the transfer
of such Shares to the Participant upon exercise, the Participant
shall, promptly following such disposition, notify the Corporation
in writing of the date and terms of such disposition and provide
such other information regarding the disposition as the
Administrator may reasonably require.
7. LIMITATION ON INCENTIVE OPTIONS. In no event shall there first
----------------------------------
become exercisable by the Participant in any one (1) calendar year
Incentive Options granted by the Corporation or any Parent or
Subsidiary with respect to shares having an aggregate Fair Market
Value (determined at the time an Incentive Option is granted)
greater than $100,000. To the extent that any Incentive Options are
first exercisable by the Participant in excess of such limitation,
the excess shall be considered a Nonqualified Option.
8. NONTRANSFERABILITY OF OPTION. To the extent that this Option is
------------------------------
designated as an Incentive Option, the Option shall not be
transferable (including by sale, assignment, pledge or
hypothecation) other than by will or the laws or intestate
succession, or, in the Administrator's discretion, as may otherwise
be permitted in accordance with Section 422 of the Code and related
regulations. To the extent that this Option is treated as a
Nonqualified Option, the Option shall not be transferable (including
by sale, assignment, pledge or hypothecation) other than by will or
the laws of intestate succession, except as may be permitted by the
Administrator in a manner consistent with the registration
provisions of the Securities Act of 1933, as amended (the
"Securities Act"). Except as may be permitted by the preceding, the
Option shall be exercisable during the Participant's lifetime only
by him or her or by his or her guardian or legal representative. The
designation of a beneficiary in accordance with the Plan does not
constitute a transfer.
9. SUPERSEDING AGREEMENT; BINDING EFFECT. This Agreement supersedes any
-------------------------------------
statements, representations or agreements of the Corporation with
respect to the grant of the Option or any related rights, and the
Participant hereby waives any rights or claims related to any such
statements, representations or agreements. This Agreement does not
supersede or amend any existing confidentiality agreement,
nonsolicitation agreement, noncompetition agreement, employment
agreement or any other similar agreement between the Participant and
the Corporation, including, but not limited to, any restrictive
covenants contained in such agreements. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto
and their respective executors, administrators, heirs, successors
and assigns.
10. GOVERNING LAW. Except as otherwise provided in the Plan or herein,
-------------
this Agreement shall be construed and enforced according to the laws
of the State of Delaware, without regard to the conflict of laws
provisions of any state, and in accordance with applicable federal
laws of the United States.
11. AMENDMENT AND TERMINATION; WAIVER. Subject to the terms of the Plan,
---------------------------------
this Agreement may be modified or amended only by the written
agreement of the parties hereto. The waiver by the Corporation of a
breach of any provision of the Agreement by the Participant shall
not operate or be construed as a waiver of any subsequent breach by
the Participant. Notwithstanding the foregoing, the Administrator
shall have unilateral authority to amend the Plan and this Agreement
(without Participant consent) to the extent necessary to comply with
applicable law or changes to applicable law (including but in no way
limited to Code Section 409A, Code Section 422 and federal
securities laws).
12. NO RIGHTS AS STOCKHOLDER. The Participant and his or her legal
---------------------------
representatives, legatees and distributees shall not be deemed to be
the holder of any Shares subject to the Option and shall not have
any rights of a stockholder unless and until certificates for such
Shares have been issued and delivered to him or her or them.
13. WITHHOLDING; TAX MATTERS.
------------------------
(a) The Participant acknowledges that the Corporation shall require
the Participant to pay the Corporation in cash the amount of any
tax or other amount required by any governmental authority to be
withheld and paid over by the Corporation to such authority for
the account of the Participant, and the Participant agrees, as a
condition to the grant of the Option and delivery of the Shares
or any other benefit, to satisfy such obligations.
Notwithstanding the foregoing, the Corporation may establish
procedures to permit the Participant to satisfy such obligations
in whole or in part, and any other local, state, federal, foreign
or other income tax obligations relating to the Option, by
electing (the "election") to have the Corporation withhold shares
of Common Stock from the Shares to which the Participant is
entitled. The number of Shares to be withheld shall have a Fair
Market Value as of the date that the amount of tax to be withheld
is determined as nearly equal as possible to (but not exceeding)
the amount of such obligations being satisfied. Each election
must be made in writing to the Administrator in accordance with
election procedures established by the Administrator.
