RESTRICTED STOCK AWARD AGREEMENT
THIS
RESTRICTED STOCK AWARD AGREEMENT
("Agreement"),
dated
as of ____________ ("Grant
Date"),
is
entered into between NovaMed, Inc., a Delaware corporation (the "Company"),
and
_________________ ("Participant"),
an
employee of NovaMed Management Services, LLC, a Delaware limited liability
company, a wholly owned subsidiary of the Company.
RECITALS:
WHEREAS,
the
Company has adopted the NovaMed, Inc. 2005 Stock Incentive Plan
(the
"Plan");
and
WHEREAS,
pursuant
to the Plan the Company desires to grant to the Participant shares of its Common
Stock, $0.01 par value per share ("Shares"),
subject to certain restrictions set forth in this Agreement, effective as of
the
Grant Date;
WHEREAS,
the
Committee has duly made all determinations necessary or appropriate to the
grants hereunder.
NOW,
THEREFORE,
in
consideration of the premises and the mutual covenants set forth in this
Agreement and for other good and valuable consideration, the receipt of which
is
hereby acknowledged, the parties agree as follows:
1. Definitions.
Any
capitalized term used in this Agreement that is not defined in this Agreement
will have the same meaning as that given to it in the Plan.
2. Grant
of Restricted Stock.
(a)
Subject
to the terms and conditions of the Plan, and the additional terms and conditions
set forth in this Agreement, the Company hereby grants to Participant, as a
matter of separate agreement and not in lieu of salary or any other compensation
for services, _______________ (__________) Shares (the “Restricted
Stock”).
(b) Except
as
provided in Section
2(c),
until
the Participant incurs a Termination of Employment, (i)
one-eighth (1/8) of the Restricted Stock will vest on the six month anniversary
of the Grant Date and
(ii)
an additional three-forty-eighths (3/48ths) of the Restricted Stock will vest
on
each subsequent three month anniversary of the Grant Date, until fully vested.
Upon
the
Participant’s Termination of Employment for any reason, all unvested shares of
Restricted Stock shall be cancelled and forfeited except as provided in
Section
2(c).
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(c) Notwithstanding
Section
2(b),
all of
the Restricted Stock shall become vested immediately upon a Change in Control
if
the Participant is employed by the Company at the time of such Change in
Control.
3. Certificates.
Shares
of Restricted Stock awarded under Section 2 will be evidenced by one or more
certificates bearing a legend referring to the terms, conditions and
restrictions applicable to such Restricted Stock. The Company will retain
physical possession of such certificates, and Participant shall be required
upon
demand to execute and deliver one or more stock powers to the Company, endorsed
in blank, relating to such shares or Restricted Stock for so long as such shares
remain unvested and subject to a risk of forfeiture. Neither unvested shares
of
Restricted Stock, nor the right to vote such shares and receive dividends
thereon, may be sold, assigned, transferred, exchanged, pledged, hypothecated
or
otherwise encumbered; provided, however, that Participant may grant to another
person a revocable proxy to vote unvested shares of Restricted Stock at a
Company stockholder meeting.
4. Rights.
Participant will have full voting rights with respect to shares of Restricted
Stock issued hereunder. Participant will be entitled to receive dividends on
shares of Restricted Stock if and when dividends are payable on Shares to
shareholders of record after the Grant Date (unless and until such Restricted
Stock is forfeited). In the absence of an effective election under Section
83(b)
of the Code, dividends paid on unvested shares of Restricted Stock will be
treated as compensation and are subject to withholding.
5. Delivery
and Withholding.
Subject
to satisfaction of any tax withholding obligation as described below, shares
of
Restricted Stock that are no longer subject to forfeiture will be transferred
and delivered to Participant as soon as practicable after the date on which
they
vest in accordance with Section
2(b).
Upon
the vesting of shares of Restricted Stock, the prohibition against the sale
or
transfer of such shares will be lifted and such shares may be treated as any
other Shares, subject to any restrictions on transfer that may be applicable
under federal securities laws. In the absence of an effective election under
Section 83(b) of the Code, the payment to Participant and transfer of such
shares of Restricted Stock upon vesting will be subject to withholding by the
Company of amounts sufficient to cover withholding obligations applicable to
such payment and transfer. In the event that any required tax withholding upon
the settlement of such Restricted Stock exceeds Participant's regular
compensation available to satisfy such withholding, Participant agrees to remit
to the Company, as a condition of settlement of the Restricted Stock, such
additional amounts as are necessary to satisfy such required withholding. Any
withholding obligation may be settled either in cash or with Shares, including
by withholding Shares that are otherwise deliverable hereunder upon vesting
of
Restricted Stock.
