Exhibit 4.9
NON-QUALIFIED STOCK OPTION AGREEMENT
NON-QUALIFIED STOCK OPTION AGREEMENT (the "Agreement") made as of the ____
day of _______________, 1999 (the "Grant Date"), between MIM Corporation, a
Delaware corporation (the "Company"), and ____________________ (the "Awardee").
WHEREAS the Company desires to afford the Awardee an opportunity to
purchase shares of common stock of the Company ("Common Stock") as hereinafter
provided, in accordance with the provisions of the MIM Corporation 1996 Stock
Incentive Plan, as amended and restated effective December 1, 1998, a copy of
which is attached (the "Plan").
NOW THEREFORE, in consideration of the mutual covenants hereinafter set
forth and for other good and valuable consideration the legal sufficiency of
which is hereby acknowledged, the parties hereto, intending to be legally bound
hereunder, agree as follows:
1. Grant of Option. The Company hereby grants to the Awardee the right and
option (the "Option") to purchase all or any part of an aggregate of _________
shares of the $.0001 par value per share common stock ("Common Stock") of the
Company (the "Shares"). The Option is in all respects limited and conditioned as
hereinafter provided, and is subject to the terms and conditions of the Plan now
in effect and as they may be amended from time to time (which terms and
conditions are and automatically shall be incorporated herein by reference and
made a part hereof and shall control in the event of any conflict with any other
terms of this Option Agreement). It is intended that the Option granted
hereunder be a non-qualified stock option ("NQSO") and not an incentive stock
option ("ISO") as such term is defined in Section 422 of the Internal Revenue
Code of 1986, as amended (the "Code").
2. Definitions. For purposes of this Agreement, the terms used herein shall
be defined as follows:
(a) Date of Termination. The Awardee's "Date of Termination" shall be the
first day occurring on or after the Grant Date on which the Awardee's Employment
by the Company and its Subsidiaries and Affiliates is terminated, regardless of
the reason for the termination of Employment; provided that a termination of
Employment shall not be deemed to occur by reason of a transfer of the Awardee
between any of the Company and its Subsidiaries and Affiliates; and further
provided that the Awardee's employment shall not be considered terminated while
the Awardee is on a leave of absence from the Company or a Subsidiary or
Affiliate approved by the Awardee's employer.
(b) Disability. The term "Disability" shall have the meaning provided in
Section 22(e)(3) of the Code.
(c) Termination Without Cause or For Good Reason. The term "Termination
without Cause or for Good Reason" shall mean the termination of the Awardee's
Employment by the Company and its Subsidiaries and Affiliates for reasons other
than ACause@ or by the Awardee for "Good Reason," as such quoted terms are
defined in the Employment Agreement between the Company and the Awardee. [If not
defined in the Employment Agreement or there is no Employment Agreement, a
definition will need to be inserted.]
(d) Plan Definitions. Except where the context clearly implies or indicates
the contrary, a word, term, or phrase used in the Plan shall have the same
meaning where used in this Agreement.
3. Purchase Price. The purchase price per share of the Shares under the
Option shall be $______________ (the "Option Price"), being equal to the Fair
Market Value of Common Stock on the Grant Date.
4. Term. Unless earlier terminated pursuant to any provision of the Plan or
of this Option Agreement, this Option shall expire on the date (the "Expiration
Date") which is the tenth anniversary of ___________________, 1999 (the
"Reference Date"). This Option shall not be exercisable on or after the
Expiration Date.
5. Exercise of Option. This Option shall vest and may be exercised as to
one-third of the Shares (rounded to the nearest whole share) on each of the
first three anniversaries of the Grant Date, so that the Option shall be
exercisable as to all Shares on the third such anniversary, provided, however,
that the Option shall be exercisable (i) as to all vested Shares (that have not
been previously forfeited) as of the Awardee's Date of Termination if such
termination occurs by reason of the Awardee's death or Disability (ii) as to all
vested and unvested Shares (that have not been previously forfeited) as of the
Awardee's Date of Termination if such termination occurs by reason of the
Awardee's Termination without Cause or Termination for Good Reason or (iii) as
to all vested and unvested Shares (that have not been previously forfeited) as
of the date of a Change in Control if the Awardee's Employment is terminated
within one year following such Change in Control if such termination is without
Cause or if it is for Good Reason. Options that become exercisable in accordance
with the foregoing shall remain exercisable, subject to the provisions contained
in the Plan and in this Option Agreement, until the expiration of the term of
this Option as set forth in Paragraph 4 or until other termination of the
Option.
