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EXHIBIT 4.6
OPTION SURRENDER AND RELINQUISHMENT AGREEMENT
THIS OPTION SURRENDER AND RELINQUISHMENT AGREEMENT (the "Agreement")
is made and entered into as of this 21st day of September, 1998, by and between
MedPartners, Inc., a Delaware corporation ("MedPartners") and the individual
whose name appears under the caption "Optionee" on the signature page of this
Agreement ("Optionee").
RECITALS
WHEREAS, MedPartners has issued options to purchase shares of
MedPartners common stock, $.001 par value (the "Common Stock") pursuant to (i)
the Amended and Restated MedPartners, Inc. 1993 Stock Option Plan; (ii) the
MedPartners, Inc. 1994 Stock Incentive Plan; (iii) the Amended and Restated
MedPartners, Inc. 1995 Stock Option Plan; (iv) the Amended and Restated
MedPartners, Inc. Incentive Compensation Plan; (v) the MedPartners, Inc. 1997
Long Term Incentive Compensation Plan; and (vi) other option plans and
agreements (collectively the "Current Plans");
WHEREAS, Optionee is the holder of the outstanding stock options set
forth on the Personnel Option Status Report (the "Report") attached hereto as
Exhibit A which options have been granted under the Current Plans (the "Old
Options");
WHEREAS, in order to induce MedPartners to grant to Optionee the
option (the "Options") to acquire shares of Common Stock under the MedPartners,
Inc. 1998 Employee Stock Option Plan (the "1998 Plan") contemplated by the form
of Stock Option Award Certificate attached hereto as Exhibit B (the "Option
Certificate"), Optionee desires to surrender and relinquish those Old Options
noted on the Personnel Option Surrender Report attached hereto as Exhibit C as
"Surrendered and Relinquished" (the "Surrendered Options") in accordance with
the terms and conditions hereof (the "Voluntary Option Surrender Program"); and
WHEREAS, in conjunction with the grant of the Old Options, Optionee was
required to sign and deliver to MedPartners an Employee Noncompetition,
Nondisclosure and Developments Agreement (the "Noncompetition Agreement"),
attached as an exhibit to one or more of the agreements, certificates, contracts
or documents related to such Old Options (collectively the "Old Option
Agreements").
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements set forth herein, the parties agree as follows:
1. SURRENDER OF OPTIONS.
1.1. Surrender. Except as set forth in Section 3 hereof, Optionee
does hereby fully and voluntarily surrender, waive, relinquish, cancel,
terminate and hold MedPartners harmless for any and all rights with respect to
the Surrendered Options and any and all agreements, certificates, contracts or
documents related thereto (collectively the "Old Option Agreements"). Optionee
acknowledges and agrees that the execution of this Agreement shall constitute
full satisfaction and discharge of any and all rights of Optionee with respect
to the Surrendered Options and, except as set forth in Section 3 hereof, any
corresponding Old Option Agreements. Optionee does hereby acknowledge and agree
that following the execution of this Agreement, Optionee shall not assert or
facilitate the assertion of any claim against MedPartners, or any of its
subsidiaries, affiliates, officers, directors or employees, that the
Surrendered Options were not duly, fully and properly terminated and canceled
by Optionee pursuant to this Agreement. Optionee further agrees to defend,
indemnify and hold MedPartners, and all of its subsidiaries, affiliates,
officers, directors, or employees (collectively and together with MedPartners,
the "Indemnified Parties") harmless against any loss, liability, or expense any
or each of the Indemnified Parties may incur in connection with any breach of
any of the terms and conditions of this Agreement or any representation or
warranty of Optionee set forth in this Agreement.
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1.2. Tender of Documents.
(a) Optionee shall send to MedPartners (i) an executed
original of this Agreement and (ii) original executed copies of any and all
Old Option Agreements.
(b) To the extent that Optionee cannot locate or did not
receive original copies of any Old Option Agreements, Optionee shall
complete, execute, have notarized, and send to MedPartners an affidavit and
indemnity agreement (an "Affidavit") in a form and substance satisfactory
to MedPartners for each missing Old Option Agreement.
(c) If Optionee has not executed and delivered to
MedPartners a Noncompetition Agreement, Optionee shall execute and send to
MedPartners a Noncompetition Agreement in the form provided to Optionee.
1.3. Obligations of MedPartners. Upon receipt by MedPartners of
the documents required in Section 1.2 and the satisfaction of the conditions
set forth Section 1.4, MedPartners shall send to Optionee an executed Option
Certificate evidencing the Options.
