Exhibit 10.28

 

2014 EXECUTIVE NQSO AGREEMENT

 

<Participant Full Name>

 

Dear <Participant First Name>

 

Congratulations, you have been awarded a stock option grant in recognition of your contributions to the success of HMS Holdings Corp. (the “Company”) and its Affiliates.  A stock option grant gives you the right to purchase a specific number of shares of the Company’s common stock at a fixed price, assuming that you satisfy conditions of the Company’s Fourth Amended and Restated 2006 Stock Plan (the “Plan”) and the implementing agreement.  We would like you to have an opportunity to share in the continued success of the Company through this stock option grant under the Plan.  The following represents a brief description of your grant.  Additional details regarding your award are provided in the attached Nonqualified Stock Option Agreement (the “Grant Agreement”) and in the Plan.

 

Stock Option Grant Summary:

 

	
Date of Grant
    	
 
    	
November 12, 2014
    
	
Option Shares
    	
 
    	
<Number of Shares Granted>
    
	
Exercise Price per Share
    	
 
    	
$            
    
	
Exercisability
    	
 
    	
One-sixth of the Option Shares on each of the first,   second and third anniversaries of the Date of Grant, with the remainder   becoming exercisable as provided in Exhibit A to the Grant   Agreement. Each of those dates is an “Exercisability Date.”
    
	
Term Expiration Date
    	
 
    	
              ,            
    


 

·                  You have been granted a nonqualified stock option to purchase Shares of the Company’s common stock.  The total number of Shares under your grant is in the chart above under “Option Shares” and the price per share is under “Exercise Price per Share.”

 

·                  The potential value of your stock option grant increases if the price of the Company’s stock increases, but you also have to continue to provide services to the Company (except as the Grant Agreement provides) to actually receive such value.  Of course, the value of the stock may go up and down over time.

 

·                  You can’t exercise the stock option (actually purchase the shares) until it becomes exercisable.  Your stock option becomes exercisable as provided in the chart above under Exercisability, assuming you remain an employee of or member of the Board of Directors of the Company and subject to the terms in the Grant Agreement.

 

·                  Whether or not you decide to exercise your stock option and purchase the stock is your decision, and, you have until the stock option expires (which will be no later than the seventh anniversary of the Date of Grant but can end earlier in various situations) to make that decision.

 

·                  Once you have purchased the Shares, you will own them and may decide whether to hold the stock, sell the stock or give the stock to someone as a gift.

 

You can access the Merrill Lynch portal updates and information: https://www29.benefits.ml.com/login/login.aspx.  Please email IR@hms.com with any questions.

 











 

HMS HOLDINGS CORP.

NONQUALIFIED STOCK OPTION GRANT AGREEMENT FOR EXECUTIVES

 

HMS Holdings Corp. (the “Company”) has granted you an option (the “Option”) under the HMS Holdings Corp. Fourth Amended and Restated 2006 Stock Plan (as it may be amended from time to time) (the “Plan”).  The Option lets you purchase a specified number (the “Option Shares”) of Shares of the Company’s common stock, at a specified price per Share (the “Exercise Price”).

 

The individualized communication you received (the “Cover Letter”) provides the details for your Option.  It specifies the number of Option Shares, the Exercise Price, the Date of Grant, the schedule for exercisability, and the latest date the Option will expire (the “Term Expiration Date”).

 

The Option is subject in all respects to the applicable provisions of the Plan.  This Grant Agreement does not cover all of the rules that apply to the Option under the Plan; please refer to the Plan document.  Capitalized terms are defined either further below in this grant agreement (the “Grant Agreement”) or in the Plan.

 

The Plan document is available on the Merrill Lynch website.  The Prospectus for the Plan, the Company’s S-8, Annual Report on Form 10-K, and other filings the Company makes with the Securities and Exchange Commission are available for your review under the Investor Relations tab on the Company’s web site.  You may also obtain paper copies of these documents upon request to the Company’s Investor Relations department (IR@HMS.com).

 

Neither the Company nor anyone else is making any representations or promises regarding the duration of your service, exercisability of the Option, the value of the Company’s stock or of this Option, or the Company’s prospects.  The Company is not providing any advice regarding tax consequences to you or regarding your decisions regarding the Option; you agree to rely only upon your own personal advisors.

