EXHIBIT 10.34
VITAS HEALTHCARE CORPORATION
1994 MANAGEMENT EQUITY INCENTIVE PLAN
NON-INCENTIVE STOCK OPTION AGREEMENT
[Performance Vesting]
VITAS HEALTHCARE CORPORATION
1994 MANAGEMENT EQUITY INCENTIVE PLAN
STOCK OPTION AGREEMENT
TABLE OF CONTENTS
1. Grant of Option ...................................................... 1
2. Terms of Plan ........................................................ 2
3. Price ................................................................ 2
4. Vesting in Options ................................................... 2
5. Exercise of Option ................................................... 2
5(a) Time of Exercise of Option ...................................... 2
5(b) Termination of Option ........................................... 3
5(c) Limitations on Exercise of Option ............................... 3
5(d) Method of Exercise of Option .................................... 3
5(e) Parachute Limitations ........................................... 3
6. Transferability ...................................................... 4
6(a) Transferability of Options ...................................... 4
6(b) Nontransferability of Shares .................................... 4
6(c) Repurchase Rights ............................................... 5
6(d) Purchase of Option .............................................. 6
6(e) Publicly Traded Stock ........................................... 6
6(f) Installment Payments ............................................ 6
6(g) Legend Describing Restrictions and
Obligations ................................................... 7
7. Effect of Changes in Capitalization .................................. 7
7(a) Changes in Stock ................................................ 7
7(b) Reorganization in Which the Corporation
Is the Surviving Corporation .................................. 7
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8. Requirements of Law .................................................. 9
9. Rights as Stockholder ................................................ 10
10. Withholding of Taxes ................................................. 10
11. Disclaimer of Rights ................................................. 10
12. Interpretation of this Option Agreement .............................. 10
13. Governing Law ........................................................ 11
14. Approval by Stockholders ............................................. 11
15. Binding Effect ....................................................... 11
16. Notice ............................................................... 11
17. Entire Agreement ..................................................... 11
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Performance
Vesting
VITAS HEALTHCARE CORPORATION
1994 MANAGEMENT EQUITY INCENTIVE PLAN
NON-INCENTIVE STOCK OPTION AGREEMENT
This Stock Option Agreement (the "Option Agreement") is made as of January
25, 1994, by and between Vitas Healthcare Corporation, a Delaware corporation
(the "Corporation"), and ______________, an individual who is employed by or
otherwise has a relationship with the Corporation or its subsidiaries (the
"Optionee").
WHEREAS, the Board of Directors of the Corporation has duly adopted and
approved the Vitas Healthcare Corporation 1994 Management Equity Incentive Plan
(the "Plan"), subject to approval by the stockholders of the Corporation, which
Plan authorizes the Corporation to grant to eligible individuals options for the
purchase of shares of the Corporation's common stock, par value $.001 per share,
(the "Stock"); and
WHEREAS, the Corporation has determined that it is desirable and in its
best interests to grant to the Optionee, pursuant to the Plan (including Section
4(a) of the Plan), an option to purchase a certain number of shares of Stock, in
order to provide the Optionee with an incentive to advance the interests of the
Corporation and any "subsidiary corporation" thereof within the meaning of
Section 424(f) of the Internal Revenue Code of 1986 (a "Subsidiary"), all
according to the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, the parties hereto do hereby agree as follows:
1. Grant of Option. Subject to the terms of the Plan (attached hereto as
Exhibit A), and to the requisite approval of the Plan by the stockholders of the
Corporation, the Corporation hereby grants to the Optionee the right and option
(the "Option") to purchase from the Corporation, on the terms and subject to the
conditions set forth in the Plan and in this Option Agreement, ____________
(____) shares of Stock. This Option shall not constitute an incentive stock
option within the meaning of Section 422 of the Internal Revenue Code of 1986,
as amended (the "Code"). The date of grant of this Option is January 25, 1994,
the date on which the grant of the Option was approved by the Compensation
Committee (the "Committee") of the Board of Directors of the Corporation (the
"Board").