6. Method of Exercising Option. Subject to the terms and conditions of this
Option Agreement and the Plan, the Option may be exercised upon written notice
to the Company at its principal office, which is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Such notice (a suggested form of which is
attached) shall state the election to exercise the Option and the number of
Shares with respect to which it is being exercised; shall be signed by the
person or persons so exercising the Option; shall, if the Company so requests,
be accompanied by the investment certificate referred to in Paragraph 7 hereof
and shall be accompanied by payment of the full Option Price of such Shares.
The Option Price shall be paid to the Company:
(a) In cash, or in its equivalent;
(b) In Company Common Stock previously acquired by the Awardee, provided
that if such shares of Common Stock were acquired through exercise of an ISO or
NQSO or of an option under a similar plan, such shares have been held by the
Awardee for a period of more than 12 months on the date of exercise; or
(c) In such other manner consistent with the Plan and applicable law as
from time to time may be authorized in writing by the Company with respect to
such Acashless@ option exercise arrangements as the Company from time to time
may maintain with securities brokers. Any such arrangements and written
authorizations may be terminated at any time by the Company without notice to
the Awardee.
(d) In any combination of (a), (b) and (c) above.
In the event such Option Price is paid, in whole or in part, with shares of
Common Stock, the portion of the Option Price so paid shall be equal to the Fair
Market Value on the date of exercise of the Option of the Common Stock
surrendered in payment of such Option Price.
Upon receipt of such notice and payment, the Company, as promptly as
practicable, shall deliver or cause to be delivered a certificate or
certificates representing the Shares with respect to which the Option is so
exercised. The certificate or certificates for the Shares as to which the Option
shall have been so exercised shall be registered in the name of the person or
persons so exercising the Option (or, if the Option shall be exercised by the
Awardee and if the Awardee shall so request in the notice exercising the Option,
shall be registered in the name of the Awardee and the Awardee's spouse,
jointly, with right of survivorship) and shall be delivered as provided above to
or upon the written order of the person or persons exercising the Option. In the
event the Option shall be exercised by any person or persons after the legal
disability or death of the Awardee, such notice shall be accompanied by
appropriate proof of the right of such person or persons to exercise the Option.
All Shares that shall be purchased upon the exercise of the Option as provided
herein shall be fully paid and non-assessable by the Company.
7. Shares to be Purchased for Investment. Unless the Company has
theretofore notified the Awardee that a registration statement covering the
Shares to be acquired upon the exercise of the Option has become effective under
the Securities Act of 1933 and the Company has not thereafter notified the
Awardee that such registration is no longer effective, or unless counsel to the
Company shall be otherwise satisfied that the Awardee would be permitted under
applicable law to immediately resell Shares acquired upon the exercise of the
Option, it shall be a condition to any exercise of this Option that the Shares
acquired upon such exercise be acquired for investment and not with a view to
distribution, and the person effecting such exercise shall submit to the Company
a certificate of such investment intent, together with such other evidence
supporting the same as the
Company may request. The Company shall be entitled to restrict the
transferability of the Shares issued upon any such exercise to the extent
necessary to avoid a risk of violation of the Securities Act of 1933 (or of any
rules or regulations promulgated thereunder) or of any state laws or
regulations. Such restrictions may, at the option of the Company, be noted or
set forth in full on the share certificates.
8. Non-Transferability of Option. This Option is not assignable or
transferable, in whole or in part, by the Awardee otherwise than by the laws of
descent and distribution, and during the lifetime of the Awardee the Option
shall be exercisable only by the Awardee or by his guardian or legal
representative.
