AMSURG CORP. NON-QUALIFIED STOCK OPTION AGREEMENT
Exhibit 10.21
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this “Agreement”) is made and entered into as of
this 21st day of February, 2008 (the “Grant Date”), by and between AmSurg Corp., a
Tennessee corporation (together with its Subsidiaries and Affiliates, the “Company”), and Xxx X.
XxXxxxxx (the “Colleague”). Capitalized terms not otherwise defined herein shall have the meaning
ascribed to such terms in the AmSurg Corp. 2006 Stock Incentive Plan (the “Plan”).
WHEREAS, the Company desires to afford the Colleague an opportunity to purchase shares of
Common Stock, no par value per share, of the Company (the “Shares”), as hereinafter provided in
accordance with the provisions of the Plan.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth and for other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound hereby, agree as follows:
1. Grant of Option.
(a) The Company grants to Colleague as of the date of this Agreement the right and option (the
“Option”) to purchase 47,394 Shares, in whole or in part (the “Option Stock”), at an exercise price
of Twenty-Four and 75/100 Dollars ($24.75) per Share, on the terms and conditions set forth in this
Agreement and subject to all provisions of the Plan. Neither Colleague, nor any holder or
beneficiary of the Option shall have any of the rights of a shareholder with respect to the Option
Stock until such person has become a holder of such Shares by the due exercise of the Option and
payment of the Option Payment (as defined in Section 3 below) in accordance with this Agreement.
(b) The Option shall be a non-qualified stock option. In order to provide the Company with
the opportunity to claim the benefit of any income tax deduction which may be available to it upon
the exercise of the Option, and in order to comply with all applicable federal or state tax laws or
regulations, the Company may take such action as it deems appropriate to insure that, if necessary,
all applicable federal, state or other taxes are withheld or collected from the Colleague.
2. Timing of Exercise. Colleague may exercise this Option with respect to 100% of the
Option Stock from and after the third anniversary of the date of this Agreement.
3. Manner of Exercise. The Option may be exercised in whole or in part at any time
within the period permitted hereunder for the exercise of the Option, with respect to whole Shares
only, by serving written notice of intent to exercise the Option delivered to the Company at its
principal office (or to the Company’s designated agent), stating the number of Shares to be
purchased, the person or persons in whose name the Shares are to be registered and each such
person’s address and social security number. Such notice shall not be effective unless accompanied
by payment in full of the Option Price for the number of Shares with respect to which the Option is
then being exercised (the “Option Payment”) and cash equal to the required withholding taxes as set
forth by Internal Revenue Service and applicable State tax guidelines for the employer’s minimum
statutory withholding. The Option Payment shall be made in cash or
cash equivalents or in whole Shares that have been held by the Colleague for at least six (6)
months prior to the date of exercise valued at the Shares’ Fair Market Value on the date of
exercise (or the next succeeding trading date if the date of exercise is not a trading date) or the
actual sales price of such Shares, together with any applicable withholding taxes, or by a
combination of such cash (or cash equivalents) and Shares. The Colleague shall not be entitled to
tender Shares pursuant to successive, substantially simultaneous exercises of the Option or any
other stock option of the Company. Subject to applicable securities laws, the Colleague may also
exercise the Option by delivering a notice of exercise of the Option and by simultaneously selling
the Shares of Option Stock thereby acquired pursuant to a brokerage or similar agreement approved
in advance by proper officers of the Company, using the proceeds of such sale as payment of the
Option Payment, together with any applicable withholding taxes.
4. Termination of Option. The Option will expire ten (10) years from the date of
grant of the Option (the “Term”) with respect to any then unexercised portion thereof, unless
terminated earlier as set forth below:
(a) Termination by Death. If the Colleague’s employment by the Company or service as
a member of the Board of the Company terminates by reason of death, this Option may thereafter be
exercised, to the extent the Option was exercisable at the time of death, by the legal
representative of the estate or by the legatee of the Colleague under the will of the Colleague,
for a period of one (1) year from the date of death or until the expiration of the Term of the
Option, whichever period is the shorter.