 

NO ONE MAY SELL, TRANSFER, OR DISTRIBUTE THE OPTION OR THE SECURITIES THAT MAY BE PURCHASED UPON EXERCISING THE OPTION WITHOUT AN EFFECTIVE REGISTRATION STATEMENT RELATING THERETO OR AN OPINION OF COUNSEL SATISFACTORY TO HMS HOLDINGS CORP. OR OTHER INFORMATION AND REPRESENTATIONS SATISFACTORY TO IT THAT SUCH REGISTRATION IS NOT REQUIRED.

 

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In addition to the Plan’s terms and restrictions, the following terms and restrictions apply:

 

	
Option   
   Exercisability
    	
 
    	
While   your Option remains in effect under the Option Expiration section,   you may exercise any exercisable portions of the Option (and buy the Option   Shares) under the timing rules of this section, provided that you may   not exercise the Option for fewer than 100 full shares at any particular time   unless fewer than 100 remain unexercised.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
The   Option will become exercisable on the schedule provided in the Cover Letter   to this Grant Agreement assuming that through each Exercisability Date,   (i) if you received the Option in your capacity as an employee of the   Company, you remain an employee or (ii) if you received the Option in   your capacity as a member of the Company’s Board, you remain a member of the   Company’s Board. Any fractional shares will be carried forward to the   following Exercisability Date, unless the Committee selects a different   treatment. For purposes of this Grant Agreement, employment with the Company   will include employment with any Affiliate whose employees are then eligible   to receive Awards under the Plan. Unless the Committee determines otherwise,   if an entity employing you ceases to be an Affiliate, your employment with   the Company will be treated as ended even though you continue to be employed   by that entity.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Exercisability will accelerate fully on your disability or death,   including with respect to the Performance Option Shares (as defined below).   For this purpose, “disability”   means permanent and total disability as defined by   Section 22(e)(3) of the Code. Exercisability will continue and   increase (until fully exercisable) over the two years following your date of   Retirement. “Retirement” for this   purpose means cessation of service on or after attaining age 60 and   completing five years of service with the Company.
    
	
 
    	
 
    	
 
    
	
Change in 
   Control
    	
 
    	
If   a Change in Control occurs, your Option will be treated as provided in Section 11 of the Plan if, within 24   months following the Change in Control, your employment or service ends on a   termination without cause (as determined by the Committee or the Board),   provided also that the Option will remain outstanding for 12 months following   such termination but not beyond the Term Expiration Date.
    
	
 
    	
 
    	
 
    
	
Option   Expiration
    	
 
    	
The   Option will expire no later than the close of business on the Term Expiration   Date. Unexercisable portions of the Option expire immediately when you cease   to be employed (unless you are concurrently remaining or becoming a member of   the Board, or, for a Board member, concurrently remaining or becoming an   employee of the Company). If the Company terminates your employment or   service for cause, the Option will immediately expire without regard to   whether it is then exercisable.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Exercisable   portions of the Option remain exercisable until the first to occur of the   following (the “Final Exercise Date”), each   as defined further in the Plan or the Grant Agreement:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
·      Three months (measured to the   corresponding date in the month) after your employment (or directorship) ends   if you resign or if the Company terminates your employment or service without   cause (as determined under the Plan), except as provided above under Change in Control
    


 

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·      For   death or Disability, the first anniversary of the date employment or service   ends
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
·      For   Retirement, the end of the second year following your date of Retirement
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
·      The   Term Expiration Date
    


 

	
 
    	
 
    	
The   Committee can override the expiration provisions of this Grant Agreement.
    


 

	
Method   of Exercise 
   and Payment for 
   Shares
    	
 
    	
Subject   to this Grant Agreement and the Plan, you may exercise the Option only by   providing a written notice (or notice through another previously approved   method, which could include a web-based or voice- or e-mail system) to the Secretary   of the Company or to whomever the Committee designates, received on or before   the date the Option expires. Each such notice must satisfy whatever   then-current procedures apply to that Option and must contain such   representations (statements from you about your situation) as the Company   requires. You must, at the same time, pay the Exercise Price using one or   more of the following methods:
    


 

	
Cash/Check
    	
 
    	
cash   or check in the amount of the Exercise Price payable to the order of the   Company;
    
	
 
    	
 
    	
 
    
	
Cashless 
   Exercise
    	
 
    	
an   approved cashless exercise method, including directing the Company to send   the stock certificates (or other acceptable evidence of ownership) to be   issued under the Option to a licensed broker acceptable to the Company as   your agent in exchange for the broker’s tendering to the Company cash (or   acceptable cash equivalents) equal to the Exercise Price and, if you so   elect, any required tax withholdings;
    
	
 
    	
 
    	
 
    
	
