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EXHIBIT 10.35
RESTRICTED STOCK PURCHASE AGREEMENT
THIS RESTRICTED STOCK PURCHASE AGREEMENT dated as of _________, 1999
(the "Agreement"), between BNA Associates, Inc., a Delaware corporation (the
"Company"), and ________________ (the "Purchaser").
RECITALS
WHEREAS, the Company wishes to issue and sell to the Purchaser ________
shares (the "Purchased Shares") of the authorized but unissued Common Stock,
$.001 par value, of the Company (the "Common Stock") at a purchase price of $.01
per share; and
WHEREAS, the Purchaser wishes to purchase the Purchased Shares on the
terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained in this Agreement and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
intending to be legally bound, the parties agree as follows:
ARTICLE I
PURCHASE OF SHARES
1.1 Purchase. The Purchaser hereby purchases from the Company, and the
Company hereby sells and issues to the Purchaser, such number of shares of the
Company's Common Stock set forth beside the Purchaser's name on Schedule I at a
purchase price of $.01 per share (the "Purchase Price").
1.2 Payment. Concurrently with the execution and delivery of this
Agreement to the Company, the Purchaser shall deliver to the Company the
aggregate Purchase Price by cash or by check made payable to the Company's
order.
1.3 Delivery of Certificates. The certificates representing the
Purchased Shares hereunder shall be held in escrow by the Secretary of the
Company as provided in Article VII hereof.
1.4 Stockholder Right. Until such time as the Company actually exercises
its repurchase rights under this Agreement, if ever, the Purchaser (or any
successor in interest) shall have all the rights of a stockholder (including
voting rights) with respect to the Purchased Shares, including Purchased Shares
held in escrow under Article VII, subject, however, to the transfer restrictions
of Article IV.
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ARTICLE II
SECURITIES LAW COMPLIANCE
2.1 Investment Intent. The Purchaser hereby warrants and represents that
he is acquiring the Purchased Shares for the Purchaser's own account for the
purpose of investment and not with a view to their resale or distribution.
2.2 Sophisticated Investor. The Purchaser represents and warrants to the
Company that he has sufficient knowledge and experience in investing in
companies similar to the Company in terms of the Company's stage of development
so as to be able to evaluate the risks and merits of his investment in the
Company and is able financially to bear the risks thereof.
2.3 Exemption from Registration. The Purchaser acknowledges that the
Purchased Shares have not been registered under the Securities Act of 1933, as
amended (the "1933 Act"), and are being issued to the Purchaser in reliance upon
the exemption from the registration requirements thereof.
2.4 Restricted Securities. The Purchaser hereby confirms that he has
been informed that the Purchased Shares are restricted securities under the 1933
Act and may not be resold or transferred unless the Purchased Shares are first
registered under the Federal securities laws or unless an exemption from such
registration is available. Accordingly, the Purchaser hereby acknowledges that
he is prepared to hold the Purchased Shares for an indefinite period and that he
is aware that Rule 144 of the Securities and Exchange Commission issued under
the 1933 Act is not presently available to exempt the sale of the Purchased
Shares from the registration requirements of the 1933 Act.
2.5 Disposition Of Shares. The Purchaser hereby agrees he shall make no
disposition of the Purchased Shares (other than a permitted transfer under
Section 4.1) unless and until he:
a. shall have notified the Company of the proposed disposition and
provided a written summary of the terms and conditions of the proposed
disposition; and
b. shall have complied with all requirements of this Agreement
applicable to the disposition of the Purchased Shares (as well as any other
applicable agreement, including, without limitation, that certain Stockholders
Agreement dated as of July 1, 1999 (the "Stockholders Agreement") among the
Company, the Purchaser and certain other holders of the Company's capital
stock).
The Company shall not be required (i) to transfer on its books any
Purchased Shares which have been sold or transferred in violation of the
provisions of this Article II, nor (ii) to treat as the owner of the Purchased
Shares, or otherwise to accord voting or dividend rights to, any transferee to
whom the Purchased Shares have been transferred in contravention of this
Agreement.