(b) Termination by Reason of Disability. If the Colleague’s employment by the Company
or service as a member of the Board of the Company terminates by reason of Disability, this Option
may thereafter be exercised by the Colleague, to the extent it was exercisable at the time of
termination, for a period of three (3) years from the date of such termination or until the
expiration of the Term of the Option, whichever period is shorter; provided, however, that if the
Colleague dies within such three (3) year period, the Option shall thereafter be exercisable to the
extent to which it was exercisable at the time of death for a period of twelve (12) months from the
date of such death or until the expiration of the stated term of the Option, whichever period is
shorter.
(c) Voluntary Termination. If the Colleague’s service as a member of the Board of the
Company is terminated as a result of Colleague’s voluntary resignation from the Board, this Option
may be exercised, to the extent the Option was exercisable at the time of such termination, by the
Colleague for a period of three (3) months from the date of such termination of employment or the
expiration of the Term of the Option, whichever period is the shorter.
5. Change in Control. In the event of a Change in Control, the Option, to the extent
not previously exercisable and vested, shall become fully exercisable and vested.
6. No Right to Continued Employment or Service on the Board. The grant of the Option
shall not be construed as giving Colleague the right to be retained in the employ of the Company or
to continue to serve as a member of the Board of the Company, and the Company may at any time
dismiss Colleague from employment or service on the Board (subject to other legal limitations),
free from any liability or any claim under the Plan.
7. Adjustment to Option Stock. The Committee shall make equitable and proportionate
adjustments in the terms and conditions of, and the criteria included in, this Option
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in recognition of unusual or nonrecurring events (including, without limitation, the events
described in Section 4.2 of the Plan) affecting the Company or the financial statements of
the Company or of changes in applicable laws, regulations or accounting principles, in accordance
with the Plan.
8. Amendments to Option. Subject to the restrictions contained in the Plan, the
Committee may waive any conditions or rights under, amend any terms of, or alter, suspend,
discontinue, cancel or terminate, the Option, prospectively or retroactively; provided, that any
such waiver, amendment, alteration, suspension, discontinuance, cancellation or termination that
would adversely affect the rights of the Colleague or any holder or beneficiary of the Option shall
not to that extent be effective without the consent of the Colleague, holder or beneficiary
affected.
9. Limited Transferability. During the Colleague’s lifetime, this Option can be
exercised only by the Colleague. This Option may not be assigned, alienated, pledged, attached,
sold or otherwise transferred or encumbered by Colleague other than by will or the laws of descent
and distribution. Any attempt to otherwise transfer this Option shall be void. No transfer of
this Option by the Colleague by will or by laws of descent and distribution shall be effective to
bind the Company unless the Company shall have been furnished with written notice thereof and an
authenticated copy of the will and/or such other evidence as the Committee may deem necessary or
appropriate to establish the validity of the transfer.
10. Plan Governs. The Colleague hereby acknowledges receipt of a copy of the Plan and
agrees to be bound by all the terms and provisions thereof. The terms of this Agreement are
governed by the terms of the Plan, and in the case of any inconsistency between the terms of this
Agreement and the terms of the Plan, the terms of the Plan shall govern.
