EXHIBIT 4(b)
THE OPTION GRANTED PURSUANT TO THIS NONSTATUTORY STOCK OPTION AGREEMENT
(THE "OPTION") AND THE SHARES OF COMMON STOCK ISSUABLE UPON THE EXERCISE HEREOF
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE PLEDGED, HYPOTHECATED, SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT FOR
THE OPTION OR THE SHARES UNDER THE SECURITIES ACT, OR AN OPINION OF COUNSEL,
WHICH IS SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH REGISTRATION IS
NOT REQUIRED.
XXXXXX SURGERY CENTERS, INC., NONQUALIFIED
STOCK OPTION PLAN AND AGREEMENT (XXXXXXX)
THIS AGREEMENT is entered into as of December 1, 1992, between XXXXXX
SURGERY CENTERS, INC., a Delaware corporation (the "Company"), and AUGUST X.
XXXXXXX (the "Optionee").
Recitals
A. The Company's Board of Directors ("Board") has established this
Nonqualified Stock Option Plan and Agreement ("Agreement") in order to provide
the Optionee with an opportunity to acquire common stock of the Company; and
B. The Board has determined that it would be in the best interests of
the Company and its stockholders to grant the Nonqualified Stock Option
described in this Agreement to the Optionee as an inducement to enter into and
remain in the employ of the Company and as an incentive for extraordinary
efforts during such employment.
NOW, THEREFORE, it is agreed as follows:
Agreement
ARTICLE 1. GRANT OF OPTION.
1.01. Option. On the terms and conditions stated below, the Company
hereby grants to the Optionee the option to purchase One Million Thirty-One
Thousand Nine Hundred Ninety- Two (1,031,992) Shares for the sum of ONE DOLLAR
($1.00) per Share, the Fair Market Value of the Shares. This Option is not
intended to be an incentive stock option described in section 422 of the Code.
1.02. Representation and Warranty. The Company represents and warrants
that, as of the effective date of this Agreement:
A. Nineteen Million Six Hundred Seven Thousand Eight Hundred
Forty- Three (19,607,843) shares of Common Stock are issued and outstanding;
B. The Common Stock subject to this Option represents
approximately five percent (5%) of the outstanding Common Stock assuming full
exercise of this Option; and
C. There are no outstanding options, warrants, conversion
rights or similar rights under which the Company is or may become obligated to
issue or sell any shares of Common Stock, except (I) as may be contemplated by
this Agreement, and (ii) pursuant to the Purchase Rights Agreement, dated as of
December 1, 1992, among the Company, X X Financial Investments, L.P., a Delaware
limited partnership ("EJF"), and Xxxxxx Ambulatory Care Corporation, a
California nonprofit public benefit corporation ("SACC"); and
D. The execution and delivery of this Option and the
performance of the obligations of the Company have been duly authorized by all
corporate action on behalf of the Company.
ARTICLE 2. NO TRANSFER OR ASSIGNMENT OF OPTION.
Except as otherwise provided in this Agreement, this Option and the
rights and privileges conferred hereby shall not be transferred, assigned,
pledged or hypothecated in any way, whether by operation of law or otherwise,
and shall not be subject to sale under execution, attachment or similar process.
Except as otherwise provided herein, upon any transfer, assignment, pledge,
hypothecation or other disposition of this Option, or of any right or privilege
conferred hereby, contrary to the provisions hereof, or any sale under any
execution, attachment or similar process upon the rights and privileges
conferred hereby, this Option and the rights and privileges conferred hereby
shall immediately become null and void.
ARTICLE 3. RIGHT TO EXERCISE.
3.01. Vesting. Optionee may only exercise this Option to the extent it
is vested. Subject to the conditions stated in this Agreement, the right to
exercise this Option shall accrue in installments as follows:
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Percentage of
Date Shares Exercisable
January 1, 1993 25.0000% (257,998 Shares)
February 1, 1993 and the first day of 1.5625% (16,125 Shares)
each month thereafter until
January 1, 1997
less, in the case of each vesting period, the number of Shares of common stock,
if any, previously purchased under the Option; provided, however, the right to
exercise any unexercised shares under this Option shall immediately become
exercisable in full, if EJF and SACC, and their respective affiliates, as
defined in the Stockholders Agreement, dated as of December 1, 1992, among the
Company, EJF and SACC (the "Stockholders Agreement"), collectively no longer
have the ability to cause the election of a majority of the Board of Directors
of the Company, through the terms of the Stockholders Agreement, or otherwise.