2. Terms of Plan. The Option granted pursuant to this Option Agreement is
granted subject to the terms and conditions set forth in the Plan. All terms and
conditions of the Plan, as it may be amended from time to time, are hereby
incorporated into this Option Agreement by reference and shall be deemed to be
part of this Option Agreement, without regard to whether such terms and
conditions are not otherwise set forth in this Option Agreement. In the event
that there is any inconsistency between the provisions of this Option Agreement
and of the Plan, the provisions of the Plan shall govern.
3. Price. The purchase price (the "Option Price") for the shares of Stock
subject to the Option granted by this Option Agreement is $____ per share.
4. Vesting in Options.
(a) General. The Option becomes vested (i.e., nonforfeitable) upon
the earlier of satisfying the service requirements contained in (b) or any of
the performance target determinations in (c), as set forth in this Section 4, as
follows:
(b) Service Requirement. The Option becomes vested (i.e.,
nonforfeitable) as to 25% of the shares of Stock purchasable pursuant to the
Option on or after January 25, 1996: (the "Anniversary Date"), if Optionee has
been providing services to the Corporation or a Subsidiary continuously from the
date of grant to the Anniversary Date. Thereafter, so long as continuous service
has not been interrupted, the Option becomes vested (i.e., nonforfeitable) as to
an additional 25% of the shares of Stock subject to the Option on or after each
of the next three anniversaries of the Anniversary Date. Service for this
purpose includes service as an employee, director or independent contractor
providing services to the Corporation or a Subsidiary. For purposes of the
Option Agreement, termination of service would not be deemed to occur if the
Optionee, after terminating service in one capacity, continues to provide
service to the Corporation or any Subsidiary in another capacity. Termination of
service is sometimes also referred to herein as termination of employment or
other relationship with the Corporation or its Subsidiaries. Termination of
service (regardless of whether with or without cause or by reason of death,
disability or voluntary resignation) results in forfeiture of that portion of
the Option (if any) that has not yet vested (i.e., become nonforfeitable) but
does not affect the exercisability of that portion of the Option (if any) that
has vested and which continues to be subject to the limitations on exercise set
forth in this Option Agreement and the Plan.
(c) Performance Targets. The Option becomes vested (i.e.,
nonforfeitable) as to 100% of the shares of Stock purchasable pursuant to the
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Option on the date that the Committee, or if there is no duly constituted
Committee, the Board determines that (a) the Corporation's consolidated net
income before provision for income taxes for the fiscal year ending September
30, 1994 is at least $11.4 million, (b) the Corporation's consolidated net
income before provision for income taxes for the fiscal year ending September
30, 1995 is at least $13.7 million or (c) the Corporation's consolidated net
income before provision for income taxes for the fiscal year ending September
30, 1996 is at least $16.4 million. Such determination shall be made based on
the audited financial statements of the Corporation and its Subsidiaries no
later than 120 days after the end of each such fiscal year, or if there are no
such audited financial statements for such fiscal year, based on the unaudited
financial statements of the Corporation and its Subsidiaries, as certified by
the Chief Executive Officer or Chief Financial Officer of the Corporation. In
making such determination, the Committee or the Board, as the case may be, shall
have the authority to determine if such performance targets have been satisfied
or deemed satisfied after taking into account such accounting adjustments or
other factors that are considered by the Committee or the Board, as the case may
be, to be appropriate under then existing circumstances.
5. Exercise of Option. Except as otherwise provided herein, and subject to
the provisions of the Plan, the Option granted pursuant to this Option Agreement
shall be subject to exercise as follows:
(a) Time of Exercise of Option. The Optionee may exercise the Option
(subject to the limitations on exercise set forth in this Option Agreement and
in the Plan), to the extent the Option is vested (i.e., nonforfeitable) and has
not terminated under Section 5(b), on the earliest of the following: (i) nine
years and ten months after the date of grant; (ii) the closing of a bona fide,
firm commitment underwritten public offering of the Common Stock of the
Corporation pursuant to a registration statement declared effective under the
Securities Act of 1933, as amended, and (iii) receipt by the Optionee of notice
from the Corporation that the Corporation has entered into a definitive
agreement or the Board has adopted definitive resolutions calling for the
Corporation, subject to certain terms and conditions, to effect a transaction or
event described in Section 7(c). No single exercise of the Option shall be for
less than 100 shares of Stock, unless the number of shares purchased is the
total number at the time available for purchase under this Option.