1.4. Conditions. Notwithstanding any other provision of this
Agreement to the contrary, MedPartners will not be required to grant the
Options, until each of the following conditions are satisfied:
(a) the original Old Option Agreements have been delivered
by Optionee or an Affidavit has been fully executed and delivered by
Optionee for any and all missing Old Option Agreements;
(b) an executed original of this Agreement shall have been
validly tendered by Optionee; and
(c) no action or proceeding shall have been instituted or
threatened in any court or by or before any governmental agency with
respect to the Voluntary Option Surrender Program or the grant of the
Options which, in the sole judgment of MedPartners, may materially impair
the contemplated benefits to MedPartners of the Voluntary Option Surrender
Program or the granting of the Options.
2. REPRESENTATIONS AND WARRANTIES AND ACKNOWLEDGMENTS OF OPTIONEE.
2.1. Representations and Warranties. Optionee represents and
warrants to MedPartners as follows:
(a) Optionee has full right, power, authority and capacity
to enter into this Agreement, to relinquish all of Optionee's rights in
respect of the Surrendered Options in accordance with the terms and
provisions hereof. Optionee will, upon request, execute and deliver any
additional documents deemed by MedPartners to be necessary or desirable to
complete the Voluntary Option Surrender Program.
(b) This Agreement has been duly executed and delivered by
Optionee, and, upon consummation of the transactions contemplated hereby,
Optionee shall have relinquished all of Optionee's rights in respect of the
Surrendered Options and under the Old Option Agreements, and this Agreement
constitutes the valid and binding agreement of Optionee, enforceable
against Optionee in accordance with its terms, subject to applicable
bankruptcy, insolvency and other similar laws affecting the enforceability
of creditors' rights generally, general equitable principles and the
discretion of courts in granting equitable remedies.
2.2. Optionee Acknowledgments. Optionee certifies and
acknowledges that:
(a) Optionee has read this Agreement and the Personnel
Option Status Report attached hereto as Exhibit A and the Personnel Option
Surrender Report attached hereto as Exhibit C and Optionee has discovered
no errors on the Report;
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(b) Optionee has read the Prospectus for the 1998 Plan, the
1998 Plan and the Questions and Answers document, and will accept the
Options subject to the terms and conditions of the Plan and the Option
Certificate;
(c) Optionee shall accept as binding and final all
decisions or interpretations of the Board of Directors of MedPartners (the
"Board") or the Compensation Committee of the Board (the "Committee") upon
any questions arising under the Plan;
(d) Optionee has had a full and fair opportunity to receive
answers to any questions Optionee may have regarding the Voluntary Option
Surrender Program;
(e) Optionee understands the contents of all documents
received from MedPartners with respect to the Voluntary Option Surrender
Program;
(f) Optionee has signed this Agreement of Optionee's own
free will;
(g) the Old Options retained hereby will be governed by the
applicable Current Plan and/or any applicable Old Option Agreement;
(h) the Options will be governed by the terms and
conditions of the 1998 Plan and the Option Certificate which may differ
materially and adversely from the Current Plans and the Old Option
Agreements;
(i) the Voluntary Option Surrender Program may adversely
affect the vesting period for Optionee's Options and may have adverse tax
consequences for Optionee;
(j) the exercise of the Options may be subject to
additional restrictions as set forth in the 1998 Plan or the Option
Certificate;
(k) unless at the time of exercise of the Options a
registration statement under the Securities Act of 1933 (the "Act"), as
amended, is in effect covering shares of Common Stock to be issued upon
exercise of the Options, as a condition to the exercise of the Options
MedPartners may require Optionee to represent that Optionee is acquiring
the Common Stock for Optionee's own account only and not with a view to, or
for sale in connection with, any distribution of the Common Stock;
(l) the certificate or certificates representing any shares
of Common Stock acquired hereunder may bear an appropriate legend relating
to registration and resale under federal and state securities laws;
(m) Optionee shall not have any rights of a stockholder of
MedPartners with respect to the shares of Common Stock which may be
purchased upon exercise of this Option, unless and until such shares shall
have been issued and delivered and Optionee's name has been entered as a
stockholder on the stock transfer records of MedPartners;
(n) notwithstanding anything in this Agreement, the Plan,
or the Option Certificate to the contrary, nothing shall obligate or
require MedPartners to file or keep effective a registration statement
pursuant to the Act or any state's securities law covering the shares of
Common Stock to be issued upon exercise of the Options;
(o) the issuance of Common Stock is subject to limitations
imposed by federal and state law and MedPartners shall not be obligated to
issue any shares of Common Stock upon exercise of the Options that would
cause MedPartners to violate law or any rule, regulation, order or consent
decree of any regulatory authority (including, without limitation, the
Securities and Exchange Commission) having jurisdiction over the affairs of
MedPartners;
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(p) Optionee may be required to provide MedPartners with
such information as is reasonably requested by MedPartners or its counsel
to determine whether the issuance of Common Stock complies with the
provisions described herein; and
(q) MedPartners will rely upon the representations,
warranties and acknowledgments made by Optionee in this Agreement.
