Exhibit 99
SYMBION STOCK INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
GRANT NUMBER __________R
THIS AGREEMENT is made and entered into on this ______ day of
___________, 20__, by and between Symbion, Inc. (the "Company") and __________
(the "Participant"), in connection with an Award of Restricted Stock under the
Symbion Stock Incentive Plan (the "Plan").
The Company established the Plan by action of its board of directors
in September 2001, and such action was thereafter approved by the shareholders
of the Company on March 28, 2002. The Participant has been granted an Award of
Restricted Stock that is described herein. In consideration of the foregoing,
the parties have entered into this Agreement to govern the terms of this Award
pursuant to the authority specified under the Plan:
1. Award of Restricted Stock. Subject to the terms and
conditions set forth in the Plan and herein, the Company grants to the
Participant an Award of ________ shares of Restricted Stock, subject to
adjustment as provided in Article VIII of the Plan. These shares are subject to
forfeiture in the event of the termination of the Participant's employment with
the Company or an Affiliate prior to the vesting of such shares, as specified
herein.
2. Transfer of Award. Except for transfers pursuant to a will or
the laws of descent and distribution, this Award is not transferable and the
Participant may not make any disposition of the shares of Restricted Stock
described herein, or any interest herein, prior to the dates that such shares
become vested in accordance with Paragraph 3; provided, however, that the Award
may be transferred to the extent consented to by the Committee. 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.
3. Vesting of Award. The Restricted Stock Award will become
vested as follows:
On and After Shares Subject to Exercise
_______Shares
Additional _______ Shares
Additional _______ Shares
Additional _______Shares
4. Termination.
(a) On the date that a Participant's provision of
services to the Company or an Affiliate in his or her capacity as an employee,
a non-employee member of the Board, a consultant or independent advisor ceases
(and the Participant is not otherwise providing services to the Company or any
Affiliate) for any reason other than death or disability (as defined in section
22(e)(3) of the Code), the Participant will forfeit all shares of Restricted
Stock which have not yet become vested in accordance with the schedule set
forth in Paragraph 3.
(b) On the date that a Participant's provision of
services to the Company or an Affiliate in his or her capacity as an employee,
a non-employee member of the Board, a consultant or independent advisor ceases
(and the Participant is not otherwise providing services to the Company or any
Affiliate) because of death or disability (as defined in section 22(e)(3) of
the Code), all restrictions described herein shall be removed and all risks of
forfeiture shall lapse on the Restricted Stock, without regard to the vesting
schedule set forth in Paragraph 3, other than those restrictions described in
the Plan.
5. Status of Participant. Except for the restrictions described
in this Agreement and the Plan, the Participant shall be deemed a stockholder
of the Company with respect to Restricted Stock and shall be entitled to
receive dividends and exercise voting rights with respect thereto. The Company
is not required to deliver shares of Restricted Stock to the Participant until
the shares have become vested as described in Paragraph 3, all applicable
requirements of law have been complied with and such shares shall have been
duly listed on any securities exchange on which the Stock may then be listed.
6. Tax Withholding. In addition to the withholding provisions of
the Plan, each Participant shall give the Company notice of any election filed
by the Participant under section 83(b) of the Internal Revenue Code. At the
time at which any Restricted Stock becomes vested, the Company shall not
deliver or otherwise make such shares available to the Participant until the
Participant pays to the Company in cash (or any other form acceptable to the
Committee) any amount necessary to enable the Company to remit to the
appropriate governmental entity or entities on behalf of the Participant the
amount required to be withheld from the Participant's wages with respect to
such transaction. The Company shall, to the extent permitted by law, have the
right to deduct from any payment of any kind otherwise due the Participant
taxes required to be withheld with respect to Restricted Stock.
7. No Effect on Capital Structure. This Award 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.
8. 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.
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9. 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 all amendments
thereto, has been delivered or made available to the Participant and shall be
deemed 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.
10. 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 that such person
has theretofore specified by written notice delivered in accordance herewith.
The Company or the 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: Xxxx Xxxxxxx
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.
11. Information Confidential. As partial consideration for the
granting of this Award, 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.
12. Amendment. The Company may amend this Agreement at any time
for any purpose determined by the Company in its sole discretion that is
consistent with the Plan, including but not limited to an amendment to
accelerate the vesting schedule set forth in Paragraph 3 due to normal
retirement or other special circumstances, or to permit transfers of Restricted
Stock to certain individuals specified by the Participant. All amendments must
be in writing. The Company may not amend this Agreement, however, without the
Participant's express agreement to any amendment that could adversely effect
the material rights of the Participant.
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13. 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
_____________, 20___.
SYMBION, INC.
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By:
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Its:
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PARTICIPANT
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