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EXHIBIT 10.69
AMENDMENT NUMBER ONE TO NOVA HOLDINGS, INC.
INCENTIVE STOCK OPTION AGREEMENT
This Amendment Number One is made and entered into this 23rd day of
April, 1999, by and between ACCREDO HEALTH, INCORPORATED, formerly known as
Nova Holdings, Inc. ("Company"), and the EMPLOYEE whose name appears at the end
hereof ("Employee").
WHEREAS, Pursuant to the Nova Holdings, Inc. and Its Subsidiaries
Stock Option and Restricted Stock Purchase Plan (the "Plan"), Employee was
granted an option to purchase that number of shares of the Company's common
stock, $.01 par value ("Common Stock") as indicated at the end hereof, and the
Company provided Employee with an Incentive Stock Option Agreement
("Agreement") reflecting the date of grant appearing at the end hereof.
WHEREAS, the option constitutes and is treated as an "Incentive Stock
Option" as defined under Section 422(b) of the Internal Revenue Code of 1986,
as amended; and
WHEREAS, the Company and the Employee now desire to make certain
changes in the Agreement.
NOW THEREFORE, for and in exchange of the mutual promises contained
herein and for other good and valuable consideration, the receipt and adequacy
of which is hereby acknowledged, the parties agree that, effective as of the
date first stated above, the Agreement is amended as follows:
1. Sections 5.(b) and 5.(c) are amended by deleting those
sections in their entirety and substituting in the place thereof the following:
(b) In the event that Actual EBT (as hereinafter
defined) for the full fiscal year ending June 30, 1997 or the
full fiscal year ending June 30, 1998, equals or exceeds the
Target EBT (as hereinafter defined) for such fiscal year,
then, as of the August 1 next following the last day of such
fiscal year, you shall become entitled (subject to the
calculation of Actual EBT for such fiscal year by the Board
of Directors of the Company as provided in Section 5(d)
below) to exercise the Option with respect to 25% of the
Tranche B Option Shares (rounded to the nearest whole share)
until the Option expires and terminates pursuant to Section 2
hereof.
In the event that Actual FDEPS (as hereinafter
defined) for any full fiscal year beginning with the fiscal
year ending June 30, 1999, equals or exceeds the Target FDEPS
(as hereinafter defined) for such fiscal year, then, as of
the August 1 next following the last day of such fiscal year,
you shall become entitled (subject to the calculation of
Actual FDEPS for such fiscal year by the Board of Directors
of the Company as provided in Section 5(d) below) to exercise
the Option with
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respect to 25% of the Tranche B Option Shares (rounded to the
nearest whole share) until the Option expires and terminates
pursuant to Section 2 hereof.
(c) In the event that (i) Actual FDEPS (as hereinafter
defined) for any of the full fiscal years ending June 30,
1997, 1998 and 1999 (the "Shortfall Year") is less than the
Target FDEPS for such year, and (ii) the sum of (x) Actual
FDEPS for the Shortfall Year, plus (y) Actual FDEPS for the
immediately succeeding fiscal year (the "Make-up Year")
equals or exceeds the sum of the Target FDEPS for the
Shortfall Year and the Make-up Year combined, then, as of the
September 1 next following the last day of the Make-up Year,
you shall become entitled (subject to the calculation of
Actual FDEPS for the Make-up Year by the Board of Directors
of the Company as provided in Section 5(d) hereof) to
exercise the Option with respect to 25% of the Tranche B
Option Shares (rounded to the nearest whole share) until the
Option expires and terminates pursuant to Section 2 hereof.
Your right to exercise the Option with respect to any Tranche
B Option Shares pursuant to this Section 5(c) shall be in
addition to your right to exercise the Option with respect to
the Make-up Year as provided in Section 5(b) above.
2. Section 5(d) is amended by changing the definition of "Target
EBT" to delete the following: "(iii) for the fiscal year ending June 30, 1999 -
$13,300,000.00, and (iv) for the fiscal year ending June 30, 2000 -
$16,600,000.00."
3. Section 5(d) is amended by adding the following definitions:
"Actual FDEPS" means with respect to any fiscal year ending
after June 30, 1998, FDEPS (as hereinafter defined) for such
fiscal year as calculated by the Board of Directors of the
Company based on the audited consolidated financial
statements of the Company and its subsidiaries for such
fiscal year, which financial statements shall be conclusive
and binding upon the Company and you. "Actual FDEPS" means
with respect to any fiscal year ending prior to June 30, 1999
Pre-Tax FDEPS (as hereinafter defined) for such fiscal year
as calculated by the Board of Directors of the Company based
on the audited consolidated financial statements of the
Company and its subsidiaries for such fiscal year, which
financial statements shall be conclusive and binding upon the
Company and you.