3. ADDITIONAL COVENANTS.
3.1. Survival of Old Option Agreements.
(a) MedPartners and Optionee acknowledge and agree that
Optionee shall not, by this Agreement, surrender and relinquish any of
Optionee's Old Options that are not Surrendered Options (such Old Options
being the "Retained Options").
(b) Notwithstanding the provisions of Section 1.1 hereof,
MedPartners and Optionee do hereby agree that:
(i) if any grant of Old Options is comprised entirely
of Retained Options, the Old Option Agreement governing such grant
of Old Options shall not be canceled hereby but shall remain in full
force and effect; and
(ii) if any grant of Old Options contains both
Surrendered Option and Retained Options
(A) the Old Option Agreement governing such
grant of Old Options shall not be canceled and shall remain
in full force and effect and govern only such Retained
Options;
(B) such Option grant shall be reduced to
equal the Retained Options for such grant;
(C) Optionee shall promptly, upon the request of
MedPartners, enter into a replacement Old Option Agreement
reflecting the appropriate Retained Options but containing
the same terms and conditions of the applicable Old Option
Agreement (such new agreement the "Replacement Agreement");
and
(D) until the execution and delivery of any such
Replacement Agreement, this Agreement shall evidence the
grant of such Retained Options, subject to the terms and
conditions of the applicable Old Option Agreement.
3.2. Acknowledgment of Noncompetition Agreement. Optionee does
hereby acknowledge and agree that (i) Optionee has executed the Noncompetition
Agreement either in conjunction with the Old Options or in conjunction with the
execution of this Agreement; (ii) the Noncompetition Agreement restricts
Optionee's right to compete with MedPartners during or after Optionee's
employment with MedPartners and imposes on Optionee affirmative obligations to
retain and maintain MedPartners' trade and commercial secrets; and (iii)
notwithstanding anything in this Agreement to the contrary, nothing herein
shall in any way terminate, cancel, or amend any Noncompetition Agreement or in
any way relieve Optionee from his or her obligations and responsibilities
pursuant to the Noncompetition Agreement.
3.3. Limitations on Exercise of New Options and Retained Options.
Optionee acknowledges and agrees that, upon execution of this Agreement,
Optionee may not exercise any New Options or Retained Options until Optionee
shall have received from MedPartners an Option Certificate, provided that
MedPartners, within its sole, absolute, and unfettered discretion may waive
this limitation and allow Optionee or any other Optionee under the Voluntary
Option Surrender Program to exercise any or all of such New Options or Retained
Options prior to receipt by Optionee of the Option Certificate. Any exercise of
the Options shall only be in accordance with the 1998 Plan and the Option
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Certificate and any exercise of the Retained Options shall only be in
accordance with the applicable Old Option Agreements subject to the provisions
of Section 3.1 hereof.
4. MISCELLANEOUS.
4.1. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, without regard
to Delaware's conflict of law rules.
4.2. Binding Effect. This Agreement shall be binding on and inure
to the benefit of MedPartners and Optionee and their respective successors,
assigns, heirs, executors and legal and personal representatives; provided,
however, that none of the rights or obligations of Optionee hereunder may be
delegated, assigned or otherwise transferred by Optionee.
4.3. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original but all of which
together shall constitute one and the same instrument.
4.4. Entire Agreement. This Agreement is intended by the parties
hereto to be their complete agreement with respect to the subject matter
hereof, and this Agreement supersedes any prior agreements or understandings
(oral or written) with respect to the subject matter hereof between the parties
hereto.
4.5. Reservation of Rights. MedPartners reserves the absolute
right to reject any or all documents associated with the Voluntary Option
Surrender Program that are not in proper form and to deny to any Optionee,
submitting such incomplete documents, the right to participate in the Voluntary
Option Surrender Program. MedPartners also reserves the right to waive any
irregularities or conditions of such documents as to any particular Optionee.
Any waiver by MedPartners of a breach of any provision of this Agreement shall
not operate or be construed as a waiver of any subsequent breach of such
provision or any other provision hereof.
4.6. Severability. The parties agree that the provisions of this
Agreement and each Exhibit hereto are severable and the invalidity of any
provision in whole or part shall not affect the validity and enforceability of
any enforceable part of such provision or any other provisions hereof or
thereof.
4.7. Waiver. No waiver of any breach or default hereunder or
under any Exhibit hereto shall be considered valid unless in writing, and no
such waiver shall be deemed a waiver of any subsequent breach or default of the
same or similar nature.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first written above.
MEDPARTNERS, INC.
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By:
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Title:
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OPTIONEE
Signature:
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Name (print name):
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Social Security No.:
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Home Address:
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