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2.6 Restrictive Legends. In order to reflect the restrictions on
disposition of the Purchased Shares, the stock certificates for the Purchased
Shares will be endorsed with the following restrictive legends:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED ABSENT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT
OR COMPLIANCE WITH RULE 144 PROMULGATED UNDER SUCH ACT, OR UNLESS
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL, SATISFACTORY TO THE
COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS NOT REQUIRED. THE
SECURITIES REPRESENTED HEREBY ARE SUBJECT TO, AND MAY BE TRANSFERRED
ONLY IN COMPLIANCE WITH, THAT CERTAIN RESTRICTED STOCK PURCHASE
AGREEMENT, DATED AS OF _______, 1999, BETWEEN THE COMPANY AND THE
HOLDER OF THESE SECURITIES, A COPY OF WHICH MAY BE OBTAINED AT THE
PRINCIPAL EXECUTIVE OFFICE OF THE COMPANY."
ARTICLE III
SPECIAL TAX ELECTION
3.1 Section 83(b) Election. The Purchaser understands that under Section
83 of the Internal Revenue Code of 1986, as amended (the "Code"), the excess of
the fair market value of the Purchased Shares on the date any forfeiture
restrictions applicable to such shares lapse over the Purchase Price paid for
such shares will be reportable as ordinary income at that time. For this
purpose, the term "forfeiture restrictions" includes the right of the Company to
repurchase the Purchased Shares pursuant to the Unvested Share Repurchase Right
provided under Article V of this Agreement. The Purchaser understands, however,
that he may elect to be taxed at the time the Purchased Shares are acquired
hereunder, rather than when and as such Purchased Shares cease to be subject to
such forfeiture restrictions, by filing an election under Section 83(b) of the
Code with the Internal Revenue Service within thirty (30) days after the date of
this Agreement. If this election is made, the Purchaser will be taxed on the
amount, if any, by which the fair market value of the Purchased Shares as of the
date of this Agreement (determined without taking into account any forfeiture
restrictions) exceeds the Purchase Price paid. Even if the fair market value of
the Purchased Shares at the date of this Agreement equals the Purchase Price
paid (and thus no tax is payable), the election must be made to avoid adverse
tax consequences in the future. The form for making this election is attached as
Exhibit A hereto. In the event that the Purchaser makes this election, and the
Company subsequently exercises its right to repurchase the Unvested Shares (as
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defined in Section 5.1) of the Purchaser pursuant to this Agreement, the
Purchaser will not be entitled to deduct the income, if any, previously
recognized as income with respect to those shares as a result of the election.
The Purchaser understands that failure to make this filing within the thirty
(30) day period will result in the recognition of ordinary income by the
Purchaser as the forfeiture restrictions lapse. THE PURCHASER ACKNOWLEDGES THAT
IT IS HIS SOLE RESPONSIBILITY, AND NOT THE COMPANY'S, TO FILE A TIMELY ELECTION
UNDER SECTION 83(b), EVEN IF HE REQUESTS THE COMPANY OR ITS REPRESENTATIVES TO
MAKE THIS FILING ON SUCH PURCHASER'S BEHALF.
This summary is necessarily incomplete, and the tax laws and regulations
are subject to change. The Purchaser should consult a tax advisor before making
an election under Section 83(b).
ARTICLE IV
TRANSFER RESTRICTIONS
4.1 Restriction on Transfer. The Purchaser shall not transfer, assign,
encumber, or otherwise dispose of any Unvested Shares (as hereinafter defined)
at any time. Any transfer, assignment, encumbrance or other disposition of
Vested Shares (as hereinafter defined) shall be subject to the provisions of the
Stockholders Agreement. Subject to Section 4.2 hereof, such restrictions on
transfer, however, shall not be applicable to (x) a transfer by gift of the
Purchased Shares made to the Purchaser's spouse or children, including adopted
children, or to a trust for the exclusive benefit of the Purchaser or the
Purchaser's spouse or children, or (y) a transfer of title to the Purchased
Shares effected pursuant to the Purchaser's will or the laws of intestate
succession.
4.2 Transferee Obligations. Each person (other than the Company) to whom
the Purchased Shares are transferred by means of one of the permitted transfers
specified in Section 4.1 must, as a condition precedent to the validity of such
transfer, acknowledge in writing to the Company that such person is bound by the
provisions of this Agreement to the same extent that such shares would be so
subject if retained by the Purchaser.