Net Exercise
    	
 
    	
by   delivery of a notice of “net exercise” to or as directed by the Company, as a   result of which you will receive (i) the number of shares underlying the   portion of the Option being exercised less (ii) such number of shares as   is equal to (A) the aggregate Exercise Price for the portion of the   Option being exercised divided by (B) the Fair Market Value on the date   of exercise;
    
	
 
    	
 
    	
 
    
	
Stock
    	
 
    	
if   permitted by the Committee, by delivery of Shares owned by you, valued at   their Fair Market Value, provided (i) applicable law then permits such   method of payment, (ii) you owned such Shares, if acquired directly from   the Company, for such minimum period of time, if any, as the Committee may   establish in its discretion, and (iii) the Shares are not subject to any   repurchase, forfeiture, unfulfilled vesting, or other similar restrictions; or
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
any   combination of the above permitted forms for payment.
    


 

	
Withholding
    	
 
    	
Issuing   the Option Shares is contingent on satisfaction of all obligations with   respect to required tax or other required withholdings (for example, in the   U.S., Federal, state, and local taxes). The Company may take any action   permitted under Section 14(c) of the Plan to satisfy such   obligation, including satisfying the tax obligations by (i) reducing the   number of Option Shares to be issued to you in connection with any exercise   of the Option by that number of Option Shares (valued at their Fair Market   Value on the date of exercise) that would equal all taxes required to be   withheld (at their minimum withholding levels), (ii) accepting payment   of the withholdings from a broker in connection with a Cashless
    


 

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Exercise   of the Option or directly from you, or (iii) taking any other action   under Section 14(c) of the Plan.    If a fractional share remains after deduction for required   withholding, the Company will pay you the value of the fraction in cash.
    


 

	
Compliance   
   with Law
    	
 
    	
You   may not exercise the Option if the Company’s issuing stock upon such exercise   would violate any applicable Federal or state securities laws or other laws   or regulations. You may not sell or otherwise dispose of the Option Shares in   violation of applicable law. As part of this prohibition, you may not use the   Cashless Exercise methods if the Company’s insider trading policy then   prohibits you from selling to the market.
    
	
 
    	
 
    	
 
    
	
Additional   
   Conditions 
   to Exercise
    	
 
    	
The   Company may postpone issuing and delivering any Option Shares for so long as   the Company determines to be advisable to satisfy the following:

 

its   completing or amending any securities registration or qualification of the   Option Shares or its or your satisfying any   exemption from registration under any Federal or state law, rule, or   regulation;
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
its   receiving proof it considers satisfactory that a person seeking to exercise   the Option after your death is entitled to do so;
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
your   complying with any requests for representations under the Plan; and
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
your   complying with any Federal, state, or local tax withholding obligations.
    
	
 
    	
 
    	
 
    
	
Additional   
   Representations 
   from You
    	
 
    	
If   you exercise the Option at a time when the Company does not have a current   registration statement (generally on Form S-8) under the Securities Act   of 1933 (the “Act”) that covers issuances   of shares to you, you must comply with the following before the Company will   issue the Option Shares to you. You must —
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
represent   to the Company, in a manner satisfactory to the Company’s counsel, that you   are acquiring the Option Shares for your own account and not with a view to   reselling or distributing the Option Shares; and
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
agree   that you will not sell, transfer, or otherwise dispose of the Option Shares   unless:
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
a   registration statement under the Act is effective at the time of disposition   with respect to the Option Shares you propose to sell, transfer, or otherwise   dispose of; or
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
the   Company has received an opinion of counsel or other information and   representations it considers satisfactory to the effect that, because of   Rule 144 under the Act or otherwise, no registration under the Act is   required.
    


 

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No   Effect on 
   Employment 
   or Other 
   Relationship
    	
 
    	
Nothing   in this Grant Agreement restricts the Company’s rights or those of any of its   Affiliates to terminate your employment or other relationship at any time and   for any or no reason. The termination of employment or other relationship,   whether by the Company or any of its Affiliates or otherwise, and regardless   of the reason for such termination, has the consequences provided for under   the Plan and any applicable employment or severance agreement or plan.
    
	
 
    	
 
    	
 
    
	
Not a   Shareholder
    	
 
    	
You   understand and agree that the Company will not consider you a shareholder for   any purpose with respect to any of the Option Shares until you have exercised   the Option, paid for the shares, and received evidence of ownership.
    