(b) Termination of Option. The Option shall terminate upon the
earliest of (i) the expiration of a period of ten years from the date of grant
of the Option, as set forth in Section 1 above, (ii) the occurrence of a
transaction or event described in Section 7(c) which causes termination of the
Option, (iii) the Optionee's termination of employment or other relationship
with the Corporation or a Subsidiary to the extent the Option has not become
vested (i.e., nonforfeitable) in accordance with Section 4 or (iv) the purchase
of the Option by the Corporation pursuant to Section 6(d).
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(c) Limitations on Exercise of Option. Notwithstanding the foregoing
Subsections, in no event may the Option be exercised, in whole or in part, prior
to the date the Plan is approved by the stockholders of the Corporation and in
the event the stockholders fail to approve the Plan within one year of the date
of its adoption by the Board, the Option shall be null and void and of no
effect.
(d) Method of Exercise of Option. Subject to the terms and
conditions of this Option Agreement, the Option may be exercised by delivering
written notice of exercise to the Corporation, at its principal office,
addressed to the attention of the President, which notice shall specify the
number of shares for which the Option is being exercised, and shall be
accompanied by payment in full of the Option Price of the shares of Stock for
which the Option is being exercised. Payment of the Option Price for the shares
of Stock purchased pursuant to the exercise of the Option shall be made in cash
or by certified check payable to the order of the Corporation. If the person
exercising the Option is not the Optionee, such person shall also deliver with
the notice of exercise appropriate proof of his or her right to exercise the
Option. An attempt to exercise the Option granted hereunder other than as set
forth above shall be invalid and of no force and effect. Promptly after exercise
of the Option as provided for above, the Corporation shall deliver to the person
exercising the Option a certificate or certificates for the shares of Stock
being purchased.
(e) Parachute Limitations. Notwithstanding any other provision of
this Option Agreement or of any other agreement, contract, or understanding
heretofore or hereafter entered into by the Optionee with the Corporation or any
Subsidiary or Affiliate (as defined in Section 6(b)), except an agreement,
contract, or understanding hereafter entered into that expressly modifies or
excludes application of this Section (the "Other Agreements"), and
notwithstanding any formal or informal plan or other arrangement heretofore or
hereafter adopted by the Corporation (or any such Subsidiary or Affiliate) for
the direct or indirect compensation of the Optionee (including groups or classes
of participants or beneficiaries of which the Optionee is a member), whether or
not such compensation is deferred, is in cash, or is in the form of a benefit to
or for the Optionee (a "Benefit Arrangement"), if the Optionee is a
"disqualified individual," as defined in Section 280G(c) of the Code, the Option
and any right to receive any payment or other benefit under the Plan shall not
become exercisable or vested (i) to the extent that such right to exercise,
vesting, payment, or benefit, taking into account all other rights, payments, or
benefits to or for Optionee under the Plan, all Other Agreements, and all
Benefit Arrangements, would cause any payment or benefit to the Optionee under
this Option to be considered a "parachute payment" within the meaning of Section
280G(b)(2) of the Code as then in effect (a "Parachute Payment") and (ii) if, as
a result of receiving a Parachute Payment, the aggregate after-tax amounts
received by the Optionee from the
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Corporation under this Plan, all Other Agreements, and all Benefit Arrangements
would be less than the maximum after-tax amount that could be received by
Optionee without causing any such payment or benefit to be considered a
Parachute Payment. In the event that the receipt of any such right to exercise,
vesting, payment, or benefit under this Option, in conjunction with all other
rights, payments, or benefits to or for the Optionee under the Plan, any Other
Agreement or any Benefit Arrangement would cause the Optionee to be considered
to have received a Parachute Payment under the Option that would have the effect
of decreasing the after-tax amount received by the Optionee as described in
clause (ii) of the preceding sentence, then the Optionee shall have the right,
in the Optionee's sole discretion, to designate those rights, payments, or
benefits under the Option, the Plan, any Other Agreements, and any Benefit
Arrangements that should be reduced or eliminated so as to avoid having the
payment or benefit to the Optionee under the Option be deemed to be a Parachute
Payment.