4.3 "Market Stand-Off" Agreement. The Purchaser hereby agrees that,
during the period of duration specified by the Company and an underwriter of
common stock or other securities of the Company, following the date, if any, of
the first sale to the public pursuant to a registration statement of the Company
filed under the 1933 Act, it shall not, to the extent requested by the Company
and such underwriter, directly or indirectly sell, offer to sell, contract to
sell (including, without limitation, any short sale), grant any option to
purchase or otherwise transfer or dispose of (other than to donees who agree to
be similarly bound) any securities of the Company held by it at any time during
such period except common stock included in such registration; provided,
however, that:
(a) such agreement shall be applicable only to the first two such
registration statements of the Company which cover common stock (or other
securities convertible into common stock) to be sold on its behalf to the public
in an underwritten offering;
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(b) all executive officers and directors of the Company enter into
similar agreements; and
(c) such market stand-off time period shall not exceed 180 days.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the securities of the Purchaser (and
the shares or securities of every other person subject to the foregoing
restriction) until the end of such period.
Notwithstanding the foregoing, the obligations described in this Section
4.3 shall not apply to a registration relating solely to employee benefit plans
on Form S-8 or similar forms which may be promulgated in the future, or a
registration relating solely to a Commission Rule 145 transaction or Form S-4 or
similar forms which may be promulgated in the future.
ARTICLE V
RIGHT TO REPURCHASE UNVESTED SHARES
5.1 Grant. The Company (or its assignees) is hereby granted the right
(the "Unvested Share Repurchase Right"), exercisable at any time during the
sixty (60)-day period following the termination of the Purchaser's employment
with, and/or service as a director of, Columbia/HCA Healthcare Corporation
("Columbia"), for any reason, to repurchase all or any portion of the
Purchaser's Purchased Shares in which the Purchaser has not acquired a vested
interest in accordance with the vesting provisions set forth in Schedule II
(such shares to be hereinafter called the "Unvested Shares").
5.2 Exercise of the Unvested Share Repurchase Right. The Unvested Share
Repurchase Right shall be exercisable by written notice delivered to the
Purchaser prior to the expiration of the applicable sixty (60)-day period
specified in Section 5.1. The notice shall indicate the number of Unvested
Shares to be repurchased and the date on which the repurchase is to be effected,
such date to be not more than thirty (30) days after the date of notice. The
Company shall, concurrently with the receipt of the stock certificates from
escrow in accordance with Section 7.3, pay to the Purchaser in cash the amounts
set forth below. If the Purchaser's employment with, and/or service as a
director of, Columbia terminates for any reason other than death or "disability"
(as defined below), the price per share payable by the Company for the
Purchaser's Unvested Shares shall be equal to the Purchase Price. If the
Purchaser's employment with, and/or service as a director of, Columbia
terminates by reason of death or disability, the price per share payable by the
Company for the Purchaser's Unvested Shares shall be "Market Value" (as defined
below). For purposes of this Agreement, Purchaser's employment shall be deemed
to have been terminated by reason of "disability" if Purchaser has become
disabled within the meaning of Section 22(e)(3) of the Internal Revenue Code of
1986, as amended. For purposes of this Agreement, on any valuation date (the
"Valuation Date") (which shall be the date of termination of Purchaser's
employment and/or service as a director for purposes of this Agreement), the
"Market Value" of each Purchased Share means the average of the closing prices
of the Common Stock on all securities exchanges on which the
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Common Stock may at the time be listed or, if there have been no sales on any
such exchange on the such Valuation Date, the average of the highest bid and
lowest asked prices on all such exchanges at the end of the Valuation Date, or,
if the Common Stock is not so listed, the average of the representative bid and
asked prices quoted in the NASDAQ System as of 4:00 p.m., New York time, on the
Valuation Date or, if on such day the Common Stock is not quoted in the NASDAQ
System, the average of the highest bid and lowest asked prices on the Valuation
Date in the domestic over-the-counter market as reported by the National
Quotation Bureau Incorporated, or any similar successor organization, in each
such case averaged over a period of 21 days consisting of the Valuation Date and
the 20 consecutive business days prior to such day. If on the Valuation Date the
Common Stock is not listed on any securities exchange or quoted in the NASDAQ
System or the over-the-counter market, the Market Value of each share of such
Purchased Shares shall be the fair market value of a share of the Common Stock
as of the Valuation Date, as reasonably determined by the Board.
