EXHIBIT 99.2
SYMBION STOCK INCENTIVE PLAN
INCENTIVE STOCK OPTION AGREEMENT
GRANT NUMBER ___________
THIS AGREEMENT is made and entered into on the __ day of ______, 20__, by
and between Symbion, Inc. (the "Company") and _________ (the "Participant") in
connection with the grant of an Option under the Symbion Stock Incentive Plan
(the "Plan").
The Company, which had previously established the Plan, amended and
restated the Plan in an action that was approved by the shareholders of the
Company on March 28, 2002. The Participant is an employee of the Company or one
of its Affiliates and is eligible to receive this option under the terms of the
Plan. The Company desires to encourage the Participant to own Stock for the
purposes stated in Article II of the Plan. The Company intends that the Option
to acquire common stock of the Company granted to the Participant pursuant to
this Agreement be treated as an Incentive Option under the Plan. In
consideration of the foregoing, the parties have entered into this Agreement to
govern the terms of the Option granted by the Company pursuant to the authority
specified under the Plan:
1. Grant of Option. Subject to the terms and conditions set forth herein,
the Company grants to the Participant an Option to purchase from the Company
_________ shares of Stock at a price of $_____ per share. This price is subject
to adjustment as provided in Article VIII of the Plan. This Option expires at
the close of business on __________, 20__, unless it expires sooner pursuant to
Paragraph 6. Except as otherwise provided in Paragraph 6 or in the Plan, this
Option is exercisable at any time prior to the date it expires with respect to
the number of shares of Stock shown in the schedule below.
On and After Shares Subject to Exercise
2. Method of Exercise. The exercise of this Option is subject to the
Participant's execution of a written shareholders agreement that generally
applies to some or all of the shareholders of the Company, payment of the
exercise price stated in Paragraph 1, and making arrangement for any required
tax withholdings in a method that is acceptable to the Company or the Committee.
The Participant may exercise this Option in whole or in part, from time to time,
with respect to the number of whole shares of Stock that can be purchased at
such time in accordance with Paragraph 1, by actual delivery of written notice
to the Company at the address provided in Paragraph 12, or to the agent that may
be designated from time to time by the Company for this purpose. Such notice of
exercise shall:
(a) specify the number of whole shares of Stock to be purchased, the
exercise price and, if applicable, the portion of the Option that is being
exercised;
(b) contain evidence satisfactory to the Committee that the person
exercising this Option is the Participant or has the right to exercise this
Option; and
(c) be accompanied by payment of the exercise price in accordance
with the Plan and, in a manner that is acceptable to the Company or the
Committee, payment of or arrangement for the payment of any required federal,
state, and local withholding taxes that are due in connection with the exercise.
3. Transfer and Exercise of Option. This Option is not transferable and
the Participant may not make any disposition of this Option or any interest
herein during his or her lifetime, except for transfers pursuant to a will or
the laws of descent and distribution. As used herein, "disposition" means any
sale, transfer, encumbrance, gift, donation, assignment, pledge, hypothecation,
or other disposition, whether similar or dissimilar to those previously
enumerated, whether voluntary or involuntary, and whether during the
Participant's lifetime or upon or after the Participant's death, including, but
not limited to, any disposition by operation of law, by court order, by judicial
process, or by foreclosure, levy or attachment, except a transfer by will or by
the laws of descent or distribution. Any attempted disposition in violation of
this Paragraph is void.
4. Status of Participant. The Participant shall not be deemed a
stockholder of the Company with respect to any of the shares of Stock subject to
this Option, except to the extent that such shares shall have been purchased and
transferred to him or her. The Company is not required to issue shares of Stock
purchased upon exercise of this Option until all applicable requirements of law
have been complied with and such shares shall have been duly listed on any
securities exchange or market system on which the Stock may then be traded.
5. No Effect On Capital Structure. This Option shall not affect the right
of the Company or any Affiliate to reclassify, recapitalize or otherwise change
its capital or debt structure or to merge, consolidate, convey any or all of its
assets, dissolve, liquidate, windup, or otherwise reorganize.
6. Expiration of Option. In general, the right to purchase Stock under
this Option shall expire on the date specified in Paragraph 1, which is ten
years from the date this Option was granted. However, this Option shall expire
on the soonest of any of the following circumstances to occur.
(a) Disability. Upon termination of employment due to the
Participant's disability (as defined in section 22(e)(3) of the Code), the
Participant shall have the right for 12 months after the date of such
termination to exercise this Option in accordance with Paragraph 1 if the
Participant was otherwise entitled to exercise any portion of this Option on the
date of such termination. Thereafter, this Option shall terminate and cease to
be exercisable.
(b) Death. If the Participant dies, this Option shall be fully
exercisable by the Participant's legal representatives, heirs, legatees, or
distributees for 12 months after the date of the Participant's death if the
Participant was entitled to exercise any portion of the Option on the date of
death. Thereafter, this Option shall terminate and cease to be exercisable.
(c) Other Termination of Employment. If the Participant's employment
terminates for any reason other than the circumstances described in
subparagraphs (a) or (b) above, the Participant may exercise this Option for
three months after such termination, but only to the extent the Participant was
able to do so under Paragraph 1 on the date of termination of employment.
Thereafter, this Option shall terminate and cease to be exercisable.
7. Committee Authority. Any question concerning the interpretation of this
Agreement, any adjustments required to be made under the Plan and any
controversy that may arise under the Plan or this Agreement shall be determined
by the Committee in its sole discretion. Such decision by the Committee shall be
final and binding.