6. Transferability.
(a) Transferability of Options. During the lifetime of the Optionee,
only such Optionee (or, in the event of legal incapacity or incompetency, the
Optionee's guardian or legal representative) may exercise the Option. No Option
shall be assignable or transferable by the Optionee to whom it is granted, other
than by will or the laws of descent and distribution.
(b) Nontransferability of Shares. The Optionee (or any other person
who is entitled to exercise an Option pursuant to the terms of the Plan and this
Option Agreement) shall not sell, pledge, assign, gift, transfer or otherwise
dispose of any shares of Stock acquired pursuant to the Option to anyone without
first offering such Stock to the Corporation for purchase on the same terms and
conditions as those offered to the proposed transferee. Any individual who
proposes such a transfer (the "Transferor") shall notify the Corporation, in
writing, of the identity of the proposed transferee and the terms and conditions
of such proposed transfer. The Corporation may exercise its right of first
refusal under this Subsection within 90 days after receiving such notice of the
proposed transfer. The Corporation may assign its right of first refusal under
this Subsection, in whole or in part, to (1) any stockholder of the Corporation
who owns stock or securities of the Corporation (a "Stockholder"), (2) any
employee benefit plan (within the meaning of Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended) maintained by the
Corporation or a Subsidiary for the benefit of employees of the Corporation or a
Subsidiary (a "Benefit Plan"), or (3) any corporation or other trade or business
that is controlled by or under common control with the Corporation (determined
in accordance with the principles of Section 414(b) and Section 414(c) of the
Code and the regulations thereunder) (an "Affiliate"). The Corporation shall
give reasonable written notice to the Transferor of any such assignment of its
rights. If the Corporation (or its permitted assignee) fails to exercise such
right of first refusal during this 90-day
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period, the Transferor may proceed with the proposed transfer at any time within
the next 45 days, and if he does not do so, the restrictions of this Subsection
shall re-apply. These restrictions also shall re-apply to any person to whom
Stock that was originally acquired pursuant to an Option is sold, pledged,
assigned, bequeathed, gifted, transferred or otherwise disposed of without
regard to the number of such subsequent transferees or the manner in which they
acquire the Stock. Notwithstanding the foregoing, the restrictions of this
Subsection shall not apply to a transfer of Stock that occurs as a result of the
death of the Transferor or of any subsequent transferee but such restrictions
shall apply to the executor, administrator or personal representative, the
estate and the legatees, beneficiaries and assigns thereof.
(c) Repurchase Rights. Upon the termination of employment or other
relationship of the Optionee with the Corporation or a Subsidiary, the
Corporation shall have the right, for a period of twelve months following such
termination, to repurchase any or all of the shares of Stock acquired pursuant
to such Option, at a price equal to the fair market value of such shares on the
date the Corporation delivers to the Optionee, or other holder of such shares of
Stock, notice that it is exercising its repurchase rights. Upon the exercise of
the Option granted hereunder following the termination of employment or other
relationship of the Optionee with the Corporation or a Subsidiary, the
Corporation shall have the right, for a period of twelve months following such
exercise, to repurchase any or all of the shares of Stock acquired by the
Optionee pursuant to such exercise of such Option, at a price equal to the fair
market value of such shares on the date the Corporation delivers to the
Optionee, or other holder of such shares of Stock, notice that it is exercising
its repurchase rights. In the event that the Corporation determines that it
cannot or will not exercise its rights to purchase Stock pursuant to this
Subsection, in whole or in part, the Corporation may assign its rights
hereunder, in whole or in part, to a Stockholder, a Benefit Plan or an
Affiliate. The Corporation shall give reasonable written notice to the Optionee
of any assignment of its rights. "Fair market value", for purposes of this
Subsection, shall be determined by the Board in the same manner specified in the
Plan for determining the Option Price. A notice of repurchase given pursuant to
this Subsection shall specify the price and date of closing of such repurchase,
which shall be no later than 30 days from the date of such notice. In the event
any such repurchase rights are exercised in accordance with this Subsection, the
holder of the Stock being repurchased shall be obligated to sell such Stock
pursuant to the exercise of such rights.