5.3 Termination Of the Unvested Share Repurchase Right/Vesting. The
Unvested Share Repurchase Right shall terminate with respect to the Unvested
Shares for which it is not timely exercised under Section 5.2. In addition, the
Unvested Share Repurchase Right shall terminate and cease to be exercisable, and
such Purchased Shares shall cease to be Unvested Shares and the Purchaser shall
thereupon acquire a vested interest therein (such shares to be hereinafter
called the "Vested Shares") as set forth on Schedule II.
5.4 Fractional Shares. No fractional shares shall be repurchased by the
Company.
5.5 Additional Shares or Substituted Securities. In the event of any
stock dividend, stock split, recapitalization or other change affecting the
Company's outstanding Common Stock as a class effected without receipt of
consideration, then any new, substituted, or additional securities or other
property (including money paid other than as a regular cash dividend) which is
by reason of any such transaction distributed with respect to the Purchased
Shares shall be immediately subject to the Unvested Share Repurchase Right, but
only to the extent the Purchased Shares are at the time covered by such right.
Appropriate adjustments to reflect the distribution of such securities or
property shall be made to the number of Purchased Shares hereunder and to the
price per share to be paid upon the exercise of the Unvested Share Repurchase
Right in order to reflect the effect of any such transaction upon the Company's
capital structure; provided, however, that the aggregate purchase price shall
remain the same.
ARTICLE VI
RIGHT TO REPURCHASE VESTED SHARES
6.1 Grant. The Company (or its assignees) is hereby granted the right
(the "Vested Share Repurchase Right" and, together with the Unvested Share
Repurchase Right, the "Repurchase Rights"), exercisable at any time during the
sixty (60)-day period following the termination of the Purchaser's employment
with, and/or service as a director of, Columbia for any reason, to repurchase
all or any portion of the Purchaser's Vested Shares. If the Purchaser's
employment with, and/or
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service as a director of, Columbia is terminated by Columbia for "Cause" (as
defined), the price per share payable by the Company for the Purchaser's Vested
Shares shall be equal to the Purchase Price. If the Purchaser's employment with,
and/or service as a director of, Columbia is terminated for any other reason
(including, without limitation, death, disability, expiration of term,
Columbia's termination of the Purchaser without Cause or voluntarily by the
Purchaser), the price per share payable by the Company for Purchaser's Vested
Shares shall be Market Value. For purposes of this Agreement, "Cause" shall mean
the Purchaser's fraud, embezzlement, defalcation, gross negligence in the
performance or nonperformance of the Purchaser's duties, or failure or refusal
to perform the Purchaser's duties (other than as a result of disability) at any
time while in the employ or serving as a director of Columbia.
6.2 Exercise of the Repurchase Right. The Vested Share Repurchase Right
shall be exercisable by written notice delivered to the Purchaser prior to the
expiration of the applicable sixty (60)-day period specified in Section 6.1. The
notice shall indicate the number of Vested Shares to be repurchased and the date
on which the repurchase is to be effected, such date to be not more than
forty-five (45) days after the date of notice. The Company shall concurrently
with the receipt of the stock certificates from the Purchaser, pay to the
Purchaser in cash the amount set forth in Section 6.1.
6.3 Additional Shares or Substituted Securities. In the event of any
stock dividend, stock split, recapitalization or other change affecting the
Company's outstanding Common Stock as a class effected without receipt of
consideration, then any new, substituted, or additional securities or other
property (including money paid other than as a regular cash dividend) which is
by reason of any such transaction distributed with respect to the Purchased
Shares shall be immediately subject to the Vested Share Repurchase Right, but
only to the extent the Purchased Shares are at the time covered by such right.
Appropriate adjustments to reflect the distribution of such securities or
property shall be made to the number of Purchased Shares hereunder and to the
price per share to be paid upon the exercise of the Vested Share Repurchase
Right in order to reflect the effect of any such transaction upon the Company's
capital structure; provided, however, that the aggregate purchase price shall
remain the same.