	
 
    	
 
    	
 
    
	
No   Effect on 
   Running Business
    	
 
    	
You   understand and agree that the existence of the Option will not affect in any   way the right or power of the Company or its shareholders to make or   authorize any adjustments, recapitalizations, reorganizations, or other   changes in the Company’s capital structure or its business, or any merger or   consolidation of the Company, or any issuance of bonds, debentures, preferred   or other stock, with preference ahead of or convertible into, or otherwise   affecting the Company’s common stock or the rights thereof, or the   dissolution or liquidation of the Company, or any sale or transfer of all or   any part of its assets or business, or any other corporate act or proceeding,   whether or not of a similar character to those described above.
    
	
 
    	
 
    	
 
    
	
Governing   Law
    	
 
    	
The   laws of the State of New York will govern all matters relating to the Option,   without regard to the principles of conflict of laws.
    
	
 
    	
 
    	
 
    
	
Restrictive 
   Covenants 
   Clawback
    	
 
    	
If the Board or the Committee determines,   in its sole discretion, that you violated or are violating any of the   Restrictive Covenants set forth below under the section titled “Restrictive   Covenants,” the Option will immediately terminate without regard to whether   it is then Vested in whole or in part.    In addition, the Board or the Committee may, in its sole discretion,   require from you payment or transfer   to the Company of the Gain from the Option, where the “Gain” consists of the   greatest of (i) the value of the Option Shares on the date, within the   Recovery Measurement Period, on which you exercised the Option with respect   to such Option Shares, (ii) the value of the Option Shares received upon   exercise during the Recovery Measurement Period, as determined on the date of   the request by the Committee to pay or transfer, (iii) the gross (before   tax) proceeds you received from any sale of the Option Shares during the   Recovery Measurement Period, and (iv) if transferred without sale during   the Recovery Measurement Period, the value of the Option Shares when so   transferred.  The Board or the   Committee may determine the recoupment method in its sole discretion for any   portion of the Option transferred (where permitted) before being   exercised.  The “Recovery Measurement Period”   means the 12 months before the date of the determination of violation.  The provisions in this section are   essential economic conditions to the Company’s grant of the Option to you. By   acknowledging receipt of the grant of the Option hereunder, you agree that   the Company may deduct from any amounts it owes you from time to time (such   as any severance or other payments owed following a termination of   employment, as well as any other amounts owed to you by the Company, as   permitted by applicable law) to the extent of any amounts you owe the Company   under this Restrictive Covenants Clawback   section.
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
You acknowledge that you would not be   receiving the Option described herein but for your agreement to comply with   the Restrictive Covenants. Likewise, you acknowledge that you would be   unjustly enriched if you violate the Restrictive 
    


 

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Covenants, while being able to retain some or all   of the Option Shares or the gain associated with them. Furthermore, you   acknowledge and agree that the damages for your breach of the Restrictive   Covenants are not subject to calculation and that the remedies set forth in   this Restrictive Covenants Clawback   section, therefore, will only reimburse the Company for a portion of the   damage done. For this reason, the Company shall be entitled to recover from   you any and all damages Company has suffered and, in addition, Company will   be entitled to injunctive relief. The parties agree that the forfeiture of   the Option and payments described in this section are expressly not Company’s   exclusive or sole remedy.  
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
This remedy is in addition to any other remedies   that the Company may have available in law or equity with respect to breaches   of the Restrictive Covenants below. It is also in addition to, and not in   substitution for, any other clawback policies that may be adopted from time   to time, including any required by Federal law, such as under   Section 304 of the Sarbanes-Oxley Act of 2002 or the Dodd-Frank Wall Street   Reform and Consumer Protection Act.  
    
	
 
    	
 
    	
 
    
	
 
    	
 
    	
Payment is due in cash or cash equivalents within   10 days after the Board or the Committee provides notice to you that it is   enforcing this clawback. Payment will be calculated on a gross basis, without   reduction for taxes or commissions. The Company may, but is not required to,   accept retransfer of shares in lieu of cash payments.
    
	
 
    	
 
    	
 
    
	
Restrictive   
   Covenants
    	
 
    	
In consideration of the terms of this Option and   your access to Proprietary Information (as defined below), you agree to the   Restrictive Covenants set forth below.
    