(d) Purchase of Option. Upon the termination of employment or other
relationship of the Optionee with the Corporation or a Subsidiary, the
Corporation shall have the right, at all times before the Option is exercised,
to purchase the vested (i.e., nonforfeitable) portion of the Option, in whole or
in part, at a price equal to the value of such Option on the date the
Corporation delivers to the Optionee (or transferee of the Option pursuant to
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Section 6(a)), notice that it is exercising such purchase rights. For this
purpose, the value of the Option is equal to the excess (if any) of the fair
market value of the shares of Stock that are subject to the Option, determined
by the Board in the same manner specified in the Plan for determining the Option
Price as of the date of notice, over the aggregate Option Price of such shares.
Upon payment (or tender of payment) in the applicable amount to the Optionee (or
transferee of the Option), the vested (i.e. nonforfeitable) portion of the
Option shall be terminated and, if payment has been tendered but not made, shall
only represent the right to receive such payment without interest. A notice of
purchase given pursuant to this Subsection shall specify the price and date of
closing of such purchase which shall be no later than 30 days from the date of
such notice. In the event any such purchase right is exercised in accordance
with this Subsection, the Optionee (or holder of the Option being purchased)
shall be obligated to sell such Option pursuant to the exercise of such rights.
(e) Publicly Traded Stock. If the Stock is listed on an established
national or regional stock exchange or is admitted to quotation on the National
Association of Securities Dealers Automated Quotation System, or is publicly
traded in an established securities market, the foregoing restrictions, purchase
and repurchase rights of Sections 6(b), 6(c) and 6(d) shall terminate as of the
first date that the Stock is so listed, quoted or publicly traded.
(f) Installment Payments. In the case of any purchase of Stock or an
Option under this Section 6, at the option of the Corporation or its permitted
assignee the Corporation or its permitted assignee may pay the Optionee,
transferee of the Option or other registered owner of the Stock the purchase
price in three or fewer annual installments. Interest shall be credited on the
installments at the applicable federal rate (as determined for purposes of
Section 1274 of the Code) in effect on the date on which the purchase is made.
The Corporation or its permitted assignee shall pay at least one-third of the
total purchase price each year, plus interest on the unpaid balance, with the
first payment being made on or before the 60th day after the purchase.
(g) Legend Describing Restrictions and Obligations. The Board or
Committee may cause a legend to be placed prominently on certificates
representing Stock issued pursuant to this Plan in order to give notice of the
transferability restrictions, repurchase rights and other obligations imposed by
this Section.
7. Effect of Changes in Capitalization
(a) Changes in Stock. If the number of outstanding shares of Stock
is increased or decreased or the shares of Stock are changed into or exchanged
for a different number or kind of shares or other securities of the Corporation
on account of any recapitalization, reclassification, stock split-up,
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combination of shares, exchange of shares, stock dividend or other distribution
payable in capital stock, or other increase or decrease in such shares effected
without receipt of consideration by the Corporation, occurring after the date of
grant of the Option, the number and kind of shares of Stock for which the Option
was granted shall be adjusted proportionately and accordingly so that the
proportionate interest of the Optionee immediately following such event shall,
to the extent practicable, be the same as immediately before such event. Any
such adjustment in the Option shall not change the aggregate Option Price
payable with respect to shares that are subject to the unexercised portion of
the Option but shall include a corresponding proportionate adjustment in the
Option Price per share.
(b) Reorganization in Which the Corporation Is the Surviving
Corporation. Subject to Subsection 7(c)(iv) hereof, if the Corporation shall be
the surviving corporation in any reorganization, merger, or consolidation of the
Corporation with one or more other corporations, the Option shall pertain to and
apply to the securities to which a holder of the number of shares of Stock
subject to the Option would have been entitled immediately following such
reorganization, merger, or consolidation, with a corresponding proportionate
adjustment of the Option Price per share so that the aggregate Option Price
thereafter shall be the same as the aggregate Option Price of the shares
remaining subject to the Option immediately prior to such reorganization,
merger, or consolidation.