(b) The Participant acknowledges that the Corporation has made no
warranties or representations to the Participant with respect to
the tax consequences (including, but not limited to, income tax
consequences) related to the transactions contemplated by this
Agreement, and the Participant is in no manner relying on the
Corporation or its representatives for an assessment of such tax
consequences. The Participant acknowledges that there may be
adverse tax consequences upon acquisition or disposition of the
Shares subject to the Option and that the Participant should
consult a tax advisor prior to such exercise or disposition. The
Participant acknowledges that he or she has been advised that he
or she should consult with his own attorney, accountant, and/or
tax advisor regarding the decision to enter into this Agreement
and the consequences thereof. The Participant also acknowledges
that the Corporation has no responsibility to take or refrain
from taking any actions in order to achieve a certain tax result
for the Participant.
14. ADMINISTRATION. The authority to construe and interpret this
--------------
Agreement and the Plan, and to administer all aspects of the Plan,
shall be vested in the Administrator, and the Administrator shall
have all powers with respect to this Agreement as are provided in
the Plan. Any interpretation of the Agreement by the Administrator
and any decision made by it with respect to the Agreement is final
and binding.
15. NOTICES. Except as may be otherwise provided by the Plan or
-------
determined by the Administrator, any written notices provided for in
this Agreement or the Plan shall be in writing and shall be deemed
sufficiently given if either hand delivered or if sent by fax or
overnight courier, or by postage paid first class mail. Notices sent
by mail shall be deemed received three business days after mailed
but in no event later than the date of actual receipt. Notices shall
be directed, if to the Participant, at the Participant's address
indicated on Schedule A (or such other address as may be designated
by the Participant in a manner acceptable to the Administrator), or,
if to the Corporation, at the Corporation's principal office,
attention: _____________________________, HealthExtras, Inc. Notice
may also be provided by electronic submission, if and to the extent
permitted by the Administrator.
16. SEVERABILITY. The provisions of this Agreement are severable and if
------------
any one or more provisions may be determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining
provisions shall nevertheless be binding and enforceable.
17. RESTRICTIONS ON OPTION AND SHARES. The Corporation may impose such
----------------------------------
restrictions on the Option and the Shares or other benefits
underlying the Option as it may deem advisable, including without
limitation restrictions under the federal securities laws, the
requirements of any stock exchange or similar organization and any
blue sky, state or foreign securities laws applicable to such Option
or Shares. Notwithstanding any other provision in the Plan or the
Agreement to the contrary, the Corporation shall not be obligated to
issue, deliver or transfer shares of Common Stock, to make any other
distribution of benefits, or to take any other action, unless such
delivery, distribution or action is in compliance with all
applicable laws, rules and regulations (including but not limited to
the requirements of the Securities Act). The Corporation may cause a
restrictive legend to be placed on any certificate for Shares issued
pursuant to the exercise of the Option in such form as may be
prescribed from time to time by applicable laws and regulations or
as may be advised by legal counsel.
18. EFFECT OF CHANGES IN STATUS. Unless the Administrator, in its sole
---------------------------
discretion, determines otherwise (or unless required by Code Section
409A), the Option shall not be affected by any change in the terms,
conditions or status of the Participant's employment, provided that
the Participant continues to be in the employ of the Corporation or
an Affiliate. Without limiting the foregoing, the Administrator has
sole discretion to determine, subject to Code Section 409A, at the
time of grant of the Option or at any time thereafter, the effect,
if any, on the Option if the Participant's status as an Employee
changes, including but not limited to a change from full-time to
part-time, or vice versa, or if other similar changes in the nature
or scope of the Participant's employment occur.
19. RIGHT OF OFFSET. Notwithstanding any other provision of the Plan or
---------------
the Agreement, the Corporation may reduce the amount of any payment
otherwise payable to or on behalf of the Participant by the amount
of any obligation of the Participant to the Corporation that is or
becomes due and payable and the Participant shall be deemed to have
consented to such reduction.
20. COUNTERPARTS; FURTHER INSTRUMENTS. This Agreement may be executed in
---------------------------------
two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument. The parties hereto agree to execute such further
instruments and to take such further action as may be reasonably
necessary to carry out the purposes and intent of this Agreement.