The Stockholders Agreement is hereby incorporated by reference.
Any other provision of this Agreement notwithstanding, if the Optionee
goes on a leave of absence in excess of six (6) months duration, other than a
sick leave or disability leave (to be determined in the sole discretion of the
Board), then the date when any installment of this Option would otherwise become
exercisable under the foregoing schedule shall be delayed for a period equal to
the duration of such leave of absence.
3.02. Periods of Nonexercisability. This Section 3.02 shall prevail
over any other portion of this Agreement. The Company shall have the right to
designate as many as two (2) periods of time, each of which shall not exceed
twelve (12) consecutive months in length, during which this Option shall not be
exercisable. The Company may only make such a designation if it reasonably
determines that such a limitation on exercise is reasonably likely to facilitate
(I) a lessening of any restriction on transfer pursuant to the Securities Act or
any state securities laws on any issuance of securities by the Company, (ii) the
registration or qualification of any securities by the Company under the
Securities Act or any state securities laws, or (iii) the perfection of any
exemption from the registration or qualification requirements of the Securities
Act or any applicable state securities laws for the issuance or transfer of any
securities. This limitation on exercise shall not alter the vesting schedule set
forth in Section 3.01 other than to limit the periods during which this Option
shall be exercisable. The Optionee shall be notified in writing in advance of
any such designation by the Company.
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ARTICLE 4. EXERCISE PROCEDURES.
4.01. Notice of Exercise.
A. The Optionee may exercise this Option by giving notice to
the Secretary of the Company. In the notice, the Optionee shall specify (I) the
election to exercise this Option; (ii) the number of Shares to be issued; and
(iii) the form of payment for such Shares. The Optionee shall sign the notice.
The Optionee shall deliver the notice to the Secretary or Assistant Secretary of
the Company; and at the time of giving the notice, the Optionee shall make
payment in a form permissible under Article 5 for the full amount of the
Purchase Price. The notice shall be in the form attached as Exhibit 4.01.
B. A representative of the Optionee may exercise the Option on
behalf of the Optionee in accordance with the procedures of Section 4.01A. In
addition to the procedures of Section 4.01A, the representative shall provide
proof satisfactory to the Company of the representative's authority as a
condition of the representative's right to exercise this Option.
4.02. Issuance of Shares. After receiving a proper notice of exercise
and full payment for the Shares, the Company shall issue a certificate or
certificates for the Shares subject to the Option exercised by the Optionee,
registered in the name of the Optionee (or a person set forth in Section 6.04C),
or, if so specified in the notice of option exercise, in the names of the
Optionee and his spouse as community property or as joint tenants with right of
survivorship. The Company shall not issue Optionee any fractions of Shares. The
Company shall pay the Optionee, in cash, the Fair Market Value of any fractions
of Shares. The Company shall deliver any certificates representing the Shares to
the Optionee no later than thirty (30) days after receiving proper notice and
full payment for the Shares.
ARTICLE 5. PAYMENT FOR STOCK.
The Optionee shall pay for the entire Purchase Price in United States
dollars, or, at the Optionee's discretion:
The Optionee may elect to surrender Shares, in form appropriate for
transfer, towards payment of the Purchase Price, provided that the Company has
closed an Initial Public Offering. The Shares surrendered shall be valued at
their Fair Market Value as of the exercise date. The Optionee may only surrender
Shares if they have an aggregate Fair Market Value of at least TEN THOUSAND
DOLLARS ($10,000).
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The combined amount paid in cash and the value of surrendered Shares
must equal the Purchase Price.
ARTICLE 6. TERM AND EXPIRATION.
6.01. Basic Term. This Option shall in any event expire on the tenth
(10th) anniversary of the Date of Grant unless extended due to a delay as
described in Section 3.02 with the delay occurring after the eighth (8th)
anniversary of the Date of Grant. If a delay in exercising this Option (as
described in Section 3.02) occurs after the eighth (8th) anniversary of the Date
of Grant, the term of this Option shall be extended by one day for each day of
such delay occurring after the eighth (8th) anniversary of the Date of Grant.