(c) Dissolution, Liquidation, Sale of Assets, Reorganization in
Which the Corporation Is Not the Surviving Corporation, Etc. The Option shall
terminate (i) upon the dissolution or liquidation of the Corporation, or (ii)
upon a merger, consolidation, or reorganization of the Corporation with one or
more other corporations in which the Corporation is not the surviving
corporation, or (iii) upon a sale of substantially all of the assets of the
Corporation to another person or entity, or (iv) upon a merger, consolidation or
reorganization (or other transaction if so determined by the Board in its sole
discretion) in which the Corporation is the surviving corporation, that is
approved by the Board and that results in any person or entity (other than
persons who are holders of Stock of the Corporation at the time the Plan is
approved by the stockholders and other than an Affiliate) owning 80 percent or
more of the combined voting power of all classes of stock of the Corporation,
except to the extent provision is made in writing in connection with any such
transaction covered by clauses (i) through (iv) for the assumption of the Option
or for the substitution for the Option of a new option(s) covering the stock of
a successor corporation, or a parent or subsidiary thereof, with appropriate
adjustments as to the number and kind of shares and exercise prices, in which
event the Option theretofore granted shall continue in the manner and under the
terms so provided. In the event of any such termination of the Option, the
Optionee shall have the right (subject to the general limitations on exercise
set forth in Section 5), during
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such period occurring before such termination as the Board in its sole
discretion shall determine and designate, and in any event immediately before
the occurrence of such termination, to exercise such Option in whole or in part,
to the extent that such Option was otherwise exercisable at the time such
termination occurs. The Corporation shall send written notice of a transaction
or event that will result in such a termination to Optionee not later than the
time at which the Corporation gives notice thereof to its stockholders.
(d) Adjustments. Adjustments under this Section 7 related to stock
or securities of the Corporation shall be made by the Board, whose determination
in that respect shall be final, binding, and conclusive. No fractional shares of
Stock or units of other securities shall be issued pursuant to any such
adjustment, and any fractions resulting from any such adjustment shall be
eliminated in each case by rounding downward to the nearest whole share or unit.
(e) No Limitations on Corporation. The grant of the Option shall not
affect or limit in any way the right or power of the Corporation to make
adjustments, reclassifications, reorganizations, or changes of its capital or
business structure or to merge, consolidate, dissolve, or liquidate, or to sell
or transfer all or any part of its business or assets.
8. Requirements of Law. The Corporation shall not be required to sell or
issue any shares of Stock under the Option if the sale or issuance of such
shares would constitute a violation by the Optionee, the individual exercising
the Option, or the Corporation of any provisions of any law or regulation of any
governmental authority, including without limitation any federal or state
securities laws or regulations. If at any time the Corporation shall determine,
in its discretion, that the listing, registration, or qualification of any
shares subject to the Option upon any securities exchange or under any state or
federal law, or the consent or approval of any government regulatory or self-
regulatory body is necessary or desirable as a condition of, or in connection
with the issuance or purchase of shares, the Option may not be exercised in
whole or in part unless such listing, registration, qualification, consent, or
approval shall have been effected or obtained free of any conditions not
acceptable to the Corporation, and any delay caused thereby shall in no way
affect the date of termination of the Option. Specifically in connection with
the Securities Act of 1933 (as now in effect or as hereafter amended), upon the
exercise of any Option, unless a registration statement under such Act is in
effect with respect to the shares of Stock covered thereby, the Corporation
shall not be required to sell or issue such shares unless the Board has received
evidence satisfactory to it that the holder of such Option may acquire such
shares pursuant to an exemption from registration under such Act. Any
determination in this connection by the Board shall be final, binding, and
conclusive. The Corporation may, but shall in no event be obligated to, register
any securities covered hereby pursuant to the Securities Act of 1933 (as now in
effect or as hereafter amended). The Corporation shall not be obligated to
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take any affirmative action in order to cause the exercise of an Option or the
issuance of shares pursuant thereto to comply with any law or regulation of any
governmental authority. As to any jurisdiction that expressly imposes the
requirement that an Option shall not be exercisable unless and until the shares
of Stock covered by such Option are registered or are subject to an available
exemption from registration, the exercise of such Option (under circumstances in
which the laws of such jurisdiction apply) shall be deemed conditioned upon the
effectiveness of such registration or the availability of such an exemption.