ARTICLE VII
ESCROW FOR UNVESTED SHARES
7.1 Deposit. Upon issuance, the certificates for the Unvested Shares
shall be deposited in escrow with the Company to be held in accordance with the
provisions of this Article VII. The deposited certificates, together with any
other assets or securities from time to time deposited with the Company pursuant
to the requirements of this Agreement, shall remain in escrow until such time or
times as the certificates (or other assets and securities) are to be released or
otherwise surrendered for cancellation in accordance with Section 7.3.
7.2 Recapitalization. Any cash dividends on the Purchased Shares (or
other securities at the time held in escrow) shall be paid directly to the
Purchaser and shall not be held in escrow.
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However, in the event of any stock dividend, stock split, recapitalization, or
other change affecting the Company's outstanding Common Stock as a class
effected without receipt of consideration, any new, substituted, or additional
securities or other property which is by reason of such event distributed with
respect to the Purchased Shares shall be immediately delivered to the Company
any to be held in escrow under this Article VII, but only to the extent the
Purchased Shares are at the time subject to the escrow requirements of Section
7.1.
7.3 Release/Surrender. The Purchased Shares, together with any other
assets or securities held in escrow hereunder, shall be subject to the following
terms and conditions relating to their release from escrow or their surrender to
the Company for repurchase and cancellation:
(i) Should the Company (or its assignees) elect to exercise the
Unvested Share Repurchase Right under Article V with respect to any Unvested
Shares, then the escrowed certificates for such Unvested Shares (together with
any other assets or securities issued with respect thereto) shall be delivered
to the Company for cancellation, concurrently with the payment to the Purchaser,
in cash, of an amount equal to the applicable payment for such Unvested Shares
pursuant to Section 5.2, and the Purchaser shall cease to have any further
rights or claims with respect to such Unvested Shares (or other assets or
securities).
(ii) As the interest of the Purchaser in Purchased Shares (or any
other assets or securities issued with respect thereto) vests in accordance with
the provisions of Schedule II, the certificates for such Vested Shares (as well
as all other vested assets and securities) shall be released promptly from
escrow and delivered to the Purchaser.
(iii) All Purchased Shares (or other assets or securities) released
from escrow in accordance with the provisions of subsection (ii) above shall
nevertheless remain subject to (i) the restriction on transfer referenced in the
second sentence of Section 4.1, and (ii) the market stand-off provisions of
Section 4.3.
ARTICLE VIII
GENERAL PROVISIONS
8.1 No Employment or Service Contract. Nothing in this Agreement shall
confer upon the Purchaser any right to employment with, and/or service as a
director of, Columbia (or any parent or subsidiary corporation of Columbia).
8.2 Notices. All notices, requests, demands, and other communications
under this Agreement shall be in writing and shall be deemed to have been duly
given on the date of service if served personally on the party to whom notice is
to be given, on the date of transmittal of services via telecopy to the party to
whom notice is to be given (with a confirming copy being delivered within 24
hours thereafter), or on the third day after mailing if mailed to the party to
whom notice is to be given, by first class mail, registered or certified,
postage prepaid, or via overnight courier providing a receipt and properly
addressed as set forth on Schedule I hereto. Any party may change
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its address for purposes of this Section by giving notice of the new address to
each of the other parties in the manner set forth above.
8.3 No Waiver. The failure of the Company (or its assignees) in any
instance to exercise the Unvested Share Repurchase Right granted under Article V
shall not constitute a waiver of any other repurchase rights and/or rights of
first refusal that may subsequently arise under the provisions of this Agreement
or any other agreement between the Company and the Purchaser. No waiver of any
breach or condition of this Agreement shall be deemed to be a waiver of any
other or subsequent breach or condition, whether of like or different nature.
8.4 Cancellation of Shares. If the Company (or its assignees) shall make
available, at the time and place and in the amount and form provided in this
Agreement, the consideration for the Purchased Shares to be repurchased in
accordance with the provisions of this Agreement, then from and after such time,
the person from whom such shares are to be repurchased shall no longer have any
rights as a holder of such shares (other than the right to receive payment of
such consideration in accordance with this Agreement), and such shares shall be
deemed purchased in accordance with the applicable provisions hereof and the
Company (or its assignees) shall be deemed the owner and holder of such shares,
whether or not the certificates therefor have been delivered as required by this
Agreement.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Tennessee for all purposes and in all
respects, without giving effect to the conflict of law provisions thereof.