6.02. Termination of Service Resulting in Acceleration of Vesting. If
the Optionee's employment is terminated for any of the following reasons:
A. The Optionee's death, disability or incapacity;
B. Action by the Company pursuant to Section 9(d) of the
Employment Agreement between the Optionee and the Company, dated the date hereof
(the "Employment Agreement"), or otherwise without cause; or
C. Action by the Optionee pursuant to Section 9(e) of the
Employment Agreement, or otherwise for good reason; then, any portion of this
Option which is not then exercisable pursuant to Section 3.01 shall become
exercisable as of the date of termination of the Optionee's employment by the
Company (the "Termination Date").
6.03. Termination of Service Resulting in Termination of Nonvested
0ptions. If the Optionee's employment is terminated for any reason other than
set forth in Section 6.02 herein, then any portion of this Option which is not
then exercisable pursuant to Section 3.01 herein shall terminate on the
Termination Date. 6.04. Exercise of Options After Termination Date.
A. After the Termination Date, the Optionee may exercise any
portion of this Option (other than any portion which has terminated pursuant to
Section 6.03 hereof) on or before the ninetieth (90th) day after the end of the
calendar year in which the Termination Date occurs.
B. After the time period set forth in Section 6.04.A above has
expired, the Optionee shall no longer have any rights whatsoever hereunder.
C. All or part of this Option may be exercised at any time
before its expiration by the executors or administrators of the Optionee's
estate or by
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any person who has acquired this Option directly from the Optionee by bequest,
beneficiary designation or inheritance.
6.05. Leaves of Absence. For purposes of this Article 6, the employment
relationship shall be deemed to continue during any period when the Optionee is
on military leave, sick leave or other bona fide leave of absence (to be
determined in the sole discretion of the Board).
ARTICLE 7. LEGALITY OF INITIAL ISSUANCE.
Shares shall be issued upon the exercise of this Option only if the
Company has determined that (I) it and the Optionee have taken any actions
required by law to register the Shares under the Securities Act or to perfect an
exemption from the registration requirements thereof; (ii) any applicable
listing requirement of any stock exchange or automated quotations system on
which the Shares are listed has been satisfied; and (iii) any other applicable
provision of state or federal securities law has been satisfied.
ARTICLE 8. REGISTRATION RIGHTS.
8.01. Form S-8 Registration. From and after (I) the completion of an
Initial Public Offering and (ii) the expiration of any lock-up period set forth
in the Company's underwriting agreement with the managing underwriters) of the
Company's Initial Public Offering, the Company shall register the Shares on Form
S-8 for sale pursuant to employee benefit plans of the Company; provided that,
(x) the optionee has given the Company at least sixty (60) days' written notice
of Optionee's request to register the Shares and (y) the registration of the
Shares is permitted by the rules of the Securities and Exchange Commission.
8.02. No Other Registration Rights. Other than as set forth in Section
8.01 above, the Company may, but shall not be obligated to, register or qualify
the resale of Shares by the Optionee under the Securities Act or any other
applicable law. The Company shall not be obligated to take any affirmative
action in order to cause such a resale of Shares to comply with any law.
ARTICLE 9. RESTRICTIONS ON TRANSFER OF SHARES.
9.01. Restrictions. Regardless of whether the offering and sale of
Shares have been registered under the Securities Act or have been registered or
qualifiedunder the securities laws of any state, the Company may impose
restrictions upon the sale, pledge or other transfer of such Shares (including
the placement of
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appropriate legends on stock certificates) if, in the reasonable judgment of the
Company and its counsel, such restrictions are necessary or desirable in order
to achieve compliance with the Securities Act, the securities laws of any state
or any other law or with restrictions imposed by the Company's underwriters.
9.02. Investment Intent at Grant. The Optionee represents and agrees
that the Shares to be acquired upon exercising this Option will be acquired for
investment and not with a view to the sale or distribution thereof.
9.03. Investment Intent at Exercise. If the sale of Shares are not
registered under the Securities Act, but an exemption is available which
requires an investment representation or other representation, the Optionee
shall represent and agree at the time of exercise that the Shares being acquired
upon exercising this Option are being acquired for investment, and not with a
view to the sale or distribution thereof, and shall make such other
representations as are deemed necessary or appropriate by the Company and its
counsel.