9. Termination of Option. (a) The unexercised portion of the Option
(whether vested or not) shall automatically terminate and shall become null and
void and be of no further force or effect upon the first to occur of the
following:
(i) The Expiration Date;
(ii) The expiration of 30 days from the date that the Awardee ceases to be
an employee of the Company upon termination by resignation where such
resignation is not for Good Reason;
(iii) The expiration of twelve months from the date that the Optionee
ceases to be an employee of the Company or any of its Subsidiaries as
a result of the Awardee=s death, Disability, Termination without Cause
or for Good Reason;
(iv) Immediately if the Awardee ceases to be an employee of the Company or
any of its Subsidiaries if such termination is for Cause.
10. Withholding of Taxes. The obligation of the Company to deliver shares
of Common Stock upon the exercise of the Option shall be subject to applicable
federal, state and local tax withholding requirements.
If the exercise of this Option is subject to the withholding requirements
of applicable federal tax laws, the Committee may permit the Awardee, subject to
the provisions of the Plan and such additional withholding rules (the
"Withholding Rules") as shall be adopted by the Committee, to satisfy the
minimum federal, state and local withholding tax, in whole or in part, by
electing to have the Company withhold (or by returning to the Company) shares of
Common Stock, which shares shall be valued, for this purpose, at their Fair
Market Value on the date of exercise of the Option (or, if later, the date on
which the Optionee recognizes ordinary income with respect to such exercise)
(the "Determination Date"). An election to use shares of Common Stock to satisfy
tax withholding requirements must be made in compliance with and subject to the
Withholding Rules, and the Committee may not withhold shares in excess of the
number necessary to satisfy the
minimum federal, state and local income tax withholding requirements. In the
event shares of Common Stock acquired under the exercise of an ISO are used to
satisfy such withholding requirement, such shares of Common Stock must have been
held by the Awardee for a period of not less than the holding period described
in Section 422(a)(1) of the Code on the Determination Date, or if such shares of
Common Stock were acquired through exercise of a non-qualified stock option or
of an option under a similar plan, such option was granted to the Awardee at
least six months prior to the Determination Date.
11. Governing Law. This Option Agreement shall be construed in accordance
with, and its interpretation shall be governed by applicable federal law, and
otherwise by the laws of the State of Delaware.
12. Administration. The authority to manage and control the operation and
administration of this Agreement shall be vested in the Committee, and the
Committee shall have all powers with respect to this Agreement as it has with
respect to the Plan. Any interpretation of this Agreement by the Committee and
any decision made by it with respect to this Agreement is final and binding.
13. Entire Agreement. This Agreement contains the entire agreement between
the parties with respect to the subject matter hereof and supersedes all prior
contracts and other agreements to the extent of any discrepancies contained
between this document and such other document (including, without limitation,
sections 5.2(b)(iii) and 5.2(c)(iii) of the Employment Agreement).
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly
executed by its officers thereunto duly authorized, and the Awardee has hereunto
set his hand and seal, all on the day and year first above written.
MIM Corporation
By_______________________________________
Title ________________________________
ACCEPTED AND AGREED TO:
_________________________________________
Awardee
Notice of Exercise of Non-Qualified Stock Option
I hereby exercise the non-qualified stock option granted to me on
_______________________, 199__, by MIM Corporation, with respect to the
following number of shares of the $.0001 par value per share common stock of MIM
Corporation ("Shares") covered by said option:
Number of Shares to be purchased _______________
Option price per Share $______________
Total exercise price $______________
[Check one of the following to indicate method of payment:]
___ A. Enclosed is cash or its equivalent, in the amount of
$__________________, in full payment for such Shares.
___ B. Enclosed is/are ___________________ Share(s) with a total Fair Market
Value of $_______________ on the date hereof in full payment for such
Shares.
___ C. [Describe any other payment alternatives then available.]
___ D. Enclosed is cash or its equivalent in the amount of $____________, and
__ Share(s) with a total Fair Market Value of $__________ on the date
hereof, in [partial] [full] payment for such Shares.
Please have the certificate or certificates representing the purchased
Shares registered in the following name or names(1) ______________________ and
sent to __________________________.
DATED: _____________________, _________.
________________________________
Awardee's Signature
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(1) Certificates may be registered in the name of the Awardee alone or in the
names of the Awardee and his or her spouse, jointly, with right of survivorship.