[SIGNATURES OF THE CORPORATION AND THE PARTICIPANT
FOLLOW ON SCHEDULE A/GRANT NOTICE.]
FORM OF
HEALTHEXTRAS, INC.
2006 STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
SCHEDULE A/GRANT NOTICE
-----------------------
1. Pursuant to the terms and conditions of the Corporation's 2006 Stock
Incentive Plan (the "Plan"), you (the "Participant") have been granted an option
(the "Option") to purchase ________ shares (the "Shares") of our Common Stock as
outlined below.
Name of Participant:
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Address:
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Grant Date:
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Number of Shares Subject to Option:
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Option Price:
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Type of Option:
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Expiration Date (Last Day of Option Period):
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Vesting Schedule/Conditions:
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2. By my signature below, I, the Participant, hereby acknowledge receipt
of this Grant Notice and the Option Agreement (the "Agreement") dated __________
___, 200__, between the Participant and HealthExtras, Inc. (the "Corporation")
which is attached to this Grant Notice. I understand that the Grant Notice and
other provisions of Schedule A herein are incorporated by reference into the
Agreement and constitute a part of the Agreement. By my signature below, I
further agree to be bound by the terms of the Plan and the Agreement, including
but not limited to the terms of this Grant Notice and the other provisions of
Schedule A contained herein. The Corporation reserves the right to treat the
Option and the Agreement as cancelled, void and of no effect if the Participant
fails to return a signed copy of the Grant Notice within 30 days of grant date
stated above.
Signature: Date:
-------------------------------- -------------------------
Agreed to by:
HEALTHEXTRAS, INC.
By:
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Attest:
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Note: If there are any discrepancies in the name or address shown above, please
make the appropriate corrections on this form. Please retain a copy of the
Agreement, including this Grant Notice, for your files.
FORM OF
HEALTHEXTRAS, INC.
2006 STOCK INCENTIVE PLAN
Nonqualified Stock Option Agreement
THIS AGREEMENT (together with Schedule A, attached hereto, the
"Agreement"), effective as of the date specified as the "Grant Date" on Schedule
A attached hereto, between HEALTHEXTRAS, INC., a Delaware corporation (the
"Corporation"), and the individual identified on Schedule A attached hereto, an
Employee of the Corporation or an Affiliate (the "Participant");
R E C I T A L S:
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In furtherance of the purposes of the HealthExtras, Inc. 2006 Stock
Incentive Plan, as it may be hereafter amended (the "Plan"), the Corporation and
the Participant hereby agree as follows:
1. Incorporation of Plan. The rights and duties of the Corporation and
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the Participant under this Agreement shall in all respects be
subject to and governed by the provisions of the Plan, the terms of
which are incorporated herein by reference. In the event of any
conflict between the provisions in the Agreement and those of the
Plan, the provisions of the Plan shall govern. Unless otherwise
defined herein, capitalized terms in this Agreement shall have the
same definitions as set forth in the Plan.
2. Grant of Option; Term of Option. The Corporation hereby grants to
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the Participant pursuant to the Plan, as a matter of separate
inducement and agreement in connection with his or her employment or
service to the Corporation, and not in lieu of any salary or other
compensation for his or her services, the right and Option (the
"Option") to purchase all or any part of such aggregate number of
shares (the "Shares") of common stock of the Corporation (the
"Common Stock") at a purchase price (the "Option Price") as
specified on Schedule A, attached hereto, and subject to such other
terms and conditions as may be stated herein or in the Plan or on
Schedule A. The Participant expressly acknowledges that the terms of
Schedule A shall be incorporated herein by reference and shall
constitute part of this Agreement. The Corporation and the
Participant further acknowledge and agree that the signatures of the
Corporation and the Participant on the Grant Notice contained in
Schedule A shall constitute their acceptance of all of the terms of
this Agreement and their agreement to be bound by the terms of this
Agreement. The Option (or any portion thereof) shall be designated
as a Nonqualified Option, as stated on Schedule A. Except as
otherwise provided in the Plan or this Agreement, this Option will
expire if not exercised in full by the Expiration Date specified on
Schedule A.