 

	
 
    	
 
    	
Confidential 
   Information
    	
 
    	
You have or will be given access to and provided   with sensitive, confidential, proprietary and/or trade secret information   (collectively, “Proprietary   Information”) in the course of your employment. Examples of   Proprietary Information include inventions, new product or marketing plans,   business strategies and plans, merger and acquisition targets, financial and   pricing information, software of the Company in various stages of   development, including computer programs in source code and binary code form,   software designs, specifications, programming aids (including “library   subroutines” and productivity tools), programming languages, interfaces,   visual displays, technical documentation, user manuals, data files and   databases of the Company, analytical models, customer/client lists and   information, and supplier and vendor lists and information. You agree not to   disclose or use Proprietary Information, either during or after your   employment with the Company, except as necessary to perform your duties or as   the Company may consent in writing.
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
Non-
   competition 
   and Non-
   solicitation
    	
 
    	
You   agree that while the Company employs you and for a period of 12 months after   your employment ends for any reason , you will not directly or indirectly   (whether as an owner, partner, officer, employee, director, investor, lender,   consultant, independent contractor or otherwise) do any of the following: 

 

(i)            Compete. In the geographical area where the Company does   business or, at the time your employment ends, plans to do business, you will   not engage or assist others in engaging in any business or enterprise that   competes with the 
    


 

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Company’s   business, including any business or enterprise that develops, designs,   produces, manufactures, markets, licenses, sells, renders, or provides any   product or service that competes with any product or service actually or   planned to be developed, designed, produced, manufactured, marketed,   licensed, sold, rendered, or provided by the Company while you are or were   employed by the Company; provided that your passive ownership of not more   than 1% of the outstanding stock of a publicly-held company will not, by   itself, violate this provision. For purposes of this Grant Agreement, you   agree that the Company does business throughout and plans to do business   throughout the United States; 

 

(ii)           Solicit Clients,   Customers, or Accounts. You will not, either alone or in   association with others, actually or attempt to solicit, divert, or take away   the business or patronage of any of the Company’s clients, customers, or   accounts, or prospective clients, customers, or accounts, that the Company   contacted, solicited, or served while you were employed by the Company or   about which you have Proprietary Information, provided that this provision   does not prevent you from soliciting clients, customers, or accounts (if you   are not using Proprietary Information to do so) for purposes that are not in   actual or potential competition with the Company; 

 

(iii)          Solicit or Hire Company   Employees and Independent Contractors. You will not, either alone   or in association with others, actually or attempt to (x) solicit,   recruit or induce any Company employee or independent contractor to leave the   Company’s service or (y) solicit, recruit, hire, or engage as an   employee or independent contractor any individual whom the Company employed   or engaged at any time while you were employed by the Company, except for an   individual whose employment or other service relationship with the Company   ended at least six months before the date of your action; and/or 

 

(iv)          Disclose or Utilize   Product Development. You will not, either alone or in association   with others, disclose to, or utilize for the benefit of, any entity other   than the Company, any systems or product development ideas, concepts, or   strategies that you or others in communication with you explored, generated,   initiated, or discussed for potential implementation during your employment   with the Company, even if the Company has not implemented such ideas,   concepts, or strategies by the time your employment with the Company ends. 

 

  For   the purposes of subsection (ii) “Solicit Clients, Customers,   or Accounts”, the terms “customer,” “client,” or “account” as   applied to governmental agencies will mean the agency or department for which   any of the products or services of the Company are sold or performed during   the applicable period, any related program office, and any agency,   department, or office that succeeds to the functions of any agency,   department, or office to which the Company then provides or within the   preceding 12 months provided goods or services (to the extent that the   successor replaces part or all of the customer or client to which the Company   provided goods or services).
    
	
 
    	
 
    	
 
    	
 
    	
 
    
	
 
    	
 
    	
General
    	
 
    	
  To   the extent that you and the Company agree at any time to enter into separate   agreements containing restrictive covenants with 
    


 

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different   or inconsistent terms than those contained herein, you and the Company   acknowledge and agree that such different or inconsistent terms shall not in   any way affect or have relevance to the Restrictive Covenants contained   herein, and the terms of these Restrictive Covenants do not supersede or   amend any others currently or in the future in place.

 

By   accepting this Option grant, you agree that the provisions of this   Restrictive Covenants section (and the related Restrictive Covenants Clawback   section) are reasonable and necessary to protect the legitimate interests of   the Company.
    


 

	
Notices
    	
 
    	
Any   notice you give to the Company must follow the procedures then in effect. If   no other procedures apply, you must send your notice in writing by hand or by   mail to the office of the Company’s Secretary (or to the Chair of the   Committee if you are then serving as the sole Secretary). If mailed, you   should address it to the Company’s Secretary (or the Chair of the Committee)   at the Company’s then corporate headquarters, unless the Company directs   optionees to send notices to another corporate department or to a third party   administrator or specifies another method of transmitting notice. The Company   and the Committee will address any notices to you using its standard   electronic communications methods or at your office or home address as   reflected on the Company’s personnel or other business records. You and the   Company may change the address for notice by like notice to the other, and   the Company can also change the address for notice by general announcements   to optionees.
    