"Pre-Tax FDEPS" means the pre-tax fully diluted earnings per
share with respect to any fiscal year, which shall equal the
Net Income Before Taxes (as defined herein) divided by the
Fully Diluted Common Stock Outstanding (as hereinafter
defined). Net Income Before Taxes shall mean (i) the net
income of the Company and its consolidated subsidiaries
(determined on a consolidated basis for such periods in
accordance with generally accepted accounting principles
applied consistently with the Company's audited financial
statements), but excluding the effect of any extraordinary or
other material non-recurring gain (but not loss) outside the
ordinary course of business ("Consolidated Net Income"), plus
(ii) to
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the extent deducted in determining Consolidated Net Income
for such period, the amount of the provision for income taxes
for such period.
"FDEPS" means the fully diluted earnings per share with
respect to any fiscal year (which shall equal the Net Income
After Taxes (as defined herein) divided by the Fully Diluted
Common Stock Outstanding (as hereinafter defined). Net Income
After Taxes shall mean the net income of the Company and its
consolidated subsidiaries (determined on a consolidated basis
for such periods in accordance with generally accepted
accounting principles applied consistently with the Company's
audited financial statements), but excluding the effect of
any extraordinary or other material non-recurring gain (but
not loss) outside the ordinary course of business
("Consolidated Net Income").
"Fully Diluted Common Stock Outstanding" means the number of
shares of the Company's voting common stock $.01 par value
and the Company's nonvoting common stock (collectively the
"Common Stock") which are issued and outstanding at the end
of the applicable fiscal year, plus those shares which would
be issued and outstanding upon the exercise or conversion of
all of the then outstanding options, warrants or other rights
to acquire any Common Stock or securities convertible into
Common Stock, or securities convertible into Common Stock of
the Company or securities or other instruments exchangeable
or convertible into Common Stock of the Company.
"Target FDEPS" means (i) for the fiscal year ending June 30,
1999 - $0.60 per share, (ii) for the fiscal year ending June
30, 2000 - $0.75 per share, and (iii)for the fiscal year
ending June 30, 2001 - $0.94 per share. For purposes of
determining the Target FDEPS for each of the fiscal years
ending June 30, 1997 and June 30, 1998, the Target EBT for
those years shall be divided by the Fully Diluted Common
Stock Outstanding at the end of the applicable fiscal year.
Notwithstanding the "Target FDEPS" amounts set forth above,
if at any time or from time to time after the date hereof the
Company or any of its subsidiaries acquires a business,
substantially all of the assets of a business, or any assets
material to the business of the Company or any of its
subsidiaries, the Board of Directors of the Company shall
make such adjustments to the "Target FDEPS" amounts, if any,
as the Board of Directors of the Company in its discretion
deems equitable in light of each such acquisition. Any such
determination by the Board of Directors shall be effective
and binding for all purposes of this Agreement and the Plan.
4. Section 13 is amended by adding at the end thereof a
subsection (c) as follows:
In the event that, after the date hereof, Fully Diluted
Common Stock Outstanding shall be increased or decreased or
changed into or exchanged for a different number or kind of
shares of stock or other securities of the Company or of
another corporation through reorganization, merger or
consolidation, recapitalization,
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reclassification, stock split, split-up, combination or
exchange of shares or declaration of any dividends payable in
Common Stock, the Board of Directors of the Company shall
appropriately adjust the Target FDEPS for each fiscal year
ending after said event to reflect the increase or decrease
in Fully Diluted Common Stock Outstanding such that the
Target FDEPS for that fiscal year will not be materially
affected by the increase or decrease.
5. As Nova Holdings, Inc. has formally changed its corporate
name to Accredo Health, Incorporated, the Agreement is hereby amended to
substitute throughout "Accredo Health, Incorporated" for "Nova Holdings, Inc."
6. This Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee. Employee specifically
acknowledges that Company has not made any representation or rendered any
advise concerning the tax effect of this Amendment. Employee acknowledges that
Employee has carefully read this Amendment and that Employee has consulted with
such legal, accounting and tax advisors as he or she deemed advisable with
regard to this Amendment. Employee acknowledges that Employee has signed this
Amendment as his or her own free act and has not been influenced in making this
agreement by any representation of the Company.
ACCREDO HEALTH, INCORPORATED
By: /s/ Xxxxxx X. Xxxx, Xx.
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Title: Senior Vice President and General Counsel
/s/ Xxxx X. Xxxxxxxxx
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EMPLOYEE
Number of Shares of Common Stock
subject to the Agreement: 135,714
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Date of Grant: 06/01/96
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