3. Exercise of Option. Subject to the terms of the Plan and this
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Agreement, the Option shall become exercisable on the date or dates,
and subject to such conditions, as are set forth on Schedule A
attached hereto. To the extent that an Option which is exercisable
is not exercised, such Option shall accumulate and be exercisable by
the Participant in whole or in part at any time prior to expiration
of the Option, subject to the terms of the Plan and this Agreement.
The Participant expressly acknowledges that the Option may vest and
be exercisable only upon such terms and conditions as are provided
in this Agreement and the Plan. Upon the exercise of an Option in
whole or in part and payment of the Option Price in accordance with
the provisions of the Plan and this Agreement, the Corporation
shall, as soon thereafter as practicable, deliver to the Participant
a certificate or certificates for the Shares purchased. Payment of
the Option Price may be made (i) in cash or by cash equivalent; and,
where permitted by applicable law, payment may also be made (ii) by
delivery (by either actual delivery or attestation) of shares of
Common Stock owned by the Participant (subject to such terms and
conditions, if any, as may be determined by the Administrator);
(iii) by shares of Common Stock withheld upon exercise but only if
and to the extent that payment by such method does not result in
variable accounting or other accounting consequences deemed
unacceptable to the Corporation; (iv) by such other payment methods
as may be approved by the Administrator and which are acceptable
under applicable law; or (v) by any combination of the foregoing
methods. Shares delivered or withheld in payment of the Option Price
shall be valued at their Fair Market Value on the date of exercise,
determined in accordance with the terms of the Plan.
4. No Right of Employment or Service; Forfeiture of Option. Neither the
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Plan, this Agreement nor any other action related to the Plan shall
confer upon the Participant any right to continue in the employment
or service of the Corporation or an Affiliate or interfere with the
right of the Corporation or an Affiliate to terminate the
Participant's employment or service at any time. Except as otherwise
expressly provided in the Plan or this Agreement or as determined by
the Administrator, all rights of the Participant with respect to the
Option shall terminate upon termination of the employment of the
Participant with the Corporation or an Affiliate.
5. Termination of Service. Unless the Administrator determines
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otherwise, the Option shall not be exercised unless the Participant
is, at the time of exercise, in service with the Corporation and has
been in service with the Corporation continuously since the date the
Option was granted, subject to the following:
(a) Unless the Administrator determines otherwise (subject to any
requirements imposed under Code Section 409A), if the
Participant's service is terminated because of Disability or
death, the Option may be exercised only to the extent vested and
exercisable on the Participant's Termination Date. The Option
must be exercised, if at all, prior to the first to occur of the
following, whichever shall be applicable (X) the close of the
period of one year next succeeding the Termination Date; or (Y)
the close of the Option Period. In the event of the Participant's
death, the Option shall be exercisable by such person or persons
as shall have acquired the right to exercise the Option by will
or by the laws of intestate succession.
(b) Unless the Administrator determines otherwise (subject to any
requirements imposed under Code Section 409A), if the
Participant's service is terminated for any reason other than
Disability, death or for Cause, the Option may be exercised to
the extent vested and exercisable on his or her Termination Date.
The Option must be exercised, if at all, prior to the first to
occur of the following, whichever shall be applicable: (X) the
close of the period of three months next succeeding the
Termination Date; or (Y) the close of the Option period. If the
Participant dies following such termination of service and prior
to the date specified in (X) of this subparagraph (b), the
Participant shall be treated as having died while employed under
subparagraph (a) immediately preceding (treating for this purpose
the Participant's date of termination of service as the
Termination Date). In the event of the Participant's death, the
Option shall be exercisable by such person or persons as shall
have acquired the right to exercise the Option by will or by the
laws of intestate succession.
(c) Unless the Administrator determines otherwise (subject to any
requirements imposed under Code Section 409A), if the Participant's
service is terminated for Cause, the Option shall lapse and no
longer be exercisable as of his or her Termination Date, as
determined by the Administrator.
6. Nontransferability of Option. The Option shall not be transferable
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(including by sale, assignment, pledge or hypothecation) other than
by will or the laws of intestate succession, except as may be
permitted by the Administrator in a manner consistent with the
registration provisions of the Securities Act of 1933, as amended
(the "Securities Act"). Except as may be permitted by the preceding
sentence, the Option shall be exercisable during the Participant's
lifetime only by him or her or by his or her guardian or legal
representative. The designation of a beneficiary in accordance with
the Plan does not constitute a transfer.