9.2 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and enforceable
against the parties actually executing such counterparts, but all of which
together shall constitute one and the same instrument.
9.3 Successors and Assigns. The provisions of this Agreement shall inure
to the benefit of, and be binding upon, the Company and its successors and
assigns and the Purchaser and the Purchaser's legal representatives, heirs,
legatees, distributees, assigns and transferees by operation of law, whether or
not any such person shall have become a party to this Agreement and have agreed
in writing to join herein and be bound by the terms and conditions hereof.
9.4 Integration; Amendment. This Agreement and the other documents
delivered pursuant hereto constitute the full and entire understanding and
agreement among the parties with regard to the subjects hereof and thereof, and
supersede any previous agreement or understanding between or among the parties
with respect to such subjects. No party shall be liable or bound to any other
party in any manner by any warranties, representations or covenants except as
specifically set forth herein or therein. Except as expressly provided herein
neither this Agreement nor any term
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hereof may be amended, waived, discharged or terminated other than by a written
instrument signed by the party against whom enforcement of any such amendment,
waiver, discharge or termination is sought.
9.5 Severability. In the event that any provision of this Agreement
becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision; provided that no such severability shall be effective if
it materially changes the economic benefit of this Agreement to any party.
9.6 Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not considered in construing or
interpreting this Agreement.
9.7 Termination. The provisions of Article VI, Sections 4.1 and 4.2
shall terminate 180 days following a firm commitment underwritten initial public
offering of the Company's Common Stock.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first indicated above.
BNA ASSOCIATES, INC.
By:
------------------------------------
Title:
---------------------------------
PURCHASER:
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SCHEDULE I
PURCHASED SHARES
SUBJECT TO VESTING
PURCHASER NAME AND ADDRESS NUMBER OF PURCHASED SHARES
-------------------------- --------------------------
Unvested Subtotal:
-----------
Total:
===========
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SCHEDULE II
VESTING
The Company's Unvested Share Repurchase Right under Article V shall
terminate and cease to be exercisable with respect to the aggregate of ________
Unvested Shares acquired pursuant to this Agreement, and all or a portion of
such Unvested Shares shall become "Vested Shares," in accordance with the
provisions of this Schedule II. As to the Purchaser:
(a) Time Vesting. Subject in all respects to earlier vesting in
accordance with Section (b) and Section (c) of this Schedule II, the Unvested
Share Repurchase Right shall automatically terminate and lapse in its entirety
with respect to the Purchased Shares in four equal annual installments
consisting of 25% of the original number of Unvested Shares each and beginning
on the first anniversary of the date of grant. On each such anniversary each 25%
portion of Unvested Shares shall become "Vested Shares."
(b) Accelerated Vesting Upon a Corporate Transaction. In addition to the
vesting contemplated by Section (a) of this Schedule II, the Company's Unvested
Share Repurchase Right shall terminate as to all of the Unvested Shares upon a
Corporate Transaction. For purposes of this Agreement, "Corporate Transaction"
shall mean any of the following transactions:
(i) a merger or consolidation in which securities possessing more
than fifty percent (50%) of the total combined voting power of the
Company's outstanding securities are transferred to a person or persons
different from the persons holding those securities immediately prior to
such transaction, or
(ii) the sale, transfer or other disposition of all or substantially
all of the Company's assets, or
(iii) the sale, transfer or disposition by a stockholder or
stockholders of the Company of capital stock of the Company to a purchaser
who immediately prior to such sale, transfer or disposition is neither an
affiliate of the Company nor of the person or persons making the sale,
transfer or disposition and who after and as a result of such sale,
transfer or disposition owns in excess of 50% of the total voting power
entitled to vote in the election of directors of the Company.
Notwithstanding the foregoing, for purposes of the accelerated vesting
contemplated by this Section (b) of this Schedule II, a "Corporate Transaction"
shall not include any merger or consolidation, sale, transfer or other
disposition of all or substantially all of the Company's assets or sale,
transfer or disposition of capital stock of the Company with or to Columbia/HCA
Healthcare Corporation or any affiliate thereof.