9. Rights as Stockholder. Neither the Optionee nor any executor,
administrator, distributee or legatee of the Optionee's estate shall be, or have
any of the rights or privileges of, a stockholder of the Corporation in respect
of any shares of Stock issuable hereunder unless and until such shares have been
fully paid and certificates representing such shares have been endorsed,
transferred and delivered, and the name of the Optionee (or of such personal
representative, administrator, distributee or legatee of the Optionee's estate)
has been entered as the stockholder of record on the books of the Corporation.
10. Withholding of Taxes. The parties hereto recognize that the
Corporation or a Subsidiary may be obligated to withhold federal, state and
local income taxes and Social Security taxes to the extent that the Optionee
realizes ordinary income in connection with the exercise of the Option or in
connection with a disposition of any shares of Stock acquired by exercise of the
Option. The Optionee agrees that the Corporation or a Subsidiary may withhold
amounts needed to cover such taxes from payments otherwise due and owing to the
Optionee, and also agrees that upon demand the Optionee will promptly pay to the
Corporation or a Subsidiary having such obligation any additional amounts as may
be necessary to satisfy such withholding tax obligation. Such payment shall be
made in cash or by certified check payable to the order of the Corporation or a
Subsidiary.
11. Disclaimer of Rights. No provision in this Option Agreement shall be
construed to confer upon the Optionee the right to remain in the employ or
service of or to maintain a relationship with the Corporation or any Subsidiary,
or to interfere in any way with any contractual or other right or authority of
the Corporation or any Subsidiary either to increase or decrease the
compensation of the Optionee at any time, or to terminate any employment or
other relationship between the Optionee and the Corporation or any Subsidiary.
12. Interpretation of this Option Agreement. All decisions and
interpretations made by the Board or the Committee thereof with regard to any
question arising under the Plan or this Option Agreement shall be binding and
conclusive on the Corporation and the Optionee and any other person entitled to
exercise the Option as provided for herein.
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13. Governing Law. This Option Agreement shall be governed by the laws of
the State of Delaware (excluding its choice of law rules).
14. Approval by Stockholders. This Option Agreement and the issuance of
any shares under it are expressly subject to the approval of the Plan by the
stockholders of the Corporation as provided for therein. The Option shall not in
any event be exercisable in whole or in part prior to the date the Plan is
approved by the stockholders of the Corporation as provided for therein.
15. Binding Effect. Subject to all restrictions provided for in this
Option Agreement, the Plan and by applicable law limiting assignment and
transfer of this Option Agreement and the Option provided for herein, this
Option Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, executors, administrators, successors, and
assigns.
16. Notice. Any notice hereunder by the Optionee to the Corporation shall
be in writing and shall be deemed duly given if mailed or delivered to the
Corporation at its principal office, addressed to the attention of the
President, or if so mailed or delivered to such other address as the Corporation
may hereafter designate by notice to the Optionee. Any notice hereunder by the
Corporation to the Optionee shall be in writing and shall be deemed duly given
if mailed or delivered to the Optionee at the address specified below by the
Optionee for such purpose, or if so mailed or delivered to such other address as
the Optionee may hereafter designate by written notice given to the Corporation.
17. Entire Agreement. This Option Agreement and the Plan together
constitute the entire agreement and supersede all prior understandings and
agreements, written or oral, of the parties hereto with respect to the subject
matter hereof. Neither this Option Agreement nor any term hereof may be amended,
waived, discharged or terminated except by a written instrument signed by the
Corporation and the Optionee; provided, however, that the Corporation
unilaterally may waive any provision hereof in writing to the extent that such
waiver does not adversely affect the interests of the Optionee hereunder, but no
such waiver shall operate as or be construed to be a subsequent waiver of the
same provision or a waiver of any other provision hereof.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Option
Agreement, or caused this Option Agreement to be duly executed in their name and
on their behalf, as of the day and year first above written.
VITAS HEALTHCARE CORPORATION
By:_________________________________
Title:______________________________
OPTIONEE:
____________________________________
ADDRESS FOR NOTICE TO OPTIONEE:
____________________________________
Number Street
____________________________________
City State Zip Code
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