7. Superseding Agreement; Binding Effect. This Agreement supersedes any
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statements, representations or agreements of the Corporation with
respect to the grant of the Option or any related rights, and the
Participant hereby waives any rights or claims related to any such
statements, representations or agreements. This Agreement does not
supersede or amend any existing confidentiality agreement,
nonsolicitation agreement, noncompetition agreement, employment
agreement or any other similar agreement between the Participant and
the Corporation, including, but not limited to, any restrictive
covenants contained in such agreements. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto
and their respective executors, administrators, heirs, successors
and assigns.
8. Governing Law. Except as otherwise provided in the Plan or herein,
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this Agreement shall be construed and enforced according to the laws
of the State of Delaware, without regard to the conflict of laws
provisions of any state, and in accordance with applicable federal
laws of the United States.
9. Amendment and Termination; Waiver. Subject to the terms of the Plan,
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this Agreement may be modified or amended only by the written
agreement of the parties hereto. The waiver by the Corporation of a
breach of any provision of the Agreement by the Participant shall
not operate or be construed as a waiver of any subsequent breach by
the Participant. Notwithstanding the foregoing, the Administrator
shall have unilateral authority to amend the Plan and this Agreement
(without Participant consent) to the extent necessary to comply with
applicable law or changes to applicable law (including but in no way
limited to Code Section 409A, Code Section 422 and federal
securities laws).
10. No Rights as Stockholder. The Participant and his or her legal
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representatives, legatees and distributees shall not be deemed to be
the holder of any Shares subject to the Option and shall not have
any rights of a stockholder unless and until certificates for such
Shares have been issued and delivered to him or her or them.
11. Withholding; Tax Matters.
------------------------
(a) The Participant acknowledges that the Corporation shall require
the Participant to pay the Corporation in cash the amount of any
tax or other amount required by any governmental authority to be
withheld and paid over by the Corporation to such authority for
the account of the Participant, and the Participant agrees, as a
condition to the grant of the Option and delivery of the Shares
or any other benefit, to satisfy such obligations.
Notwithstanding the foregoing, the Corporation may establish
procedures to permit the Participant to satisfy such obligations
in whole or in part, and any other local, state, federal, foreign
or other income tax obligations relating to the Option, by
electing (the "election") to have the Corporation withhold shares
of Common Stock from the Shares to which the Participant is
entitled. The number of Shares to be withheld shall have a Fair
Market Value as of the date that the amount of tax to be withheld
is determined as nearly equal as possible to (but not exceeding)
the amount of such obligations being satisfied. Each election
must be made in writing to the Administrator in accordance with
election procedures established by the Administrator.
(b) The Participant acknowledges that the Corporation has made no
warranties or representations to the Participant with respect to
the tax consequences (including, but not limited to, income tax
consequences) related to the transactions contemplated by this
Agreement, and the Participant is in no manner relying on the
Corporation or its representatives for an assessment of such tax
consequences. The Participant acknowledges that there may be
adverse tax consequences upon acquisition or disposition of the
Shares subject to the Option and that the Participant should
consult a tax advisor prior to such exercise or disposition. The
Participant acknowledges that he or she has been advised that he
or she should consult with his own attorney, accountant, and/or
tax advisor regarding the decision to enter into this Agreement
and the consequences thereof. The Participant also acknowledges
that the Corporation has no responsibility to take or refrain
from taking any actions in order to achieve a certain tax result
for the Participant.
12. Administration. The authority to construe and interpret this
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Agreement and the Plan, and to administer all aspects of the Plan,
shall be vested in the Administrator, and the Administrator shall
have all powers with respect to this Agreement as are provided in
the Plan. Any interpretation of the Agreement by the Administrator
and any decision made by it with respect to the Agreement is final
and binding.
13. Notices. Except as may be otherwise provided by the Plan or
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determined by the Administrator, any written notices provided for in
this Agreement or the Plan shall be in writing and shall be deemed
sufficiently given if either hand delivered or if sent by fax or
overnight courier, or by postage paid first class mail. Notices sent
by mail shall be deemed received three business days after mailed
but in no event later than the date of actual receipt. Notices shall
be directed, if to the Participant, at the Participant's address
indicated on Schedule A (or such other address as may be designated
by the Participant in a manner acceptable to the Administrator), or,
if to the Corporation, at the Corporation's principal office,
attention: __________________________, HealthExtras, Inc. Notice may
also be provided by electronic submission, if and to the extent
permitted by the Administrator.