	
 
    	
 
    	
 
    
	
Amendment
    	
 
    	
Subject   to any required action by the Committee or the shareholders of the Company,   the Company may cancel the Option and provide a new Award in its place,   provided that the Award so replaced will satisfy all of the requirements of   the Plan as of the date such new Award is made and no such action will   adversely affect the Option to the extent then exercisable.
    
	
 
    	
 
    	
 
    
	
Plan   Governs
    	
 
    	
Wherever   a conflict may arise between the terms of this Grant Agreement and the terms   of the Plan, the terms of the Plan will control. The Committee may adjust the   number of Option Shares and the Exercise Price and other terms of the Option   from time to time as the Plan provides.
    


 

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EXHIBIT A

 

The exercisability of 50% of the Shares covered by the Option (the “Performance Option Shares”) is subject to the following conditions:

 

A.    Service Condition

 

The Performance Option Shares will become exercisable according to the applicable schedule described in Paragraph C below, provided you remain employed by the Company as of each applicable exercisability date set forth below.

 

B.              Performance Conditions

 

1.     The Company’s average closing price per Share as reported on the NASDAQ Global Select Market during at least one measurement period (as described below) must be at least 25% higher than the Exercise Price per Share specified in the Stock Option Grant Summary.

 

2.     The measurement period will consist of the applicable trading days in any consecutive 30 (thirty) calendar day period preceding the first, second and/or third anniversaries of the Date of Grant.

 

3.     On each anniversary of the Date of Grant (or as promptly as practicable thereafter), the Company will calculate the average closing price for the applicable measurement periods preceding such date in order to determine if the performance condition has been satisfied.

 

C.               Exercisability

 

1.     Performance Condition Achieved prior to First Anniversary of Date of Grant. If the performance condition is achieved prior to the first anniversary of the Date of Grant, the Performance Option Shares will become exercisable in equal installments pursuant to the following schedule:

 

	
Exercisability Date
    	
 
    	
Proportion of Performance Option Shares Exercisable as 
   of the Exercisability Date
    
	
1st anniversary of Date of Grant
    	
 
    	
One-third of the Performance Option   Shares
    
	
2nd anniversary of Date of Grant 
    	
 
    	
One-third of the Performance Option   Shares
    
	
3rd anniversary of Date of Grant
    	
 
    	
One-third of the Performance Option   Shares
    


 

2.     Performance Condition Achieved after First Anniversary but before Second Anniversary of the Date of Grant. If the performance condition is achieved after the first anniversary but before the second anniversary of the Date of Grant, the Performance Option Shares will become exercisable pursuant to the following schedule:

 

	
Exercisability Date
    	
 
    	
Proportion of Performance Option Shares Exercisable as 
   of the Exercisability Date
    
	
1st anniversary of Date of Grant
    	
 
    	
-0-
    
	
2nd anniversary of Date of Grant
    	
 
    	
Two-thirds of the Performance Option   Shares
    
	
3rd anniversary of Date of Grant
    	
 
    	
One-third of the Performance Option   Shares
    


 

3.     Performance Condition Achieved after Second Anniversary but before Third Anniversary of the Date of Grant. If the performance condition is achieved after the second anniversary but before the third anniversary of the Date of Grant, the Performance Option Shares will become fully exercisable as of such third anniversary pursuant to the following schedule:

 

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Exercisability Date
    	
 
    	
Proportion of Performance Option Shares Exercisable as 
   of the Exercisability Date
    
	
1st anniversary of Date of Grant
    	
 
    	
-0-
    
	
2nd anniversary of Date of Grant
    	
 
    	
-0-
    
	
3rd anniversary of Date of Grant
    	
 
    	
100% of the Performance Option Shares
    


 

4.     Performance Condition Not Achieved before the Third Anniversary of the Date of Grant. Except in the event of death, Disability or a Change of Control prior to the third anniversary of the Date of Grant (in which case the terms set forth in the Grant Agreement will apply and, for the avoidance of doubt, the performance condition will no longer be applicable), if the performance condition is not achieved by the third anniversary of the Date of Grant, no portion of the Performance Option Shares will become exercisable and the Performance Option Shares shall be forfeited.

 

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