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ROUNDING CONVENTIONS
For purposes of calculating any Share amounts pursuant to the foregoing
formulae, the applicable number of Shares shall be rounded to the nearest whole
number.
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EXHIBIT A
SECTION 83(B) TAX ELECTION
This statement is being made under Section 83(b) of the Internal Revenue Code,
pursuant to Treas. Reg. Section 1.83-2.
(1) The taxpayer who performed the services is:
Name:
Address:
Taxpayer Ident. No.:
Taxable Year: Calendar Year 1999
(2) The property with respect to which the election is being made is _______
shares of the common stock, par value $0.001 per share, of BNA
Associates, Inc. (the "Unvested Shares")
(3) The Unvested Shares were issued on _____________.
(4) The Unvested Shares are subject to a repurchase right pursuant to which
the issuer has the right to acquire such Unvested Shares at the original
purchase price if for any reason taxpayer's services with the issuer are
terminated. The issuer's repurchase right lapses in a series of
installments.
(5) The fair market value at the time of transfer (determined without regard
to any restriction other than a restriction which by its terms will
never lapse) is $0.0l per share.
(6) The amount paid for such Unvested Shares is $0.0l per share.
(7) A copy of this statement was furnished to Columbia/HCA Healthcare
Corporation for whom taxpayer rendered the services underlying the
transfer of the Unvested Shares.
(8) This statement is executed as of ___________, 1999.
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Spouse (if any) Taxpayer
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SCHEDULE A
RESTRICTED STOCK PURCHASE AGREEMENTS DATED JULY 16, 1999
Number of Shares of
Name of Director Common Stock of BNA
and/or Executive Officer Associates, Inc.
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Xxxxx X. Xxxxxxxx 12,500
Xxxxxxxxx X. Xxxxxxxx, M.D. 6,250
Xxxx X. Xxxxxxxx, Xx. 72,750
Xxxxxxx X. Xxxxxxx 12,500
Xxxxxx X. Xxxxxxxx 12,500
J. Xxxxxxx Xxxx 6,250
W. Xxxx Xxxxxxx 6,250
Xxxxxxx X. Xxxxx 12,500
Xxxxxx Xxxxxxxxx 6,250
Xxxxx X. Xxxxxxxxxx, Xx. 12,500
Xxxxxx X. Xxxxx, Xx. 96,000
V. Xxxx Xxxxxx 12,500
Xxxxxxxxx X. Xxxxx 6,250
Xxx Xxxxxxx 12,500
Xxxxxx X. Xxxxx 12,500
Xxxxx X. Xxxxxx, M.D. 12,500
R. Xxxxxx Xxxxxxx 12,500
Xxxxxxxx X. Xxxxxxx 12,500
T. Xxxxxxx Xxxx 6,250
Xxxx X. XxXxxxxx 6,250
R. Xxxxxxx XxXxxxxxx 6,250
A. Xxxxx Xxxxx, Jr. 12,500
Xxxxxx X. Xxxxxx 6,250
Xxxx X. Xxxxxx 6,250
Xxxxxx X. Xxxxxx 12,500
16
Number of Shares of
Name of Director Common Stock of BNA
and/or Executive Officer Associates, Inc.
------------------------ ----------------
Xxxx X. Xxxxxxxxx 6,250
Xxxxxxx X. Xxxx 12,500
Xxxxx X. Royal, M.D. 6,250
Xxxxxxx X. Xxxxxxxxxx 12,500
Xxxxxx X. Xxxxxxxx 12,500
Xxxxxxx X. Xxxxxxx 12,500
Xxxxxx X. Xxxxxxxx 12,500
Xxxx Xxxxx Xxxxxxxx 250,000
Xxxx X. Xxxxxx 12,500
RESTRICTED STOCK PURCHASE AGREEMENTS DATED OCTOBER 29, 1999
Number of Shares of
Name of Director Common Stock of BNA
and/or Executive Officer Associates, Inc.
------------------------ ----------------
Xxxx X. Xxxxxxxx, Xx. 7,250
Xxxxxx X. Xxxx 6,250
Xxxxx X. Xxxxxxxxxx, Xx. 62,500
