RESTRICTED STOCK AWARD AGREEMENT
EXHIBIT
10.43
THIS
RESTRICTED STOCK AWARD AGREEMENT
("Agreement"),
dated
as of October 27, 2005 but effective as of November 14, 2005 ("Grant
Date"),
is
entered into between NovaMed, Inc., a Delaware corporation (the "Company"),
and
Xxxxxx X. Xxxx ("Participant"),
an
employee of NovaMed Management Services, LLC, a Delaware limited liability
company, a wholly owned subsidiary of the Company.
RECITALS:
WHEREAS,
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
Company has adopted the NovaMed, Inc. 2005 Stock Incentive Plan
(the
"Plan")
and
desires that the Shares granted to the Participant under this Agreement be
governed by the terms and conditions of the Plan [or
a substantially similar plan];
and
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, Two Hundred Fifty Thousand (250,000) 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 become vested on the date six months after the Grant
Date and
(ii)
an additional one-forty-eighth (1/48th) of the Restricted Stock will become
vested on the last day of each month thereafter. From the date of a Termination
of Employment of the Participant for any reason, no further Restricted Stock
shall become vested and all unvested shares of Restricted Stock shall be
cancelled and forfeited as of the date of the Termination of Employment,
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. Shares of Restricted
Stock
that have not fully vested under the vesting provisions described above,
and the
right to vote such stock and receive dividends thereon, may not 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 ordinary 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(c).
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 to satisfy such withholding, Participant agrees to remit to
the
Company, as a condition of settlement of the Restricted Stock, such additional
amounts in cash as are necessary to satisfy such required withholding. Any
and
all withholding obligations may be settled 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 are subject to
the
terms and conditions of the Plan, as the same may be amended from time to
time;
provided, however, that 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 any of Participant's rights under this Agreement,
except
an amendment which is permitted under the Plan for purposes other than reducing
the Participant's rights hereunder. 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 described in this Agreement or the Plan
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 so
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.
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.
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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,
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 undertake to determine and be responsible for any and
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: | ||
|
Xxxxx X. Xxxxxxxx |
||
|
Executive
Vice President and Chief Financial
Officer
|
||
| PARTICIPANT: | ||
| |
|
|
|
Xxxxxx X. Xxxx |
||
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