11. Restrictive Covenants. It is in the best interest of all colleagues to protect
and preserve the assets of the Company. In this regard, in consideration for granting this Option
and as conditions to Colleague’s ability to exercise this Option, Colleague acknowledges and agrees
that:
(a) Confidentiality. In the course of Colleague’s employment, Colleague will have access to
trade secrets and other confidential information of the Company and its associated partnerships,
limited liability companies and physician partners (“Affiliates”). Accordingly, Colleague agrees
that, without the prior written consent of the Company, Colleague will not, other than in the
normal conduct of the Company’s business affairs, divulge, furnish, publish or use for personal
benefit or for the direct or indirect benefit of any other person or business entity, whether or
not for monetary gain, any trade secrets or confidential or proprietary information of the Company
or its Affiliates, including without limitation, any information relating to any business methods,
marketing and business plans, financial data, systems, customers, suppliers, policies, procedures,
techniques or research developed for the benefit of the Company or its Affiliates. Proprietary
information includes, but is not limited to, information developed by the Colleague for the Company
while employed by the Company. The obligations of the Colleague under this paragraph will continue
without expiration after the Colleague has left the employment of the Company. Colleague agrees
that upon leaving the employment of the Company, Colleague will return to the Company all property
and confidential information in the Colleague’s possession and agrees not to copy or otherwise
record in any way such information.
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(b) Non-Solicitation. While employed by the Company and for a period of two (2) years
thereafter, Colleague shall not, on Colleague’s own behalf or on behalf of any other person or
entity, directly or indirectly,
(i) hire or solicit to leave the employ of the Company or any of its Affiliates any person
employed by or under contract as an independent contractor to the Company or any of its Affiliates;
or
(ii) contact, solicit, entice away, or divert any business from any person or entity who is an
Affiliate or an owner or otherwise affiliated with an Affiliate or with whom the Company was
engaged in discussions as a potential Affiliate owner or affiliated person with an Affiliate within
one (1) year prior to the date of termination of Colleague.
In the event Colleague breaches any provisions of this paragraph, this Option shall
immediately terminate and may not be exercised and the Company shall be entitled to seek other
appropriate remedies it may have available to limit its damages from such breach.
12. Severability. If any provision of this Agreement is, or becomes, or is deemed to
be invalid, illegal, or unenforceable in any jurisdiction or as to any Person or the Award, or
would disqualify the Plan or Award under any laws deemed applicable by the Committee, such
provision shall be construed or deemed amended to conform to the applicable laws, or if it cannot
be construed or deemed amended without, in the determination of the Committee, materially altering
the intent of the Plan or the Award, such provision shall be stricken as to such jurisdiction,
Person or Award, and the remainder of the Plan and Award shall remain in full force and effect.
13. Notices. All notices required to be given under this Option shall be deemed to be
received if delivered or mailed as provided for herein to the parties at the following addresses,
or to such other address as either party may provide in writing from time to time.
To the Company:
|
AmSurg Corp. | |
| 00 Xxxxxx Xxxxx Xxxxxxxxx | ||
| Xxxxxxxxx, Xxxxxxxxx 00000 | ||
| Attn: Director of Human Resources | ||
To the Colleague:
|
The address then maintained with respect to the Colleague in the Company’s records. |
14. Governing Law. The validity, construction and effect of this Agreement shall be
determined in accordance with the laws of the State of Tennessee without giving effect to conflicts
of laws principles.
15. Resolution of Disputes. Any dispute or disagreement which may arise under, or as
a result of, or in any way related to, the interpretation, construction or application of this
Agreement shall be determined by the Committee. Any determination made hereunder shall be final,
binding and conclusive on the Colleague and the Company for all purposes.
16. Successors in Interest. This Agreement shall inure to the benefit of and be
binding upon any successor to the Company. This Agreement shall inure to the benefit of the
Colleague’s legal representative and assignees. All obligations imposed upon the Colleague and all
rights granted to the Company under this Agreement shall be binding upon the Colleague’s
heirs, executors, administrators, successors and assignees.
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IN WITNESS WHEREOF, the parties have caused this Non-Qualified Stock Option Agreement to be
duly executed effective as of the day and year first above written.
| AMSURG CORP. |
||||
| By: | /s/ Xxxxxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxxxxx X. Xxxxxx | |||
| Title: | Chief Executive Officer | |||
| COLLEAGUE |
||||
| Signature: | /s/ Xxx X. XxXxxxxx | |||
| Print Name: | Xxx X. XxXxxxxx | |||
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