9.04. Stockholders Agreement. Unless an Initial Public Offering has
been completed, the Optionee shall, upon exercise of any Options, execute and
deliver instruments necessary to cause the Optionee to become a party to the
Stockholders Agreement. Such instrument shall obligate the Optionee to vote his
Shares for the director nominees nominated by SACC or EJF.
9.05. Legend. All certificates evidencing Shares acquired under this
Agreement in an unregistered transaction shall bear the following restrictive
legends (and such other restrictive legends as are required or deemed advisable
under the provisions of any applicable law):
A. THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED OR
OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION THEREOF UNDER SUCH ACT
OR AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY AND ITS COUNSEL, THAT SUCH
REGISTRATION IS NOT REQUIRED; and
B. Any legend required by the Stockholders Agreement.
9.06. Removal of Legends. If, in the reasonable opinion of the Company
and its counsel, any legend placed on a stock certificate representing Shares
sold under this Agreement is no longer required, the holder of such certificate
shall be entitled to exchange such certificate for a certificate representing
the same number of Shares but lacking such legend.
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ARTICLE 10. SHARES AND ADJUSTMENTS.
10.01. General. If there is a subdivision of the outstanding Shares, a
declaration of a dividend payable in Shares, a declaration of a dividend payable
in a form other than Shares in an amount that has a material effect on the value
of Shares, a combination or consolidation of the outstanding Shares (by
reclassification or otherwise) into a lesser number of Shares, a
recapitalization or a similar occurrence, the Board shall make all appropriate
adjustments in both (I) the number of Shares covered by this Option; and (ii)
the Exercise Price.
10.02. Merger; Consolidation; Sale; Liquidation. If the Company is (I)
a party to a merger or consolidation and the Company is not the surviving
corporation, (ii) if there is a sale of all or substantially all of the
Company's assets other than a sale or transfer to a Subsidiary, or (iii) if
there is a dissolution or liquidation of the Company (each referred to herein as
a "Trigger Event"), the Optionee shall, upon a Trigger Event, have the right
(immediately prior to the Trigger Event) to exercise this Option in whole or in
part without regard to the vesting schedule set forth in Section 3.01. The
Option shall terminate after the Trigger Event has taken place. The Company
shall exercise its best efforts to keep Optionee informed in advance of when a
Trigger Event may or will occur.
10.03. Reservation of Rights. Except as provided in Articles 10 and 11,
the Optionee shall have no rights by reason of (I) any subdivision or
consolidation of shares of stock of any class; (ii) the payment of any dividend;
or (iii) any other increase or decrease in the number of shares of stock of any
class. Any issue by the Company of shares of stock of any class, or securities
convertible into shares of stock of any class, shall not affect, and no
adjustment by reason thereof shall be made with respect to, the number or
Exercise Price of the Shares subject to this Option. The grant of this Option
shall not affect in any way the right or power of the Company to make
adjustments, reclassifications, reorganizations or changes of its capital or
business structure, to merge or consolidate or to dissolve, liquidate, sell or
transfer all or any part of its business or assets.
ARTICLE 11. OPTIONEE PURCHASE RIGHTS.
If, at any time, or from time to time, prior to the Initial Public
Offering, the Company issues or sells any shares of its common stock (other than
shares issued to employees or directors pursuant to employee benefit plans and
shares issued in stock splits or dividends), the Company agrees to notify the
Optionee in writing of the terms of the issuance. The Optionee shall thereupon
be entitled to purchase
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from the Company a number of shares of common stock of the Company such that the
Optionee owns the same percentage of common stock of the Company after the
issuance as before the issuance. The Optionee's percentage ownership shall be
calculated assuming full exercise of this Option. The Optionee shall exercise
his purchase rights under this Article 11 within thirty (30) days from receipt
of notification from the Company. The Optionee shall purchase any shares
acquired under this Article 11 on the same terms and conditions as those
provided to the other investors in such offering.
ARTICLE 12. MISCELLANEOUS PROVISIONS.
12.01. Withholding Taxes. If the Company determines that it is required
to withhold foreign, federal, state or local tax as a result of the exercise of
this Option, the Optionee, as a condition to the exercise of this Option, shall
make arrangements satisfactory to the Company to enable the Company to satisfy
all withholding requirements.
12.02. Rights as a Stockholder. The Optionee shall not have any rights
as a stockholder with respect to any Shares subject to this Option until such
Shares have been issued as provided in Section 4.02.