14. Severability. The provisions of this Agreement are severable and if
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any one or more provisions may be determined to be illegal or
otherwise unenforceable, in whole or in part, the remaining
provisions shall nevertheless be binding and enforceable.
15. Restrictions on Option and Shares. The Corporation may impose such
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restrictions on the Option and the Shares or other benefits
underlying the Option as it may deem advisable, including without
limitation restrictions under the federal securities laws, the
requirements of any stock exchange or similar organization and any
blue sky, state or foreign securities laws applicable to such Option
or Shares. Notwithstanding any other provision in the Plan or the
Agreement to the contrary, the Corporation shall not be obligated to
issue, deliver or transfer shares of Common Stock, to make any other
distribution of benefits, or to take any other action, unless such
delivery, distribution or action is in compliance with all
applicable laws, rules and regulations (including but not limited to
the requirements of the Securities Act). The Corporation may cause a
restrictive legend to be placed on any certificate for Shares issued
pursuant to the exercise of the Option in such form as may be
prescribed from time to time by applicable laws and regulations or
as may be advised by legal counsel.
16. Effect of Changes in Status. Unless the Administrator, in its sole
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discretion, determines otherwise (or unless required by Code Section
409A), the Option shall not be affected by any change in the terms,
conditions or status of the Participant's service, provided that the
Participant continues to be in the service of the Corporation or an
Affiliate. Without limiting the foregoing, the Administrator has
sole discretion to determine, subject to Code Section 409A, at the
time of grant of the Option or at any time thereafter, the effect,
if any, on the Option if the Participant's status with the
Corporation changes.
17. Right of Offset. Notwithstanding any other provision of the Plan or
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the Agreement, the Corporation may reduce the amount of any payment
otherwise payable to or on behalf of the Participant by the amount
of any obligation of the Participant to the Corporation that is or
becomes due and payable and the Participant shall be deemed to have
consented to such reduction.
18. Counterparts; Further Instruments. This Agreement may be executed in
---------------------------------
two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument. The parties hereto agree to execute such further
instruments and to take such further action as may be reasonably
necessary to carry out the purposes and intent of this Agreement.
[Signatures of the Corporation and the Participant follow
on Schedule A/Grant Notice.]
FORM OF
HEALTHEXTRAS, INC.
2006 STOCK INCENTIVE PLAN
Nonqualified Stock Option Agreement
Schedule A/Grant Notice
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1. Pursuant to the terms and conditions of the Corporation's 2006 Stock
Incentive Plan (the "Plan"), you (the "Participant") have been granted an option
(the "Option") to purchase ________ shares (the "Shares") of our Common Stock as
outlined below.
Name of Participant:
---------------------------------
Address:
---------------------------------
Grant Date:
---------------------------------
Number of Shares Subject to Option:
---------------------------------
Option Price:
---------------------------------
Type of Option:
---------------------------------
Expiration Date (Last Day of Option Period):
---------------------------------
Vesting Schedule/Conditions:
---------------------------------
2. By my signature below, I, the Participant, hereby acknowledge receipt
of this Grant Notice and the Option Agreement (the "Agreement") dated
_______________, 2006, between the Participant and HealthExtras, Inc. (the
"Corporation") which is attached to this Grant Notice. I understand that the
Grant Notice and other provisions of Schedule A herein are incorporated by
reference into the Agreement and constitute a part of the Agreement. By my
signature below, I further agree to be bound by the terms of the Plan and the
Agreement, including but not limited to the terms of this Grant Notice and the
other provisions of Schedule A contained herein. The Corporation reserves the
right to treat the Option and the Agreement as cancelled, void and of no effect
if the Participant fails to return a signed copy of the Grant Notice within 30
days of grant date stated above.
Signature: Date:
---------------------------------- --------------------------
Agreed to by:
HEALTHEXTRAS, INC.
By:
-----------------------------
Attest:
---------------------------------------
Note: If there are any discrepancies in the name or address shown above, please
make the appropriate corrections on this form. Please retain a copy of the
Agreement, including this Grant Notice, for your files.