6. Plan.
Participant hereby acknowledges receipt of a copy of the Plan. Notwithstanding
any other provision of this Agreement, the Restricted Stock is granted pursuant
to the Plan, as in effect on the date of the Agreement, and is subject to the
terms and conditions of the Plan, as the same may be amended from time to time;
provided, however, that except as otherwise provided by the Plan no amendment
to
either the Plan or this Agreement will deprive the Participant, without the
Participant's consent, of any shares of Restricted Stock or of Participant's
rights under this Agreement. The interpretation and construction by the
Committee of the Plan, this Agreement, the Restricted Stock, and such rules
and
regulations as may be adopted by the Committee for the purpose of administering
the Plan, will be final and binding upon the Participant.
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7. No
Employment Rights.
No
provision of this Agreement or of the Restricted Stock will give Participant
any
right to continue in the employ of the Company or any of its
Affiliates, create any inference as to the length of employment of the
Participant, affect the right of the Company or its Affiliates to terminate
the
employment of the Participant, with or without Cause, or give Participant any
right to participate in any employee welfare or benefit plan or other program
(other than the Plan) of the Company or any of its Affiliates.
8. Changes
in Company's Capital or Organizational Structure.
The
existence of the Restricted Stock shall not affect in any way the right or
authority of the Company or its shareholders to make or authorize any or all
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 issue of preferred Shares ahead of or affecting the Shares
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
act
or proceeding, whether of a similar character or otherwise.
9. Delays.
In
accordance with the terms of the Plan, the Company shall have the right to
suspend or delay any time period prescribed in this Agreement or in the Plan
for
any action if the Committee shall determine that the action may constitute
a
violation of any law or result in any liability under any law to the Company,
an
Affiliate or a shareholder in the Company until such time as the action required
or permitted will not constitute a violation of law or result in liability
to
the Company, an Affiliate or a shareholder of the Company.
10. Governing
Law; Construction.
This
Agreement and the Restricted Stock will be governed by, and construed and
enforced in accordance with, the laws of the State of Illinois without regard
to
conflicts of law principles. Common nouns and pronouns shall be deemed to refer
to the masculine, feminine, neuter, singular and plural, as the context
requires.
11. Entire
Agreement.
This
Agreement, together with the Plan and any other agreements incorporated herein
by reference, constitutes the entire obligation of the parties with respect
to
the subject matter of this Agreement and supersedes any prior written or oral
expressions of intent or understanding with respect to such subject
matter.
12. Amendment.
Any
amendment to this Agreement must be in writing and signed by the
Company.
13. Waiver;
Cumulative Rights.
The
failure or delay of either party to require performance by the other party
of
any provision of this Agreement will not affect its right to require performance
of such provision unless and until such performance has been waived in writing.
Each right under this Agreement is cumulative and may be exercised in part
or in
whole from time to time.
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14. Counterparts.
This
Agreement may be signed in two counterparts, each of which will be an original,
but both of which will constitute one and the same instrument.
15. Notices.
Any
notices required or permitted under this Agreement must be in writing and may
be
delivered personally or by mail, postage prepaid, addressed to (a) the Company
at 000 Xxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attention:
General Counsel and (b) the Participant at the Participant's address as shown
on
the Company's payroll records, or to such other address as the Participant,
by
notice to the Company, may designate in writing from time to time.
16. Headings.
The
headings in this Agreement are for reference purposes only and will not affect
the meaning or interpretation of this Agreement.
17. Severability.
If any
provision of this Agreement is for any reason held to be invalid or
unenforceable, such invalidity or unenforceability will not affect any other
provision of this Agreement, and this Agreement will be construed as if such
invalid or unenforceable provision were omitted.
18. No
Strict Construction.
The
language used in this Agreement will be deemed to be the language chosen by
the
parties to express their mutual intent, and no rule of strict construction
will
be applied against any party.
19. Remedies.
Each of
the parties to this Agreement will be entitled to enforce its rights under
this
Agreement specifically, to recover damages by reason of any breach of any
provision of this Agreement, and to exercise all other rights existing in its
favor. The Participant agrees and acknowledges that money damages will not
be an
adequate remedy for any breach of the provisions of this Agreement and that
the
Company will be entitled to specific performance and injunctive relief in order
to enforce or prevent any violations of the provisions of this
Agreement.
20. Successors
and Assigns.
This
Agreement will inure to the benefit of and be binding upon each successor and
assign of the Company. All obligations imposed upon the Participant or a
representative, and all rights granted to the Company under this Agreement,
will
be binding upon the Participant's or the representative's heirs, legal
representatives and successors.
21. Tax
Consequences. The
Participant agrees to determine and be responsible for all tax consequences
to
the Participant with respect to the Restricted Stock.
*
* * *
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IN
WITNESS WHEREOF,
the
Company and the Participant have executed this Agreement as of the date first
written above.
COMPANY: | |
NOVAMED, INC. | |
By: _________________________________ | |
Its: _________________________________ | |
PARTICIPANT: | |
____________________________________ | |
[name] |
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