12.03. No Employment Rights. Nothing in this Agreement shall be
construed as giving the Optionee the right to continue as an Employee. The terms
of the Optionee's employment with the Company are set forth in the Employment
Agreement. The Company reserves the right to terminate the Optionee's employment
at any time, with or without cause, subject to any written Employment Agreement
between the Optionee and the Company to the contrary.
12.04. Notice. Any notice required by the terms of this Agreement shall
be given in writing and shall be deemed effective upon personal delivery or two
(2) days after the date of deposit with the United States Postal Service, by
registered or certified mail with postage and fees prepaid and addressed to the
party entitled to such notice at the address shown below such party's signature
on this Agreement, or at such other address as such party may designate by ten
(10) days' advance written notice to the other party to this Agreement.
12.05. Entire Agreement. This Agreement constitutes the entire contract
between the parties hereto with regard to the subject matter hereof.
12.06. Choice of Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware (exclusive of
its laws
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regarding the conflict of laws), as such laws are applied to contracts entered
into and performed in such state.
12.07. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. THE OPTIONEE AND
THE COMPANY HEREBY CONSENT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN THE COUNTY OF THE COMPANY'S HEADQUARTERS (AT THE TIME ANY ACTION
IS INSTITUTED), AND IRREVOCABLY AGREE THAT, UNLESS BOTH PARTIES ELECT OTHERWISE,
ALL ACTIONS OR PROCEEDINGS RELATED TO THIS AGREEMENT SHALL BE LITIGATED IN SUCH
COURTS. THE PARTIES ACCEPT THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND WAIVE
ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREE TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT MAY BE MADE BY MAILING IT BY
REGISTERED OR CERTIFIED MAIL TO THE PARTIES AT THE ADDRESS PROVIDED ON THE
SIGNATURE PAGE HEREIN, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY THE PARTIES TO
BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. NOTHING HEREIN SHALL EFFECT
THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
ARTICLE 13. DEFINITIONS.
13.01. Board. Shall mean the Board of Directors of the Company, as
constituted from time to time.
13.02. Code. Shall mean the Internal Revenue Code of 1986, as amended.
13.03. Date of Grant. Shall mean the date on which the Board resolved
to grant this Option, which is also the date as of which this Agreement is
entered into.
13.04. Employee. Shall mean any individual who is a common law employee
of the Company or of a Subsidiary.
13.05. Exercise Price. Shall mean the amount for which one (1) Share
may be purchased upon exercise of this Option as specified in Section 1.01.
13.06 Fair Market Value. Shall mean as of the date of this Agreement,
ONE DOLLAR ($1.00) per share. After the date of this Agreement, it shall mean
for each share: (I) the average of the closing prices per share of the common
stock as reported in The Wall Street Journal for the last twenty (20) business
days prior to the
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exercise date if shares of the Common Stock are either listed on a national
securities exchange or traded on the NASDAQ/National Market System; (ii) the
average bid and asked prices for the last twenty (20) business days prior to the
exercise date as furnished by two (2) members of the National Association of
Securities Dealers, Inc., selected for that purpose from time to time by the
Company and reasonably acceptable to the Optionee if shares of the Common stock
are not so listed, admitted or traded; or (iii) the price determined below, if
the formulas set forth in clauses (I) and (ii) above are inapplicable:
The price, as of the exercise date determined by an investment banker
selected by the mutual agreement of the Company and the Optionee (the "Mutually
Acceptable Investment Banker"). If the parties are unable to select a Mutually
Acceptable Investment Banker, the price shall be determined, as of the exercise
date, by a single arbitrator selected in accordance with the provisions of the
American Arbitration Association located in Chicago. To the extent possible,
this arbitrator shall have at least ten (10) years of experience in the
investment banking industry and shall be familiar with valuing companies engaged
in the surgery center business.
13.07. Initial Public Offering. Initial Public Offering shall mean an
initial public primary offering by underwriters on a firm commitment or best
efforts basis in which the Common Stock is listed on a national securities
exchange or traded on the Automated Quotation System of the National Association
of Securities Dealers or other over-the-counter- market.
13.08. Option. Shall mean an employee stock option not described in
sections 422(b) or 423(b) of the Code granted under this Agreement and entitling
the Optionee to purchase Shares.