8. Incentive Stock Option Qualification. This Option is intended to
qualify as an "incentive stock option" within the meaning of section 422 of the
Code, and shall be so construed; provided, however, that nothing in this
Agreement shall be interpreted as a representation, guarantee or other
undertaking on the part of the Company that this Option is or will be determined
to be an Incentive Option. However, if any portion of this Option is deemed not
to be an Incentive Option because the $100,000 annual limit under section 422(d)
of the Code on Incentive Options is exceeded, or otherwise, the portion of this
Option which cannot be treated as an Incentive Option shall be deemed to be a
Nonqualified Option. In such an event, the Participant shall be subject to the
tax withholding provisions of the Plan for the portion of this Option which is
not an Incentive Option, and all other Plan provisions that apply to
Nonqualified Options.
9. Notice of Disqualifying Disposition. The Participant shall notify the
Company of his or her intent to dispose of any of the shares of Stock purchased
pursuant to this Option within two years from the date of the grant of the
Option or one year from the date of exercise of the Option, and promptly after
such disposition the Participant shall notify the Company of the number of
shares of Stock disposed of, the dates of acquisition and disposition of such
shares, and the consideration if any, received on such disposition. If in
connection with any such disposition, the Company becomes liable for withholding
taxes and has no amounts owing the Participant with which to discharge its
withholding obligation, the Participant shall indemnify the Company against any
penalties it may incur through its inability to apply amounts owing the
Participant in discharge of its withholding obligation. Nothing in this
Paragraph shall give the Participant any right to dispose of shares of Stock in
a manner that is inconsistent with any provision of this Agreement, the Plan, or
any stock transfer restriction agreement entered into by the Participant.
10. Change in Control. Upon the occurrence of a Change in Control, as
defined in the Plan, this Option shall be subject to the following:
(a) If this Option is outstanding immediately prior to the Change in
Control and, as a result of the Change in Control, the Company is not the
surviving entity after the transaction, or survives only as a subsidiary or is
otherwise controlled by another entity, this Option shall be assumed by the
entity which is the survivor of the transaction, or converted into options to
purchase the common stock of the surviving entity, in a transaction to which
section 424(a) of the Code applies.
(b) Notwithstanding the provisions of Section 8.3 of the Plan
regarding the acceleration of the right to exercise this Option upon a Change in
Control, a portion of the acceleration of vesting described in this Section
shall not occur with respect to this Option to the extent such acceleration of
vesting would cause the Participant or holder of such Option to realize less
income, net of taxes, after deducting the amount of excise taxes that would be
imposed pursuant to section 4999 of the Code, than if accelerated vesting of
that portion of the Option did not occur. This limitation shall not apply to the
extent that the shareholders of the Company or the acquirer approve the
acceleration of vesting hereunder in a manner that satisfies section
280G(b)(5)(B) of the Code, or to the extent that the Participant is a party to
an agreement in which the Participant is fully indemnified or otherwise held
harmless for the taxes that result from section 4999 of the Code.
(c) Except as modified by this Paragraph 10, the provisions of
Section 8.3 shall otherwise apply to this Option upon the occurrence of a Change
in Control.
11. Plan Controls. The terms of this Agreement are governed by the terms
of the Plan, as it exists on the date of this Agreement and as the Plan is
amended from time to time. A copy of the Plan, and any amendments thereto, has
been delivered or made available to the Participant and shall be deemed to be a
part of this Agreement as if fully set forth herein. In the event of any
conflict between the provisions of the Agreement and the provisions of the Plan,
the terms of the Plan shall control, except as expressly stated otherwise. For
purposes of this Agreement, the defined terms in the Plan shall have the same
meaning in this Agreement, except where the context otherwise requires. The
terms "Article" or "Section" generally refer to provisions within the Plan;
provided, however, the term "Paragraph" shall refer to a provision of this
Agreement.
12. Notice. Whenever any notice is required or permitted hereunder, such
notice must be in writing and personally delivered or sent by mail. Any notice
required or permitted to be delivered hereunder shall be deemed to be delivered
on the date which it is personally delivered, or, whether actually received or
not, on the third business day after it is deposited in the United States mail,
certified or registered, postage prepaid, addressed to the person who is to
receive it at the address which such person has theretofore specified by written
notice delivered in accordance herewith. The Company or Participant may change,
by written notice to the other, the address previously specified for receiving
notices. Notices delivered to the Company shall be addressed as follows:
Symbion, Inc.
Attn: ______________
00 Xxxxxx Xxxxx Xxxx., Xxxxx 000
Xxxxxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Notices to the Participant shall be hand delivered to the Participant on the
premises of the Company or its Affiliates, or mailed to the last address shown
on the records of the Company.
13. Information Confidential. As partial consideration for granting of
this Option, the Participant agrees that he or she will keep confidential all
information and knowledge that the Participant has relating to the manner and
amount of his or her participation in the Plan; provided, however, that such
information may be disclosed as required by law and may be given in confidence
to the Participant's spouse, tax and financial advisors, or to a financial
institution to the extent that such information is necessary to secure a loan.
14. Governing Law. Except as is otherwise provided in the Plan, where
applicable, the provisions of this Agreement shall be governed by the internal
laws of the State of Tennessee, without regard to the principles of conflicts of
laws thereof.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
and the Participant has set his hand hereto to be effective as of ____________.
SYMBION, INC.
__________________________________
__________________________________
Participant