13.09. Purchase Price. Shall mean the Exercise Price multiplied by the
number of Shares with respect to which this Option is being exercised.
13.10. Securities Act. Shall mean the Securities Act of 1933, as
amended.
13.11. Share. Shall mean one (1) share of Common Stock, as adjusted in
accordance with Article 10 (if applicable).
13.12. Subsidiary. Shall mean any corporation, if the Company or one
(1) or more other Subsidiaries own, individually or collectively, not less than
fifty percent (50%) of the total combined voting power of all classes of
outstanding stock of such corporation.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed on its behalf by its officer duly authorized, and the Optionee has
personally executed this Agreement.
OPTIONEE:
---------------------------------
AUGUST X. XXXXXXX
Address:
-------------------------
-------------------------
COMPANY:
XXXXXX SURGERY CENTERS, INC., a
Delaware corporation
By
--------------------------------
Its
-------------------------------
Address: 0000 X Xxxxxx
Xxxxxxxxxx, XX 00000
EXHIBIT 4.01
OPTION EXERCISE FORM
Date:_________________
NONQUALIFIED STOCK OPTION
EXERCISE FORM
Xxxxxx Surgery Centers, Inc.
Attention: Secretary
----------------------------
----------------------------
The undersigned elects to exercise the option to purchase ___________
(________) shares of common stock (the "Shares") of Xxxxxx Surgery Centers,
Inc., ("Company"), in accordance with the nonqualified stock option granted to
the undersigned by Company as of , 1992, pursuant to a Nonqualified Stock Option
Plan and Agreement (the "Agreement").
Prior to the issuance of these Shares, I will make full payment of the
Purchase Price for the Shares by one of the following methods as indicated:
[ ] In cash in the amount of
[ ] By tender of Shares of the Company having a Fair Market Value
when combined with other forms of payment of not less than the
Purchase Price (shares may only be tendered if the Company has
completed an Initial Public Offering (as defined in the
Agreement)).
Please issue the Shares to ___________________________________[i.e.,
Optionee; Optionee and spouse as community property; or Optionee and spouse as
joint tenants]. .
I represent and agree that I am over eighteen (18) years of age, that I
am acquiring the Shares for investment and that I have no present intention to
transfer, sell or otherwise dispose of such Shares, except as permitted pursuant
to the Agreement and in compliance with applicable securities laws.
I further acknowledge and understand that the Shares must be held
indefinitely unless they are subsequently registered under the Securities Act or
an exemption from such registration is available. I further acknowledge and
understand that, except as set forth in the Agreement, the Company is under no
obligation to register the Shares and that, in the absence of registration, the
Shares may not be transferred. I understand that the instrument evidencing the
Shares will be imprinted with legends which prohibit the transfer of the Shares
unless they are registered or such registration is not required in the opinion
of counsel satisfactory to Company. I do not have any contract, agreement or
arrangement with any persons to sell, transfer or grant participations to such
person or to any third person with respect to any of the Shares.
I am aware of the adoption of Rule 144 by the Securities and Exchange
Commission, promulgated under the Securities Act, which permits limited public
resale of securities acquired on a nonpublic offering subject to the
satisfaction of certain conditions, including, among other things: The
availability of certain public information about Company, the resale occurring
not less than two (2) years after the party has purchased and paid for the
securities to be sold, the sale being through a broker in an unsolicited
"broker's transaction," and the amount of securities being sold during any three
(3)-month period not exceeding specified limitations (generally, one percent
(1%) of the total amount outstanding).
I agree to obtain the consent of my spouse to this exercise.*
My address of record is:
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-------------------------------------
and my Social Security number is:
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Very truly yours,
-------------------------------------
Name:
------------------------------
* The Consent of Spouse should be in the form attached to the Nonqualified Stock
Option Exercise Form.
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CONSENT OF SPOUSE
The undersigned, being the spouse of ______________________, does
hereby acknowledge that she has read and is familiar with the provisions of the
above Nonqualified Stock Option Exercise Form and the Agreement, and she hereby
agrees thereto and joins therein to the extent, if any, that her agreement and
joinder may be necessary.
DATED:
---------------------------
-------------------------------------
(Signature)
Print Name:
--------------------------
Receipt of the above is hereby
acknowledged:
XXXXXX SURGERY CENTERS, INC.
By
-------------------------------
Its
-------------------------------
Dated:
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